Chicago, Illinois 60604 November 19, 2007 Before Hon. KENNETH F. RIPPLE, Circuit… v. No. 05 C 101 VAUGHN NORTON and TOWN Theresa L. Springmann, Judge. OF ORLAND

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
November 19, 2007
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3174
RYAN L. BELCHER and DARAINA Appeal from the United States
GLEASON, District Court for the Northern
District of Indiana, Fort Wayne
Plaintiffs-Appellants, Division.
v. No. 05 C 101
VAUGHN NORTON and TOWN Theresa L. Springmann, Judge.
OF ORLAND,
Defendants-Appellees.
O R D E R
The opinion of this court issued on August 15, 2007, is amended, as follows:
At slip opinion page 21, line 16 (before Section “C.”), after the word “analysis.” add:
We note that, in establishing their substantive due process claim, the plaintiffs
will have to overcome two hurdles, neither of which was addressed in detail by
the parties in their briefing before this court. First, this court has held that
where “actions fall[] clearly within the ambit of those activities regulated by
the Fourth Amendment,” the Fourth Amendment provides the appropriate
standard for evaluating the claim, and “there [i]s no need for the district court
to further analyze the case under the strictures of the Fourteenth
Amendment.” Kernats v. O’Sullivan, 35 F.3d 1171, 1182 (7th Cir. 1994)

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No. 06-3174 Page 2
(citing Albright v. Oliver, 510 U.S. 266 (1994), and Graham v. Connor, 490
U.S. 386 (1989)). Thus, in order to establish a substantive due process
violation, the plaintiffs must show that the deputy’s allegedly extortionate
actions were not part and parcel of a seizure within the meaning of the Fourth
Amendment. Additionally, apart from the Fourth Amendment issue, the
plaintiffs must establish that the officer’s actions impinged a fundamental
liberty interest as set forth in Washington v. Glucksberg, 521 U.S. 702 (1997).
Because we neither have the benefit of a uniform version of the facts nor of
thorough briefing on these issues, we express no opinion regarding whether,
on remand, the plaintiffs will be able to distinguish sufficiently their claims
from others covered by our Fourth Amendment case law or from those which
do not involve a fundamental liberty interest.
Further, upon consideration of the petition for rehearing en banc filed by
Defendants-Appellees on August 29, 2007, no judge in active service has requested a
vote thereon and the judges on the original panel have voted to deny the petition.
Accordingly,
IT IS ORDERED that the petition for rehearing en banc is hereby DENIED.

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