Driebel, Robert J. v. City of Milwaukee , 298 F.3d 622 ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1689
ROBERT DRIEBEL, JOHNNY SGRIGNUOLI,
STEPHEN PINCHARD, and BRETT HUSTON,
Plaintiffs-Appellants,
v.
CITY OF MILWAUKEE, MILWAUKEE POLICE DEP’T,
and CHIEF OF POLICE ARTHUR L. JONES,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98 C 0301—Patricia J. Gorence, Magistrate Judge.
____________
ARGUED OCTOBER 31, 2001—DECIDED JULY 29, 2002
____________
Before BAUER, COFFEY and DIANE P. WOOD, Circuit
Judges.
COFFEY, Circuit Judge. Appellants Robert J. Driebel,
Johnny C. Sgrignuoli, Stephen Pinchard, and Brett Huston
are police officers for the City of Milwaukee Police De-
partment (“MPD” or “the Department”). The officers claim
that their Fourth Amendment rights were violated when
they were ordered by superior officers to remain on duty
2 No. 01-1689
or to accompany detectives to the headquarters of the
MPD’s Internal Affairs Division and answer questions
put to them during the course of criminal investigations
of their activity while on duty in January and February
1998. The magistrate judge presiding with the consent
of the parties, 28 U.S.C. § 636(c), granted the Depart-
ment’s motion for summary judgment. Each of the officers
appeal. We affirm the magistrate’s decision to grant sum-
mary judgment in favor of the MPD and against Officers
Driebel, Huston, and Pinchard. Driebel was seized based
on probable cause and Huston and Pinchard never were
seized. We reverse and remand as to Officer Sgrignuoli
because we are convinced that a reasonable jury could con-
clude that he was seized without probable cause.
I.
A.
1.
On February 20, 1998, Officer Driebel was assigned to
plainclothes duty during a daytime patrol shift from 7 a.m.
to 3 p.m. At approximately 1:15 p.m., the MPD received an
emergency call from the principal of Humboldt Park Ele-
mentary School in the City of Milwaukee, Wis., alleging
that an “older kid” was “across the street bothering kids at
the school.”
Officer Driebel and his partner, Officer Karla M. Leh-
mann, were dispatched to the scene and, upon arrival, com-
menced their investigation with the taking of a state-
ment from the principal. She told them that two or more
teenage boys not enrolled in the school sauntered onto
the playground, approached a group of fifth-grade girls and
directed foul, vulgar, and obscene words and gestures at
No. 01-1689 3
them, with the boys grabbing their own genitals and so
forth. The principal stated that when she went to the play-
ground to investigate this harassment, the boys darted
off across the street and into a house located at 3302 S.
Adams St.
After obtaining this information, Driebel and Lehmann
returned to their squad car, drove to the referred-to house,
and knocked on the front door. No one answered. Driebel
and Lehmann returned to the school and interviewed sev-
eral boys at the playground who reportedly had witnessed
the incident. (The boys interviewed were later identified
as William Ryan, Craig Wood, Michael Mazur and Sabian
Yunct). After taking statements from these four youths,
Driebel and Lehmann returned to 3302 S. Adams St. and
proceeded to monitor the residence and attempt to stop
and interview any persons who might exit the house match-
ing the suspects’ descriptions.
After several minutes, two boys matching the descrip-
tions walked out of the rear door of the house and entered
into an adjoining alley. Driebel proceeded to follow the
youths and pulled his squad car into the alley, and as the
boys observed the police vehicle, they took off running
in opposite directions. Driebel and Lehmann chose to pur-
sue the boy later identified as Joshua Schmidt. Driebel
remained in the squad car, while Lehmann exited the
vehicle and chased Schmidt as he ran through several
backyards in an attempt to avoid apprehension. After
Lehmann lost sight of the boy, Driebel happened to ob-
serve him scampering across the playground towards an
alley. Driebel drove around the school and down the alley,
where he saw Schmidt lying prone on the ground in
an attempt to hide from the police. At this point in the
chase, Driebel stopped the car, exited the vehicle, and
yelled, “Police! Are you tired of all this running shit? Just
4 No. 01-1689
stop!” Schmidt disregarded Driebel’s lawful command
and jumped up and vaulted over a fence in a second at-
tempt to elude the pursuing officer. After chasing Schmidt
through three or four yards, Driebel grew tired and realized
that he was not going to be able to apprehend the flee-
ing youth. Out of frustration and in an attempt to stop
Schmidt, Driebel threw his MPD-issued radio at the boy,
inadvertently striking him in the head. Schmidt seemed
unfazed; he kept running and neither stopped nor fell nor
gave any indication of injury. After approximately twenty
minutes of additional search activity, Driebel and Leh-
mann returned to their squad car and drove off without the
suspects.
Once the officers had departed, Schmidt reemerged from
his hiding place and returned to the playground where
Mazur, Ryan, and Wood were still playing basketball.
Schmidt at this time complained that he felt dizzy, laid
down in the grass, and began to regurgitate. After sev-
eral minutes, the youths called Wood’s father, Robert. Mr.
Wood drove to the school, observed Schmidt’s injuries, con-
veyed him to the Second District police station, and pro-
ceeded to file an incident report concerning this matter.
2.
Mr. Wood spoke with Sgt. Thomas Doehling, who was
assigned to handling citizen’s complaints. During an in-
terview, Schmidt informed Doehling that he was hit by
something thrown by a police officer, adding that the of-
ficer declared, “I’m tired of chasing you, bitch!” before do-
ing so. Mr. Wood reported that he was told by the children
that someone who appeared to be a plainclothes officer
was observed throwing a brick-like object at Schmidt and
striking him from the rear on the head at the base of the
No. 01-1689 5
skull just above the neckline. Sgt. Doehling—after observ-
ing that Schmidt had blood on the back of his head and
in his hair, as well as on the collar of his jacket—arranged
for an ambulance to transport Schmidt to a nearby hospital
for treatment and proceeded with the investigation by
soliciting information from the Woods regarding the in-
cident.
Mr. Wood’s son, Craig, repeated the statement that he
saw someone who he believed to be a police officer chase
Schmidt and throw a brick-shaped object in Schmidt’s di-
rection. Mr. Wood added that he lived near the Humboldt
Park school and was home earlier that afternoon and ob-
served a man and a woman dressed in plain clothes speak-
ing with the boys playing basketball. He further stated
that he saw this same man walking around inside the po-
lice station and mingling with the other patrolmen on
duty. Based on these statements, as well as his knowledge
that Driebel had been dispatched to the Humboldt Park
area earlier in the afternoon, Doehling suspected that Pa-
trolman Driebel was probably the individual who threw the
brick-shaped object.
Upon completing his interview of the Woods, Doehling
sought out and located Driebel, whose shift terminated
at 3 p.m. Doehling ordered Driebel to “stand by” in the
police garage until given further instructions by a supe-
rior officer. Driebel complied with the order and com-
menced a waiting game in the garage for approximately
four hours. He received overtime pay for this unusual as-
signment and retained possession of his I.D. card, badge,
and all of his police-issued equipment. No one was assigned
to monitor his presence in the garage, and there is no
evidence that Driebel was isolated or prevented from com-
municating with anyone in the garage during this time.
