McDonnell v. Cournia, 92-2907
| Decision Date | 07 April 1993 |
| Docket Number | No. 92-2907,92-2907 |
| Citation | 990 F.2d 963 |
| Parties | Thomas J. McDONNELL, Plaintiff-Appellee, v. Michael COURNIA, Richard Menzel, Gary Moe, Thomas Christopher, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David E. Lasker, Julian, Olson & Lasker, Madison, WI (argued), for plaintiff-appellee.
Scott G. Thomas, Rudolph M. Konrad, Office of the City Atty., Milwaukee, WI (argued), for defendants-appellants.
Before BAUER, Chief Judge, FLAUM, and MANION, Circuit Judges.
In this case, we consider an interlocutory appeal from the district court's order denying summary judgment on a claim of qualified immunity. We have jurisdiction to hear this claim under Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). We reverse.
Because the facts surrounding Thomas McDonnell's arrest lie at the heart of this appeal, we review them in some detail. McDonnell visited Pulaski Park in Milwaukee, Wisconsin on April 12, 1985. He entered a park pavilion to use the rest room, and met a twelve year old girl, Cathleen Yauch. He spoke with Yauch, and touched her right arm. After the brief meeting, McDonnell used the rest room and went to his car. He stopped for a few minutes to read a newspaper. While he was reading, Yauch and another girl began yelling at him. McDonnell left the park.
Gerald Pfannerstill, a park employee, overheard two girls talking about a man who tried to rape one of them. Pfannerstill spoke with the girls and then reported to his supervisor. The supervisor called the police. Yauch told the park employee and Milwaukee police officer Michael Cournia and Pfannerstill that a man grabbed her, tried to reach between her legs, and attempted to drag her into the mens' rest room. Yauch described the man she said attacked her to Officer Cournia and to Officer Richard Menzel. Cournia took Yauch home, and Menzel began searching for the assailant. Detectives Gary Moe and Thomas Christopher visited Yauch's home later that day and interviewed her. Yauch repeated her story to the officers. The officers interviewed Yauch's friends who confirmed her account.
On April 15, 1985, Pfannerstill called the police and reported that a man matching the description Yauch provided was visiting the park. Menzel went to the park and arrested the man. That man was McDonnell. Cournia also went to the park on April 15 and interviewed Pfannerstill. Pfannerstill told Cournia that he had seen McDonnell in the park on April 12, 1985. McDonnell was placed in a police lineup with four other men. Yauch identified him as her assailant.
McDonnell was charged with first degree sexual assault and attempted abduction, with an enhancement for habitual criminality. McDonnell had been convicted of second degree sexual assault of a twelve year old boy in 1982. The police officer defendants in this case each testified that they did not learn McDonnell's identity, or of his prior record until he was arrested April 15. At a preliminary hearing held on April 24, 1985, Yauch testified that McDonnell attacked her in the pavilion at Pulaski Park. She told the judge substantially the same story she told the police on April 12. She also testified that she told Pfannerstill about the incident before the police arrived.
McDonnell entered an Alford guilty plea 1 in exchange for the state's agreement to drop the abduction count and the habitual criminality enhancement. He was sentenced to eleven years imprisonment on February 17, 1986. In January 1989, McDonnell filed a motion to set aside his conviction based upon Yauch's recantation of her story. In a written statement, Yauch asserted that she lied to police and at McDonnell's preliminary hearing. She stated that McDonnell never grabbed or pulled her, never threatened her verbally, and never attempted to hurt her in any way. Affidavit of November 10, 1988, Exhibit J to Affidavit of Attorney Scott G. Thomas in Support of Motion for Summary Judgment, Record Document ("R.Doc.") 16 ("Yauch Affidavit"). Yauch affirmed McDonnell's version of their brief encounter in the Pulaski Park Pavilion.
In her affidavit, Yauch asserted:
My false story was the result of being requested to do something by the man who first contacted me at the park after Mr. McDonnell left. It further was the result of great pressure by the police to give them a story about what happened that would help to "put him away" so that "he won't see the light of day."
Id. After the affidavit and an accompanying motion to set aside the conviction were filed, Milwaukee County Circuit Judge John McCormick held a hearing on April 27, 1989. At that hearing Yauch testified reaffirming her affidavit. McDonnell's attorney questioned Yauch about her statements to Detectives Moe and Christopher:
Q. And you told the detectives that the man in fact reached down and tried to touch your vaginal area, but you were able to slap his hand away; right?
