BeVier v. Hucal
| Citation | 806 F.2d 123 |
| Decision Date | 18 November 1986 |
| Docket Number | No. 85-2769,85-2769 |
| Parties | Robert BeVIER and Annette BeVier, Plaintiffs-Appellees, v. Steven HUCAL, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Rita M. Novak, Illinois Atty. Gen. Office, Chicago, Ill., for defendant-appellant.
Thomas R. Appleton, Preseney, Kelly & Appleton, Springfield, Ill., for plaintiffs-appellees.
Before CUMMINGS, FLAUM and EASTERBROOK, Circuit Judges.
This 42 U.S.C. Sec. 1983 case was tried before a United States magistrate. Defendant appeals from judgment in favor of plaintiffs in the amount of $8,206.80 each. The magistrate also awarded attorneys' fees and costs in the amount of $3,888.63. At issue is whether the defendant police officer had probable cause to arrest and detain plaintiffs.
In the summer of 1983, Robert and Annette BeVier worked for Links Amusements, a company that operated carnival rides at state and county fairs. Robert drove trucks and assembled rides; Annette later was employed to work in the cookhouse. They, along with their children, traveled with the carnival, camping out in a tent. The BeViers purchased a tent and other camping equipment and packed cooking utensils, bedding, clothing, and toys for the children.
The amusement company stopped at the Illinois State Fair in Springfield in early August. The BeViers set up camp in a ravine known as "Happy Hollow" after being told to move from a shaded hilltop area. The BeViers employed a teen-aged girl named Molly to care for the children during their working hours. They instructed Molly on how to care for the children, including to keep them out of the sun, change their diapers regularly, and bring them to the cookhouse for meals. Molly did not follow those instructions.
On August 17, 1983, Molly took one of the children, Clifford, to the Red Cross Center on the fairgrounds because he appeared to be bleeding when he urinated. Robert and Annette were summoned to the Center and instructed to take Clifford to St. John's Hospital in Springfield. At the hospital Clifford was diagnosed as having severe diaper rash and the BeViers were advised to change his diapers frequently, use paper diapers, and apply the prescribed medication. The next day Robert went into town to purchase the paper diapers and fill the prescription. The BeViers fired Molly and hired a new babysitter, Bobbie. Bobbie was given the same care instructions as Molly; specifically, she was told to change Clifford's diaper every hour, applying the medication. By the next day the rash seemed to be improving.
On Friday, August 19, Robert checked the children in the morning and found them in the shade. Annette saw the children at breakfast and lunch and they appeared to be fine.
Late that same afternoon defendant Steven Hucal and Ray Thompson, Illinois state police officers, were patrolling the Happy Hollow area when they spotted the BeViers' tent. They had heard that a child living in that area had been taken to the hospital. There was no shade in the ravine where the tent was located. The tent was located about 40 to 50 feet from diesel generators and maintenance equipment. Livestock was also in the area, which consequently smelled of manure. Sanitary facilities were some distance from the area.
They saw the BeViers' two young children sitting in direct sunlight. The temperature was over 100?. Clifford was sitting still in a swing with his head slumped to one side and Robert, Jr., was listless. According to Hucal, both children were filthy and their skin looked sunburned. Hucal approached a teen-aged girl, sitting in the shade, who said she was watching the children. She showed him Clifford's diaper rash and told him that Clifford had been taken to the hospital because he appeared to be urinating blood. Hucal did not question her further but instead allowed her to leave the area.
Hucal contacted the state police headquarters and requested an ambulance. Robert arrived as the children were being placed in the ambulance and identified himself as their father. Without asking Robert any questions, Hucal arrested him for child neglect. The children were taken to the Red Cross Center and Robert was taken to police headquarters. When Annette arrived at the police station she was also arrested.
While at police headquarters Hucal contacted the Illinois Department of Children and Family Services (DCFS) to arrange temporary foster care for the children. He spoke with Bob Randall, a child abuse and neglect investigator for the DCFS, and described the BeViers' situation. Randall replied that he did not consider the situation abusive and suggested alternatives to arrest. Hucal became angry and explained that the arrests had already been made.
