Pritz v. Hackett

• Decision Date: 17 November 1977
• Docket Number: No. 76-C-478.,76-C-478.
• Parties: Richard PRITZ and James F. Honzik, Plaintiffs, v. Keith HACKETT and Francis Retelle, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

440 F. Supp. 592

Richard PRITZ and James F. Honzik, Plaintiffs, v. Keith HACKETT and Francis Retelle, Defendants.

No. 76-C-478.

United States District Court, W. D. Wisconsin.

November 17, 1977.

COPYRIGHT MATERIAL OMITTED

John A. Hamell, Jr., of Rausch, Hamell, Ehrle & Sturm, S. C., Milwaukee, Wis., for plaintiffs.

Conrad H. Johnson, of Schlotthauer, Johnson, Mohs & Rusch, Madison, Wis., for defendants.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

Plaintiffs filed this action under 42 U.S.C. § 1983 to recover money damages for false arrest and imprisonment by defendant police officers. This court has jurisdiction pursuant to 28 U.S.C. § 1343.

The case is now before the court on cross motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs claim that the arrests, lacking both warrants and probable cause, were unlawful. Plaintiffs also claim that defendants' refusal to release the plaintiffs following the arrests, while refusing to accept and verify plaintiffs' identification, constituted false imprisonment. Defendants contend that the arrests were supported by probable cause or, in the alternative, that defendants' reliance upon information provided by the Milwaukee Police Department justified the arrests. Defendants further contend that their refusal to release plaintiffs for a time and their response to plaintiffs' offer of identification were reasonable.

Facts

For the purpose of plaintiffs' and defendants' motions I find that there is no genuine issue of material fact as to the following:

1. On September 9, 1975, the Milwaukee Police Department notified the Madison Police Department by teletype message that three suspects wanted by the Milwaukee police for the armed robberies of two Milwaukee savings and loan associations were believed to be in the Madison area. The suspects were identified as a white female, Mary Schimel, and two white males, Gregory Brundage and Leonard Miller. Brundage was described as standing 5'9", weighing 150 pounds, having brown hair and an acne complexion. Miller was described as standing 5'5", weighing 118 pounds, having sandy hair and a mole on his cheek. The hair of one of the two was described as shoulder length.

2. Plaintiff James Honzik was 5'11", weighed 150 pounds, had brown hair and brown eyes, and had no mole or acne complexion. Plaintiff Richard Pritz was 5'9", weighed 135 to 140 pounds, had brown hair, and had no mole or acne complexion.¹

3. Milwaukee police also provided descriptions of two vehicles thought to have been involved in the robberies: a red 1963 Ford and a black or silver Fiat.² Madison police found a Fiat at the Lake Street parking ramp in Madison, disabled the automobile and, upon request from the Milwaukee police, maintained surveillance of the vehicle.

4. On September 9, 1975, plaintiffs Honzik and Pritz drove Gregory Brundage, a friend who had learned he was wanted by the Milwaukee police, from Madison to Milwaukee so that Brundage could speak with Honzik's father, a lawyer. Honzik's father then made arrangements through a Milwaukee County Assistant District Attorney, who was an uncle of plaintiff Honzik, for Brundage to turn himself over to the Milwaukee police the following morning.

5. Plaintiffs Honzik and Pritz, along with Mary Schimel, the girlfriend of Gregory Brundage and one of those suspected in the robberies, then drove from Milwaukee to Madison in a yellow Duster. Honzik and Pritz drove Schimel to her car, the Fiat which was parked at the Lake Street ramp and which was under police surveillance. They arrived at the parking ramp at approximately 3:15 a. m. on September 10, 1975. When Schimel could not start her car, Honzik and Pritz exited the Duster and approached the Fiat in order to assist Schimel in starting it.

6. At that moment, seven Madison police officers, including defendant Retelle but not including defendant Hackett, with guns drawn, approached Honzik, Pritz, and Schimel, ordered them to freeze, placed them under arrest, commanded them into a prone position, handcuffed them, searched them, and took them to the Madison police station. Defendant Hackett was on duty at the police station at the time and was the officer responsible for the actions then taken at the station concerning the plaintiffs, and defendant Retelle also participated in these actions. No weapons were discovered on the plaintiffs. Plaintiffs did not resist the arrests. No warrants had been issued for the arrests of Brundage, Miller, Schimel, Pritz or Honzik.

