676 F.2d 245 (7th Cir. 1982), 80-2522, Whitley v. Seibel

Docket Nº:80-2522, 80-2565.
Citation:676 F.2d 245
Party Name:N. W. WHITLEY, Plaintiff-Appellee, Cross-Appellant, v. George W. SEIBEL, individually and as a police officer of the Chicago Police Department, Defendant-Appellant, Cross-Appellee.
Case Date:March 24, 1982
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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676 F.2d 245 (7th Cir. 1982)

N. W. WHITLEY, Plaintiff-Appellee, Cross-Appellant,


George W. SEIBEL, individually and as a police officer of

the Chicago Police Department,

Defendant-Appellant, Cross-Appellee.

Nos. 80-2522, 80-2565.

United States Court of Appeals, Seventh Circuit

March 24, 1982

Argued Dec. 11, 1981.

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Cheryl L. Smalling, Corp. Counsel, Chicago, Ill., for defendant-appellant/cross-appellee.

Donald T. Bertucci, Chicago, Ill., for plaintiff-appellee/cross-appellant.

Before CUMMINGS, Chief Judge, SPRECHER and POSNER, Circuit Judges.

CUMMINGS, Chief Judge.

N.W. Whitley was arrested and charged with crimes for which he had a complete alibi defense. Nonetheless he remained in the Cook County Jail from October 14, 1974, the date of his arrest, until February 3, 1975, when the state asked leave to nolle prosequi the criminal charges and the case was dismissed. Thereafter Whitley filed a damage action under 42 U.S.C. § 1983. We reversed the first judgment in Whitley's favor, Whitley v. Seibel, 613 F.2d 682 (7th Cir. 1980) (Whitley I), for inadequate jury instructions on an important issue in the case. A new trial ensued, before Judge McGarr, and the jury awarded Whitley $60,000 in damages. The court also awarded Whitley's attorneys $10,000 in fees under

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42 U.S.C. § 1988. The defendant Seibel now appeals a second time, arguing that (1) Whitley is collaterally estopped from bringing a Section 1983 suit under Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308; (2) the jury instructions in the second trial did not cure the defect from which the earlier proceedings had suffered; and (3) the damages awarded were excessive and not supported by the evidence. The plaintiff's cross-appeal asks us to find that the trial judge abused his discretion in awarding only $10,000 in fees. We affirm the decision below in all respects.


The facts that underlie Whitley's lawsuit are fully set out in our earlier opinion, Whitley I, 613 F.2d at 684-685. Only those relevant to our resolution of this appeal are repeated here. Any ambiguities in the evidence are resolved as the jury must have resolved them in reaching its decision.

Whitley was arrested on a minor traffic charge on October 7, 1974. As he was being taken into custody, a passerby identified him as the perpetrator of an armed robbery and sexual assault that had occurred on the north side of Chicago on the afternoon of October 3. At the station house, the victims of the crimes agreed that Whitley was their assailant, although they had tentatively identified another man earlier. Whitley told Officer Seibel that the identification must be mistaken: he had been at the Des Plaines office of an insurance company on October 3, picking up a claim check. He gave Seibel the business card of the employee he had seen there and the name and address of a shoe store in Chicago where he worked part-time and had cashed the check. On the advice of an assistant state's attorney, Seibel decided not to arrest Whitley for the robbery and assault until the alibi could be checked out and the conflicting identifications resolved.

On October 14, Seibel arrested Whitley for the robbery and assault. In the interval between the first and second arrests Seibel had called a telephone number Whitley had given him for the insurance company and found it inaccurate. He had also made inquiries in the shoe stores within a two-block area of Broadway, including the one where Whitley was an occasional employee, without finding out anything about Whitley. He had not pursued the eyewitness identification further, or sought more information from Whitley. Although that was the extent of his investigation, Seibel told two assistant state's attorneys, one of whom presented the state's case at the preliminary hearing, that he had checked out Whitley's alibi and that Whitley was definitely not in Des Plaines on the afternoon of October 3.

On November 14, 1974, Whitley went before Judge Wayne Olson in Branch 44 of the Municipal Court. The purpose of the hearing Judge Olson conducted was to determine whether there was probable cause to believe that the crimes had been committed and whether there was probable cause to believe that Whitley had committed them. Appearing at that hearing were the assistant state's attorney; the victims, who were by now prepared to identify Whitley positively; Whitley; and Steven Bernstein, the attorney Whitley had retained two weeks earlier. Although Whitley was entitled under Illinois law to present evidence of his alibi defense, he did not do so. Judge Olson found probable cause to bind Whitley over to the grand jury for indictment.

