Kunik v. Racine County, Wis.

• Decision Date: 30 October 1991
• Docket Number: 90-1262,Nos. 90-1234,90-1330,90-1235,s. 90-1234
• Citation: Kunik v. Racine County, Wis., 946 F.2d 1574 (7th Cir. 1991)
• Parties: Michael KUNIK, Plaintiff-Appellant, v. RACINE COUNTY, WISCONSIN; Racine County, Wisconsin, Sheriff's Department; Patrick Ketterhagen; James Litwin and Henry Creekmore, Defendants-Appellees. Michael KUNIK, Chester Adams and Lisa Kretschmer, Plaintiffs, v. RACINE COUNTY, WISCONSIN; Racine County, Wisconsin, Sheriff's Department; Patrick Ketterhagen; James Litwin and Henry Creekmore, Defendants-Appellees, Appeal of Rick HALPRIN, attorney for plaintiffs. Lisa KRETSCHMER, Plaintiff-Appellant, v. RACINE COUNTY, WISCONSIN; Racine County, Wisconsin, Sheriff's Department; Patrick Ketterhagen; James Litwin and Henry Creekmore, Defendants-Appellees. Chester ADAMS, Plaintiff-Appellant, v. RACINE COUNTY, WISCONSIN; Racine County, Wisconsin, Sheriff's Department; Patrick Ketterhagen; James Litwin and Henry Creekmore, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1574

946 F.2d 1574

Michael KUNIK, Plaintiff-Appellant, v. RACINE COUNTY, WISCONSIN; Racine County, Wisconsin,

Sheriff's Department; Patrick Ketterhagen; James

Litwin and Henry Creekmore,

Defendants-Appellees.

Michael KUNIK, Chester Adams and Lisa Kretschmer, Plaintiffs, v. RACINE COUNTY, WISCONSIN; Racine County, Wisconsin,

Sheriff's Department; Patrick Ketterhagen; James

Litwin and Henry Creekmore, Defendants-Appellees,

Appeal of Rick HALPRIN, attorney for plaintiffs.

Lisa KRETSCHMER, Plaintiff-Appellant, v. RACINE COUNTY, WISCONSIN; Racine County, Wisconsin,

Sheriff's Department; Patrick Ketterhagen; James

Litwin and Henry Creekmore,

Defendants-Appellees.

Chester ADAMS, Plaintiff-Appellant, v. RACINE COUNTY, WISCONSIN; Racine County, Wisconsin,

Sheriff's Department; Patrick Ketterhagen; James

Litwin and Henry Creekmore, Defendants-Appellees.

Nos. 90-1234, 90-1235, 90-1262, 90-1330.

United States Court of Appeals Seventh Circuit.

Argued April 18, 1991.

Decided Oct. 30, 1991.

Rick Halprin (argued), Chicago, Ill., William A. DeMark, DeMark & Piontek, Racine, Wis., for plaintiff-appellant, in Nos. 90-1234, 90-1235, 90-1262, 90-1330.

Susan Shimp Torok, LeRoy Kramer, III (argued), Racine County Corp. Counsel, Racine, Wis., for defendants-appellees.

Thomas Peters (argued), Chicago, Ill., for plaintiff in No. 90-1235.

Cynthia L. Pierce, Josten, Durocher, Murphy & Pierce, Racine, Wis., for plaintiff-appellant in No. 90-1330.

James L. Santelle, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Milwaukee, Wis., for defendants-appellees in No. 90-1330.

Before CUMMINGS, WOOD, Jr. and CUDAHY, Circuit Judges.

CUDAHY, Circuit Judge.

Plaintiffs sued local police and members of the Naval Investigative Service (NIS) under section 1983 and under state tort law. The section 1983 claims alleged a conspiracy to violate plaintiffs' constitutional rights in connection with a murder investigation and prosecution. The district court dismissed the section 1983 and constitutional claims for failing to state a claim on which relief could be granted and dismissed the remaining state claims on a motion for partial summary judgment. Plaintiffs appeal the dismissal of some of the federal claims. In addition, plaintiffs' attorney--Rick Halprin--appeals a contempt fine assessed against him by the district court for the language he used in a motion for reconsideration.

I.

A. Background

From the complaint we piece together these facts. ¹ Robert Buckley, a cab driver, was found stabbed to death in his cab on the evening of May 30, 1984. Members of the Racine County Sheriff's Department canvassed the vicinity. At a nearby mini-market, an employee reported to the officers that between 9:00 and 11:00 p.m. a patron she knew had been in the store with two unknown white men. The officers interviewed the patron, who said that the two men had arrived at his home at about 9:45, identified themselves as sailors, said that their car had broken down and offered $40.00 for a ride to the Great Lakes Naval Base, where they were stationed. On the way to the base the three stopped at the mini-market.

Because the Sheriff's Department's investigation led to the base, the department requested and received NIS's assistance. The four federal defendants--Elmquist, Schaefer, Hurt and Wieland--were special agents with the NIS and Schaefer was the assigned agent in charge. The four state defendants--Sheriff Rohner, Deputies Kettenhagen and Litwin--worked for the Sheriff's Department, and Ketterhagen was assigned to the case.

Between May 31 and June 19 Henry Creekmore, a private citizen who shared an apartment with plaintiff Lisa Kretschmer, contacted Schaefer. They met, and Creekmore "indicated that he was interested in the possibility of receiving reward money and favorable treatment for a federal prisoner" in whom he had an undefined interest. Complaint p 21. The complaint alleges that Creekmore then fingered Kretschmer and James Hodges (both civilians), and Kunik and Adams as involved in the homicide.

