Tikalsky v. City of Chicago

• Citation: 687 F.2d 175
• Decision Date: 02 August 1982
• Docket Number: No. 81-2822,81-2822
• Parties: Mary Ann TIKALSKY, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 175

687 F.2d 175

Mary Ann TIKALSKY, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees.

No. 81-2822.

United States Court of Appeals Seventh Circuit.

Argued April 16, 1982.

Decided Aug. 2, 1982. ^*

Mary Rita Luecke, Chicago, Ill., for plaintiff-appellant.

Jerome A. Siegan, Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, Chief Judge, GIBSON, Senior Circuit Judge, ^** and CUDAHY, Circuit Judge.

CUMMINGS, Chief Judge.

On the morning of February 15, 1978, Mary Ann Tikalsky rushed, coatless, out of the Greater Grand Boulevard Mental Health Center, where she was employed as a city social worker, and began berating two Chicago policemen who were ticketing her car. Miss Tikalsky's wrath had been stirred by two circumstances: on the snowbound streets around her office parking of any kind-legal or illegal-was hard to find; and she thought the police department was exhibiting more zeal writing parking tickets than it had shown the week before investigating a robbery in which she had been the victim. Miss Tikalsky's outburst cost her dearly.

She was arrested for disorderly conduct and taken to the Second District Police Station at 51st Street and Wentworth Avenue. There a female detention aide subjected her to a visual strip search. First Miss Tikalsky had to bare her body from the waist up; then she had to lower her slacks and underwear, squat and bend from the waist several times, and alternately face toward and away from the matron. After the search Miss Tikalsky was kept in the women's detention center. Although she had money with her, she did not know that she could post bond. She remained in the detention area for four hours, until a friend arrived and paid the $35 bond. On March 3, 1978, Miss Tikalsky was tried and acquitted on the disorderly conduct charge.

These events generated a Section 1983 suit. Count I of the complaint as amended charged the arresting officers with false arrest and malicious prosecution; Count II charged one of the arresting officers with the use of excessive force and the other with failure to intervene; Count III charged the City of Chicago, the police chief, his subordinates, the watch commanders at the Wentworth Avenue station, the arresting officers, and the matron with equal protection, privacy, and Fourth Amendment violations based on the strip search. After a ten-day trial in December 1980, the jury awarded Miss Tikalsky damages of $30,000 against the City of Chicago and Second District Watch Commander Norman Schmiedeknecht. The verdict was not broken down by counts and defendants, but the parties agree that it must have been based on the strip-search count. There is no telling which constitutional right the jury thought the strip search infringed.

The City and Norman Schmiedeknecht presented the following post-trial motion on January 8, 1982 (Tikalsky App. 9-10):

1. Defendants seek a judgment notwithstanding the verdict pursuant to Rule 50 of the Federal Rules of Civil Procedure for the following reasons:

(a) As a matter of law the searching policy utilized in lockup facilities was constitutional. Bell v. Wolfish, (441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447) * * *.

(b) When all the evidence is viewed in a light most favorable to the plaintiff, it still overwhelmingly favors these defendants and no other verdict than one in defendants' favor can stand.

2. In the alternative, defendants seek a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure for the following reasons:

(a) The issue of the constitutionality of the searching policy utilized in the lockup facilities is a question of law and should not have been submitted to the jury.

3. In the alternative, the judgment against Norman Schmiedeknecht is illogical and erroneous with respect to the verdicts against the remaining individuals and a judgment notwithstanding the verdict should be entered.

In her January 26, 1981, memorandum in opposition to the defendants' motion, Miss Tikalsky met head-on the contention that Bell v. Wolfish put the City's strip-search policy beyond challenge. One of the cases she relied on was People v. Seymour, 80 Ill.App.3d 221, 35 Ill.Dec. 241, 398 N.E.2d 1191 (1st Dist. 1979) (henceforth Seymour I). However, in the two-week interval between the filing of her memorandum and the filing of the defendants' reply, the Illinois Supreme Court reversed that case, 84 Ill.2d 24, 48 Ill.Dec. 548, 416 N.E.2d 1070 (February 3, 1981) (henceforth Seymour II). The defendants' reply memorandum placed great emphasis on the Illinois Supreme Court decision.

