756 F.3d 983 (7th Cir. 2014), 13-2533, Hawkins v. Mitchell

Docket Nº:13-2533
Citation:756 F.3d 983
Opinion Judge:Van Bokkelen, District Judge.
Party Name:WILLIAM K. HAWKINS, Plaintiff-Appellant, v. RODNEY S. MITCHELL AND JAMES M. BOWERSOCK, Defendants-Appellees
Attorney:For WILLIAM K. HAWKINS, Plaintiff - Appellant: Jude M. Redwood, Attorney, REDWOOD LAW OFFICE, St. Joseph, IL. RODNEY S. MITCHELL, Sued in his individual capacity, JAMES M. BOWERSOCK, Sued in his individual capacity, Defendants - Appellees: David E. Krchak, Attorney, THOMAS, MAMER & HAUGHEY LLP, C...
Judge Panel:Before BAUER and FLAUM, Circuit Judges, and VAN BOKKELEN, District Judge.[*]
Case Date:June 23, 2014
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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756 F.3d 983 (7th Cir. 2014)

WILLIAM K. HAWKINS, Plaintiff-Appellant,



No. 13-2533

United States Court of Appeals, Seventh Circuit

June 23, 2014

Argued December 2, 2013

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Appeal from the United States District Court for the Central District of Illinois, Urbana Division. No. 2:10-CV-2111 -- Michael P. McCuskey, District Judge, and David G. Bernthal, Magistrate Judge.

For WILLIAM K. HAWKINS, Plaintiff - Appellant: Jude M. Redwood, Attorney, REDWOOD LAW OFFICE, St. Joseph, IL.

RODNEY S. MITCHELL, Sued in his individual capacity, JAMES M. BOWERSOCK, Sued in his individual capacity, Defendants - Appellees: David E. Krchak, Attorney, THOMAS, MAMER & HAUGHEY LLP, Champaign, IL.

Before BAUER and FLAUM, Circuit Judges, and VAN BOKKELEN, District Judge.[*]


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Van Bokkelen, District Judge.

We review summary-judgment and trial rulings on several causes of action against police who did not claim immunity under federal or state law.1 The central legal doctrines are the exigency exception to the Fourth Amendment warrant requirement, probable cause, and the First Amendment right to consult an attorney.

I. Facts

Two police officers--Rodney Mitchell and, about two minutes later, James Bowersock--responded to a 9-1-1 call by Sarah Bumgarner.2 It was late on a Saturday night in May 2008. Bumgarner had called from outside William Hawkins's house on a residential street in Champaign, Illinois, reporting what the dispatcher classified as a domestic incident. On the way to the scene, Mitchell and Bowersock learned that Bumgarner and Hawkins had been drinking and got into a heated argument. Hawkins was alleged to have a history of abusiveness, but tonight's

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argument was " verbal only." The dispatcher summarized the situation: " Hawkins has locked [Bumgarner] out and her keys are in the residence. [Bumgarner] just wants her keys so she can leave."

Upon arriving, Mitchell discovered Bumgarner outside and shouting to Hawkins about her keys. Clothing was scattered across the yard. Mitchell remembers Hawkins " screaming" back to her from the porch: " I don't have your fucking keys!" Hawkins then stepped inside his house and slammed the door. In irreconcilable contrast, Hawkins's account is that he was in bed asleep when Mitchell arrived.

It is undisputed that Bumgarner verbally con on firmed with Mitchell that she was not injured; he observed no injury to her. She said she was " sorry" for calling 9-1-1, but needed her keys so she could leave. Bumgarner told Mitchell that Hawkins had her keys and that he " gets violent sometimes." On the other hand, Bumgarner also told Mitchell directly what she had already reported on the 9-1-1 call--her fight with Hawkins had been " verbal only." Bumgarner made no allegation that Hawkins was violent or threatening on that night.

Mitchell went to Hawkins's door and knocked. Hawkins opened, and, according to Mitchell, yelled " I don't need to talk to you!" ; then attempted to close the door. But Mitchell stuck his foot in the path of the door, which prevented Hawkins from closing it. Mitchell entered the home.

Hawkins made clear that he wanted Mitchell gone, but Mitchell persisted in questioning Hawkins. Hawkins then called an attorney, with whose assistance Hawkins confirmed from Mitchell that he did not have a warrant. Mitchell nevertheless stayed in the house and told Hawkins he just wanted to talk to him. Again following the attorney's advice, and still on the phone, Hawkins asked Mitchell whether he was under arrest. Mitchell said Hawkins was not under arrest and reiterated that he just wanted to talk to Hawkins. The attorney advised Hawkins that Hawkins had no duty to speak to the officer, that the officer had no right to be in his house, and that Hawkins could just tell the officer to " get the fuck out of the house."

