Patton v. Przybylski

• Decision Date: 17 June 1987
• Docket Number: No. 86-2015,86-2015
• Citation: 822 F.2d 697
• Parties: Alexander PATTON, Plaintiff-Appellant, v. Raymond PRZYBYLSKI, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 697

822 F.2d 697

Alexander PATTON, Plaintiff-Appellant, v. Raymond PRZYBYLSKI, et al., Defendants-Appellees.

No. 86-2015.

United States Court of Appeals Seventh Circuit.

Argued Jan. 17, 1987.

Decided June 17, 1987.

Karen A. Kerbis, Louis B. Garippo, Ltd., Chicago, Ill., for plaintiff-appellant.

James D. Egan, State's Atty. Office, William D. Fraizer, Illinois Atty. Gen. Office, Chicago, Ill., for defendants-appellees.

Before WOOD, POSNER, and RIPPLE, Circuit Judges.

POSNER, Circuit Judge.

Alexander Patton brought suit under 42 U.S.C. Sec. 1983 against the Sheriff of Cook County and three policemen (two of them unknown to Patton), alleging that he had been arrested and jailed in violation of his right under the Fourteenth Amendment to due process of law. The district judge, on the authority of Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), dismissed the complaint for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). We must therefore take as true the facts stated in the complaint; of course, this doesn't mean they are true.

On June 5, 1984, Judge Crilly of the Circuit Court of Cook County, sitting in Chicago, issued a warrant for the arrest of "Alexander Patton," listing his address as 1534 West Marquette Road in Chicago, his race as black, and his date of birth as June 30, 1959. He is, in fact, a different Alexander Patton from the plaintiff. At 11 p.m. on October 31 defendant Raymond Przybylski, an Illinois state policeman, stopped the plaintiff on a highway in Illinois for an alleged traffic violation. Przybylski made a routine on-the-spot check for any warrants outstanding against the driver. The check turned up the warrant for the other Alexander Patton. The plaintiff is also black, but he had a Wisconsin driver's license which listed his residence as Milwaukee and his date of birth as July 27, 1959.

Przybylski arrested the plaintiff (despite his protest that he was the wrong man) and took him to the nearby police station in Schaumburg (a suburb of Chicago), in Cook County. Przybylski refused to take the plaintiff's fingerprints or photograph for comparison with the person sought in the warrant and also made insulting and racially derogatory remarks to the plaintiff. The plaintiff was held overnight in the jail of the police station. Late the next day, Thursday, 14 hours after his arrival at the station, he was taken by defendant John Doe (an unknown Schaumburg policeman) to the Cook County Jail in Chicago, where he was booked by defendant Richard Roe, an unknown Cook County sheriff's deputy. Not till the following Wednesday, November 7, was the plaintiff taken before a judicial officer (Tuesday was election day and the courts were closed)--Judge Crilly, who as soon as he saw him realized it was the wrong Patton and ordered him released.

Patton claims that Przybylski violated his constitutional rights by arresting him and taking him to the Schaumburg police station. He is not specific about what constitutional right of his Przybylski violated, but he is charging constitutional false arrest and the relevant standard is therefore that of the Fourth Amendment. See McKinney v. George, 726 F.2d 1183, 1187 (7th Cir.1984); Olson v. Tyler, 771 F.2d 277, 280 (7th Cir.1985). The Fourth Amendment forbids unreasonable searches and seizures, and Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), held the Fourth Amendment applicable to the states by virtue of the Fourteenth Amendment. Although an arrest is a deprivation of liberty and could in principle therefore be challenged under the Fourteenth Amendment without reference to the Fourth Amendment, the latter is a more specific regulation of arrests and searches and a plaintiff who cannot make a case under the Fourth Amendment will not be heard if he appeals to the principles of due process instead. "If ... an arrest is upheld when reviewed under the detailed rules that the courts have developed for determining the lawfulness of an arrest under the Fourth Amendment, the arrested person will not succeed in challenging the lawfulness of the arrest by arguing that he should have gotten a hearing before he was arrested, or otherwise by recasting his challenge in the language of due process rather than search and seizure." McKinney v. George, supra, 726 F.2d at 1187. See also Gumz v. Morrissette, 772 F.2d 1395, 1404-05 (7th Cir.1985) (concurring opinion), and cases cited there. The majority in Gumz, it is true, analyzed a claim of excessive force in an arrest as a violation of the due process clause without reference to the standard of the Fourth Amendment. But since the court concluded that there was no violation of the clause, it did not have to decide whether conduct both regulated by the Fourth Amendment and reasonable within the meaning of the Fourth Amendment might nevertheless be held to violate due process. See id. at 1399-1400. Another distinction is that a false arrest is squarely within the scope of the Fourth Amendment, while the use of excessive force in making the arrest goes to the manner rather than to the basic propriety of the arrest.

