Alexander v. Deangelo, 02-3124.

Decision Date22 May 2003
Docket NumberNo. 02-3124.,02-3124.
Citation329 F.3d 912
PartiesNathan D. ALEXANDER, II, and Amy Gepfert, Plaintiffs-Appellants, v. Joseph DeANGELO, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Christopher C. Myers (argued), Myers & Associates, Fort Wayne, IN, for Plaintiff-Appellants.

Robert T. Keen, Jr. (argued), Miller, Carson, Boxberger & Murphy, Fort Wayne, IN, for Defendant-Appellees.

Before POSNER, KANNE, and DIANE P. WOOD, Circuit Judges.

POSNER, Circuit Judge.

The plaintiffs appeal from the grant of summary judgment to the defendants in a damages suit against two Fort Wayne police officers, Joseph DeAngelo and Dan Hannaford, and the City itself. The plaintiffs have not appealed from the dismissal of their claim against the City, however; nor, it appears, are they pursuing their claim against Hannaford, whom the briefs ignore completely.

The suit was brought under 42 U.S.C. § 1983 in an Indiana state court, charging violations of the plaintiffs' federal civil rights, and surprisingly was removed by the defendants to federal district court. The surprise lies in the belief by many civil rights lawyers that state courts favor the state's public officers. But at argument the defendants' lawyer explained that summary judgment is easier for a defendant to obtain in a federal court than in an Indiana state court; and the plaintiffs, having filed the case originally in the state court, doubtless anticipated a benefit from doing so.

The plaintiffs are a former Fort Wayne police officer, Nathan Alexander, and a woman, Amy Gepfert, whom DeAngelo and several fellow officers enlisted in a sting against Alexander. We construe the facts as favorably to the plaintiffs as the record permits, because of its procedural posture. Alexander was suspected of a variety of frauds. Gepfert was under investigation for participation in a cocaine offense. The officers asked Gepfert whether she knew Alexander. She did; in fact, she had had a sexual relationship with him, though it had ended a month previously. They told her she was facing 40 years in prison on the cocaine charge unless she agreed to help them nail him. She asked to consult a lawyer, and although they did not forbid her to do so they discouraged her, telling her that they were "the attorneys." In a second meeting with her, three days later, they asked her whether she had ever received money from Alexander after having sex with him, and she said she had, once, to get her nails done. They asked her whether she'd be willing to have oral sex with him for money, so that they could charge him with soliciting a prostitute. She agreed. They wired her for the encounter and also gave her a napkin and instructed her to spit Alexander's semen into it to provide physical evidence of the sex act. She duly performed oral sex on him in his patrol car and asked for and received $17 to do her nails, and she preserved the semen in the napkin and gave it to the officers. Alexander was arrested and charged with various offenses, including soliciting a prostitute, but the charges were dropped, apparently because the state's witnesses, including Gepfert, refused to cooperate further. Alexander claims that the charges were baseless, but this is very doubtful in view of the evidence. After a hearing that provided him with due process, the police department fired him for his various offenses. Gepfert, who had no criminal record, was not charged with any offense, either prostitution or sale of cocaine. DeAngelo was not disciplined for his unusual investigative tactics.

We can deal quickly with Alexander's appeal. Stings are not illegal or even disreputable, see United States v. Murphy, 768 F.2d 1518, 1528-29 (7th Cir.1985); there was reason to believe that Alexander had paid Gepfert for sex in the past; and there was probable cause to arrest him on the basis of the recording of his encounter with her in the patrol car, the semen in the napkin being a gratuitous addition to the evidence. The fact that Gepfert asked him for money for her nails is irrelevant. Prostitutes, like other people, seek income in order to purchase goods and services. It is not a defense to prostitution for the prostitute to say, "My fee is $100 and I plan to use it to buy milk for my children." Although there is some evidence of hostility to Alexander on the part of other Fort Wayne police officers because he is black but has had white girlfriends, the evidence is clear that the reason the department was out to get him was a well-founded suspicion that he had engaged in a variety of illegal acts, most of them more serious than paying for oral sex. He would not have had sex with Gepfert had he known she was trying to set him up for an arrest, but the fact that he was tricked into having sex is not a defense. United States v. Simpson, 813 F.2d 1462, 1466-68 and n. 4 (9th Cir.1987). Nothing is more common in the investigation of victimless crimes such as prostitution than to pose a police officer (or, as here, a cooperating witness) as a prostitute. Such trickery does not violate any constitutional right of criminals. State v. Tookes, 67 Haw. 608, 699 P.2d 983, 985-86 (1985); State v. Putnam, 31 Wash.App. 156, 639 P.2d 858, 860, 862 (1982).

