850 F.2d 1180 (7th Cir. 1988), 85-1529, Rakovich v. Wade
| Citation | 850 F.2d 1180 |
| Party Name | George RAKOVICH, Plaintiff-Appellee, v. Gregory WADE and Darryl Drake, Defendants-Appellants. George RAKOVICH, Plaintiff-Appellee, v. Chester KASS, Defendant-Appellant. |
| Case Date | June 08, 1988 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit |
Page 1180
Reheard En Banc Sept. 15, 1987 1
Rehearing En Banc Denied July 14, 1988.
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Ronald L. Piette, Piette, Knoll & Nelson, S.C., Milwaukee, Wis., for defendants-appellants.
Michael O. Bohren, Marola & Bohren, Milwaukee, Wis., for plaintiff-appellee.
Before BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION and KANNE, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge.
Following a burglary at Cars Unlimited, a used car business in Greenfield, Wisconsin, the plaintiff, George Rakovich, met several times with burglary witness and Cars Unlimited employee, Vincent Sheehan. Concerned with what he viewed as the Greenfield Police Department's (the Department) suspect commendation of Officer Mary Foley's efforts in the subsequent burglary arrests, Rakovich criticized the Department and informed Sheehan of a "source" he claimed he had within the Department. From that source, he told Sheehan, he had learned the Greenfield Police Department was investigating Sheehan. The Department did begin an investigation on its own of the propriety of the commendation following a press account questioning the commendation. Members of the Department in pursuing that investigation discovered Rakovich's activities, believed they may have been criminal, and presented the investigation results to Assistant District Attorney Crivello. Crivello called a charging conference, 2 which was reported in the local newspaper. Ultimately Crivello did not file criminal charges against Rakovich. Believing that his reputation had been injured and that the Department, its individual members, and others had acted merely in retaliation for his criticisms and past disagreements with the Department and with them, Rakovich brought this 42 U.S.C. Sec. 1983 action against various defendants including the appellants here, Greenfield Police Chief Chester Kass and Greenfield Officers Gregory Wade and Darryl Drake (the officers).
There are two primary issues to be considered: 1) Judged by the standard set out in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), did an intent to retaliate against Rakovich for activities protected by the first amendment motivate the officers; and 2) Are the officers qualifiedly immune under the standards set out in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), and Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)? 3
I. BACKGROUND
It is necessary to explore the evidence in more detail. Two men burglarized Cars Unlimited on July 21, 1981. Vincent Sheehan, a Cars Unlimited employee, observed the burglary in progress and reported it to the Greenfield Police Department. The Greenfield Police Department contacted the Greendale Police Department under a reciprocal assistance arrangement, asking that Greendale dispatch an officer to Cars Unlimited. Greendale Officer William Meyers and Greenfield Officer Mary Foley responded and arrested the suspected burglars.
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Based on another witness's report of the incident, Foley received a Department commendation. Meyers received nothing. Meyers complained to the Greendale Department concerning the propriety of the award, apparently believing that the commendation made it appear that only Foley had apprehended the burglars. Articles discussing the commendation appeared in two newspapers, the Greenfield Observer and the Milwaukee Journal. Both the Greenfield and Greendale police departments decided to investigate the circumstances of the burglary arrest.
The Greenfield investigation began August 24; the intent of the investigation was to clarify the respective roles of Meyers and Foley in the burglary arrest, which would serve as the basis for evaluating the propriety of the Foley commendation. With this in mind, Chester Kass, Greenfield Police Chief, assigned Detective Gregory Wade and Sergeant Darryl Drake to the Greenfield investigation. Those three are the defendants-appellants here. In the course of their investigation Drake and Wade interviewed Sheehan numerous times. At the initial interview, September 3, Sheehan described the burglary and arrest. He told the officers that a Greenfield Officer, Charles Salbashian (it appears Sheehan may have incorrectly believed originally that Salbashian was a Greendale officer), and an unidentified man had previously questioned him about the burglary. The unidentified man had been critical of Foley, claiming she had received the commendation solely because her father was a judge. This questioning and criticism occurred August 9. Wade and Drake believed that possibly the unidentified man was another police officer. They reported this information to their superior, Lt. Kaczkowski, and to Kass. Kass instructed them to continue the investigation and to consult with Assistant District Attorney Crivello, who was assigned to the prosecution of the burglars. At a September 8 meeting Crivello instructed Wade and Drake to discover the identity of the unidentified man, as he concluded that someone was tampering with the state's witness. Neither the officers, Wade, Drake, or Kass, nor Crivello yet knew that plaintiff Rakovich was the unidentified man.
