385 F.3d 1043 (7th Cir. 2004), 02-3669, Anderer v. Jones

Docket Nº:02-3669.
Citation:385 F.3d 1043
Party Name:Joseph R. ANDERER, Jr., Plaintiff-Appellant, v. Police Chief Arthur JONES, et al., Defendants-Appellees.
Case Date:October 06, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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385 F.3d 1043 (7th Cir. 2004)

Joseph R. ANDERER, Jr., Plaintiff-Appellant,

v.

Police Chief Arthur JONES, et al., Defendants-Appellees.

No. 02-3669.

United States Court of Appeals, Seventh Circuit

October 6, 2004

Argued Feb. 25, 2003

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William R. Rettko (argued), Rettko Law Offices, Brookfield, WI, for Plaintiff-Appellant.

Rudolph M. Konrad (argued), Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants-Appellees.

Before POSNER, COFFEY, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Joseph R. Anderer, Jr. is a former Milwaukee police officer who was arrested for physically abusing a child. Though he was not prosecuted, Anderer was terminated following an internal affairs investigation into this incident. Anderer sued the police chief, other officers involved in his arrest, and the City of Milwaukee for violating his Fourth Amendment rights by arresting him without probable cause, and for terminating his employment after his representative spoke out against the arrest and Anderer filed this lawsuit. Finding that probable cause existed at the time Anderer was arrested and that the speech at issue was not protected by the First Amendment,

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the district court granted summary judgment to defendants. We agree with the district court's decision and affirm.

I. BACKGROUND 1

On April 17, 2001, Milwaukee police officer Joseph Anderer and several other officers arrested four juveniles for burglarizing a boat. After the juveniles were handcuffed, and while they were being escorted to the patrol cars, one 12-year-old boy (whom we will call JR) started shouting that one of the officers who was escorting him to the car, Officer Jeffrey Cook, was touching him on the buttocks and trying to rape him. Three of the juveniles were then transported to the police station by Officer Cook and his partner Officer Jeffrey Logan, while Sergeant Michael Jones, Officer Janice Shoman, Anderer, and JR remained behind. JR was placed in a patrol car and driven to the station by Anderer, while Sgt. Jones interviewed witnesses before returning to the station.

Once Anderer and JR arrived at the station, several officers noticed that JR was bleeding from the nose and mouth and had blood on his clothing. Lieutenant Kim Stack asked JR what happened, and he said that Anderer hit him in the face. When Sgt. Jones heard Lt. Stack talking to JR, he asked JR what had happened to him, and JR said that Anderer hit him. Sgt. Jones then asked Anderer how JR had received the bloody nose, to which Anderer responded, "how would I know ... I just transported him." Several other officers also interviewed JR, including Lt. Mary Hoerig and Detective William Smith of the Internal Affairs Department (IAD), and he told them all that he had been hit in the face by Anderer.

When Det. Smith interviewed him, JR explained the details of the burglary for which he had been arrested. JR said that when he was placed in Anderer's patrol car, Anderer did not immediately shut the door, but instead asked him questions about what JR had been saying Officer Cook did to him. JR then said that when he told Anderer that Officer Cook nudged him in the buttocks with a flashlight, Anderer started yelling at him and told him he shouldn't be making up "bullshit lies." JR told Det. Smith that he got smart with Anderer, ignored him, and looked away. JR stated that when he turned back to face Anderer, Anderer struck him in the face and caused his nose and mouth to bleed. 2 JR added that while he was being transported to the station, Anderer was yelling at him and saying "do you understand me?", and at one point stopped the car, opened the back door, and said he was going to "whip [JR's] ass." JR said he thought they were alone when all of this occurred and did not know if anyone else had witnessed it.

While others were talking to JR, Officer Cook contacted JR's mother to inform her that JR had been arrested. JR's mother admitted that she was not surprised that JR had been arrested for burglary and advised Officer Cook that JR was taking several prescription medications, including two that Officer Cook recognized as pills to "help control a person's mental state." She also told him that JR had not taken his medication that day and needed to be released from custody as soon as possible. Officer Cook informed Sgt. Brunson and IAD Detectives Harrison and Smith that he had been in contact with JR's mother and that JR had been prescribed a variety

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of drugs that he had not taken all day and should be processed as soon as possible.

