Gauger v. Hendle

• Decision Date: 30 October 2003
• Docket Number: No. 02-3841.,02-3841.
• Citation: 349 F.3d 354
• Parties: Gary GAUGER, Plaintiff-Appellant, v. Beverly HENDLE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

349 F.3d 354

Gary GAUGER, Plaintiff-Appellant, v. Beverly HENDLE, et al., Defendants-Appellees.

No. 02-3841.

United States Court of Appeals, Seventh Circuit.

Argued May 27, 2003.

Decided October 30, 2003.

Rehearing and Rehearing En Banc Denied January 5, 2004.

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Ronald S. Safer (argued), Thomas J. Henehan, Schiff, Hardin & Waite, Chicago, IL, for Plaintiff-Appellant.

James G. Sotos (argued), Jason Rose, Hervas, Sotos, Condon & Bersani, Itasca, IL, for Defendant-Appellees.

Before BAUER, POSNER, and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

Gary Gauger appeals from the grant of summary judgment to the defendants, three McHenry County, Illinois, detectives whom he had sued under 42 U.S.C. § 1983 charging them in effect with having framed him. There are other defendants, but they needn't be discussed separately, as their lawyers do not argue that there is any difference among their clients so far as liability for the wrongs alleged by Gauger is concerned.

The facts are bizarre. In 1993, Gauger, a 40-year-old divorced organic farmer, was living on the farm of his elderly parents, with whom he had had various contretemps because of his alcoholism (which had driven him to join Alcoholics Anonymous) and his planting of marijuana. Once, his father had been heard to say, Gauger had struck his mother, leaving bruises on her arm and neck. And she had told him that if he continued drinking he might have to leave the farm. According to Gauger, he last saw his parents alive at about 8:30 p.m. on Wednesday, April 7. He did not see them at all the next day, even though he had not expected them to be away from the farm. He had begun that morning to suspect they had left, because he noticed Fluffy the cat outside on a window ledge, wet and crabby, and thought his parents would have let Fluffy in by now were they at home. That night he noticed that his parents' cars were still in the barn where they were kept and he became worried, but he went to bed without either searching the farm or reporting his parents missing. The following morning two customers of his father's motorcycle shop (which was on the farm property) came by, and Gauger entered the shop with them and discovered his father's dead body. He called the police, and they searched and found the mother's dead body in another shop on the property, where she had sold rugs. Both victims had had their throats cut.

Because there were no signs of forced entry into either shop and also no signs of a struggle, the police suspected Gauger of being the murderer. They took him to the police station for questioning that continued, with bathroom and food breaks, for 18 hours. Although the detectives who conducted the interrogation did not handcuff, hit, or threaten Gauger, they shouted at him a few times and they lied to him, telling him falsely that they had found physical evidence at the crime scene that implicated him and that he had flunked the lie-detector test administered to him at his request during the interrogation (the results of the test had in fact been inconclusive). After the detectives showed him photographs of his parents' bodies with their throats cut, Gauger said he would tell them how he would have murdered his parents though he didn't recall having done so. He sketched the hypothetical murders and later gave a more detailed account in which he explained how he had checked the knife in his pocket, come up behind his mother in the rug shop, cut her throat, "caught her [as she fell] because I didn't want her to get hurt," "covered her with blankets because I cared," then went to the motorcycle shop, and saw "my Dad... walking away from me ... he wouldn't have heard me because he's hard of hearing... I cut his throat and let him fall." But he refused to sign a confession because he had "no memory of any of this." At one point in the interrogation he said to one of the detectives, "how can you be nice to me? I don't deserve it," and another time he told this detective flatly, "I killed my parents." Eventually he asked for a lawyer because he was worried that if his statements "were taken out of context it might be considered a confession," and at this point the questioning ceased. By his own acknowledgment he had made several flippant remarks during the interrogation, which struck the officers as suspicious, given what had happened to his parents.