6 No. 01-1689
3.
Meanwhile, at about 3:15 p.m., Sgt. Doehling contacted
the Internal Affairs Division (“IAD”) Criminal Investiga-
tion Unit and notified the IAD about the complaint. The
matter was referred to Deputy Insp. Dale T. Schunk, who
directed Lt. David Bruess to supervise an investigation
and determine whether Driebel’s conduct constituted a
violation of any statutes or ordinances. Pursuant to the
MPD’s internal rule regarding use-of-force investigations,
Schunk informed Chief of Police Arthur L. Jones of the
investigation concerning the two officers who had chased a
juvenile on the street and allegedly “threw a brick” and
injured him during the pursuit. Jones ordered Insp. Schunk
to report back to him concerning further developments in
the investigation.
Bruess found it necessary to assign four other IAD
detectives and order that they accompany him to the
Humboldt Park area to question any possible witnesses
concerning Schmidt’s truancy, obscene gestures, and foul
language. The detectives spoke to Robert and Craig Wood
and to the three children previously seen at the play-
ground—Mazur, Yunct, and Ryan. Bruess directed the
detectives to separate the witnesses, take their statements,
and investigate the scene of the incident. Robert Wood
repeated his earlier statement that he observed a male
chasing Schmidt. Wood added that his son, Craig, told
him that he saw this same man throw a brick at “a kid.”
Mazur and Yunct reported that they saw Schmidt being
chased by a male who they believed was a police officer.
Ryan similarly reported that he saw a male chase Schmidt
and throw an object at him; he also heard something hit
a house almost instantly after the object was thrown.
Once Det. Kenneth Morrow received this information,
he proceeded to examine residences within the 3200
No. 01-1689 7
block of South Adams and discovered a dent in the siding of
one of the structures. The occupant of the house stated that
she saw two men running through her yard and heard a
loud thump against the residence at approximately 2 p.m.,
which is about the time when Driebel would have been
chasing Schmidt. The detectives thereafter determined that
the dent in the siding matched the shape of a battery used
to power MPD-issued radios.
Some time between 4:15 and 5:30 p.m., the three inves-
tigating detectives relayed the results of their investiga-
tions to Bruess. Bruess concluded that Driebel had thrown
his police radio at Schmidt. Bruess further concluded that
he had probable cause to believe that Driebel committed
“substantial battery”—a Class E felony under Wisconsin
law. Bruess reached this conclusion based on the fact
that: (1) the victim received an injury of such magnitude
that he required conveyance and treatment at a hospital,
where he was diagnosed as having suffered two lacerations
to the scalp area requiring six sutures; (2) no evidence
suggested that Driebel was acting in self-defense; and
(3) police officers are not trained to throw their radios at
suspects. Bruess further was troubled by the fact that
Driebel violated MPD policy by failing to report any use
of force in the line of duty to his supervisor as soon as
possible, notwithstanding that Driebel was ordered to
“stand by” in the police garage merely 45 minutes after the
incident occurred.1 MPD Manual § 2/455.00 (1994 & 2000
1
Driebel states that until the time he was formally arrested for
substantial battery, he had no knowledge that he was being in-
vestigated for the use of force. This statement is consistent with
the fact that, when he was interviewed as part of an internal
investigation several days after his arrest, Driebel stated that
(continued...)
8 No. 01-1689
Supp.).2 Thus, Bruess somehow came to the conclusion that
Driebel was attempting to conceal what he knew was the
excessive use of force in the apprehension of a juvenile
suspected of disorderly conduct and truancy.3
(...continued)
Schmidt appeared not to be fazed, displayed no sign of injury, kept
running, and was not later observed by the officer as having
injuries. Driebel further explained that he did not believe that the
act of throwing a police radio at a fleeing suspect amounted to a
use of force under Department guidelines, considering that the
youth appeared not to be injured.
2
The parties placed sections of the MPD Manual of Rules and
Regulations, but not all of it, into the record before the magistrate
judge. Courts may take judicial notice of any fact that is “not sub-
ject to reasonable dispute in that it is either: (1) generally known
within the territorial jurisdiction of the trial court or (2) capable
of accurate and ready determination by resort to sources whose
accuracy cannot be reasonably questioned.” FED. R. EVID. 201(b).
The MPD Manual contains the rules and regulations duly prom-
ulgated by the chief of police, effective as of August 1994 upon
approval by the Common Council of the City of Milwaukee and
published for use in the normal course of business by the Milwau-
kee Police Department. Thus, we may take judicial notice of any
portions of the manual that are relevant to our analysis. See
United States v. Harris, 271 F.3d 690, 694 n.3 (7th Cir. 2001);
Newcomb v. Brennan, 558 F.2d 825, 829 (7th Cir. 1977).
3
In his deposition, Bruess stated: “I determined from the act of
throwing what I believe at the time was a radio at the kid that
would—that would show your intent. It’s like if you shoot some-
body, your intent is to kill them. Why else would you shoot them?”
(Bruess’s Dep. at 56-58.) Thus, Bruess obviously believes from the
content of his statement regarding the intent requirement that
regardless of where a shot is aimed and whether the bullet strikes
someone in the leg, the foot, the ankle, the head, or anywhere
(continued...)
No. 01-1689 9
At 6:15 p.m., Bruess informed Schunk of the facts, and
Schunk in turn advised Chief Jones of the results of the
investigation, including Bruess’s belief that probable cause
existed to arrest Driebel for substantial battery—a Class E
felony. Although the investigators failed to speak with
either Driebel or his partner, Lehmann, Jones reflected
upon the information and concluded that Driebel was not
trying to stop Schmidt but intended to injure Schmidt
because Driebel was not acting in self defense when he
violated MPD policy and threw his radio at Schmidt.
Relying on the quantum of information known to him, Jones
believed that he had sufficient evidence to justify the ar-
rest of any citizen for substantial battery and thus gave
the order to arrest Driebel for substantial battery at ap-
proximately 6:30 p.m.
Thereafter, Driebel, who had been “standing by” in the
Second District garage for approximately four hours, was
summoned to the captain’s office and placed under formal
arrest. Without extending Driebel the opportunity to pro-
(...continued)
else; or whether the shooter aims his weapon at the lowest
extremity of another person’s body, the shooter should be charged
with attempted murder, for, according to Bruess, the firing of the
weapon fits the statutory requirement of intent per se.
We disagree with Bruess’s interpretation of the law, for it is
contradicted by the very language of the Wisconsin Supreme
Court’s ruling in Smith v. State, 230 N.W.2d 858 (Wis. 1975),
where the Court stated in a murder case: “One is presumed to
intend the natural and probable consequences of pointing and
discharging a gun at a vital part of another’s body.” Id. at 862.
Furthermore, when interviewed during an internal investigation
a few days later, Driebel explained that he “tossed the radio at
Schmidt’s back with the intent of getting him to stop or slow
down”—not to injure him.