7. Upon their arrests, plaintiffs denied that they were the men wanted by the Milwaukee police. Honzik and Pritz offered their drivers' licenses to show they were not Brundage and Miller, the persons named as suspects by the Milwaukee police.³ At approximately 3:30 a. m., defendant Hackett relayed to Milwaukee the information obtained from Honzik and Pritz about their identity. The Milwaukee police requested that Hackett hold the plaintiffs until a positive identification could be made. The Milwaukee officer stated that detectives of that department would drive to Madison with fingerprints and photographs to verify plaintiffs' identification.

8. Plaintiff Honzik, while in custody in Madison, provided the police with the names of his father and his uncle, the assistant district attorney, both in Milwaukee. The defendants did not pursue this information. Honzik also gave the Madison police information as to the whereabouts of Gregory Brundage. This information also was not investigated by defendants.

9. Defendant Hackett's suspicion that the plaintiffs were involved in the robberies was based entirely on the information that they had been with Schimel in the vicinity of the Fiat in the ramp, and that the Milwaukee police wanted three people.

10. At 5:50 a. m., three Milwaukee police officers arrived at the Madison police station and determined that plaintiffs were not the men sought by the Milwaukee police for the two robberies. Plaintiffs were released from custody shortly after 6:00 a. m. on September 10, 1975.

Opinion

I. Validity of the Arrests

A. Probable Cause

An arrest does not give rise to a cause of action for deprivation of civil rights under 42 U.S.C. § 1983 if it is made with a valid warrant or with probable cause. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).⁴ The determination of probable cause, which is the constitutional criterion by which the legality of a warrantless arrest is measured, presents an important but often thorny issue. In Henry v. United States, 361 U.S. 98, 100-102, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959), it was said (footnotes and citations omitted):

The requirement of probable cause has roots that are deep in our history. * * And as the early American decisions both before and immediately after its adoption the Fourth Amendment show, common rumor or report, suspicion, or even "strong reason to suspect" was not adequate to support a warrant for arrest. And that principle has survived to this day. * * * Evidence required to establish guilt is not necessary. * * * On the other hand, good faith on the part of the arresting officers is not enough. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed. * * * It is important, we think, that this requirement be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen.

And in Wong Sun v. United States, 371 U.S. 471, 479-480, 83 S.Ct. 407, 413, 9 L.Ed.2d 441 (1963), it was said (footnotes and some citations omitted):

It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion * * *, though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause — evidence which would "warrant a man of reasonable caution in the belief" that a felony has been committed, Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 — must be measured by the facts of the particular case. * * Whether or not the requirements of reliability and particularity of the information on which an officer may act are more stringent where an arrest warrant is absent, they surely cannot be less stringent than where an arrest warrant is obtained. Otherwise, a principal incentive now existing for the procurement of arrest warrants would be destroyed. The threshold question * * * is whether the officers could, on the information which impelled them to act, have procured a warrant for the arrest * * *.

Defendants contend that probable cause for the arrests was provided by the fact that plaintiffs fit the general physical description of two of the three suspects and were found in the company of Mary Schimel, the third suspect, near the Fiat, an alleged instrumentality of the crime.⁵ The parties dispute whether plaintiffs match the teletype descriptions of the robbery suspects. Defendants point to a general comparison, while plaintiffs emphasize specific differences. The most that can be said in defendants' favor on this point is that nothing in the description of Brundage could clearly exclude either of the plaintiffs, although the description of Miller's height and weight would rather clearly exclude both plaintiffs.

The most significant link between plaintiffs and the robberies is their association with Schimel and her automobile. But, the plaintiffs' acts of bringing Schimel to her Fiat and in setting out to assist her when the vehicle would not start are wholly consistent with innocence of criminal involvement. Defendants were not confronted with the choice of arresting plaintiffs or letting them escape surveillance. Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), an intermediate option was made available, as is explained in Adams v. Williams, 407 U.S. 143, 145-146, 92 S.Ct....