168 F.3d 949 (7th Cir. 1999), 97-3295, Qian v. Kautz

Docket Nº:97-3295.
Citation:168 F.3d 949
Party Name:Xing QIAN, Plaintiff-Appellant, v. James R. KAUTZ, as the Chief of Police of the Long Beach Police Department, et al., Defendants-Appellees.
Case Date:February 16, 1999
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 949

168 F.3d 949 (7th Cir. 1999)

Xing QIAN, Plaintiff-Appellant,


James R. KAUTZ, as the Chief of Police of the Long Beach

Police Department, et al., Defendants-Appellees.

No. 97-3295.

United States Court of Appeals, Seventh Circuit

February 16, 1999

Argued Feb. 9, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied March 16, 1999.

Page 950

[Copyrighted Material Omitted]

Page 951

Daniel H. Pfeifer, Jeffrey J. Stesiak (argued), Jon A. Criss, Sweeney, Pfeifer & Blackburn, South Bend, IN, for Xing Qian.

Jeffrey L. Thorne, Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, Michigan City, IN; William W. Kurnik (argued), Kurnik, Cipolla & Barasha, Arlington Heights, IL, for James R. Kautz, Long Beach Police Dept., Town of Long Beach, Todd A. Bullis, and other unknown Defendant Police Officers.

Martin W. Kus (argued), Newby, Lewis, Kaminiski & Jones, LaPorte, IN, for Bob Blair.

Before FLAUM, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

When the events leading to this lawsuit began to unfold, ambiguous behavior combined with a severe language barrier led to the arrest of Xing Qian. At a critical point, however, the police concluded that Qian (whose lawyer identifies this as his surname) could be released. Because he did not want to pay for a hotel room, they then re-arrested him, consigned him to the drunk tank, and failed to recognize that he was suffering from a serious medical condition. This case is the ultimate consequence of those events. The district court granted summary judgment for the defendants on all counts, but we have concluded that there are significant disputed issues of fact that require further proceedings and we therefore remand for that purpose.


Qian immigrated to the United States from China in 1986, settling initially in Mundelein, Illinois. In April 1993, he was involved in a car accident that left him subject to recurring headaches and dizziness. Soon thereafter, he moved to Ohio to take a job in a friend's restaurant. The headaches persisted, however, so Qian decided to return to Illinois to see the doctor who had treated him after the accident. A few days before the

Page 952

July 4th holiday in 1993, Qian was driving to Illinois from his Ohio home to revisit his doctor. Tired and dizzy while he was driving, he became lost in Long Beach, Indiana. He wound up in a residential area, where he lost control of his car, struck a wooden planter, drove up the curb, crossed several lawns and driveways, and eventually stopped in the bushes some 100 feet later. Qian himself then asked one of the neighbors to call the police.

When police officer Todd Bullis arrived, shortly after 3:00 p.m., he observed that Qian was walking around slightly slumped, unkempt, and unsteady. Bullis thought Qian's speech was odd, perhaps because it was slurred, or perhaps because of his heavy Chinese accent. 1 Bullis inspected the car, which showed no signs on the inside of a violent impact and did not contain any alcohol or other drugs. He also inspected Qian and smelled no alcohol on him. Nonetheless, Bullis decided to arrest Qian on suspicion of operating a vehicle while intoxicated.

At the Long Beach police headquarters, Qian had to be helped out of the car. Police Chief James Kautz thought that Qian was unstable on his feet and was speaking with slurred speech. Both Kautz and Bullis asked Qian a few times whether he was all right, and Qian replied in the affirmative. Qian consented to a breathalyzer test and twice blew a 0.0% result. Nevertheless, Bullis thought drug use was still a possibility, and so he took Qian to the local hospital for blood and urine tests. Hospital personnel performed those tests and also examined Qian. At the same time, Bullis discovered that Qian had about $1000 in cash with him, which he counted in the presence of a hospital security guard and returned to Qian. Bullis and Qian then returned to the police station to await the test results. Soon thereafter, the hospital called with the results of the "Stat 9," a urine test that can detect the presence of nine high-profile drugs. The results were negative. Only the blood test results remained to be reported.

Bullis then tried calling some of the telephone numbers he found in Qian's wallet, but he could not find anyone to whom Qian could be released. He also unsuccessfully tried to contact the local prosecutor. An investigator at that office suggested that the police might take Qian to a local hotel and seek an arrest warrant later if the blood tests came back positive. Bullis thought this a sensible course of action, and with Kautz's approval, he drove Qian to a local Red Roof Inn. Here the facts are confused, but according to Qian, he did not understand what was going on and did not want to use his money to pay for a hotel room. Bullis later testified at his deposition that he intended to leave Qian on his own at the hotel and that if Qian had rented a room he would no longer have been detained. Instead, however, when Qian refused to book the room, Bullis decided to take him back into custody and charge him with Operating While Intoxicated (OWI), despite the fact that all evidence collected to that point indicated that...

To continue reading