Mahoney v. Kesery

• Decision Date: 30 September 1992
• Docket Number: No. 91-2929,91-2929
• Citation: 976 F.2d 1054
• Parties: Thomas MAHONEY, Plaintiff-Appellee, v. Russell KESERY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1054

976 F.2d 1054

Thomas MAHONEY, Plaintiff-Appellee, v. Russell KESERY, Defendant-Appellant.

No. 91-2929.

United States Court of Appeals Seventh Circuit.

Argued April 15, 1992.

Decided Sept. 30, 1992.

Stephen R. Swofford, Bruce L. Carmen (argued), D. Kendall Griffith, Hinshaw & Culbertson, Patrick E. Mahoney, Chicago, Ill., for plaintiff-appellee.

Grant F. Langley, Scott G. Thomas (argued), Office of City Atty., Milwaukee, Wis., for defendant-appellant.

Before CUMMINGS and POSNER, Circuit Judges, and WILL, Senior District Judge. ^*

POSNER, Circuit Judge.

A jury awarded a Marquette undergraduate $20,000 in his suit under 42 U.S.C. § 1983 against a Milwaukee police officer for false arrest and malicious prosecution. 770 F.Supp. 472 (E.D.Wis.1991). On appeal, officer Kesery argues that he is entitled to immunity from liability for false arrest and that malicious prosecution is not a constitutional tort.

Mahoney and his roommates were having a beer party one night in the house where they lived. Two crashers stole a keg. Mahoney and others gave chase. The thieves dropped the keg; Mahoney and another retrieved it. At about the time and place where the keg was dropped, one of the thieves was severely beaten. A police investigation resulted in charges of criminal battery being lodged against several students, not including Mahoney. Two officers, Kesery and Temp, visited Mahoney's house to interview him and his roommates in an effort to obtain evidence against the defendants. Temp was the one who interviewed Mahoney and his written report of the interview states that Mahoney denied knowledge of the beating. Kesery testified in the present case that Temp had told him that at the interview Mahoney had claimed not to have left the house at all on the night of the beating whereas in fact he had chased the thieves and recovered the keg. Temp did not put any of this in his report but did testify, backing up Kesery's testimony, that he had indeed told all of it to Kesery. Yet Kesery made no mention of it in his report either, though months later he made a note of it on a scratch pad. Mahoney denied having told Temp that he hadn't left the house on the night of the beating.

Kesery recommended to the district attorney's office that it prosecute Mahoney for obstruction of justice for having lied about not leaving the house. The office agreed, and issued a criminal complaint against Mahoney, pursuant to which he appeared before a county judge who found probable cause to prosecute. Mahoney pleaded not guilty. Later Kesery ordered Mahoney to come down to the police station to be booked, and this was done; in the course of the booking, as is routine, he was searched, fingerprinted, and photographed. A jury trial was scheduled for three months later but on the day it was to begin the judge dismissed the charges against Mahoney on the motion of the assistant district attorney assigned to try the case.

The jury in Mahoney's civil rights case, the case on appeal to us, rendered a special verdict in which it found that Kesery had (1) arrested Mahoney without probable cause and (2) violated Mahoney's constitutional right to due process of law. The judge refused to set aside the verdict, finding that the evidence supported "the jury's finding that Officer Kesery's decision to arrest and prosecute the plaintiff was unsubstantiated by probable cause and motivated by malice or vindictiveness." The judge made his own finding on immunity: "Having examined the circumstances, the court is confident that a reasonable police officer--perhaps one not burdened with the unique frustrations then facing Officer Kesery--would have declined the temptation to arrest and prosecute the plaintiff on such a flimsy charge." The reference to "unique frustrations" is to the "wall of silence" with which the Marquette students greeted the police investigation of the beating. The police suspected quite reasonably that there had been several witnesses to the beating, but none would acknowledge having witnessed it.