Randall picked up the children at the Red Cross Center later that evening and placed them in foster homes. Robert and Annette were taken to the Sangamon County Jail. They were not released until late Monday afternoon, although no charges were ever filed against them. Robert and Annette were reunited with their children the next day. During their incarceration most of their property was lost when Links Amusements moved to the next destination. Robert and Annette brought this Sec. 1983 action alleging that they were arrested without probable cause. They sought compensatory and punitive damages against Hucal and Thompson; Thompson was later dismissed as a defendant. Damages of $16,413.60 and attorney's fees of $3,888.63 were awarded to the plaintiffs. The magistrate, in his memorandum opinion, found that the arrests were unreasonable under the circumstances. Although he found that the children's condition and physical living environment "would only weakly support an arrest for intentional child neglect," the magistrate faulted Hucal for not further questioning the teen-ager on the scene or the parents, and disregarding Randall's assessment of the situation.
Defendant raises two issues on appeal. He claims first, that the magistrate erred in determining that there was no probable cause and second, that he is entitled to immunity from damages. Because we agree that Hucal acted unreasonably by failing to investigate the circumstances further, we affirm the magistrate's judgment.
We must decide whether Hucal had probable cause to arrest plaintiffs for child neglect and, if not, whether he had a reasonable good faith belief that probable cause existed. Police officers may arrest without a warrant if the information available to the officer at the time of the arrest indicates that the arrestee has committed a crime. Thus an arrest is not unconstitutional merely because the information relied upon by the officer later turns out to be wrong. Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); McKinney v. George, 726 F.2d 1183, 1187 (7th Cir.1983). Probable cause is a fluctuating concept; its existence depends upon " 'factual and practical considerations of everyday life.' " Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949)). It is the totality of circumstances, including the facts available to defendant, that are dispositive. Gates, 462 U.S. at 231-232, 103 S.Ct. at 2328-29; United States v. Fooladi, 703 F.2d 180 (5th Cir.1983). Police officers are allowed to make mistakes, but those mistakes must be reasonable ones. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949); McKinney, 726 F.2d at 1187.
Defendant arrested plaintiffs on a charge of child neglect under Ill.Rev.Stat. ch. 23, p 2361, which provides:
Any parent, legal guardian, or person having the custody of a child ... who knowingly or wilfully causes, aids, or encourages such person to be or to become a dependent and neglected child ..., who knowingly or wilfully does acts ... [or] fails to do that which will directly tend to prevent such state of dependency or neglect is guilty of the Class A misdemeanor of contribution to the dependency and neglect of children.
Paragraph 236O defines "neglected child" as:
any child who ... is destitute, homeless or abandoned; ... or has not proper parental care or guardianship; ... or has a home which by reason of neglect, cruelty or depravity on the part of its parents, guardian or any person in whose care it may be is an unfit place for such child....
We agree with both the magistrate and the defendant that the facts as known by defendant weakly supported an inference that the children were being neglected. The children were in direct sunlight on an extremely hot day; they were listless, filthy, and living near machinery and livestock; and one had severe blistering diaper rash for which he had been taken to the hospital. However, the child neglect statute requires that a parent act knowingly or wilfully. Therefore, Hucal needed some evidence that the BeViers knew of their children's predicament but failed to prevent it. There was no evidence of such knowledge. Instead Hucal knew that the BeViers had taken Clifford to the hospital and had retained a new babysitter, evidence that they were attempting to remedy the situation.
Hucal's mistake was failing to question the parents, the Red Cross Center personnel, or the teen-ager watching the children. This mistake was unreasonable. A few questions would have given defendant some important information. He would have discovered that Robert and Annette had instructed each of the babysitters to keep the children in the shade and their diapers dry, sanitation facilities were nearby, Annette gave the boys daily showers, Clifford's diaper rash had been seen by a doctor, and Robert and Annette were treating it with the proper medication. Once this information surfaced, Hucal would have known that the BeViers were not neglecting their children. Defendant's brief...
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