Schaefer and Ketterhagen interrogated Hodges, who initially denied knowing about the homicide but then "through intimidation" implicated himself, Kunik, Adams and Kretschmer. Hodges was not arrested. Schaefer and Ketterhagen, "knowing Hodges' statement to be false," applied for and received a warrant for Kunik's and Adams' arrests.

Schaefer learned that Kretschmer was the subject of a Lake County burglary prosecution. He allegedly then "caused" Lake County officials to issue a fugitive warrant for Kretschmer's arrest. Adams and Kretschmer, then pregnant by Adams, left the area but were apprehended in Wilkes-Barre, Pennsylvania, on June 21, 1984.

On June 25 Ketterhagen questioned Kretschmer in Wilkes-Barre and allegedly coerced her to implicate herself, Hodges, Kunik and Adams. Adams, advised of his Miranda rights, denied involvement and stated that at the time of the murder he was stationed in "Barracks 25" at the base, a disciplinary facility with enhanced supervision and restricted movement. "Certain supervisory personnel" later corroborated Adams' claim that he did not leave the base on the evening of May 30.

Schaefer and Ketterhagen thereafter re-interviewed Hodges and Kretschmer on unspecified dates "to extract through coercion and intimidation" statements impugning Adams' alibi. The two officers also interrogated Barracks 25 personnel for the same purpose, and Schaefer is alleged to have threatened the personnel with criminal prosecutions if they refused to change their testimony supporting Adams' alibi.

On July 24, 1984, while in prison, Kretschmer told authorities that she would not testify or cooperate in the Kunik and Adams prosecutions, claiming that her prior statements were false and made under duress. She was then charged with murder and armed robbery. On September 17, Kretschmer was transferred to the Racine County jail, where she remained until November 14, when she received immunity and was ordered to testify in the Kunik and Adams trial.

On November 18, Kunik and Adams were put on trial for armed robbery and murder. Both produced alibi witnesses. Kretschmer and Hodges, called by the state as witnesses, renounced their prior statements incriminating Adams and Kunik, claiming that the statements resulted from Schaefer and Ketterhagen's "intimidation, threats and coercion." The statements were admitted at the trial as prior inconsistent statements. Kunik and Adams were acquitted on November 27, 1984.

B. Plaintiffs' Causes of Action

Kunik's and Adams' complaint of May 28, 1986, and Kretschmer's of May 30 were consolidated on September 26 in a twelve-count complaint, the essence of which is that the investigators conspired to improperly investigate, falsely accuse and maliciously prompt the prosecution of the plaintiffs in the Buckley incident. The complaint names three groups of defendants: Racine County, the Racine County Sheriff's Department, Sheriff Rohner, Deputies Ketterhagen and Litwin (state defendants); the NIS, supervisor Elmquist and agents Schaefer, Wieland and Hurt (federal defendants); and Creekmore (a private citizen) and Schaneck (a sailor at the base). Plaintiffs seek $1,000,000 in compensatory damages and $10,000,000 in punitive damages.

Plaintiffs appeal the dismissal of Counts I, III, IV and VII, so we review these in detail. ² Count I alleges that between May 31 and June 10, 1984, Schaefer, Ketterhagen and others conspired to accuse falsely Kunik and Adams of the Buckley robbery and murder. The count claims that the conspiracy grew to include Creekmore, Rohner, Hurt, Schaneck, Wieland, Racine County, NIS, Litwin and the Sheriff's Department and broadened its scope to include defeating plaintiffs' right to civil damages. Pleaded facts supporting the conspiracy include Creekmore's alleged agreement with Schaefer to provide false testimony, the two allegedly coerced statements from Hodges, the arrest warrants acquired through allegedly false bases for probable cause, the two allegedly coerced interrogations of Kretschmer, an alleged agreement between Schaefer and Kretschmer's attorney to have the Lake County charges dropped in exchange for her testimony, recruitment of Schaneck and Hurt to provide false testimony to impeach Adams' alibi and coercion and intimidation of Navy personnel who had supported Kunik's and Adams' alibis. Plaintiffs claim that these efforts violate their rights under the First, Fourth, Fifth, Sixth and Fourteenth amendments as guaranteed through section 1983.

Count III alleges false arrest and imprisonment of Kunik and Adams for their arrest and trial without probable cause in violation of their rights under the Fourth, Fifth and Fourteenth amendments. Count IV alleges the same for Kretschmer for the time she spent in jail from June 17 to November 14, 1986. ³ Count VII alleges that Schaefer and Rohner carried out illegal and unconstitutional policies at the NIS and Sheriff's Department of seeking to produce or manufacture evidence to convict the plaintiffs. In support of Count VII, the complaint alleges Deputy Litwin made statements demonstrating the Department's decisions that Kunik and Adams were guilty and that the investigation would not be continued after their acquittal.

C. District Court Proceedings

We recount only the proceedings relevant for our purposes. From November 1986 to February 1989, the plaintiffs made several unsuccessful attempts to serve process on the federal defendants. On February 14, 1989, the district court reconsidered an earlier ruling and determined that federal defendant Schaefer had been properly served. The other federal defendants had been dismissed.

On March 6 Schaefer renewed an earlier motion for dismissal on the pleadings, which the court granted on September 5, 1989. On September 17 plaintiffs' counsel submitted a motion for reconsideration, which describes the district court's decision as "unfathomable," "hopelessly in error" and "bereft...