10 No. 01-1689
vide a more complete account of that afternoon’s incident
by presenting his side of the story after consultation with
a union representative or an attorney, Driebel was ordered
to surrender all his police-issued equipment, gun, badge,
locker room keys, identification card, etc. He was told that
he was the subject of a criminal investigation and was read
his Miranda rights. After refusing to make any statements
to the detectives, Driebel was held and conveyed to the
Milwaukee County Jail where he was booked, charged,
and required to post a $500 bond before his release from
custody several hours later.
Subsequent events strongly suggest that the officials and
superior officers of the MPD overreacted by arresting and
charging Driebel with substantial battery. After the case
was referred to the Milwaukee County District Attorney’s
office at a later date for independent review, Deputy Dist.
Atty. Jon N. Reddin, in the exercise of his discretion, re-
fused to press charges for substantial battery or any other
offense.4 Reddin refused to charge Driebel and persuasively
explained that he would have had difficulty satisfying
the intent requirement of the statute, for after reviewing
all of the evidence obtained in an independent investiga-
tion, he was convinced that Driebel threw the radio out
of frustration without the requisite intent to harm the
4
In Wisconsin, the district attorney’s office is entrusted to use its
“independent judgment and discretion” in determining whether to
prosecute any given case. City of Janesville v. Wiskia, 293 N.W.2d
522, 526 (Wis. 1980). “There is no obligation or duty upon a dis-
trict attorney to prosecute all complaints that may be filed with
him. While it is his duty to prosecute criminals . . . this does not
per se require prosecution in all cases where there appears to be
a violation of the law no matter how trivial.” Id. at 525. It is ap-
parent from his refusal to prosecute Officer Driebel that Deputy
Dist. Atty. Reddin was of the opinion that Driebel’s actions could
not have amounted to anything more than a “trivial” violation of
the law, if even a violation at all.
No. 01-1689 11
fleeing suspect. However, the Department subsequently
saw fit to suspend Driebel for twenty days without pay
for violating MPD policy by using force against a civilian
and failing to report the use of force to supervisors as
soon as possible. The record fails to reflect whether Driebel
took advantage of proceeding to an administrative hear-
ing prior to being placed on suspension.
B.
1.
Officers Huston, Sgrignuoli and Pinchard were each as-
signed to the Gang Crimes Division of the MPD. Documents
reflect that while Huston and Pinchard were on duty Jan-
uary 21, 1998, they made a traffic stop of a vehicle for fail-
ing to stop at a traffic signal. One of the four passengers in
the vehicle was a Latino male named Miguel Ramos, a
convicted felon who police knew to have affiliations with the
Latin Kings street gang.
On January 23, MPD Asst. Chief Paul Koleas telephoned
Deputy Insp. Schunk with information that might have
suggested that the officers committed a crime at the time
of the Ramos traffic stop. Specifically, Koleas advised
Schunk that he learned from a confidential informant that
two officers had recently pulled over a vehicle with four
male occupants, observed marijuana lying on the ground
next to the car, and allegedly threatened to arrest one of
the occupants for drug possession unless the occupant
agreed to obtain a single handgun for them from off the
street. That same day, the IAD was informed that gang
member Ramos filed a complaint against two officers for
their conduct on January 21, making the same allegations
as those to which the confidential informant had alluded.
Ramos alleged that the officers followed him to a friend’s
house to get a gun, but that Ramos allegedly was unable
to produce a gun once he got there. Ramos added that
12 No. 01-1689
at this point, the police took $30 from him and instructed
him to page them and bring them not one but two guns
the next day, or else he would be arrested and charged
with possession of drugs. Ramos alleged, “The police told
me, ‘Your price of freedom now went to two guns.’ ”
After reviewing police activity records for the even-
ing shift of January 21, the IAD concluded that Officers
Huston and Pinchard were involved in the Ramos traffic
stop. Ramos further informed the IAD detectives that
Huston paged him several times on January 22, leaving the
Gang Crimes Division phone number on each occasion. At
this point, the IAD launched a criminal investigation to
ascertain whether Huston or Pinchard might be guilty of
the crime of misconduct in public office.
During the next several days, the IAD interviewed three
individuals who had been referred to them by Ramos. It
is unclear from the record whether these individuals
were also gang members. They stated that Ramos came to
them looking for a gun, explaining that he had been threat-
ened with arrest if he did not obtain the weapon for the
police. One witness further stated that two officers came
to her residence several times over the course of a two-
day period checking to see if Ramos had dropped off a
gun. Another witness added that Ramos complained to her
that the police took $30 from him.
Either Schunk or Koleas advised Chief Jones about
Ramos’s complaint as well as the information they had
gathered during their week-long investigation. Jones was
of the opinion that if the patrolmen had committed the
acts as alleged by Ramos, then probable cause would exist
to believe that they were guilty of misconduct in public
office. At this time, Jones ordered a sting operation be
set up to test the veracity of Ramos’s claims and placed
Bruess in charge of the undercover investigation.
No. 01-1689 13
2.
Bruess arranged for the sting to occur in the early even-
ing hours of January 29, 1998. On this date, Officers
Huston, Pinchard, and a third officer, Johnny Sgrignuoli,
were working the 5 p.m. to 1 a.m. shift on Milwaukee’s
south side. Huston was working patrol detail in the same
squad car as Sgrignuoli, and Officer Pinchard was attend-
ing a training session at District One headquarters. As part
of the sting, Jones directed Bruess to place two handguns
in a dumpster on the corner of South 14th and West
Mitchell. Contemporaneously therewith, Bruess planted
a hidden camera in nearby bushes in order that they
might monitor any activity possibly transpiring with respect
to the planted weapons.
At the instruction of the IAD, Ramos telephoned Huston
and advised him that there were two guns in a dumpster
on the corner of South 14th and West Mitchell. After re-
ceiving this information, Huston and Sgrignuoli proceeded
to drive to the designated location to secure the planted
weapons. Sgrignuoli exited the squad car, retrieved the
firearms, and placed them in the back end of the police
vehicle. Upon observing this activity, two unmarked police
vehicles pulled up and stopped their squad cars behind
Huston and Sgrignuoli’s. Det. Lawrence Ciske and Det.
Louis Johnson exited their vehicles and, according to
Huston, immediately “separated” him from Sgrignuoli. The
manner by which the patrolmen were “separated” is not
explained in the record.
a.
Sgrignuoli recognized Det. Ciske as he exited the un-
marked car, and as Sgrignuoli approached the detective, he
asked, “What’s going on?” Ciske refused to respond and
“turned [Sgrignuoli] around and directed him back toward
his squad car.” As the two men began walking toward
14 No. 01-1689
the car together, Ciske informed Sgrignuoli that he was
the subject of a criminal investigation and ordered him to
enter the vehicle.
Det. Johnson thereafter approached Officer Sgrignuoli
as Det. Ciske walked back to his own vehicle. Johnson
sat down in the front passenger seat of Sgrignuoli’s squad
car, and Sgrignuoli occupied the driver’s side of the vehicle.
Johnson instructed Sgrignuoli to drive to the IAD offices
at police headquarters in downtown Milwaukee. While
on their journey, Sgrignuoli asked Johnson several times,
“What is going on here?” but Johnson refused to answer
and stated that he could not say. At one point during the
trip, Sgrignuoli was radioed by his supervising sergeant,
but Johnson ordered Sgrignuoli neither to respond nor
advise the sergeant of his location.