Later that same day, September 8, Drake and Wade again met with Sheehan and learned that the unidentified man was Rakovich, a member of the Greenfield Civil Service Commission. Sheehan told Drake and Wade that Salbashian and Rakovich (Salbashian and Rakovich were close personal friends) had visited him a second time, August 23, and that Rakovich alone had visited once, September 8. Sheehan described the conversation at the first meeting, in which Rakovich or Salbashian stated that they had a friend at the Greenfield Observer, who would contact Sheehan. At the second meeting, Rakovich asked Sheehan if his newspaper friend had made contact. At the second meeting Rakovich also stated that he had a source of information in the Greenfield Police Department, implying that this source had told him that the Department was also checking out Sheehan. Further, Sheehan was advised by Rakovich that he could sue the Department for undertaking such an investigation. Lastly, Rakovich complained to Sheehan that Foley could not do the job because she was a woman, and the Department was covering up the controversy surrounding the commendation. At the conclusion of this September 8 meeting, around 7:00 p.m., Drake and Wade contacted Kass at home and informed him about the apparent information leak. Kass told them to continue the investigation, and to continue working with Crivello because "he felt that a leak in the department strikes at the integrity of the department and that he could not ignore or condone such conduct." In an attempt to track down the leak, Kass, Drake, and Wade planned to place false information in each others' mailboxes at the Greenfield police station to see if and where the false information might later surface. They did so on September 9.
On September 13 Sheehan called and told Wade of his September 12 meeting with Rakovich. Wade had secretly photographed Rakovich's September 12 visit to the Cars Unlimited lot. Sheehan, Wade, and possibly Drake, met that evening.
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Sheehan stated that Rakovich had again claimed he had a source in the Department and encouraged Sheehan to bring a suit for police harassment.
On September 17, Drake, Wade, and Foley met with Assistant District Attorney Crivello, at which time Crivello advised that he would have Robert Scopoline, a sergeant in the Milwaukee County Sheriff's Department, interview Rakovich. Wade and Drake left a report of their investigation with Crivello. When they returned to the station following this meeting they found that Sheehan had left a message. Rakovich had again visited Sheehan, and Drake and Wade arranged to meet with Sheehan later that same day. At this meeting, Sheehan told of Rakovich's latest reference to his source and of Rakovich's revelation that the Department was gathering information about Sheehan's criminal and naval records. This information was similar to the information the officers planted to track down the leak. Rakovich had also suggested that Sheehan accompany an attorney and a media representative to the police station to demand any report concerning Sheehan. In addition, Rakovich offered Sheehan money, fifty dollars or less, so he could hire an attorney named "Mike." If Kass failed to supply Sheehan with a report, Rakovich said his source could get him a copy.
On September 18, Wade, Drake, and Crivello met with Scopoline who later interviewed Rakovich on September 21. After the interview, still that same day, Drake, Wade, and Scopoline met again. This meeting was followed by another meeting attended by Drake, Wade, and Crivello. Crivello ordered a charging conference held, in which Salbashian and Rakovich were to be given the opportunity to explain their activities with Sheehan. Rakovich learned of this conference in a September 21, 1981, Milwaukee Journal article, which stated nothing more than that Rakovich was being ordered to the District Attorney's Office "for a charging conference for criminal charges." A September 23 article in the same newspaper indicated Rakovich had yet to receive a summons or notice of any kind. Several days after the second article appeared he, as well as Salbashian, received a notice to appear for the conference. Prior to the conference, on September 22, Sheehan left a...
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