The foregoing summary of the interrogation is Gauger's; the detectives' version differs in crucial respects. There was no recording or transcript of the interrogation, and of course no signed statement, and in their reports of the interrogation that were forwarded to the McHenry County prosecutor the detectives, while they did acknowledge Gauger's having told them that if he killed his parents he could not remember doing so, did not describe his account of the murders as having been hypothetical in character. The combination of his detailed account (with no suggestion of its being hypothetical rather than actual) and his statement (which he acknowledged) that "I killed my parents" created the impression in the minds of the detectives that he had confessed. We do not know which version of the interrogation is the correct one but for purposes of this appeal, since it is from the grant of summary judgment in favor of the detectives, we assume that Gauger's is.

At his trial for murder he testified to his version of the interrogation and the detectives presumably testified consistently with the account in their reports, though this is uncertain because, curiously, the transcript of the criminal trial was not made a part of the record of this case. Gauger was convicted and sentenced to death but the trial judge later reduced his sentence to life imprisonment. That was in 1994. Two years later the Illinois Appellate Court reversed Gauger's conviction and ordered a new trial on the ground that the statements he had made during his interrogation were inadmissible because they had been the fruit of an unlawful arrest, for when the police took him in for questioning they did not have probable cause to believe him guilty of a crime. In the trial court he had also argued that the statements were coerced, but he did not appeal the rejection of that argument; nor does he attempt to resuscitate it here. Indeed he is explicit in "not claim[ing] that the detectives violated the Constitution by their conduct during the interrogation" (emphasis his), and so we need not decide whether his statements were coerced by the browbeating to which he was subjected over a period of many hours, rather than being voluntary. A mature person with a high school degree and some college, Gauger does not fit the profile of the type of suspect who can readily be coerced to make incriminating statements without beating or threats. See, e.g., Davis v. North Carolina, 384 U.S. 737, 742-52, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Gallegos v. Colorado, 370 U.S. 49, 52-54, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); Welsh S. White, "False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions," 32 Harv. Civ. Rts-Civ. Liberties L.Rev. 105, 131 (1997).

Gauger was never retried. The charges against him were dropped after members of the Outlaws motorcycle gang admitted murdering Gauger's parents; they were later convicted of a RICO offense in which the two murders were among the predicate acts. Although the motorcycle gangsters did not implicate Gauger in the murders, the absence of signs of forced entry or a struggle, together with Gauger's suspicious behavior and statements, the financial benefit to him of his parents' death (his share of their estate was several hundred thousand dollars), and his acknowledgment that members of the Outlaws motorcycle gang had been occasional customers of his father's motorcycle shop, has left a lingering suspicion that he was somehow complicit. But that suspicion plays no part in our consideration of his appeal.

Gauger contends that the detectives perjured themselves when they testified at his criminal trial, consistently we are assuming with their reports, about what he had said during the interrogation. But witnesses, including police officers testifying for the prosecution in a criminal trial, have absolute immunity from a damages suit based on their testimony. Briscoe v. LaHue, 460 U.S. 325, 345-56, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). There is an exception for "complaining witnesses" — the instigators of the prosecution — and it might embrace police officers who pushed aggressively for a prosecution, Malley v. Briggs, 475 U.S. 335, 340-41, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Cervantes v. Jones, 188 F.3d 805, 809-10 (7th Cir.1999), overruled on other grounds in Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir.2001); Curtis v. Bembenek, 48 F.3d 281, 285-86 n. 5 (7th Cir.1995); Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003); cf. Kalina v. Fletcher, 522 U.S. 118, 129-31, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997), but Gauger does not argue that the exception is applicable. (Indeed, neither side discusses either absolute immunity or the complaining-witness exception.) No reported appellate case suggests that police reports are entitled to a similar privilege (we cannot find any reported appellate case on point, and only indirect support in two appellate cases, Scott v. Hern, 216 F.3d 897, 911 (10th Cir.2000), and Landrigan v. City of Warwick, 628 F.2d 736, 744-45 (1st Cir.1980)), even when they are put into evidence — as they were not, however, in this case. The existence of such a privilege is implicitly rejected by the many decisions which hold that if police falsify their reports in a successful effort to persuade the prosecutors to prosecute a suspect, they have violated his civil rights and he can sue the police without worrying about immunity. Mahoney v. Kesery, 976 F.2d 1054, 1061 (7th Cir.1992); Jones v. City of Chicago, 856 F.2d 985, 993-94 (7th Cir.1988); Ricciuti...