The supervisor of the sting operation, Lt. Bruess, later
testified that Officer Sgrignuoli’s name “never came up
in the investigation” of Ramos’s incident report and that
Sgrignuoli “wasn’t involved at all” in the matters about
which Ramos complained. Bruess said that Officer
Sgrignuoli was detained simply because he “just happened
to be unlucky enough to be partnered up with Brett Huston”
on the date of the sting. Bruess also acknowledged that he
neither informed Sgrignuoli that the sting operation was
focusing on Huston’s and Pinchard’s conduct nor that
Sgrignuoli was being transported to headquarters along
with Huston in an effort to avoid giving Huston any indica-
tion that he might be the subject of a criminal investigation.
Upon their arrival at the police administration build-
ing, Johnson and Sgrignuoli entered the IAD offices located
on the third floor in a room that is inaccessible to the gen-
eral public and is relatively isolated from other parts of the
headquarters. Johnson directed Sgrignuoli to enter the
room and shut the door behind them. The record fails to
disclose whether the door was locked. On at least one
No. 01-1689 15
occasion, Johnson continued to refuse to answer any of
Sgrignuoli’s questions about why he had been taken out of
duty and ordered to report to the IAD’s office.
Sgrignuoli and Johnson remained in the room together
for several hours. Eventually, two other IAD detectives
entered the room and read Sgrignuoli his Miranda rights.
Sgrignuoli immediately demanded legal counsel, and the
two detectives exited the room, leaving Sgrignuoli alone
with Johnson once again. After approximately thirty min-
utes, Schunk and three other IAD officers came into the
room and informed Sgrignuoli that he was now under
investigation for MPD rule violations rather than any
criminal activity, despite Lt. Bruess’s later admission in
his deposition that he knew Sgrignuoli “wasn’t involved at
all” in the matters about which Ramos complained. Thereaf-
ter, Sgrignuoli was directed to leave the office and return to
duty with the Gang Squad, but he requested to take the
rest of the evening off and the request was granted.
Sgrignuoli was paid for the hours he worked that day,
including the time he spent cooling his heels in the IAD
offices at the direction of a lieutenant who was fully
aware that Sgrignuoli’s conduct was in compliance at all
times with all state statutes, local ordinances, and rules of
the Department. It is interesting to note that Sgrignuoli
never was charged with any crime or rule violation, nor
placed on administrative suspension for his conduct, nor
penalized for any of his actions taken on the night in
question.
b.
We now retrace our steps to the time when Det. Ciske
first came in contact with Sgrignuoli and Huston at the
corner of South 14th and West Mitchell. After speaking
with Officer Sgrignuoli, Ciske ordered Huston to accompany
him to the IAD office. The record is barren of any evidence
16 No. 01-1689
that Ciske ever laid his hands on Huston. The two men
walked to Ciske’s undercover car, and Ciske sat in the
driver’s seat while Huston sat in the passenger’s seat
on their trip to headquarters. During the drive, Ciske ad-
vised Huston that he had been ordered to pick up Huston
and bring him downtown. Huston, like Sgrignuoli, was
escorted to an empty room at the IAD’s headquarters,
where the two of them whiled away their time occupying
a room on the third floor of the building, sitting along-
side each other for approximately three hours. Even after
advising Huston that he was the subject of a criminal
investigation, Ciske refused to allow Huston to call an at-
torney or a union representative, despite Huston’s multiple
requests. There is no additional evidence in this under-
developed record explaining what the two men discussed,
if anything, while they were in each other’s presence at
the IAD headquarters. Likewise, this sparse record fails to
explain, for purposes of evaluating whether Huston was
seized, whether the door to the IAD office room was open
or closed, locked or unlocked during this time.
We do know that Huston was refused permission to use
the restroom unless he was accompanied by at least one
detective, who positioned himself outside of the restroom
door. Huston did concede that the detectives may have
followed him in order to attempt to monitor whether he
attempted to talk to other officers about matters related
to the Ramos complaint. We also point out that MPD’s
superior officers may not use physical force to detain a
patrolman unless they are placing the patrolman under
arrest or if he is fleeing from custody. Furthermore, al-
though Huston might very well have been subject to dis-
charge or some other adverse employment action had
he seen fit to leave the IAD headquarters without permis-
sion, Huston like the other appellants, did receive compen-
sation for his duty hours that day. Huston never was re-
lieved of the possession of his police-issued credentials
No. 01-1689 17
and weapons, including his gun, I.D. card, badge, and other
police-issued essentials while he waited in the IAD head-
quarters.
After approximately three hours, an IAD detective
entered the room and read Huston his Miranda rights.
Huston immediately requested an attorney and a union
representative and declined to make any statements out-
side of the presence of the attorney. At this point, the
detectives changed their course and decided to convert the
investigation from a criminal inquiry to an internal inquiry
of whether Huston, like Officer Sgrignuoli, had committed
any violation of MPD rules and regulations.5 Several min-
utes thereafter, Huston was instructed to report back
to the Gang Squad for the remaining two hours of his shift.6
5
An allegation of a rules violation, obviously, is not as serious as
an allegation of criminal activity. There also is at least one more
important distinction between a criminal investigation and an in-
ternal investigation: information obtained during a criminal
investigation may be used to support criminal charges and ad-
verse employment decisions. However, as we explain post at 22-23
n.8, information obtained during an internal investigation may
not be used in a criminal prosecution of the individual being
questioned unless he has waived his Fifth Amendment rights. It
is for this reason that many public agencies conduct a criminal
investigation prior to opening an internal investigation.
6
We note that Section 3/450.05D.8 of the MPD Manual provides:
“In investigations that require an immediate interview, the
[officer] will be allowed a reasonable opportunity to obtain the
presence of and to consult with a representative of his/her choice
before and during the interview. . . . If any member being inter-
viewed by a supervisory officer requests representation, and
that representation is denied, the supervisory officer shall pre-
pare an ‘ ‘In the Matter of ’ Report’ indicating the circumstances
which led up to the request for representation and the reason why
representation was denied.” Huston did not argue in the trial
(continued...)
18 No. 01-1689
Huston never was arrested, for when Deputy Dist. Atty.
Reddin was asked for his opinion, he advised Chief Jones
that he would exercise his discretion and refuse to prose-
cute Huston because even if Reddin disagreed with
Huston’s judgment and methods, Reddin believed that
Huston was acting in good faith in the performance of
his duties as a member of the Milwaukee Police Depart-
ment. Furthermore, for reasons the Department has not
explained, no disciplinary charges ever were brought
against Huston. Surprisingly, within two years after this
investigation, he was given a promotion to the rank of
detective.
c.
There is a sparsity of information in the record detailing
the MPD’s investigation or the official adjudication of Of-
ficer Pinchard’s alleged misconduct. Although Huston and
Pinchard had been working as partners on the nights of
January 21 and 22, 1998, Pinchard was working alone,
without a partner, on the evening of January 29, when he
was ordered by a lieutenant of the Gang Crimes Intelligence
Unit to report to the IAD. It is relevant to the ques-
tion of seizure that Pinchard was allowed to walk to his
(...continued)
court that the detectives attempted to question him after aban-
doning their criminal investigation and initiating an internal
investigation for the alleged violation of department rules, and
thus we need not consider whether such questioning would have
been proper. Cf. DOJ v. FLRA, 266 F.3d 1228 (D.C. Cir. 2001).
