998 F.2d 431 (7th Cir. 1993), 92-2637, Maxwell v. City of Indianapolis

Docket Nº:92-2637.
Citation:998 F.2d 431
Party Name:Richard E. MAXWELL, Plaintiff-Appellee, v. The CITY OF INDIANAPOLIS, Sergeant Harry Gurnell, Officer Dennis Rahn, and Officer George Diehl, Defendants-Appellants.
Case Date:June 29, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 431

998 F.2d 431 (7th Cir. 1993)

Richard E. MAXWELL, Plaintiff-Appellee,


The CITY OF INDIANAPOLIS, Sergeant Harry Gurnell, Officer

Dennis Rahn, and Officer George Diehl,


No. 92-2637.

United States Court of Appeals, Seventh Circuit

June 29, 1993

Argued Feb. 26, 1993.

Page 432

Neil L. Weisman (argued), Bleecker, Brodey & Andrews, Indianapolis, IN, for plaintiff-appellee.

Andrew P. Wirick, City Counsel (argued), City-County Legal Dept., MaryAnn G. Oldham, City-County Legal Div., Indianapolis, IN, for defendants-appellants.

Before BAUER, Chief Judge, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

America's Most Wanted airs on Sunday nights in Indianapolis. Rudell Combs, as well as several other employees of K-Whit Tool Company, tuned in on July 1, 1990. That night the program featured fugitive Don Moore, a former teacher wanted in Los Angeles for twenty-one counts of "fondling, masturbation, oral copulation and sexual intercourse with several of his fifth grade students." After viewing the program, Combs and other employees were convinced that co-worker Richard Maxwell was Moore. The next morning Combs called America's Most Wanted and explained why he and other K-Whit employees believed Maxwell to be Moore. According to them, Maxwell's age, general appearance, a missing finger tip, and his precise handwriting matched the description of Don Moore. In addition, Maxwell did not report to work the day after the episode ran.

After being contacted by America's Most Wanted, Detective Lyon of the Los Angeles Police Department faxed a copy of a police bulletin and the America's Most Wanted information sheet to Sergeant Harry Gurnell in Indianapolis. The bulletin, dated September 11, 1987, contained a photograph of Moore, a fingerprint classification, and specific identifiers. According to the bulletin, Moore is a

Page 433

male caucasian born on September 25, 1933 who is 5'11", weighs 175 pounds, and has grey hair, green eyes, a fair complexion, a grey moustache and a goatee. In addition, Moore is missing the tip of his left index finger.

On the morning of July 3, 1990, Sergeant Gurnell, Officer Rahn, and Officer Diehl went to K-Whit Tool Company and talked with Combs. Then they summoned Maxwell to the front office to interview and observe him. Maxwell presented his Michigan driver's license, his birth certificate, and a social security card. It turns out that Maxwell is also a male caucasian born in 1933 who has grey hair, grey eyes, a grey mustache, and a fair complexion. But the similarities end there: Maxwell is 6'5", weighs 270 pounds, and is missing the tip of his left middle finger.

Naturally, Maxwell protested that he was not Moore. Believing otherwise, the officers handcuffed Maxwell and took him downtown to the Indianapolis Police Department for fingerprinting. The fingerprints established conclusively that Maxwell was not Moore. Officer Diehl and Officer Rahn then returned Maxwell to K-Whit Tool Company and notified Maxwell's superiors that he was not Moore. Maxwell sued.


In response to Maxwell's suit, brought under 42 U.S.C. § 1983, the three officers, claiming that they had probable cause for the arrest and were entitled to immunity in any case, requested summary judgment. Their motion was unsuccessful, a decision we review de novo. Doe v. Allied-Signal, Inc., 925 F.2d 1007, 1008 (7th Cir.1991); DeBruyne v. Equitable Life Assurance Soc'y, 920 F.2d 457, 463 (7th Cir.1990). We can affirm the district court's ruling on any basis finding support in the record. Dairyland Financial Corp. v. Federal Intermediate Credit Bank, 852 F.2d 242, 244 (7th Cir.1988). In examining the record, we draw all reasonable inferences from it in the light most favorable to the non-moving party. Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir.1990). The non-moving party must identify specific facts to establish that there is a genuine triable issue. If we find evidence sufficient to sustain a jury verdict in favor of the non-moving party, we will affirm the denial of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).


The three police officers initially argue that they were performing the "functional equivalent" of an investigatory stop...

To continue reading