Rakovich v. Wade

Decision Date27 May 1987
Docket Number85-1530,Nos. 85-1529,s. 85-1529
Citation819 F.2d 1393
PartiesGeorge RAKOVICH, Plaintiff-Appellee, v. Gregory WADE and Darryl Drake, Defendants-Appellants. George RAKOVICH, Plaintiff-Appellee, v. Chester KASS, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Donald L. Piette, Piette, Knoll & Nelson, S.C., Milwaukee, Wis., for defendants-appellants.

Michael O. Bohren, Marola & Bohren, Milwaukee, Wis., for plaintiff-appellee.

Before COFFEY and RIPPLE, Circuit Judges, and WILL, Senior District Judge. *

RIPPLE, Circuit Judge.

The appellee, George Rakovich, brought this action to recover damages for an alleged violation of his first amendment rights. He charged that the appellants, officers of the Greenfield, Wisconsin police department, subjected him to a criminal investigation in retaliation for his earlier opposition to, and criticism of, Greenfield city officials. He alleged that the officers conducted that investigation despite their knowledge that no reasonable grounds existed to suspect him of a criminal act. After a jury trial, Mr. Rakovich was awarded $50,000 for compensatory damages and $90,000 for punitive damages. In addition, the district court awarded him $41,285.25 for attorneys' fees, 602 F.Supp. 1444. This appeal followed.

We affirm the jury's finding of liability. However, we conclude that the jury's compensatory damage award is grossly excessive and its punitive damage award is greater than the amount necessary to deter similar future conduct or to punish the defendants. Accordingly, we remand this case to the district court for a new trial limited to the issue of damages.


This case began with the burglary of Cars Unlimited, a used car dealership located in Greenfield, Wisconsin. On the night of July 2, 1981, Vincent Sheehan, an employee of Cars Unlimited, noticed that two men had broken into a garage on the property. He alerted the police while the burglary was still in progress. Police officers from both Greenfield and Greendale, a neighboring city, were sent to the scene. Upon arriving at the garage, Officers Mary Foley and William Myers captured the burglary suspects.

A short time after the arrests, only Officer Foley, the Greenfield officer, received a commendation for her work. Apparently, the commendation was based on the misapprehension that Officer Foley had single-handedly captured both suspects. As more information became available about the arrests, a controversy arose concerning the propriety of the Foley commendation. Therefore, Chester Kass, Chief of the Greenfield Police Department, assigned Detective Gregory Wade and Sergeant Darryl Drake to investigate this matter. As part of their investigation, Officers Wade and Drake interviewed Mr. Sheehan. At the close of the interview, after describing the arrest, Mr. Sheehan told the investigating officers that two other people had already spoken to him regarding the commendation. He was able to identify one of those persons as Charles Salbashian, another Greenfield police officer. Mr. Sheehan was unclear about the second person's identity, although he was certain that both men intimated that Officer Foley received her commendation because her father was a judge--not because her conduct in capturing the burglary suspects was extraordinarily meritorious. Mr. Sheehan was later able to identify the second man as George Rakovich. 1 According to Mr. Sheehan, on a number of occasions, Mr. Rakovich returned to Cars Unlimited to speak with him about the arrest. Detective Wade was able to corroborate that statement with photographs he took of Mr. Rakovich at Cars Unlimited on September 12, 1981.

Officers Wade and Drake presented their information to Chief Kass and, subsequently, to Frank T. Crivello, the Assistant District Attorney assigned to prosecute the Cars Unlimited burglary. Mr. Crivello was concerned by the Rakovich and Salbashian discussions with Mr. Sheehan--the chief witness in the burglary case. Accordingly, he suggested that Robert Scopoline, a sergeant of the Milwaukee County Sheriff's Department, interview Mr. Rakovich in an attempt to determine why he was contacting Mr. Sheehan. Sergeant Scopoline did, in fact, interview Mr. Rakovich. At that meeting, he advised Mr. Rakovich of his Miranda rights, explained the nature of the investigation, and informed him that the conversation was being recorded.