Kesery does not deny that Mahoney was "arrested" even though he was permitted to come down to the police station under his own steam, since if he had refused he would have been dragged there. 2 Wayne R. LaFave, Search and Seizure § 5.1(a), at p. 392 (2d ed. 1987). We needn't worry about when exactly such an "arrest" begins, cf. 2 id. § 5.1(a), though we doubt that it begins before the moment of booking; otherwise any compulsory process, including a routine subpoena to testify in a civil case, might be deemed an arrest on the theory that the person served with the process could have been arrested had he defied it. This very way of putting it distinguishes between process and arrest. But the booking, with its searching and fingerprinting and photographing, was an arrest, Albright v. Oliver, 975 F.2d 343, 344 (7th Cir.1992), which is all that matters. Nor does Kesery deny that this arrest, low key and even tenuous as it might seem to be, was a seizure within the meaning of the Fourth Amendment. Oddly, we cannot find a case on the point, other than our recent Albright decision; it seems simply to be taken for granted that every arrest is a seizure of the person within the meaning of the Fourth Amendment--but no more than in Albright do we have any reason to question the assumption. Nor does Kesery challenge the jury's finding that the seizure was not made on probable cause and therefore violated the amendment. He takes his stand on the qualified immunity of public officers, arguing that the judge was required to make an independent finding on the existence of probable cause before the case was submitted to the jury, and also that we must review the judge's (belated) finding on the question de novo, that is, without giving any deference to the judge's view.

Official immunity is immunity from the burdens of a trial as well of a damages judgment, and therefore the existence of immunity in a particular case should be decided as early as possible in a litigation, Hunter v. Bryant, --- U.S. ----, ----, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (per curiam); Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985)--ideally, well in advance of trial. But that may not be the sensible course when, as in this case, the issue of immunity and the principal issue on the merits are one and the same. Kesery concedes that in 1987 when the false arrest occurred the constitutional right not to be arrested without probable cause was well established. So the only question bearing on immunity was whether he had probable cause when he caused Mahoney to be arrested. That of course was the issue for the jury on the Fourth Amendment claim, as is evident from the special verdict, which asked no other question relating to that claim. The spectre of duplicate factfinding procedures rears its head.

Kesery intimates, however, that the test for the immunity is not whether he had probable cause but whether he had probable cause to think he had probable cause. This would be a plausible suggestion if probable cause were independent of what the arresting officer could reasonably have known. Then we might conclude, if Temp had lied to Kesery about what Mahoney had told Temp about his whereabouts, that Kesery thought he had probable cause to arrest Mahoney but did not in fact. However, probable cause depends not on the facts as an omniscient observer would perceive them but on the facts as they would have appeared to a reasonable person in the position of the arresting officer --seeing what he saw, hearing what he heard. Richardson v. Bonds, 860 F.2d 1427, 1431 (7th Cir.1988). This formulation of the standard is consistent with the standard's being an objective one. Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). Probable cause, objectively conceived, signifies not that this particular officer believed that the person he arrested had committed a crime but that a reasonable officer would have believed the person had committed a crime. United States v. Anton, 633 F.2d 1252, 1254 (7th Cir.1980). If so, the arrest is lawful even if the belief would have been mistaken. Hunter v. Bryant, supra, --- U.S. at ----, 112 S.Ct. at 536. But if a reasonable officer would not have believed the person had committed a crime, then the officer, whatever he did or did not believe, is acting contrary to clearly established law and therefore has no immunity. Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir.1988). His subjective good faith cannot save him. Scott v. United States, supra, 436 U.S. at 138, 98 S.Ct. at 1723. Nor--save for the limited dispensation provided by the doctrine of "collective knowledge," United States v. Wilson, 894 F.2d 1245, 1254 (11th Cir.1990)--can the officer avoid liability by showing that someone else, who was so placed as to know, or be able to know, more than he did, could have formed a reasonable belief that the arrested person had committed a crime. Villanova v. Abrams, 972 F.2d 792, 798 (7th Cir.1992).

If this is right, then in a case like this, if, as Kesery argues, the judge must determine the immunity issue before the trial on the merits, there will be successive trials on the identical issue, that of probable cause, since either party is entitled to a jury trial. That is one trial too many. (We think Kesery's lawyer knows this, because he didn't request a hearing in the district court on the question of immunity.) There are two alternatives. One is to postpone the determination of immunity to the trial on the merits. The judge listens to the evidence along with the jury, then makes his own decision on the question of immunity. That is what Judge Gordon did. The other alternative is to let the jury decide the issue. At argument Kesery's lawyer seemed to acknowledge the propriety of such a procedure by explicitly...