Additionally, because this underdeveloped record fails to establish
that Huston was taken into custody, post at 38-43, we need not
discuss the consequences of the Department’s refusal to permit
Huston to consult with an attorney. See Miranda v. Arizona, 384
U.S. 436, 444 (1966).
No. 01-1689 19
squad car and drive himself to the police headquarters
some time between 6 and 7:30 p.m. Upon arrival, Pinchard
proceeded to the third floor of the building as ordered
and was escorted into an empty room. Almost immedi-
ately after he entered the conference room, Pinchard was
read his Miranda rights by two detectives and there-
after exercised his right to remain silent. Pinchard re-
mained in the room for thirty minutes; it is unknown
whether he was alone or with an IAD detective during
this time. He was then instructed to return to the Gang
Squad in order to complete the remainder of his shift.
Pinchard does not allege that he was touched by any de-
tective, nor that he would have been physically restrained
if he failed to report to the IAD headquarters or thereafter
attempted to leave headquarters.
II.
Each officer charges that his respective rights were
violated by the Milwaukee Police Department when he
was allegedly seized without probable cause in violation of
the Fourth Amendment as incorporated against the states
by the Fourteenth Amendment. We review a grant of sum-
mary judgment de novo, considering all of the available
affidavits, depositions, transcripts, and exhibits in the light
most favorable to the non-moving party. We affirm a grant
of summary judgment if there is insufficient evidence for
a rational jury to find in favor of the non-moving party.
Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v.
Liberty Lobby Inc., 477 U.S. 242 (1986).
III.
Prior to the events in this lawsuit, Chief of Police Arthur
L. Jones issued an order that once an officer has become
the subject of a criminal investigation, MPD detectives are
20 No. 01-1689
to question the officer about his or her alleged miscon-
duct. The investigating detectives, in their discretion, may
choose to interrogate the officer at his or her normal work
station or at some other suitable location, including the
IAD headquarters. An officer who disobeys a superior of-
ficer’s order to accompany the detective to headquarters
is subject to: (1) being terminated or suspended for insub-
ordination; or (2) being conveyed to a suitable location for
questioning.
The district court ruled that each of the alleged seizures
was reasonable but never did identify at what particular
time any of the alleged seizures may possibly have taken
place. Chief Jones argues that the relevant case law does
not clearly answer the question of whether the Fourth
Amendment’s prohibition against unreasonable seizures
is implicated when he orders his officers to remain on duty,
accompany detectives to the Department’s headquarters,
and either answer questions about their alleged miscon-
duct or invoke their Fifth Amendment rights to silence.
Thus, Jones states that he is entitled to qualified immunity
on all of the charges against him.
Several months after the trial judge’s ruling, the Supreme
Court reiterated in Saucier v. Katz that:
A court required to rule upon the qualified immunity
issue must consider . . . this threshold question: Taken
in the light most favorable to the party asserting the
injury, do the facts alleged show that the [official’s]
conduct violated a constitutional right? This must be
the initial inquiry. If no constitutional right would have
been violated were the allegations established, there is
no necessity for further inquiries concerning qualified
immunity.
121 S.Ct. 2151, 2155-56 (2001).
Thus, in light of the Saucier decision, we must deter-
mine whether, and at what point, actions initiated by the
No. 01-1689 21
Department against its on-duty police officers during a
criminal investigation should be classified as unreason-
able seizures in violation of the officers’ Fourth Amend-
ment rights. “Conducting such an analysis complies with
the Saucier Court’s ultimate goal of establishing legal
principles that remove uncertainty in the case law, guid-
ing public officials in their daily conduct, and protecting all
but the plainly incompetent or those who knowingly break
the law from future nettlesome lawsuits.” McNair v. Coffey,
279 F.3d 463, 474 (7th Cir. 2002) (Coffey, J., concurring).7
IV.
A.
We begin our analysis by stating the well-settled rule that
men and women do not surrender their freedoms when
joining the police force. “[P]olicemen, like teachers and
lawyers, are not relegated to a watered-down version of
constitutional rights.” Garrity v. New Jersey, 385 U.S. 493,
500 (1967). At the same time, we hasten to emphasize that
nothing in the Fourth Amendment endows public employees
with greater workplace rights than those enjoyed by
their counterparts in the private sector. Thus, in cases
involving the constitutional rights of police officers, courts
must distinguish between a police department’s actions
in its capacity as an employer and its actions as the law
enforcement arm of the state. See Lefkowitz v. Cunningham,
431 U.S. 801 (1977); Uniformed Sanitation Men Ass’n v.
Commissioner, 392 U.S. 280 (1968); Gardner v. Broderick,
392 U.S. 273 (1968); Garrity, 385 U.S. 493; Atwell v. Lisle
Park Dist., 286 F.3d 987 (7th Cir. 2002); Confederation
of Police v. Conlisk, 489 F.2d 891 (7th Cir. 1973).
7
We wish to make clear that Judge Coffey neither knows nor is
related to Officer Sean Coffey, the defendant in McNair v. Coffey.
22 No. 01-1689
We have previously commented that “[a] trustworthy
police force is a precondition of minimal social stability in
our imperfect society,” Shields v. Burge, 874 F.2d 1201,
1204 (7th Cir. 1988), and that “[t]he public, including fellow
law enforcement agents, expects that police officers will not
violate the laws they are charged with enforcing.” United
States v. Lamb, 6 F.3d 415, 419 (7th Cir. 1993). As this
record makes clear, certain command officers within the
MPD seem to engage in a systematic pattern of mak-
ing officers feel unnecessarily uncomfortable when the
Department sets about to conduct internal criminal investi-
gations. However, having made this comment, we wish to
make clear that with respect to how the Milwaukee Police
Department treats its officers as employees, the federal
courts do not intend to act as super-personnel boards
and that the judiciary “should defer, whenever possible
consistent with the Constitution, to the superior expertise of
law enforcement professionals in dealing with their respec-
tive personnel.” Kuchenreuther v. City of Milwaukee, 221
F.3d 967, 975 (7th Cir. 2000).
We hold that the Department has the authority to di-
rect its officers to remain on duty or to accompany detec-
tives to the Department’s headquarters and either answer
questions from supervisory officers as part of a criminal
investigation about their alleged misconduct or invoke their
Fifth Amendment rights against self-incrimination.8 We
8
Of course, questioning as part of a criminal investigation im-
plicates the officer’s Fifth Amendment right to counsel and right
against self-incrimination, as enunciated in Garrity and its prog-
eny. We have interpreted Garrity to mean that the Government
“has every right to investigate allegations of misconduct, including
criminal misconduct by its employees, and even to force them
to answer questions pertinent to the investigation, but if it does
(continued...)