A. Yes.
* * * * * *
Q. And you also told those detectives that he tried to drag you into the bathroom; right?
A. Yes.
* * * * * *
Q. And you also went outside and told your friend that a man had tried to rape you; right?
A. Yes.
Q. Now apparently this came to the attention of someone who worked at the park who overheard you say that; right?
A. Yes.
Q. And then the police were called. Now when you--after you were interviewed by the uniformed officers who came on the scene and the detectives from the Sexual Assault Unit who came to interview you at your house, there came a time that within a day or two you were asked to come down to the--a few days later you came down to the District Attorney's Office; right?
A. Yes.
* * * * * *
Q. And then you were subpoenaed to come to court and testify at the preliminary hearing, the transcript of which you just referred to, on April 24, 1985; right?
A. Yes.
* * * * * *
Q. You never told any of us that you made things up; right?
A. Right.
Q. And you never told anybody that the police had told you that you should help "put him away so that he won't see the light of day"; you never said that did you? You never told us that, did you, that the police had said that to you, did you?
A. No.
Transcript of Hearing to Set Aside Conviction, April 27, 1989 ("Tr. of 4/27/89") at 22-23. The state's attorney probed further:
Q. Now when the uniformed officers came to the park and talked to you and you told him what you just finished telling us, that is that the man had grabbed you and tried to touch your vaginal area and dragged you off but you were able to break away and run outside, is it your testimony that that's the officer who you now claim said that he wanted your help to "put him away so that he won't see the light of day"? Is that who you say it was made that statement to you?
A. I really don't remember.
Q. And then when the detectives came to your house, did they also say this? As far as you can remember?
A. I don't think so.
Q. Well, if they didn't say it, are you saying it was the uniformed officers who said it or was it the detectives?
A. It was the people that came to the pavilion.
Q. Do you remember whether the uniformed officers said it to you?
A. I don't remember.
* * * * * *
Q. Cathy, let me ask you this, you say you're not sure, you don't remember which of these officers said it, am I correct in my understanding though that at least one of the police officers, you do remember one of the police officers telling you that as you testified to?
A. Yes.
Tr. of 4/27/89 at 27-29. Yauch also testified that at least one of the police officers told her that the man who attacked her "was wanted all over for rape." Id. at 31.
Statements from two of Yauch's friends were also considered in the state proceeding to set aside McDonnell's conviction. Lynn Ann Jones stated that Yauch was not upset when she left the pavilion. Jones also admitted that Yauch persuaded her to tell police that she saw McDonnell try to touch Yauch between the legs, even though she had not actually seen anything. Affidavits of Lynn Ann Jones, quoted in State of Wisconsin v. McDonnell, No. L-1669 slip op. at 4-5 (Circuit Court of Milwaukee, Wisconsin July 10, 1989). Wanda Smokovitz, another friend of Yauch's, said that Yauch returned from the pavilion and told them that a man had tried to rape her, but that Yauch "seemed to be play acting and wasn't upset or disturbed." Id. at 4 (quoting Affidavit of Wanda Smokovitz at 2).
The state court found Yauch's recantation credible, and vacated McDonnell's conviction. He was released on July 10, 1989, and the criminal case was dismissed on motion from the state. McDonnell sued officers Cournia, Menzel, Moe, and Christopher, as well as park employee Pfannerstill under 42 U.S.C. § 1983. He alleges that the defendants conspired to have Yauch make false charges against him in violation of his Fourteenth Amendment rights to due process and to freedom from unreasonable searches and seizures.
The police officer defendants moved for summary judgment, contending they are entitled to qualified immunity for their actions during and after McDonnell's arrest. Pfannerstill also moved for summary judgment. The court denied both motions. It held: "It is clear to the court that Cathleen Yauch's recantation raises genuine issues of material fact as to the defenses which can only be resolved by the trier of fact assessing the credibility of the various parties." McDonnell v. Cournia, No. 91 C 352, slip op. at 4 (E.D.Wisc. July 31, 1992). The police officers have appealed.
Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985), allows defendants to bring interlocutory appeals under 28 U.S.C. § 1291 to renew their arguments that they are entitled to qualified immunity. See Marshall v. Allen, 984 F.2d 787 (7th Cir.1993); Gorman v. Robinson, 977 F.2d 350, 352 (7th Cir.1992). When a party appeals a denial of summary...
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