Coercing Gepfert to have sex with Alexander, if that is the proper characterization of what happened here, is a more serious matter. But even if that violated her rights, it would not help him; he cannot complain about an infringement of the constitutional rights of another person. United States v. Payner, 447 U.S. 727, 737 n. 9, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980); United States v. Noriega, 117 F.3d 1206, 1213-15 (11th Cir.1997); United States v. Santana, 6 F.3d 1, 8-9 (1st Cir.1993). Since, however, she is also a plaintiff, we must consider whether her rights were violated.

There is much debate in the briefs over whether "outrageous" police conduct, as Gepfert characterizes her treatment by the police, can ever in and of itself, that is, by virtue of its sheer outrageousness, be deemed a violation of a person's rights under the due process clause of the Fifth or Fourteenth Amendments. The debate echoes cases in which outrageous police behavior is interposed as a defense to a criminal prosecution. Some circuits continue to recognize the existence of such a defense, at least as a theoretical possibility. United States v. Nolan-Cooper, 155 F.3d 221, 224, 230 (3d Cir.1998); United States v. Gaviria, 116 F.3d 1498, 1533-34 (D.C.Cir.1997) (per curiam); United States v. Santana, supra, 6 F.3d at 3-8. Yet as the last of these opinions points out, "the doctrine is moribund; in practice, courts have rejected its application with almost monotonous regularity." Id. at 4. We flatly rejected the doctrine in United States v. Boyd, 55 F.3d 239, 241-42 (7th Cir.1995); see also United States v. Tucker, 28 F.3d 1420, 1426-28 (6th Cir.1994), because the concept of outrageous police conduct is hopelessly nebulous and subjective and because the fact that the police misbehave is not a sensible ground for letting a guilty criminal walk.

Gepfert's claim, however, can be cut loose from the "outrageous" police conduct cases and reconceptualized as a charge of battery committed under color of state law and therefore actionable under the due process clause of the Fourteenth Amendment after all. The liberty protected by that clause includes bodily integrity, see Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 278-79, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), and cases cited there; United States v. Husband, 226 F.3d 626, 632 (7th Cir.2000), and is infringed by a serious, as distinct from a nominal or trivial, battery. Wudtke v. Davel, 128 F.3d 1057, 1062-63 (7th Cir.1997); Bennett v. Pippin, 74 F.3d 578, 583-84, 589 (5th Cir.1996); Stoneking v. Bradford Area School District, 882 F.2d 720, 722, 726 (3d Cir.1989). The qualification is important. Because any offensive touching (unless consented to, which removes the offense) is a battery, Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973) (Friendly, J.), most batteries are too trivial to amount to deprivations of liberty. Cameron v. IRS, 773 F.2d 126, 129 (7th Cir.1985); Askew v. Millerd, 191 F.3d 953, 958 (8th Cir.1999); Luciano v. Galindo, 944 F.2d 261, 264 (5th Cir.1991); Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 948-49 (D.C.Cir.1988); Hernandez v. Lattimore, 612 F.2d 61, 67 (2d Cir.1979); Johnson v. Glick, supra, 481 F.2d at 1033; cf. County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Rape, however, is not only a battery, Paul v. Montesino, 535 So.2d 6, 7 (La.App. 1988); United National Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d 105, 108 (2d Cir.1993), but a very serious battery, and a rape committed under color of state law is therefore actionable under 42 U.S.C. § 1983 as a deprivation of liberty without due process of law. Wudtke v. Davel, supra, 128 F.3d at 1063; Jones v. Wellham, 104 F.3d 620, 622, 628 (4th Cir.1997); Rogers v. City of Little Rock, 152 F.3d 790, 793-96, 798 (8th Cir.1998).

Sex procured by threats that the threatener has no legal right to make is a common form of rape, see, e.g., People v. Thompson, 72 N.Y.2d 410, 534 N.Y.S.2d 132, 530 N.E.2d 839, 840-42 (1988); People v. Minsky, 129 Cal.Rptr.2d 583, 584-87 (App.2003), review granted, 133 Cal. Rptr.2d 320, 67 P.3d 644, 2003 WL 21005629 (Cal. Apr. 16, 2003); Gibbs v. State, 623 So.2d 551, 552-54 (Fla.App.1993) (per curiam), and this is a permissible characterization of the facts of this case as they are disclosed by the record to date though a trial might cast them in a different light. On Gepfert's construal of the facts, she was induced by DeAngelo and his fellow officers to perform oral sex on Alexander by their threat to put her away for 40 years if she refused to cooperate with them. Given that...

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