880 F.2d 967 (7th Cir. 1989), 88-2761, Hughes v. Meyer

Docket Nº:88-2761.
Citation:880 F.2d 967
Party Name:Raymond J. HUGHES, Jr., Plaintiff-Appellant, v. Dale MEYER, John Buss and Robert Combs, Defendants-Appellees.
Case Date:July 27, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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880 F.2d 967 (7th Cir. 1989)

Raymond J. HUGHES, Jr., Plaintiff-Appellant,


Dale MEYER, John Buss and Robert Combs, Defendants-Appellees.

No. 88-2761.

United States Court of Appeals, Seventh Circuit

July 27, 1989

Argued March 27, 1988.

Rehearing Denied Jan. 10, 1990.

James E. Doyle, Jr., Doyle & Ritz, Madison, Wis., for plaintiff-appellant.

David T. Flanagan, Asst. Atty. Gen., Wisconsin Dept. of Justice, Timothy J. Yanacheck,

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Straub & Schuch, Madison, Wis., for defendants-appellees.

Before BAUER, Chief Judge, KANNE, Circuit Judge, and HENLEY, Senior Circuit Judge. [*]

HENLEY, Senior Circuit Judge.

Raymond J. Hughes, Jr. and his brother, Ronald Hughes, brought suit in federal district court pursuant to 42 U.S.C. Sec. 1983 against two Sauk County, Wisconsin, deputy sheriffs and a Wisconsin Department of Natural Resources (DNR) conservation warden. The Hughes brothers alleged that the defendants violated their rights under the fourth amendment to the United States Constitution by arresting them for false imprisonment without probable cause. The brothers also named the conservation warden as a defendant in pendent state claims for false arrest and trespass. The district court granted defendants' motions for summary judgment as to the federal claims on the ground that the defendants were protected by qualified immunity. Having dismissed the federal claims, that court declined to exercise jurisdiction over the plaintiffs' pendent state law claims. Only Raymond Hughes appeals from the orders of the district court. We affirm.

The Hughes brothers own one-hundred-sixty acres of vacant land in Sauk County, Wisconsin. On the final day of the 1987 deer-hunting season, the brothers went to their land for the purpose of hunting deer. There they observed someone driving a truck on their property. The truck went into the hay fields on the land because it was having difficulty climbing a grade on the muddy road and may have gone off the road by as much as twenty feet. The occupants of the truck were defendant-appellee John Buss, who is a conservation warden of the DNR, and his wife Victoria Buss. The truck bore no official DNR markings. The warden and his wife had two untagged deer carcasses and at least Mrs. Buss may have been deer hunting earlier that day. Ronald asked the Busses why they were on the land and accused them of trespassing. Buss identified himself as a game warden and stated that he was investigating complaints of illegal hunting. In response to a request from Ronald, Buss produced identification. Ronald was infuriated with Buss because of his belief that Buss was trespassing. His conversation was aggressive, and, according to the district court, he was "boisterous, loud and upset." According to Buss, one or both of the brothers accused another DNR officer of having contributed to the death of their father.

Buss radioed for assistance from the Sauk County Sheriff's Department and the DNR. Ronald asked Raymond to call the police on the brothers' radio and Raymond complied. Raymond returned to the Buss truck in response to his brother's request to witness that "this fella's getting belligerent with me." Ronald then told Raymond, "this guy is a real smart aleck and I want you to get down some of the things he said on paper." Raymond went to the brothers' truck, returned with pencil and paper, and began to write down the license number and a description of Buss's truck. Buss said to Ronald, "So you are holding me here against my will." Raymond laughed and said, "No, that's not what he said. That's what you'd like for him to say, but that's not what he said." Raymond believed that the microphone of Buss's radio was switched on.

Buss told Ronald that he had called the sheriff and Buss's superior officer. He told Ronald that his superior would not come through the mud on the brothers' property, and suggested that they move out to the road, but Ronald replied, "No way. We're not going out to the road." Buss asked Ronald what he would do if Buss drove out to the road and Ronald replied, "We'll have to see." Ronald had a loaded rifle in a sling on his shoulder, but neither of the brothers held their rifles in a threatening way during the conversation with Buss. Nor did they attempt to prevent

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Buss from leaving by standing in front of his truck.

Raymond wanted to go hunting. According to the district court, he "unloaded his rifle in an obvious fashion, dropping ammunition to the ground and then holding the rifle in the air for Buss to see." He got into the Hughes's truck and drove further onto the property, calling out to Ronald that he was going hunting. When he returned approximately twenty minutes later, he saw three or four police officers approaching the Buss truck.

One of the officers directed Ronald to put away his loaded rifle, which he was still carrying on his shoulder. Ronald initially refused, but then complied when the officer requested in a nice way that he do so. The entire group then drove to Troy Village Road nearby, arriving at approximately the same time as DNR Warden Supervisor Leonard Cloutier, defendant-appellees Meyer and Combs, and another officer. Meyer and Combs obtained Buss's account of his encounter with the Hughes brothers. Meyer and Combs also talked to the officer who had arrived earlier and had asked Ronald to put away his rifle. On the basis of the statements they had received, and after referring to the applicable Wisconsin statutes, Meyer and Combs determined that they had probable cause to believe that Ronald had committed the crime of false imprisonment and that Raymond had aided and abetted his brother in the commission of that crime. The officers arrested the brothers and placed them in the Sauk County jail. After twenty-four hours Ronald and Raymond were released on bail. They remained under the conditions of bail until December 17, 1986, at which time the district attorney declined to prosecute them. The district court found that Buss neither recommended nor requested the brothers' arrest.

On appeal, Raymond Hughes contends that the district court erred in granting defendants' motion for summary judgment. He argues that a reasonable jury could find that the defendants did not have a good faith, reasonable belief that they had probable cause to arrest him, and that therefore a genuine issue of material fact exists precluding summary judgment. See Fed.R.Civ.P. 56(c).

However, what a jury could have found is not at issue in deciding a summary judgment motion on the issue of qualified immunity. This circuit has recently held that, even though pertinent facts may be in dispute, the question whether immunity attaches is always one for the judge to decide. Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir.1988); Rakovich v. Wade, 850 F.2d 1180, 1201-02 (7th Cir.) (en banc), cert. denied, --- U.S. ----, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988). We apply the "clearly erroneous" standard of review to the district court's determination that " 'a reasonable police officer in like circumstances [c]ould have acted as the defendants did.' " Jones, 856 F.2d at 995 (quoting Klein v. Ryan, 847 F.2d 368, 374 (7th Cir.1988)).

Probable cause for an arrest exists if, at the moment the arrest was made, the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent person in believing that an offense has been committed. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Probable cause is to be determined in a "practical, nontechnical" manner, id. (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)). The inquiry into the existence of probable cause raises questions of "probabilities ... the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar, 338 U.S. at 175, 69 S.Ct. at 1310; see also United States v. Watson, 587 F.2d 365, 368 (7th Cir.1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1055, 59 L.Ed.2d 95 (1979). Probable cause requires more than bare suspicion, but need not be based on evidence sufficient to support a conviction, nor even a showing that the officer's belief is more likely true than false. Brinegar, 338 U.S. at 175,...

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