Before receiving Sergeant Scopoline's report, Mr. Crivello decided to summon Mr. Rakovich and Mr. Salbashian to his office for a charging conference. This decision was based solely on the information presented orally to him by Officers Wade and Drake. Shortly before the charging conference, Chief Kass sent Mr. Crivello a strongly worded letter concerning the Rakovich case. In that letter, Chief Kass concluded that:

The investigation leaves no question in my mind that the unlawful conduct of these two public officers [Rakovich and Salbashian] has violated the trust and confidence of their positions as public officers. Their intentions and actions were premeditated and deliberate; designed to damage Officer Foley, undermine and damage the department's functioning and the city's reputation, and the [burglary] investigation.

Ex. 24, Appellants' App. at 68. In addition, Chief Kass informed the newspapers on September 21, 1981 that Mr. Rakovich would be called before a charging conference. Mr. Rakovich apparently did not receive notice of the conference until three days later.

The charging conference, conducted on October 16 and open to the public, was an investigative procedure in which the district attorney could attempt to clarify the allegations which had been made. At such a conference, it was not unusual for the investigating officers to suggest statutes which possibly had been violated. This case was no exception; Officers Wade and Drake presented the district attorney with a number of criminal statutes which they believed to be applicable to Mr. Rakovich's activities. Those statutes dealt with criminal defamation, criminal injury to business, and misconduct in public office.

At the conclusion of the charging conference, after hearing all of the available evidence, Mr. Crivello took the matter under advisement. Then, on December 7, 1981, he sent letters to all interested parties to inform them that, after reviewing the entire record, he did not believe that Mr. Rakovich had violated any Wisconsin statute. The entire investigation was, therefore, closed.

Based on this series of events, Mr. Rakovich filed this action under 42 U.S.C. Sec. 1983. He alleged that Officers Wade and Drake and Chief Kass decided to investigate him to retaliate for his political opposition to the Greenfield administration. 2 He contended that the first amendment gives him a protected right to both investigate the Foley commendation and criticize the administration for conferring it. He claimed that, as a result of the appellants' activities, he was humiliated, embarrassed, and lost standing in the community.

The appellants conceded that they were investigating Mr. Rakovich. However, they denied having a retaliatory motive. Rather, they contended that the investigation was justified because Mr. Rakovich was possibly tampering with the chief witness to a felony burglary. In addition, the appellants contended that they had information indicating that confidential police information was being leaked to Mr. Sheehan via Mr. Rakovich. Based on these facts, the appellants argue that they had authority to investigate Mr. Rakovich.

At trial, the jury found that the appellants had conducted a retaliatory investigation which was designed, at least in part, to discourage Mr. Rakovich from exercising his first amendment rights. The jury awarded Mr. Rakovich $140,000 in compensatory and punitive damages.

In this appeal, three issues have been raised. First, the appellants contend that they have not violated Mr. Rakovich's first amendment rights. They argue that a first amendment claim cannot be raised when the plaintiff is unable to prove actual damages apart from the type of harm which is normally associated with defamation. Alternatively, the appellants claim that there was insufficient evidence to support a finding that they acted with a retaliatory motive. Second, the appellants contend that they should be exonerated because they were protected by both qualified and absolute immunities. Finally, the appellants contend that, even if they violated Mr. Rakovich's first amendment rights, the jury's damage award was excessive.

II Liability

The appellants initially contend that Mr. Rakovich did not prove a violation of his first amendment rights. Relying on Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), and related cases, the appellants argue that Mr. Rakovich's damages amount to nothing more than injury to his reputation and, thus, are not actionable under section 1983. Rather, according to the appellants, Mr. Rakovich had to show that a more defined interest was abridged in order to state a claim.

Mr. Rakovich's claims should have been dismissed if he merely alleged an injury to his reputation. See Mark v. Furay, 769 F.2d 1266, 1271 (7th Cir.1985). Section 1983 can only redress injuries to constitutionally-protected rights; it is well-settled that the Constitution cannot be invoked to redress mere defamation. Paul, 424 U.S. at 712, 96 S.Ct. at 1165. However, in this case, Mr. Rakovich is not merely alleging that the Greenfield officers acted to defame him. Rather, he claims that Chief Kass, Detective Wade, and Sergeant Drake investigated him with the intention of retaliating against him for the exercise of first amendment rights. The alleged harm, then, is that Mr. Rakovich's first amendment rights have been violated, not that he has been defamed. See Anderson v. Central Point School Dist. No. 6, 746 F.2d 505, 507-08 (9th Cir.1984). 3

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