Det. Smith attempted to interview Officers Cook and Logan about the facts surrounding JR's arrest and the cause of his injuries, but they refused to give a statement without police union representatives present. Det. Smith interviewed Sgt. Jones, who indicated that he was the last person to leave the scene of the arrest and that he had not seen any sign of injury to JR. Sgt. Jones informed Det. Smith that he saw no blood on JR at the scene, and probably would not have noticed the cuts on the inside of JR's lips, but there was enough blood on his shirt at the station that he would have noticed it if it had been there earlier. Sgt. Jones then relayed to Det. Smith the substance of his interview with JR, in which JR detailed the events that resulted in his arrest and the interactions with Anderer that resulted in JR's bloody nose and lip.

Detectives Smith and Harrison then interviewed Officer Janice Shoman, who also provided details about JR's arrest. She indicated that she left the scene to pursue another crime before JR was transported to the station, but before she left she saw Anderer with JR in the back of Anderer's car. She could not recall if JR had handcuffs on, but did not see any physical confrontation between JR and Anderer. She stated that she did not see any blood or injury on JR, and said she would have noticed if there had been blood on his shirt.

Anderer refused to give a formal statement without union representation, but at one point asked, "off the record," 3 "What did he say I hit him with?" When he was told by one officer that JR said he had punched him in the face, Anderer stated that he was a 200 pound man and if he had punched JR in the face it would have left bruises on JR. Anderer then let the investigating officers inspect his hands, but no photographs were taken, as there did not appear to be any marks or injuries on them. Anderer did not provide any explanation for how JR received the cuts and bloody nose. He did not indicate that there had been any force exercised in effecting the arrest, nor did he suggest that any kind of accident or incident had occurred on the way back to the station. Anderer states that during the course of his "off the record" conversations with them, Detective Harrison, Lt. Stack, and Officer Cook told him that they thought JR's claim was bogus, to which Anderer responded to Officer Cook that he thought was going to get " Driebeled." 4

Lt. Hoerig placed a call to Milwaukee Police Chief Arthur Jones to apprise him of the situation. Chief Jones asked Lt. Hoerig if she thought there was probable cause to arrest Anderer for physical abuse of a child, in violation of WIS. STAT. § 948.03. Lt. Hoerig informed Chief Jones that she believed there was probable cause to arrest, and the investigating detectives concurred. Chief Jones asked Lt. Hoerig if she would arrest Anderer if he were a private citizen, and Lt. Hoerig indicated that she would. Chief Jones then ordered Anderer's arrest.

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Immediately following his arrest, Anderer was taken to the Milwaukee County Criminal Justice Facility, where he was held for twelve hours before being released without bail. That afternoon, April 18, Anderer appeared at the Deputy District Attorney's office to make a statement, but because the union attorney was not present, his statement was to be rescheduled. On April 19, after being authorized by Anderer, union president Bradley DeBraska told a local TV station that Anderer was arrested without probable cause because of vindictiveness of the IAD Unit due to prior run-ins between Anderer and one of the IAD investigators, and the union was "hoping and praying" Anderer would sue the police department to correct these wrongs.

On June 7, the district attorney's office decided not to pursue the criminal charges against Anderer with respect to JR's accusation. At that time, a local Milwaukee television station reported that charges would not be pursued and that Anderer had retained an attorney to file a complaint against the Milwaukee Police Department and its police chief. On June 13, the reopened criminal investigation into JR's allegations was closed and no further information was developed to further a potential prosecution. On June 19, Anderer was required to give a statement to the IAD for the purpose of a work-rule-violation investigation of his excessive use of force.

On July 2, Anderer filed suit in federal district court alleging violations of his civil rights for arresting him without probable cause with respect to JR's accusation. On July 6, the IAD commander issued charges against Anderer alleging that he violated rules and regulations with respect to JR's arrest, and in doing so he quoted from the allegations in Anderer's complaint. On July 17, Chief Jones terminated Anderer's employment, which Anderer has appealed to the City's Fire and Police Commission. Anderer then filed an amended complaint, adding a count alleging that he was terminated in retaliation for exercising his First Amendment rights.

Defendants filed a motion for summary judgment, claiming that there was probable cause to arrest Anderer and that his First Amendment count failed to state a claim for relief. The district court granted summary judgment on Anderer's Fourth and First Amendment claims,...

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