Alvarado v. Picur

• Decision Date: 27 October 1988
• Docket Number: 87-3128,Nos. 87-1841,s. 87-1841
• Parties: Michael W. ALVARADO, Plaintiff-Appellee, v. Ronald D. PICUR, Special Administrator of the Estate of Robert Curry, 1 Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 448

859 F.2d 448

3 Indiv.Empl.Rts.Cas. 1498

Michael W. ALVARADO, Plaintiff-Appellee, v. Ronald D. PICUR, Special Administrator of the Estate of

Robert Curry, ¹ Defendant-Appellant.

Nos. 87-1841, 87-3128.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 1988.

Decided Sept. 23, 1988.

Rehearing Denied Oct. 27, 1988.

Frederick S. Rhine, Corp. Counsel, Chicago, Ill., for defendant-appellant.

Carl M. Walsh, Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, FLAUM and KANNE, Circuit Judges.

CUMMINGS, Circuit Judge.

A jury found that Chicago police Lieutenant Robert Curry coerced Michael Alvarado into resigning from his position with the police force and that this coercion deprived Alvarado of property without due process of law in violation of the Fourteenth Amendment. The jury awarded Alvarado $55,000 in compensatory damages and $100,000 in punitive damages. We reverse because Curry had qualified immunity. The district court should have granted Curry's motion for a directed verdict on that ground and not allowed this case to go to a jury.

I

Michael Alvarado was a Chicago police officer from May 16, 1975, until he resigned on November 22, 1985. At the time of Alvarado's resignation, Lieutenant Robert Curry was the commanding officer of the Confidential and Corrupt Practices Unit of the Internal Affairs Division of the Chicago Police Department. The Unit was responsible for investigating allegations of criminal activity by police officers and in November 1985 was investigating Alvarado on allegations from three sources that he was using illicit drugs. ²

On November 22, Alvarado, who had been on medical leave, reported to the Police Department's Medical Section for treatment and was confronted by Curry. Within thirty minutes thereafter Alvarado resigned from the force. What transpired within those thirty minutes depends upon who is telling the story--Alvarado or Curry. When the issue of qualified immunity arises in the context of a directed verdict as it did in this case, the district court must consider the evidence in the light most favorable to the party opposing the defense; on appeal, so must we. Rakovich v. Wade, 850 F.2d 1179, 1204-1205 (7th Cir.1987) (en banc ). We therefore relate Alvarado's version of those thirty minutes.

On the morning of November 22, Alvarado reported to the Medical Section, signed in, received a number and sat down to wait for the doctor. Instead of seeing the doctor, a sergeant from the Medical Section led Alvarado to a room, approximately eight feet by ten feet, containing one desk and three chairs, in which Lieutenant Curry and Sergeant Cleary were seated. Curry ordered Alvarado to sit, and following the order of his superior, he did. At that time, Curry leaned over the desk toward Alvarado and said, "I've got a million-dollar deal for you." Curry told Alvarado that he was authorized by the Superintendent of Police to offer Alvarado this million-dollar deal--if Alvarado resigned that day, he would not be indicted. Curry then told Alvarado that he wanted Alvarado's resignation and that if Alvarado did not resign Curry would pull his star, take his I.D. and put him in a little room, presumably the radio room, where he would be ridiculed and scorned by his fellow officers. Sergeant Cleary then handed Alvarado a Personnel Action form, the form used to resign, and suggested that he sign it. When Alvarado asked for some time to think it over, Curry got angry, started yelling and walked out of the room.

When Curry re-entered the room and asked Alvarado if he was ready to sign the form yet, Alvarado asked if he could postdate it. Curry told him no; that if Alvarado postdated the form, that would later involve some "scumbag" attorney and Curry did not want to deal with any attorneys. Cleary then got up and left the room, taking the unsigned resignation form with him. When he returned he had filled in the form with the statement, "I wish to resign from the Chicago Police Department for personal reasons effective 22 November 1985." Alvarado then explained to Curry that he was still being treated for his injury and that if he resigned he would not have any insurance. Curry responded that he did not care and put a pen in Alvarado's hand. Cleary pointed to the signature line, and at that point Alvarado signed.