On February 20, 1981, Judge Perry granted the City's motion for a new trial and entered a judgment n.o.v. in favor of Norman Schmiedeknecht. ¹ The correctness of the judgment n.o.v. is not an issue in this appeal. In justification of his new-trial ruling, the district judge wrote:

The court * * * finds * * * that a new trial for defendant City of Chicago should be granted on the basis that the jury was incorrectly informed by the court as to what the law was, and this fact might very well have contributed to the jury's finding against the City of Chicago. * * * The court gave to the jury certain instructions that might have confused the jurors,-particularly plaintiff's Instruction Number 41, which the court gave on the authority of People v. Seymour, 80 Ill.App.3d 221 (35 Ill.Dec. 241, 398 N.E.2d 1191) (1st Dist. 1979), which has since been reversed (on February 3, 1981) by a unanimous Illinois Supreme Court save for Justice Simon, who did not participate in the consideration or decision of the case for the reason that he wrote, while on the lower court, the opinion that was reversed. ²

Miss Tikalsky has appealed the district court's grant of a new trial on both substantive and procedural grounds. ³ She maintains that the district court abused its discretion in ordering a new trial based on error that was at most harmless. ⁴ She also contends that the district judge erred in granting the motion for reasons that were not apparent on its face, without affording her notice and a hearing before he did so. ⁵ Because we agree with the first contention, we need not reach the second. We reverse the grant of a new trial and remand to the district court with instructions to reinstate the jury verdict.

I

We begin with an examination of the Seymour cases, because they were central to the district judge's decision. Seymour was arrested for unlawful use of a weapon a bondable misdemeanor in Illinois. He was indicted, however, for possession of cocaine. The issue was whether the cocaine had to be suppressed because it had been discovered during an improper strip search. The trial court granted Seymour's motion to suppress; the appellate court affirmed; and the Supreme Court reversed.

The appellate court reasoned that misdemeanor arrestees, like Seymour, must be informed orally of their right to post bond. 80 Ill.App.3d at 228, 35 Ill.Dec. 241, 398 N.E.2d 1191. If Seymour could post bond, there was no need to put him into a lockup. He could be detained in less restrictive quarters while the police completed their investigation. Id. at 229, 35 Ill.Dec. 241, 398 N.E.2d 1191. Since the search was the result of police failure to tell Seymour that he could post bond, the cocaine it revealed was properly suppressed. Id. An independent basis for invalidating the search was that it was unreasonable under Article I, Section 6 of the Illinois Constitution: ⁶ "when the defendant is charged only with a misdemeanor and may gain his release immediately, his modesty and privacy must be made inviolate." Id. at 230, 35 Ill.Dec. 241, 398 N.E.2d 1191.

The Illinois Supreme Court rejected Seymour I's per se rule. There is no statutory requirement that misdemeanor arrestees be informed orally that they may post bond-written notification is enough. 84 Ill.2d at 31, 48 Ill.Dec. 548, 416 N.E.2d 1070. On the facts of the case, Seymour could properly be detained for a considerable time while the police investigated his previous felony conviction, an event which might upgrade the weapons offense for which he was arrested from a misdemeanor to a Class 3 felony. Id. at 32, 48 Ill.Dec. 548, 416 N.E.2d 1070. During the detention, Seymour could be placed in the lockup; hence he could also be strip-searched for security reasons. Id. at 38-39, 48 Ill.Dec. 548, 416 N.E.2d 1070. Moreover, he could also have been searched as an incident of his arrest, and under the circumstances the search incident to arrest could have been a strip search. Id. at 38, 40-41, 48 Ill.Dec. 548, 416 N.E.2d 1070. ⁷

It is apparent that Seymour II precludes reliance on the rule of Seymour I-i.e., that a strip search is per se unreasonable unless a misdemeanor arrestee has been told that he can post bond and fails to do so. It is also apparent that Seymour II does not authorize strip searches in all circumstances.

II

We review the district judge's grant of a new trial here only for abuse of discretion. Hahn v. Becker, 588 F.2d 768, 771 (7th Cir. 1979). But Rule 61 of the Federal Rules of Civil Procedure (quoted in note 4 supra) sets some boundaries on that discretion by requiring that the error or defect upon which the grant of new trial is based be such that it "affect(s) the substantial rights of the parties." Cf. Juneau Square Corp. v. First Wisconsin National Bank, 624 F.2d 798, 807 (7th Cir. 1980), certiorari denied, 449 U.S. 1013, 101 S.Ct. 571, 66 L.Ed.2d 472.

The question then is whether the district judge exceeded his discretion in deciding that the per se rule of Seymour I played a sufficiently important role in the trial of Miss Tikalsky's suit to warrant starting over again. Although Judge Perry was understandably nonplussed at the news that the case had been reversed, a review of the record convinces us that he overestimated its importance.

It appears that Miss Tikalsky's lawyers adverted to Seymour I four times, never in the presence of...