After the preliminary hearing, Whitley's attorney continued the efforts he had begun earlier to confirm Whitley's alibi. In January, Mr. Bernstein presented the information he had collected to yet another assistant state's attorney. After some consultation the prosecution moved, on the day Whitley's trial was scheduled to begin, to drop the case. Throughout this time Whitley remained incarcerated, unable to post the bond set initially at $10,000 but raised after a bond hearing on October 15 to $25,000.


Seibel's first line of attack is that Whitley's Section 1983 suit is basically an action for false arrest and that Whitley is

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collaterally estopped 1 from bringing it by Judge Olson's finding of probable cause in the preliminary hearing. When this same argument was made in Whitley I, we rejected it on the basis that the issues in a preliminary hearing and in a Section 1983 suit were not the same. 613 F.2d at 685, relying on Brubaker v. King, 505 F.2d 534 (7th Cir. 1974). The Supreme Court in Allen v. McCurry, 449 U.S. 90, 102 n. 18, 101 S.Ct. 411, 419 n. 18, 66 L.Ed.2d 308 has explicitly disapproved of our reasoning in Brubaker : if a Section 1983 plaintiff must show both that an arrest was illegal and that the arresting officer had no reasonable, good-faith belief in its legality, the determination that an arrest is supported by probable cause (and therefore legal) logically undercuts the Section 1983 claim.

Seibel reads the Supreme Court's criticism of Brubaker as a directive to apply collateral estoppel to bar Whitley's suit. We take a narrower view of the significance of Allen's footnote 18. Allen holds that collateral estoppel is as applicable to Section 1983 suits as it is to other kinds of litigation; Allen does not adopt any "new, more stringent doctrine of collateral estoppel." 449 U.S. at 95 n. 7, 101 S.Ct. at 415 n. 7. Traditionally the criteria that must be satisfied before collateral estoppel can appropriately be invoked are:

whether the issue sought to be concluded is the same as that involved in the prior action; was litigated in the prior action; was in fact judicially determined in the prior action; and whether the judgment in the prior action was dependent upon the determination made of the issue. Only if all four of these questions are answered in the affirmative is the issue concluded under the doctrine of collateral estoppel.

1B Moore's Federal Practice, P 0.443(1) (1965) (footnotes omitted, emphasis added)

At most, the footnote in Allen suggests that we erred in thinking that there could never be identity of issues in a preliminary hearing and a Section 1983 suit. Our task here is to examine the criteria as they apply to Whitley's suit. 2

A. Identity of Issues

The first step is to determine what the issues were in the preliminary hearing and in Whitley's Section 1983 suit. As noted above, Judge Olson was required to decide whether there was probable cause to believe that the crimes had been committed by Whitley. In practice police records and eyewitness testimony would often be dispositive. 3 Whitley's Section 1983 suit was based on two specific derelictions by Seibel: his failure to investigate in reasonable fashion a plausible alibi given by a person in custody; 4 and his misrepresentations to the

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prosecuting authorities that he had checked the alibi and found it to be false. 5 Thus this Section 1983 suit attacked the integrity, rather than the sufficiency, of the evidence. Unlike Brubaker, 6 it did not seek to relitigate the probable cause finding, but charged that the arresting officer's bad faith vitiated the finding. Although we concede that there will be identical issues in a preliminary hearing and a Section 1983 suit when only the legality of the arrest is at issue, we do not find that proposition applicable to this case.

B. Litigation in the Prior Proceeding

Whitley did not put on his alibi defense at the preliminary hearing, and so did not attack the veracity of the state's case against him. Ordinarily an issue that is not litigated in one proceeding is not barred later-that is a basic difference between claim preclusion (res judicata ) and issue preclusion (collateral estoppel). 7 Seibel argues in effect that Whitley waived his alibi defense by not raising it.

There is some authority in this Circuit for treating the failure to raise an issue as tantamount to waiver and for giving the waiver collateral estoppel effect. 8 But there must be "reason to believe that the failure to litigate the matter in fact was a recognition of the opposing claim." Palma v. Powers, 295 F.Supp. 924, 936 (N.D.Ill.1969). In Palma, that inference was possible: the...

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