Boyce v. Fernandes

• Decision Date: 26 February 1996
• Docket Number: No. 95-2610,95-2610
• Citation: 77 F.3d 946
• Parties: Claudine L. BOYCE, also known as Marilyn Boyce, Plaintiff-Appellant, v. Vera FERNANDES and City of Peoria, Illinois, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 946

77 F.3d 946

Claudine L. BOYCE, also known as Marilyn Boyce, Plaintiff-Appellant, v. Vera FERNANDES and City of Peoria, Illinois, Defendants-Appellees.

No. 95-2610.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 17, 1996.

Decided Feb. 26, 1996.

Appeal from the United States District Court for the Central District of Illinois, No. 93 C 1001; Robert J. Kauffman, Magistrate Judge.

Richard L. Steagall (argued), John P. Nicoara, Nicoara & Steagall, Peoria, IL, Robert B. Becker, Becker & Becker, Peoria, IL, for Plaintiff-Appellant.

Clifton J. Mitchell (argued), Peoria, IL, for Defendants-Appellees.

Before POSNER, Chief Judge, and CUDAHY and FLAUM, Circuit Judges.

POSNER, Chief Judge.

Claudine Boyce appeals from the dismissal, on summary judgment, of a damages suit for false arrest that she brought against Vera Fernandes, a Peoria police officer, and the City of Peoria. The suit against Fernandes is based exclusively on 42 U.S.C. § 1983 and was dismissed on the ground of public officers' immunity. A supplemental state law claim naming both Fernandes and the City as defendants was also dismissed.

Where the only issue bearing on immunity is whether the defendant had probable cause to make the search or arrest that is challenged, merits and immunity merge; the dispositive question is simply whether the defendant did have probable cause. So at least we held in Mahoney v. Kesery, 976 F.2d 1054, 1057-58 (7th Cir.1992), and implied in Maxwell v. City of Indianapolis, 998 F.2d 431, 435-36 (7th Cir.1993). But Maltby v. Winston, 36 F.3d 548, 554-55 and n. 7 (7th Cir.1994), suggests, in great tension with these decisions and in reliance on dicta in Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (per curiam); Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), and Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir.1988) (all cases discussed, however, in Mahoney, 976 F.2d at 1059), that the immunity doctrine may give public officers an additional layer of protection beyond what is implicit in the right to arrest on probable cause that may well turn out to be mistaken. This is a surprising suggestion. The modern conception of public officers' immunity is that it is designed to protect public officers from their failures to anticipate changes in the law, Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Jones v. City of Chicago, supra, 856 F.2d at 994, and the concept of probable cause has not changed in a great many years. In addition, we suspect that the additional layer of protection implied by the concept of probable cause to believe one has probable cause to arrest or search someone may have a merely metaphysical or conceptual existence; human ability to make fine distinctions is limited. But we need not attempt to sort out the tangle in this case--and indeed if we are right about the merely conceptual significance of the additional layer the tangle may never have to be sorted out because no case may ever turn on its untangling. It is apparent that Fernandes had probable cause to make the arrest, and this makes the issue of immunity academic.

Elder abuse is a growing problem in this country because of the growing number of elderly people. Like child abuse, elder abuse is a difficult crime to detect and prosecute. In both types of case the victim is often an unreliable witness because of limited mental capacity--undeveloped in the case of the child, impaired by old age in the case of the elder. Claudine Boyce was employed by a woman of 75 named Auda Tunis who was afflicted by senile dementia caused either by alcoholism or by Parkinson's disease. Detective Fernandes began her investigation of Boyce at the instance of Tunis's granddaughter, who told the detective that she thought Boyce might be stealing from her grandmother. The granddaughter had discovered that all the furniture had been removed from Tunis's home and that she had been placed in a nursing home. The granddaughter had visited her grandmother in the nursing home and found that she seemed confused at first but later recognized the granddaughter and the granddaughter's husband. Tunis told them she did not know why she was there, that Boyce had badgered her into signing what she thought was a document that said merely that she would think about signing a power of attorney, and that she was ashamed of the situation she was in and had not wanted to complain to the granddaughter.

The nursing home had told the granddaughter that Tunis had granted Boyce (who had signed Tunis into the nursing home) both a general power of attorney and a health-care power of attorney. Detective Fernandes therefore called the lawyer who had prepared the powers of attorney. He expressed surprise that Tunis had a granddaughter--he had thought she had no living relatives. Fernandes interviewed employees of the nursing home. They told her that Tunis had been in a shocking condition when admitted to the home, with multiple bruises and lacerations, and that the jewelry Tunis had worn on her previous admission to the nursing home was gone. Fernandes reported that the staff had told her that "Tunis seemed to be in a state of shock and her condition was completely opposite of the first time she had been admitted to the home several weeks prior. She now appeared confused and withdrawn and her clothing was unkempt and old appearing." The staff suspected elder abuse and decided to institute proceedings to obtain a new power of attorney, in which the nursing home would be the power holder.

Fernandes then spoke to Tunis herself, who in this interview and a subsequent one on December 26 told Fernandes that Boyce had threatened, slapped, and shoved her, had plied her with liquor, and might have (subsequent investigation revealed that she had) deposited her social security checks, without her authorization, in a joint checking account in Boyce's and her name; and that Boyce had taken Tunis's furniture and other personal property without her authorization and Tunis did not know what she had done with it. Two days later, December 28, Fernandes learned that Tunis's Cadillac was parked in Boyce's driveway and that the car, formerly registered to Tunis's deceased husband, was now registered to Boyce. A few days later Fernandes arrested Boyce, without a warrant, for the theft of the Cadillac, a felony. Boyce was held in the county jail for 42 hours before being released on bond. Subsequent investigation brought to light that Boyce had in all likelihood forged a bill of sale of the Cadillac to herself for $100. Nevertheless, she has not been prosecuted.

Accusations by demented persons must always be viewed with a certain skepticism, especially since paranoid suspicions are a common incident of dementia. It would have been imprudent for the detective to have reposed automatic, unquestioning credence in Tunis's accusations against Boyce. She did not. Tunis's accusations were corroborated by the granddaughter, by the staff of the nursing home, and by the lawyer, who was upset to learn that Tunis had granted a power of attorney to her housekeeper when (as Boyce well knew) she had an adult granddaughter. Further corroboration came from the fact that Boyce, though knowing of Tunis's granddaughter, had never informed her that Boyce had a power of attorney, that she was managing Tunis's affairs, and that she was preparing Tunis's property for sale. There thus were grounds for suspicion that Boyce was trying to conceal what she was doing from Tunis's only relative.

Tunis's accusations themselves, moreover, had a degree of particularity that reduced the likelihood that they were merely senile fantasies. It is a common mistake to exaggerate the degree to which senile dementia renders an individual mentally incompetent. There are different types and severities of dementia. The most serious--senile dementia of the Alzheimer's type--is progressive. Some persons afflicted with it exhibit only short-term memory loss and occasional disorientation, while others are so far demented as to have forgotten their own name, to have lost the power of speech, and to be unable to recognize their spouse or their children. See...