That's what Hawkins did, several times over the course of the encounter. For his part, Mitchell was comfortable with Hawkins on the phone because the conversation was allowing time for Bowersock to reach the scene.

When Bowersock did arrive, Mitchell motioned him inside the house. Hawkins remained on the phone and continued yelling for Mitchell to get out. (Whether Hawkins was immediately aware of Bowersock's presence is unclear.)

Mitchell remembers Bowersock then telling Hawkins that the officers were investigating a 9-1-1 domestic call and that Hawkins had to get off the phone one and speak to Mitchell. Hawkins did not obey, and instead, in Mitchell's words, continued to give the officers " some kind of commands." " At that point," Mitchell explained, " Officer Bower sock told [Hawkins] to get off the phone one and speak with this officer, or [he would] be arrested." Hawkins did not comply, at which point Bowersock told him he was under arrest. At the same time, according to Mitchell, Bowersock grabbed Hawkins's left wrist and Mitchell grabbed Hawkins's right wrist. Hawkins then allegedly " stopped and started twisting to resist arrest." The three ended up struggling to the floor. Mitchell says Hawkins continued " trying to pull his hands inward, which is common for someone in that position to try to keep from being arrested." Hawkins continued to protest what he claimed was a violation of his rights, and resisted the officers as they escorted him out of his house and into a police car.

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Bowersock's recollection of those events is substantially the same as Mitchell's. When asked what Hawkins said after Bowersock told him he was under arrest, Bowersock recalled:

He did make a response. I believe it was something to the effect that he wasn't -- or he hadn't done anything wrong, that this was his house and basically for us to get out of his house. He then tensed up and started to pull away, at which time we attempted to maintain control of him. Forward momentum had started and all three of us had gone to the floor.

At 11:46 p.m., about five minutes after Mitchell arrived and about three minutes after Bowersock arrived, they reported Hawkins in their custody. The state filed charges against Hawkins, but later dropped them.

II. Procedural History

Hawkins sued the officer's for the arrest and the allegedly excessive force they used in making it. He claims he needed surgery to remove a cyst from above his left eye where he was injured by the officers, as well as psychiatric counseling for the traumatic encounter. The case proceeded in the district court to the filing of cross-motions for summary judgment with six counts of an amended complaint pending.

Count I was for " Illegal Seizure," alleging that the officers " illegally seized and effected a custodial arrest of the plaintiff without probable cause for such arrest and without a judicial warrant." Count II was for excessive force. Count III claimed " Arrest in Retaliation for Speech," on the theory that Mitchell and Bowersock arrested Hawkins in retaliation for exercising a First Amendment right to speak to an attorney and asserting his Fourth Amendment right to privacy in his home. In Count IV, Hawkins sued for or battery under Illinois common law. Count V was for " Wilful and Wanton Misconduct." Count VI, titled " False Imprisonment/Locomotion," was based on the allegations that the Defendants, " through a show of force and their law-given authority," prevented Hawkins from telephoning with his attorney and forced him " to leave his own home under threat of force and bodily injury."

Though Hawkins's amended complaint invokes the Illinois Constitution in Counts I, II, and III, and the Illinois Civil Rights Act of 2006 in Counts III, V, and VI, he has not relied on those laws in this Court. The only sources of rights that Hawkins persists in claiming were violated are as follows for the remaining counts, with the trial-court disposition in the right column:

I. Illegal Seizure Fourth Summary
Amendment judgment for
II. Excessive Force Fourth Defense
Amendment verdict at trial
III. Arrest in First Amendment Summary
Retaliation for Speech judgment for
IV. Battery Illinois common Defense
law verdict at trial
V. Wilful and Wanton Illinois common Defense
Misconduct law verdict at trial
VI. False Imprisonment Illinois common Summary
/ Locomotion law judgment for

Page 990 The district court paired Counts I and VI under the heading " False Arrest Claims" in its summary-judgment order and addressed them as one. See Hawkins v. Mitchell, 909 F.Supp.2d 1011, 1020-24 (C.D. Ill. 2012). Relying in part on Hawkins's failure to object to the magistrate judge's ruling in dismissing a claim for trespass that " Defendants could lawfully enter Plaintiff's home to help Plaintiff's girlfriend, who asked for assistance to collect her belongings," the court concluded the officers' entry into Hawkins's home did not violate his constitutional rights. Id. at 1022. The district court stated further, " when Defendants entered the home, they attempted to get information from Plaintiff about the situation and Plaintiff refused to provide any information." Id. at 1023. In the view of the district court, that gave the officers " probable cause to arrest Plaintiff for either theft of Sarah's keys or disorderly conduct." Id. The district court quoted Padula v. Leimbach, 656 F.3d 595, 601 (7th Cir. 2011): " 'Probable cause is an absolute defense to a wrongful arrest claim asserted under [42 U.S.C.] § 1983 against police...

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