Davis v. Zirkelbach

• Citation: 149 F.3d 614
• Decision Date: 09 July 1998
• Docket Number: No. 97-1107,97-1107
• Parties: Michael L. DAVIS, Plaintiff-Appellant, v. John ZIRKELBACH, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 614

149 F.3d 614

Michael L. DAVIS, Plaintiff-Appellant, v. John ZIRKELBACH, et al., Defendants-Appellees.

No. 97-1107.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 8, 1997.

Decided July 9, 1998.

E. Dean Singleton (argued), Owensville, IN, Verdelski V. Miller, Evansville, IN, for Plaintiff-Appellant.

David L. Jones, Keith M. Wallace (argued), Jones & Wallace, Evansville, IN, for Defendants-Appellees John Zirkelbach, Richard Whitlow.

Carl A. Heldt (argued), Shawn M. Sullivan, Lacey, Terrell, Annakin, Heldt & Baugh, Evansville, IN, for Defendants-Appellees Christian M. Lenn, Michael D. May.

Before FLAUM, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

The plaintiff in this case has showered us with issues relating to the kinds of claims an accused person may bring against prosecutors, police, and municipalities under 42 U.S.C. § 1983 and related theories, after the prosecutors have dropped charges against that person. The district court disposed of all of Michael L. Davis's claims against the City of Evansville, Indiana, officials of the city, and officials of Vanderburgh County, Indiana, finding in some instances that the defendants were entitled to absolute or qualified immunity, in others that the statute of limitations barred Davis's claims, and in others that there was simply no right on which to recover. For the reasons that follow, we agree with the district court that the defendants were entitled to judgment in their favor, and we therefore affirm.

I

The charges against Davis arose out of the suspicions of his employer, Michael May, that Davis was selling drugs from May's used car lot. Taking matters into his own hand in a way that led to numerous later complications, May decided to tap Davis's office telephone. The tap yielded a tape recording in which Davis could be heard discussing the sale of five pounds of marijuana with Jeannette Duncan. May turned the tape over to Officer Richard Whitlow, a narcotics officer with the Evansville police force. Immediately after listening to it, Whitlow went to his supervisor, Patti Dee Wazny, then the head of the city's narcotics division, and asked her whether the tape would be usable against Davis. Unsure herself, Wazny told Whitlow to get a formal legal opinion on whether the tape could be used. Whitlow called Christian Lenn, the deputy prosecutor responsible for giving the narcotics division legal advice, and asked him the same question. After briefly researching the issue, Lenn told the police that the tape could not be used to prosecute Davis, but, because the police had not participated in intercepting the telephone conversation, the information on it could be used to "flip" the female participant, Duncan, and convince her to become a confidential informant.

Apparently after some police pressure, Duncan did agree to cooperate with the police. On May 11, 1990, Officers Whitlow and John Zirkelbach arrested Davis on charges of controlled substance violations. About a week later, prosecutors Lenn and Jonathan Parkhurst formally initiated criminal charges against Davis under Indiana's drug laws. On September 12, 1990, the state added a charge of intimidating a witness--Michael May, Davis's employer. Ten months later, on July 30, 1991, the state dismissed the criminal drug charges against Davis, and in December of 1991 it also dropped the criminal intimidation charges. Davis filed the present suit on September 9, 1992.

II

As the case reaches us, Davis is pursuing claims against the following defendants: Officer Zirkelbach, Officer Whitlow, Art Gann (Chief of Police for the City of Evansville), the City of Evansville, Prosecutor Lenn, Prosecutor Parkhurst, and Stanley M. Levco (elected Prosecutor of Vanderburgh County, Indiana, during the times material to these events). In general, he claims that the prosecutor defendants (Lenn, Parkhurst, and Levco) violated his federal rights under § 1983 because they allowed the police to use the taped evidence, which was gathered in violation of both section 802 of the Omnibus Crime Control and Safe Streets Act of 1968 ("the Federal Wiretap Act"), 18 U.S.C. § 2520, and the Indiana Wiretap Statute, Ind.Code § 35-33.5 et seq. He also alleges that the prosecutors committed the state law torts of malicious prosecution and intentional infliction of emotional distress. With respect to the police defendants, Zirkelbach, Whitlow, and Gann, he makes essentially the same claims. Finally, he argues that the City was liable under both federal and state law based on a theory of respondeat superior liability. (He also named other defendants and raised certain other claims, but they have been dropped from the case by now.)

