Neiman v. Keane, 99-3286

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Before POSNER, RIPPLE and WILLIAMS; RIPPLE
• Citation: Neiman v. Keane, 232 F.3d 577 (7th Cir. 2000)
• Decision Date: 13 November 2000
• Docket Number: No. 99-3286,99-3286
• Parties: (7th Cir. 2000) KENNETH NEIMAN, Plaintiff-Appellant, v. THOMAS M. KEANE, Defendant-Appellee

Page 577

232 F.3d 577 (7th Cir. 2000)

KENNETH NEIMAN, Plaintiff-Appellant, v. THOMAS M. KEANE, Defendant-Appellee.

No. 99-3286

In the United States Court of Appeals For the Seventh Circuit

Argued August 9, 2000

Decided November 13, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 3209--Charles P. Kocoras, Judge.

Before POSNER, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

After several businesses reported that Kenneth Neiman had refused to pay for part or all of work performed on his home, Detective Thomas Keane of the Deerfield, Illinois Police Department arrested Mr. Neiman. The detective made the arrest pursuant to a warrant, procured by him, alleging that Mr. Neiman had committed the offense of theft of services. After several court appearances, the Lake County State's Attorney voluntarily dismissed the charges against Mr. Neiman. Mr. Neiman then filed this action under 42 U.S.C. sec. 1983; he alleged that Detective Keane violated the Fourth Amendment by applying for the warrant in the absence of probable cause. The district court granted summary judgment for Detective Keane. We affirm the judgment of the district court.

I BACKGROUND

In December 1996, Mr. Neiman hired Bishop Heating Company to repair the furnace in a home that he had purchased on Overland Drive in Deerfield. According to Mr. Neiman, a Bishop Heating employee inspected the furnace and told him that it merely needed to be cleaned, a service that would cost approximately $105. After he was quoted the price, Mr. Neiman left the repairman in the house to work on the furnace. When Mr. Neiman returned, he found a bill totaling almost $400. Mr. Neiman refused to pay the bill because he believed the Bishop Heatingemployee had performed unauthorized services.

Subsequently, a Bishop Heating representative called Detective Keane at the Deerfield Police Department and complained that, although Bishop Heating had repaired Mr. Neiman's furnace, Mr. Neiman had refused to pay the bill. Mr. Neiman avers that Detective Keane then called him and threatened to arrest him if he did not pay the disputed bill. Detective Keane, on the other hand, insists that he called Mr. Neiman to inquire about the unpaid bill and that Mr. Neiman told him the bill was disputed but nevertheless agreed to pay it. Detective Keane admits, however, that he told Mr. Neiman that he might initiate charges against him if the bill was not paid. Both parties agree that Mr. Neiman tendered a cashier's check for the full amount of the bill to Detective Keane. The detective delivered it to Bishop Heating.

In July of 1997, Mr. Neiman complained to the Deerfield Police Department that someone had entered the Overland Drive home, which was empty at the time, and had stolen some repair tools. Detective Keane, who was assigned to investigate the burglary, asked Mr. Neiman for a list of possible suspects. Mr. Neiman named several businesses that at various times had performed work on the burglarized home, including Pasquesi Plumbing ("Pasquesi"), A-American Contractors and Supplies ("A-American"), E & B Landscaping Co. ("E & B") and Woody's Tree Service ("Woody's"). During Detective Keane's investigation of the burglary, these four businesses complained that they had performed services for Mr. Neiman, but that Mr. Neiman later refused to pay for some or all of the work. Detective Keane questioned Mr. Neiman about these allegations of non-payment; Mr. Neiman responded that he had not paid the companies because they either had failed to complete the work he had requested or had not performed it properly.

Detective Keane avers that, as a result of his investigation, he believed that Mr. Neiman had engaged in a pattern of deception by which Mr. Neiman hired businesses to perform work on the Overland Drive house and then fabricated reasons to evade payment. The detective thus sought approval from Lake County Assistant State's Attorney Donald Morrison ("ASA Morrison") to file charges against Mr. Neiman for theft of services by deception. At first, ASA Morrison voiced skepticism regarding whether there was sufficient evidence to prove that Mr. Neiman intended not to pay E & B and Woody's, the two businesses that were re ceptive to prosecuting Mr. Neiman. After Detective Keane informed him of the other businesses' reports of non-payment, however, ASA Morrison concluded that evidence of these other alleged non- payments exhibited a pattern of conduct that would be admissible to demonstrate the requisite intent to obtain services fraudulently. ASA Morrison then signed an information charging Mr. Neiman with theft of services from E & B and Woody's. The information was then presented to a judge, who issued a warrant for Mr. Neiman's arrest. Eventually, however, ASA Morrison voluntarily dropped the charges against Mr. Neiman.

After the charges against him were dismissed, Mr. Neiman filed this suit alleging that Detective Keane "acting willfully, maliciously, and without probable cause . . . caused two criminal charges to be instituted against [Mr. Neiman]." R.1 at 2. Detective Keane moved for summary judgment; he argued that the arrest was made pursuant to a valid warrant, and, in the alternative, that probable cause supported the arrest. The district court granted Detective Keane's motion. It concluded that Mr. Neiman had presented no evidence that the detective misled the prosecutor or the judge. Because it found that the arrest was made pursuant to a valid warrant, the court did not address whether there was probable cause for the arrest. Mr. Neiman then timely filed this appeal.

II DISCUSSION

The parties do not disagree on the governing legal principles. A plaintiff cannot base a valid Fourth Amendment claim on an arrest made under a valid warrant. See Baker v. McCollan, 443 U.S. 137, 143-44 (1979). The officer procuring the warrant, however, enjoys not absolute but qualified immunity with respect to his actions in the application of the warrant. See Malley v. Briggs, 475 U.S. 335, 344 (1986). In Malley, the Supreme Court made clear that an officer procuring a warrant is held to the same standard of objective reasonableness that applies in the context of a suppression hearing.¹ Accordingly, the officer procuring the warrant is immune from a suit for damages unless it can be shown that the "warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Malley, 475 U.S. at 344-45. We therefore have held that an officer is not immune from suit for procuring a warrant "if a reasonably well-trained officer in the position of the defendant would have known that the action lacks probable cause and that he should not have applied for the warrant." Simmons v. Pryor, 26 F.3d 650, 653 (7th Cir. 1993); see also Juriss v. McGowan, 957 F.2d 345, 350-51 (7th Cir. 1992). This situation, we pointed out, occurs when the officer procuring the warrant does not inform the judicial officer of facts that would negate probable cause or when the officer recklessly disregards the truth in his representations to the judicial officer. See Olson v. Tyler, 825 F.2d 1116, 1121 (7th Cir. 1987).²

Mr. Neiman claims that the detective acted improperly in three ways. First, Mr. Neiman alleges that the detective misled ASA Morrison by not disclosing his prior involvement in Mr. Neiman's disputed debt with Bishop...