No. 01-1689 23
reject the appellant officers’ argument that a patrolman
is seized, within the meaning of the Fourth Amendment,
at the time that he is ordered to report for questioning at
a designated, centralized area, such as the headquarters
for the internal affairs department (wherever it may be
located) or some other suitable location determined by the
superior officer. See Attreau v. Morris, 357 F.2d 871, 875
(7th Cir. 1966) (Knoch, J., dissenting); see also United
States v. Muegge, 225 F.3d 1267, 1270 (11th Cir. 2000) (per
curiam) (no seizure when on-duty civilian Air Force em-
ployee was ordered to report for interview with intelli-
gence officer); United States v. Baird, 851 F.2d 376, 380-
82 (D.C. Cir. 1988) (same in case involving on-duty Coast
Guard officer).
A police department is a paramilitary organization that
must maintain the highest degree of discipline, confiden-
tiality, efficiency, and espirit de corps among its officers,
who are the first line of defense against lawlessness. In
all paramilitary organizations, there are rules that must
be followed. The plaintiffs in this case, like all other of-
ficers who have accepted employment with the Milwaukee
Police Department, agreed as part of their terms and con-
ditions of employment to “promptly obey any lawful order
(...continued)
that it must give them immunity from criminal prosecution on the
basis of their answers.” Atwell, 286 F.3d at 990. Furthermore, any
Government employer “who wants to ask an employee potentially
incriminating questions must first warn him that because of the
immunity to which [case law] entitles him, he may not refuse to
answer the questions on the ground that the answers may
incriminate him.” Id.In this case, the record does not indicate whether the detectives
ever advised the appellants of their Garrity rights. We need not
consider the implications of this fact, however, since the officers
did not allege any Fifth Amendment violations.
24 No. 01-1689
emanating from any officer of higher rank,” MPD Manual
§ 2/030.00, to be “always subject to orders from proper
authority and to call from civilians,” id. § 2/025.00, to “be
always subject to duty although periodically relieved from
the routine performance of it,” id., and to “obey all or-
ders issued by supervisors assigned to the Internal Af-
fairs Division pertaining to a personnel investigation.” Id.
§ 3/450.00D. The officers further agreed that the IAD
detectives in the factual situation before us do have the
power and authority to “immediately” interview them when
reviewing a “complaint of delinquency or misconduct on
the part of a member of the Department.” Id. §§ 2/700.10,
450.05D.8.
Thus, within the limits set by Atwell, Garrity, and their
progeny, if an officer declines to cooperate with an investi-
gation or refuses to obey a lawful command by a superior
officer to report for questioning at Department headquar-
ters, he exposes himself to the same potential consequences
as an employee in the private sphere: suspension, termina-
tion, or other work-related discipline, such as being placed
on administrative leave pending an investigation of the
charges against him. See, e.g., Johnson v. FedEx Corp.,
147 F. Supp.2d 1268, 1277 (M.D. Ala. 2001).
Having reached this conclusion, we also want to empha-
size that public employees, including police officers, are en-
titled to equal protection of their rights under the law.
Thus, we reject the Department’s argument that it may seize
an officer without probable cause who refuses to obey a
command to remain on duty or report to a particular loca-
tion in order to answer questions as part of a criminal in-
vestigation. Rather, the Department’s options are some-
what limited when dealing with an officer who has dis-
obeyed a lawful order from his superior officers. First, the
Department may institute investigative proceedings that
may very well result in the dismissal, suspension, or dis-
cipline of the officer. Sanitation Men, 392 U.S. at 285.
No. 01-1689 25
This includes placing him on administrative leave while
conducting a further investigation. See id. Second, the De-
partment may briefly stop, frisk, and question the of-
ficer consistently with the holding of Terry v. Ohio, 392
U.S. 1 (1968), provided that the Department adheres to
the well-settled rule of law that if a Terry stop continues
too long or becomes unreasonably intrusive, it ripens into
a de facto arrest that must be based on probable cause.
United States v. Robinson, 30 F.3d 774, 784 (7th Cir. 1994).
Third, the Department may seize, arrest, and detain the
officer for custodial interrogation, provided that the ar-
rest is supported by probable cause. Cerrone v. Brown, 246
F.3d 194, 199-202 (2d Cir. 2001); see also 2 I. SILVER,
PUBLIC EMPLOYEE DISCHARGE & DISCIPLINE § 14.01[D] at
989 (2001). Cf. United States v. Taketa, 923 F.2d 665, 675
(9th Cir. 1991); LAPPL v. Gates, 907 F.2d 879, 886 (9th Cir.
1990).
B.
We emphasize the probable cause requirement because
the MPD contends that it may seize and interrogate its
officers for any reason upon a showing of less than probable
cause merely by showing that the seizure was reasonably
justified at its inception, reasonable in scope, and otherwise
reasonable under the circumstances. The Department sup-
ports this position by citing us to cases involving the
Fourth Amendment’s application to internal investigations
designed to discover evidence of work-related misconduct,
rather than criminal investigations conducted with prosecu-
tion in mind. We conclude that the cases cited by the De-
partment, such as O’Connor v. Ortega, 480 U.S. 709 (1987),
Shields, 874 F.2d at 1203-07, and Lowe v. City of Macon,
720 F. Supp. 994 (M.D. Ga. 1989), are distinguishable be-
cause, as the Department concedes, each of the four police-
men in this case were advised at one time or another that
26 No. 01-1689
they were criminal suspects who were questioned with an
eye towards criminal prosecution.9
Instead, the facts of this case are materially similar to
Cerrone, wherein the Second Circuit held that an officer
cannot be seized without probable cause during a crim-
inal investigation. “[A] lesser standard of individualized
suspicion is permissible only in internal disciplinary in-
vestigations of government employees by their government
employers.” Cerrone, 246 F.3d at 201. Thus, the Second
Circuit concluded that a police officer’s rights were violated
when he was seized, detained and questioned by several
detectives regarding the suspected cover-up of a hit-and-
run accident—all without probable cause. Id. at 196. See
also Taketa, 923 F.2d at 675 (ruling that public employer
may not “avoid the probable cause requirement when it is
acquiring evidence for a criminal prosecution.”).
Since police “are not relegated to a watered-down version
of constitutional rights,” Garrity, 385 U.S. at 500, we agree
with the Second Circuit and hold that a law enforcement
agency needs probable cause to seize its employees as part
9
The determination of whether an officer has been seized for the
purpose of a criminal or an administrative investigation should
focus on the totality of the circumstances, including: (1) the nature
of the encounter, its setting, and its preparation; (2) whether the
police department followed the applicable collective bargaining
agreement’s provisions for administrative investigations; and (3)
the statements made by the questioning detectives. See Cerrone,
246 F.3d at 201. The inquiry is an objective one, asking whether
a reasonable person in the position of the officers would believe
he was the subject of a criminal or an administrative investigation
by the department. See id.No. 01-1689 27
of a criminal investigation.10 See Dunaway v. New York, 442
U.S. 200, 214 (1979); Davis v. Mississippi, 394 U.S. 721,
726-27 (1969).
V.