A. The Prosecutors

In Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), the Supreme Court drew a careful line between the vulnerability of a prosecutor to suit for actions related to functions that are part of the judicial process, and the prosecutor's exposure for acts related to other functions, such as investigation or the giving of legal advice. It reiterated the rule that prosecutors are entitled to absolute immunity from suit for the former actions. Id. at 491-92, 111 S.Ct. 1934; see also Kalina v. Fletcher, --- U.S. ----, ---- - ----, 118 S.Ct. 502, 508-09, 139 L.Ed.2d 471 (1997); Imbler v. Pachtman, 424 U.S. 409, 424, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). On the other hand, even when prosecutors are engaged in the sensitive tasks of giving legal advice to police officers, or swearing out an information to support a prosecution, the Court has held that they are entitled only to qualified immunity from suit. See Kalina, --- U.S. at ----, 118 S.Ct. at 510; Burns, 500 U.S. at 496, 111 S.Ct. 1934. In Burns, the Court stressed the fact that "the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question." Id. at 486, 111 S.Ct. 1934 (citations omitted); see also Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). On the other hand, it also observed that "the qualified immunity standard is today more protective of officials than it was at the time that Imbler was decided." Burns, 500 U.S. at 494, 111 S.Ct. 1934 (footnote omitted). As we too have often had occasion to note, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Chan v. Wodnicki, 123 F.3d 1005, 1008 (7th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1054, 140 L.Ed.2d 117 (1998); Forman v. Richmond Police Dep't, 104 F.3d 950, 958 (7th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 563, 139 L.Ed.2d 403 (1997).

These principles underlie our evaluation of Davis's claims against the prosecutors. The district court found that Prosecutors Parkhurst and Levco had absolute immunity from all of Davis's claims against them. This was clearly correct. Davis's claims against Parkhurst and Levco arose solely from their decisions to commence and continue prosecuting him for his alleged drug and intimidation crimes. The fact that the prosecutions in some sense may have rested on violations of the Federal Wiretap Act and its Indiana counterpart makes no difference. In Burns, the Court gave absolute immunity to prosecutors who allegedly had presented false testimony in a probable cause hearing. 500 U.S. at 491-92, 111 S.Ct. 1934; see also id. at 490 n. 6, 111 S.Ct. 1934 (acknowledging widespread agreement that prosecutors have absolute immunity for their conduct before grand juries); Lucien v. Preiner, 967 F.2d 1166, 1167 (7th Cir.1992) (granting absolute immunity to prosecutor who allegedly presented false evidence in an executive clemency proceeding); compare Kalina, --- U.S. at ---- - ----, 118 S.Ct. at 509-10 (denying absolute immunity for prosecutor who swore out a false certificate of probable cause, thus crossing the line between advocacy and participation). In Buckley, the Court reaffirmed the rule that the prosecutor is absolutely immune for acts taken in preparing for the initiation of judicial proceedings or for trial, including the professional evaluation of evidence assembled by the police. 509 U.S. at 273, 113 S.Ct. 2606. This is precisely what Parkhurst and (to the extent one can say he was involved at all) Levco allegedly did: they evaluated the evidence collected by the police, including (we assume) the illegally recorded tape, and they decided to bring a judicial proceeding. Whether they were right or wrong in their evaluation of their right to use the taped evidence is of no moment. Under Imbler, Buckley, and Burns, they are entitled to absolute immunity from suit, and Davis's § 1983 claims against them were properly dismissed. The same result obtains under Indiana law for Davis's claims based on state law theories. See, e.g., Foster v. Pearcy, 270 Ind. 533, 387 N.E.2d 446 (1979); Hupp v. Hill, 576 N.E.2d 1320, 1325 (Ind.Ct.App.1991); see also Ind.Code § 34-4-16.5-3(5) & (6).

Lenn's situation is different in one respect. Davis complains not only that Lenn participated in the initiation of the proceedings against him, but also that Lenn violated his rights when Lenn advised Officer Whitlow that the tape could be used to "flip" Duncan. We consider only the second of these points, because Lenn is entitled to absolute immunity under both federal and state law for the acts he took to bring criminal proceedings against Davis for the same reasons his colleagues were. For purposes of federal law, Burns holds that prosecutors are entitled only to qualified immunity for their acts of giving legal advice to the police. 500 U.S. at 496, 111 S.Ct. 1934. Indiana law is more generous to the prosecutor, because it has rejected the Supreme Court's distinction between prosecutorial and administrative or investigative functions for purposes of immunity, as long as the...