## Facts

- Horst Kraus and his wife, Gigi, lived in and owned a home in Barrington Hills, Illinois.
- The Krauses operated “The Happy Medium Unlimited” out of their home—an association of adult heterosexual couples (married and unmarried) who met periodically for discussion and social association regarding sexual mores, and who also engaged in consensual partner-swapping (“swinging”).
- The group reportedly involved roughly 250 couples from Illinois, Wisconsin, and Indiana; attendees were asked to make donations to help cover meal costs.
- In 1981, Kraus met with a Cook County vice-squad commander, fully described the group’s activities, and was told the activity was legal if it was consensual and private.
- Reporters for a local newspaper gained access by posing as a couple and later published a detailed article describing the gatherings.
- After the article, the Village’s officials allegedly expressed hostility toward the organization and sought ways to stop it, including statements to “do everything to get rid of it.”
- According to the complaint, Village police then conducted surveillance focused on Kraus’s home, recorded visitors’ license plates, and were instructed to ticket vehicles associated with the gatherings; the complaint also alleged intensified police presence (including traffic-related tactics) in the area on meeting nights.
- Village zoning officials also contacted Kraus asserting that the home gatherings violated the local zoning code and pursued enforcement.
- Kraus filed a federal action under 42 U.S.C. § 1983 seeking injunctive relief and damages, alleging that the Village and its officials used police power and zoning enforcement to interfere with his constitutional rights, including freedom of association and related protections.
- The defendants moved to dismiss; the court treated the factual allegations as true for purposes of that motion.

## Issues

1. Whether Kraus plausibly alleged a deprivation of rights secured by the Constitution—particularly First Amendment associational and expressive rights—based on claimed surveillance, ticketing, and zoning enforcement aimed at shutting down his group.
2. Whether municipal use of zoning and policing, if allegedly motivated by hostility to lawful private adult associations and discussion, can support a § 1983 claim at the pleading stage.
3. Whether the complaint stated any additional federal constitutional claims beyond the core First Amendment-based theory, or whether certain theories were legally insufficient and should be dismissed.

## Decision

- The court granted the motion to dismiss in part and denied it in part.
- The court held that Kraus stated a viable § 1983 theory insofar as he alleged that Village officials acted to suppress or punish protected association and expression (including discussion and advocacy concerning sexual mores), and that such governmental action could not be justified merely because the conduct was viewed as offensive or immoral.
- The court allowed the case to proceed on the claims tied to interference with First Amendment-related activity through alleged harassment and targeted enforcement.
- The court dismissed other portions of the complaint to the extent they did not identify a cognizable federal constitutional violation or were not adequately tied to protected activity, narrowing the case to its legally sufficient theories.

## Legal Principles

- A § 1983 plaintiff must allege (1) action under color of state law and (2) deprivation of a right secured by the Constitution or federal law.
- On a Rule 12(b)(6) motion, the court accepts well-pleaded factual allegations as true and asks whether the complaint states a plausible claim for relief.
- First Amendment protection does not depend on whether the ideas or conduct associated with the speech are socially acceptable; moral disapproval is not, by itself, a basis for government suppression of speech or association (including advocacy relating to sexual behavior).
- Government officials may not use police powers or regulatory tools (such as zoning enforcement) as a pretext to burden or punish protected speech or association; allegations of retaliatory, selective, or harassing enforcement tied to protected activity can state a § 1983 claim.
- Not every dispute involving zoning enforcement or police attention becomes a federal case; the complaint must connect the challenged governmental conduct to a specific federal constitutional protection.

## Conclusion

Kraus plausibly alleged that Barrington Hills officials used surveillance, ticketing, and zoning enforcement not as neutral regulation, but to shut down and deter participation in an association that engaged in discussion and advocacy about sexual mores, activity the First Amendment can protect even if many find it distasteful. The district court therefore denied dismissal as to the core § 1983 claims grounded in interference with protected association and expression, while granting dismissal as to other, insufficiently stated constitutional theories, leaving a narrower case to proceed.


Kraus v. Village of Barrington Hills, 571 F. Supp. 538 (1982)