The issue, then, becomes whether the appellant MPD
patrolmen herein were seized without the existence of
probable cause. Officer Driebel argues that he was seized
when he was commanded to “stand by” and remain on duty
at the District Two police station while IAD detectives
investigated the citizen complaint filed against him. Of-
ficers Sgrignuoli, Pinchard, and Huston argue that they
were seized when they were accosted and ordered to re-
port to the IAD headquarters in furtherance of the detec-
tives’ investigation of public misconduct.
We explain below that Officers Huston and Pinchard
were never seized, and Officer Driebel was lawfully seized
with probable cause. On the other hand, Officer Sgrignuoli
was unlawfully seized without probable cause.
10
A private sector employee is falsely imprisoned during an
internal investigation if his or her liberty is restrained through
the threat or use of force. See, e.g., Dupler v. Seubert, 230 N.W.2d
626 (Wis. 1975); WIS. STAT. § 940.30. Because the issue is not
raised in this case, we need not determine whether a police officer
can state a false imprisonment claim if he happens to be denied
his freedom of movement by superior officers conducting an in-
ternal investigation. Cf. Tomrell v. Leavenworth County, 845 F.
Supp. 1454, 1458 (D. Kan. 1994) (granting summary judgment
on claim of false imprisonment absent proof that sheriff ’s dep-
uties confined patrolman’s freedom of movement during two-hour
investigation of possible misconduct).
28 No. 01-1689
A.
To support their claims, the officers rely principally
on the recent case of Grow v. City of Milwaukee, 84 F.
Supp.2d 990 (E.D. Wis. 2000), where the district court
concluded that several MPD officers were seized when they
were threatened with job loss for failing to comply with
an order to accompany police supervisors to police head-
quarters and submit to a blood-alcohol test. Id. at 1001-02.
The Grow court determined that patrolmen who are ordered
to follow supervisors to a given location may be seized even
if they are “threatened only with job loss and not phys-
ical force” id. at 1001, since, according to the district judge,
“all that is necessary to effectuate a seizure is a ‘show
of authority’ which in some way restrains the liberty of
a citizen.” Id. at 1002 (quoting Terry 392 U.S. at 19 n.16).
Notwithstanding the district judge’s quotation from Terry,
we are convinced that the judge’s analysis improperly
truncates the holding of the Supreme Court’s more recent
decision in United States v. Mendenhall, 446 U.S. 544(1980), where the Court defined the test for a seizure as
follows: “A person has been ‘seized’ within the meaning of
the Fourth Amendment only if in view of all the circum-
stances surrounding the incident, a reasonable person
would have believed that he was not free to leave.” Id. at
554. The district court also failed to discuss, much less
even cite the Court’s decision in INS v. Delgado, 466 U.S.
210 (1984), where the Court explained that no restriction
on an employee’s freedom of movement may be attributed
to police agents, for purposes of evaluating whether the
employee was seized, unless “the agents’ conduct” gave
the employees “ ‘reason to believe that they would be
detained’ ” even “ ‘if they gave truthful answers to the ques-
tions put to them or if they simply refused to answer.’ ”
Florida v. Bostick, 501 U.S. 429, 436 (1991) (quoting
Delgado, 466 U.S. at 218).
No. 01-1689 29
Delgado involved a Fourth Amendment challenge to
the INS’s practice of visiting factories and, with the con-
sent of the employer, questioning workers randomly to
determine whether any of them were illegal aliens. In
Delgado, several INS agents stood near the factory exits
while other agents traveled through the plant questioning
workers. The employees argued that they were seized,
because they were of the belief that they would have
been terminated had they left their worksite in order to
avoid speaking with the INS agents. The Court rejected
this reasoning and explained that the restriction on the
employees’ movement could not be attributed to the police
because “[o]rdinarily, when people are at work their free-
dom to move about has been meaningfully restricted, not
by the actions of law enforcement officials, but by the
workers’ voluntary obligations to their employers.” Delgado,
466 U.S. at 218. Thus, the Court concluded that “there
was no seizure because, even though the workers were not
free to leave the building without being questioned, the
agents’ conduct should have given employees ‘no reason to
believe that they would be detained if they gave truth-
ful answers to the questions put to them or if they sim-
ply refused to answer.’ ” Bostick, 501 U.S. at 436 (quoting
Delgado, 466 U.S. at 218).
We believe that the plaintiffs’ reliance on Grow is mis-
placed, for Grow fails to acknowledge that police officers: (1)
may reasonably believe, based upon their workplace ob-
ligations to comply with department’s guidelines and reg-
ulations, that their employment relationship will be sev-
ered if they refuse or disobey an order, direction, or request
to accompany detectives to the department’s headquarters;
but (2) lack any reasonable basis to feel that they will be
restricted by force or a show of lawful authority in their
freedom of movement or their ability to terminate the
encounter.
Delgado, Broderick and Sanitation Men dictate that
the possibility or even probability of a future adverse em-
30 No. 01-1689
ployment action—as opposed to physical detention—cannot
enter our analysis of whether the officers in this case were
seized. A seizure occurs only when a person submits to
the show of lawful authority or the application of physical
force by an officer acting in the role of a law enforcement
agent rather than as a public employer or supervisor. See
California v. Hodari D., 499 U.S. 621, 626-27 (1991). The
“physical force or show of authority” must be something
more than a threat to terminate the patrolman if he refuses
to comply with a commanding officer’s order to accompany
a detective to a central location and answer questions as
part of a criminal investigation. See Fournier v. Richardson,
160 F.3d 754, 757 (1st Cir. 1998) (holding that it was irrele-
vant for Fourth Amendment purposes that a corrections
officer allowed himself to be handcuffed during a training
exercise because he feared that refusal would have resulted
in “negative consequences for his continued employment”);
see also Muegge, 225 F.3d at 1270; Baird, 851 F.2d at 380-
82. Since the Fourth Amendment does not protect against
the threat of job loss, the relevant constitutional inquiry
must focus on whether reasonable people in the position of
the subordinate officers would have feared seizure or deten-
tion if they had refused to obey the commands given by
their superior officers. See Delgado, 466 U.S. at 218. Cf.
Miraliakbari v. Pennicooke, 561 S.E.2d 483, 489 (Ga. App.
Ct. 2002) (rejecting employee’s argument that “the threat
of loss of a job constitutes sufficient force or fear to form
the basis of a claim for false imprisonment.”); Hannah
v. Marshall Field & Co., 665 N.E.2d 343, 349 (Ill. App. Ct.
1996) (same); Foley v. Polaroid Corp., 508 N.E.2d 72, 77-
78 (Mass. 1987) (same). We thus disagree with the Grow
court’s statement concluding that patrolmen are considered
to be seized if they are “threatened only with job loss and
not physical force” and a detention of some type. 84 F.
Supp.2d at 1001.
No. 01-1689 31
B.
1.
With the foregoing principles in mind, we address the
Fourth Amendment claims of each officer, beginning with
Officer Driebel. Driebel argues that he was seized at ap-
proximately 3:15 p.m. on February 20, 1998, when he was
ordered to work overtime and “stand by” for 3½ hours in the
police garage at the Second District police station. The
record fails to support this claim, for there is no evidence
suggesting that he would have been prevented from leav-
ing the garage had he refused to obey Sgt. Doehling’s com-
mand to remain on “stand by” duty.
