Whitley v. Seibel, 79-1042
| Decision Date | 01 February 1980 |
| Docket Number | No. 79-1042,79-1042 |
| Citation | 613 F.2d 682 |
| Parties | N. W. WHITLEY, Plaintiff-Appellee, v. George SEIBEL, Individually and as a police officer of the Chicago Police Department, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard F. Friedman, Corp. Counsel, Chicago, Ill., for defendant-appellant.
Donald T. Bertucci, Chicago, Ill., for plaintiff-appellee.
Before PELL, BAUER and WOOD, Circuit Judges.
Plaintiff brought this action under 42 U.S.C. §§ 1981, 1983, and 1985, alleging that his arrest by defendant George Seibel, an officer in the Chicago Police Department, was without probable cause and resulted in his confinement in deprivation of his constitutional rights. A jury found for plaintiff and awarded him $40,000 damages.
Questions are raised as to whether plaintiff is collaterally estopped from relitigating probable cause since probable cause had been found at a criminal preliminary hearing before a state judge; whether Seibel had a duty to pursue the truth of plaintiff's alibi; whether the trial judge's instruction to the jury explaining the purpose and conduct of a state criminal preliminary hearing was in error; and, whether the verdict was excessive.
A brief review of the evidence is necessary. In 1974 James and Darlene Williams were robbed, and Mrs. Williams sexually assaulted, by an assailant who followed them into their home. It is claimed that the Williams originally reported only an assault and battery and not an armed robbery and sexual assault. Mrs. Williams viewed police photos and identified the picture of a Ronald Wells as the likely assailant. The defendant Seibel was assigned to investigate the case. About four days later the plaintiff was stopped and arrested by two police officers for a traffic violation. By coincidence a brother-in-law of Mrs. Williams happened by and advised the officers that the traffic violator, the plaintiff, was also the assailant of the Williams. Plaintiff was taken to the police station on the traffic violation where he was interviewed by defendant. There is no dispute about the fact that the plaintiff told the defendant something about his employment and his alibi that at the time of the Williams crime he was elsewhere attending to business at the office of an insurance company. The defendant says the information was vague and the plaintiff claims it was specific. The Williams' identified the plaintiff as the assailant. An assistant state's attorney reviewed the evidence against the plaintiff and declined to authorize his arrest on the felony charges because of the previous photo identification by Mrs. Williams of Wells as the assailant and because the plaintiff claimed an alibi. The defendant was directed to do more work on the case and to check the alibi. The plaintiff was admitted to bail. The defendant testified that subsequently he endeavored unsuccessfully to locate the insurance office and plaintiff's place of employment. The defendant did not contact the plaintiff for additional information. About a week later the defendant arrested the plaintiff on the felony charge. After the arrest the defendant contacted another assistant state's attorney for retroactive authorization to make the arrest. That assistant state's attorney testified that defendant did not advise him of the claimed alibi, but only that the previous assistant state's attorney who had considered the evidence had concluded that there was an identification problem. That had now been cleared up, he testified he was told by defendant. The defendant filed a report indicating that he was able to establish that the plaintiff was not at the insurance office as claimed. A preliminary hearing was held about a month later. The plaintiff offered nothing in his own behalf including any alibi claim. Another assistant state's attorney, the third, was present at that hearing and later testified that the defendant told him that the alibi had been determined to be without merit. Judge Wayne Olson of the state court found probable cause to exist on the robbery and sexual assault charges, and thereafter plaintiff remained in jail for a total of 113 days until an assistant state's attorney asked leave to nolle prosequi the charges on the ground that the insurance company alibi had been verified. Two witnesses, employees of the insurance company, were present to verify the truth of the plaintiff's alibi. The case was dismissed.
It is the defendant's position that since Judge Olson at the preliminary hearing found probable cause the plaintiff is collaterally estopped from relitigating that issue in this civil rights action. Probable cause for the plaintiff's arrest is at the core of this case. 1 The district court, relying on Brubaker v. King, 505 F.2d 534 (7th Cir. 1974), reasoned that a different standard of probable cause is applicable in a criminal preliminary hearing than is applicable in a civil rights action questioning the resulting arrest and confinement. Brubaker was an appeal from a grant of summary judgment in favor of law enforcement officers in a section 1983 civil rights action alleging false arrest and imprisonment. A state magistrate had found probable cause for the arrest of Brubaker, and as here, the criminal charges were later dismissed on motion of the state prosecutor. We distinguished the test to determine probable cause in a criminal preliminary hearing from the applicable test to be applied in a civil rights action for damages. The issues not being identical in the two situations collateral estoppel was not applicable.
We adopted the reasonable man standard for tort actions against arresting officers. That standard was considered to be a less stringent standard than the criminal definition of probable cause and therefore would impose lesser burdens on officers. If the criminal law standard was applied, the civil damage fate of officers would depend upon how the magistrate might ultimately resolve the often difficult issue of probable cause. It was therefore concluded that an officer had a defense to a section 1983 damage action if the officer had acted in good faith with a reasonable belief in the constitutionality of his conduct. Whether the state judge found probable cause or whether he did not does not of itself resolve a section 1983 issue. The same standard for section 1983 cases applies in both those instances. The officer in a civil rights action although subject to the less stringent standard cannot avoid the magistrate's finding of no probable cause in one instance but rely on a finding of probable cause in the other instance. It works both ways. We find the issue to be controlled by Brubaker.
We must next consider whether the defendant's conduct is actionable under the applicable section 1983 standard. The plaintiff argues that the defendant failed to prove a good faith reasonable belief of probable cause to arrest him on the felony charges. The burden of proof, however, is on the plaintiff to prove the officer's lack of good faith or reasonable cause to believe he was acting constitutionally. The defendant argues that the plaintiff seeks to impose on the officer at his peril the constitutional duty to search out and find without error all evidence tending to exonerate a suspect. The defendant relies on Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), in support of his view of the limitation on an officer's responsibility.
In Baker, the plaintiff brought a section 1983 action after he was arrested and detained for eight days on a valid warrant that was intended for his brother. The plaintiff continually maintained his innocence. Fault was alleged to lie with the sheriff for failing to institute proper identification procedures. The Court found no constitutional violations cognizable under section 1983. The Constitution, it was stated, does not guarantee that only the guilty will be arrested nor that every conceivable step be taken at whatever cost to eliminate the possibility of convicting an innocent person. Id. at 2696. It was explained that the fourteenth amendment does not protect against all deprivations of liberty, but only those accomplished without due process of law. No due process violation was found. The sheriff executing the arrest warrant, it was held, was not required to investigate every claim of innocence because the ultimate determination of guilt lies with judge and jury.
The present case may be distinguished from Baker. First, there was no valid warrant executed. The defendant officer made his own determination about the arrest later in the investigation and then accomplished the arrest without a...
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