The entire meeting took less than thirty minutes. Although neither Curry nor Cleary used or threatened to use physical force, Alvarado stated that he was nevertheless confused and devastated by what was said; particularly by Curry's statements that he was going to put Alvarado up to the ridicule of his fellow officers and citizens and that Alvarado was going to jail, the latter statement embellished with graphic descriptions of how policemen are sexually abused in jail. The preceding is the version of the events of November 22, 1985, relevant to determining whether Curry is entitled to qualified immunity.

II

Qualified immunity is a threshold issue that the Supreme Court has repeatedly emphasized should be resolved at the earliest possible stage of litigation. Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 3042 n. 6, 97 L.Ed.2d 523; Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411; Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396. "One of the purposes of the Harlow qualified immunity standard is to protect public officials from the 'broad ranging discovery' that can be 'peculiarly disruptive of effective government.' " Anderson, 107 S.Ct. at 3042 n. 6 (quoting Harlow, 457 U.S. at 817, 102 S.Ct. at 2737). "Harlow thus recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law." Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. But both the defendant and the trial court in this case failed to acknowledge that the "entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Id. ³

Despite the clear benefits to the defendant of asserting qualified immunity at the earliest possible stage in the litigation, Curry failed to raise the issue in his motion to strike and dismiss and neglected to file a summary judgment motion. He raised the issue for the first time on the eve of trial in his answer to the complaint ⁴ and at that time merely stated: "Defendants Cleary ⁵ and Curry are immune from liability in that their conduct, if any, was objectively reasonable and/or in good faith." Although this statement raises the issue, it cites no authority, contains no arguments and suggests the wrong legal standard for immunity--good faith. Thus an immunity doctrine designed to preclude unnecessary trials was not even argued prior to trial.

Defendant Curry did argue qualified immunity very briefly, in five sentences with citation to, but without discussion of, two cases from this Court, in his oral motion for a directed verdict at the close of the plaintiff's case. The district court denied the motion at that time. The trial continued and at the close of all the evidence, defendant renewed his motion for a directed verdict and the district court denied it again. Then during the conference on jury instructions, counsel for the defendant offered five instructions on qualified immunity and, over plaintiff's objections, the trial court allowed them. The salient instruction told the jurors that the "defendants are immune from liability if their conduct or conduct such as theirs had not been previously found to be unlawful, or if their conduct violated no clearly established statutory or Constitutional right." They were further guided by the same instruction that "[i]n making this determination, you must consider the status of the law on the date or dates in question before you."

How was the jury supposed to determine the law on the dates in question? And, if the jury somehow could determine the law on the dates in question, how was it supposed to determine if that law was "clearly established"? As plaintiff's counsel asked, "How is the jury ever going to know that?" The trial court had "no problem" with the above instruction. We do. The question of qualified immunity is a question of law for the court, not for the jury. Rakovich, 850 F.2d at 1201-1202; Benson v. Allphin, 786 F.2d 268, 274 (7th Cir.1986), certiorari denied, 479 U.S. 848, 107 S.Ct. 172, 93 L.Ed.2d 109; Llaguno v. Mingey, 763 F.2d 1560, 1569 (7th Cir.1985) (en banc ); Joseph v. Brierton, 739 F.2d 1244, 1249 (7th Cir.1984). Cf. Rakovich, 850 F.2d 1179 n. 15.

Curry may not, of course, challenge this jury instruction because he did not object at trial--he offered it. Fed.R.Civ.P. 51. See Rakovich, 850 F.2d at 1202; McKinley v. Trattles, 732 F.2d 1320, 1324 (7th Cir.1984). However, Curry raised the issue of qualified immunity in his motion for a directed verdict as well. Because we hold that he should have been found immune at that stage of the proceedings, there is no need to address the effect of the jury's decision. See Rakovich, 850 F.2d 1203-1204.

III

The general rule of qualified immunity is intended to provide government officials with the ability "reasonably [to] anticipate when their conduct may give rise to liability for damages." Anderson, 107 S.Ct. at 3042 (quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139). Therefore, "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Thus whether Curry is protected by qualified immunity turns on the objective reasonableness of his...