Could Przybylski be found to have acted unreasonably in arresting the plaintiff and taking him to the Schaumburg police station? An affirmative answer is foreclosed not by Baker, as the district court thought, but by our decision in Johnson v. Miller, 680 F.2d 39 (7th Cir.1982). Baker holds that the policeman who executes an apparently valid arrest warrant is not liable merely because probable cause to arrest the person is lacking. The policeman can rely on the warrant--he doesn't have to cross-examine the judicial officer who issued it. In this case, however, the policeman executed the warrant against the wrong person, so Baker is distinguishable. But Johnson isn't. There a policeman executed the warrant against a different person with the same name. The two persons weren't even of the same race--and the plaintiff was rearrested after being released following the first arrest. Nevertheless we upheld dismissal of the complaint, emphasizing the practical dilemma facing a policeman directed to serve an arrest warrant that appears to designate (if imperfectly) the person whom he must decide whether to arrest. "If an officer executing an arrest warrant must do so at peril of damage liability under section 1983 if there is any discrepancy between the description in the warrant and the appearance of the person to be arrested, many a criminal will slip away while the officer anxiously compares the description in the warrant with the appearance of the person named in it and radios back any discrepancies to his headquarters for instructions." 680 F.2d at 41; see also Arnsberg v. United States, 757 F.2d 971, 981 (9th Cir.1985).

The dilemma facing the officer is even more acute in this case than it was in Johnson v. Miller. Patton was in an automobile rather than at home; if Przybylski had let him go it might have taken a long time to catch up with him again (if he was the "real" Patton). Had Przybylski studied the read-out on his car computer carefully he would have noticed the discrepant address and birth date, but he would also have noticed that not only the name but the race and the year of birth were the same; and the person named in the warrant was a resident of Cook County and the person Przybylski had stopped was driving in Cook County. The "real" Patton might have equipped himself with an out-of-state driver's license; this might be one reason he hadn't been apprehended yet. An added complication is the edginess all policemen feel in confronting a criminal suspect at night on a highway; and Przybylski was alone.

In these confused and ominous circumstances no reasonable finder of facts could, we think, infer that Przybylski acted unreasonably in arresting Patton and transporting him to the Schaumburg police station. No more is necessary to exonerate Przybylski. The Fourth Amendment forbids only unreasonable seizures; the arrest of Patton was not unreasonable. Further support for this conclusion is supplied by Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). The police had probable cause to arrest Hill, but mistakenly arrested Miller instead, thinking he was Hill--though he told the officers he was Miller, and he was. The mistaken arrest was "a reasonable response to the situation facing them at the time," id. at 804, so the Fourth Amendment was satisfied. For cases applying this principle in circumstances similar to those of the present case see (besides Johnson v. Miller and Arnsberg v. United States, both cited earlier) Gero v. Henault, 740 F.2d 78, 84-85 (1st Cir.1984); Hill v. Bogans, 735 F.2d 391, 393 (10th Cir.1984); United States v. Glover, 725 F.2d 120, 122 (D.C.Cir.1984).

Although the complaint alleges that Przybylski caused Patton to remain in the Schaumburg police station for 14 hours, this allegation is not believable, and therefore cannot defeat the motion to dismiss the complaint; Przybylski, a state policeman, had no authority over the Schaumburg police department. Anyway a 14-hour delay in bringing Patton before a magistrate would not have violated his constitutional rights (Baker is squarely on point here), and there is no suggestion that Przybylski continued to exercise a baleful influence over Patton's destiny after Patton was taken off to Cook County jail. If Przybylski made racially derogatory remarks to Patton, this was unprofessional and inexcusable, but Patton does not allege that such remarks would violate his civil rights. Cf. Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372, 1380-81 (7th Cir.1986) (Title VII and section 1981). Defamation is not a deprivation of liberty within the meaning of the due process clause. See Paul v. Davis, 424 U.S. 693, 711-12, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976); Colaizzi v. Walker, 812 F.2d 304, 307 (7th Cir.1987). No more is a derogatory racial epithet.

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