Driebel, who was not under formal arrest at the time,
must have been aware that no officer was permitted to use
force or any show of authority to prevent him from depart-
ing the garage if he so chose. Furthermore, Driebel received
overtime pay and retained possession of all his police-issued
equipment, including his gun, police identification card,
badge, and locker room keys while he was standing around
in the garage for 3½ hours. There is no evidence that the
MPD created a coercive environment by, for example, isolat-
ing and preventing Driebel from speaking with anybody
who may have been present in the garage, advising Driebel
that he was the subject of a criminal investigation, or read-
ing Driebel his Miranda warnings prior to the time he
was relieved of duty. Thus, on the basis of this record, we
refuse to hold that Driebel was seized by Doehling’s orders,
given in accordance with the MPD Manual § 2/025.00, to
stand by and remain on duty. See Fournier, 160 F.3d at 757;
see also Muegge, 225 F.3d at 1270; Baird, 851 F.2d at 380-
82.
There is no dispute, however, that Driebel was seized
at the time of his formal arrest, when he was advised of
his rights, taken into custody, stripped of all his police
32 No. 01-1689
equipment (gun, I.D., etc.), booked, and ordered to post a
$500 bond as a condition of release. Thus, we proceed in our
Fourth Amendment analysis by explaining in the follow-
ing section that his seizure was supported by probable
cause.
2.
There is probable cause to arrest if the totality of the facts
and circumstances known to a reasonable arresting offi-
cer would support the belief that the suspect has committed
or is committing a crime. Marshall v. Teske, 284 F.3d 765,
770 (7th Cir. 2002); Woods v. City of Chicago, 234 F.3d 979,
996 (7th Cir. 2000). The court must consider the facts as
they would have reasonably appeared to the arresting offi-
cer “seeing what he saw, hearing what he heard” at the
time of the incident. Richardson v. Bonds, 860 F.2d 1427,
1431 (7th Cir. 1988). An officer’s belief in the existence of
probable cause “need not be based on evidence sufficient to
support a conviction, nor even a showing that the officer’s
belief is more likely true than false.” Woods, 234 F.3d at
996. Furthermore, “we have consistently held that an iden-
tification or a report from a single, credible victim or eye-
witness can provide the basis for probable cause.” Id.Driebel contends that if the Department had postponed
its decision to arrest him until it had completed its investi-
gation over the course of the several days following the
incident—as an assistant district attorney stated in her
deposition is the usual procedure in cases like the one before
us, involving MPD officers who are residents of the city and
neither are considered to be a flight risk nor pose a threat
to the community—it in all likelihood would have discov-
ered additional evidence proving that his use of force
was reasonable under the circumstances and that he lacked
the intent to cause bodily harm. Driebel thus argues that
it was unlawful for Chief Jones to order his arrest prior
No. 01-1689 33
to pursuing its regular avenues of investigation. Although
it would have been prudent for the Department to have
conducted a more thorough investigation (we elaborate
upon this point post at 35-37 n.13), we cannot agree with
Driebel’s interpretation of the law, for it is well-settled that
once detectives have performed a good-faith investigation
and assembled sufficient information from the totality of
the circumstances to establish probable cause, they are not
required under the Constitution to continue searching for
additional evidence. “This is true even if sound police tech-
nique would have required such further investigation.” Id.Moreover, there is no Fourth Amendment violation so
long as the officers had probable cause “to arrest the sus-
pect either for the precise offense the officers cited or for a
closely related charge.” Williams v. Jaglowski, 269 F.3d
778, 783 (7th Cir. 2001). In order to rely on the “closely-
related charge” doctrine:
the officers must show that the charge can reasonably
be based on the same set of facts that give rise to the
arrest and that the charge offered as justification is one
that would have recommended itself to a reasonable
police officer acting in good faith at the time the arrest
was made. The justification for the arrest cannot be an
ex post facto extrapolation of all crimes that might have
been charged on a given set of facts.
Id. (internal citations omitted); see also Richardson, 860
F.2d at 1430-31.
In this case, Driebel was arrested for violating WIS. STAT.
§ 940.19(2) as a result of his having committed an alleged
act of substantial battery upon Schmidt. The statute pro-
vides that “[w]hoever causes substantial bodily harm to
another by an act done with intent to cause bodily harm
to that person or another is guilty of a Class E felony.”
Encompassed within substantial battery is the lesser-in-
cluded crime of simple battery, which prohibits the infliction
34 No. 01-1689
of “bodily harm to another by an act done with intent to
cause bodily harm.” § 940.19(1). The difference between
substantial and simple battery lies in the circumstances
surrounding the incident and the gravity of the injury
suffered by the victim.11 Thus, as a matter of law, the crime
of substantial battery is closely related to the crime of
simple battery. § 939.66(2m).
A police officer may be guilty of committing a battery
by using unreasonable force in the apprehension of a sus-
pect. State v. Mendoza, 258 N.W.2d 260, 273-74 (Wis. 1977);
Wirsing v. Krzeminski, 213 N.W.2d 37 (Wis. 1973). Driebel
argues that the Department lacked probable cause to
believe that he injured or used force with an intent to
cause bodily harm to Schmidt, rather than merely appre-
hend him. We disagree, for we are convinced that the
Department conducted a legally adequate inquiry by in-
terviewing the victim, Joshua Schmidt, as well as numer-
ous witnesses who gave sufficient corroborating testimony
to establish that Driebel may have committed a battery
when he threw his radio at Schmidt’s back and struck him
at the base of the skull area.
Under Wisconsin law, an actor is presumed to intend
the consequences of his knowingly and voluntarily per-
formed acts. Rabideau v. City of Racine, 627 N.W.2d 795,
803 (Wis. 2001). Chief Jones and Lt. Bruess believed
that Driebel acted with an intent to harm Schmidt because
they could not conceive of a legitimate law enforcement
reason for throwing a radio at a fleeing juvenile suspect.
11
“Bodily harm” is defined as “physical pain or injury, illness, or
any impairment of physical condition.” WIS. STAT. § 939.22(4). The
modifier “substantial” implies that “substantial bodily harm” must
consist of substantial physical pain or injury, substantial illness,
or substantial impairment of physical condition. 1 HAMMER &
DONOHOO, SUBSTANTIVE CRIMINAL LAW IN WISCONSIN §§ 411-14
(1988).
No. 01-1689 35
In support of his position, Jones stated during his deposi-
tion that “we don’t train officers to throw radios and hit
people.” Jones added that although Driebel’s acts consti-
tuted the use of physical force under MPD policy, Driebel
failed to comply with the requirement that all patrolmen
must report their use of force to a superior officer at the
earliest possible time thereafter.12 Jones explained that he
was of the opinion—based upon his years of training and
experience as a departmental supervisor—that an officer
is less likely to report the use of force if he has acted
improperly rather than for legitimate law enforcement pur-
poses. Jones added that none of the witnesses to the in-
cident stated that Driebel was acting in self-defense. Ac-
cordingly, Jones stated that he presumed Driebel intended
the natural consequences of his act, i.e., intended to harm
the juvenile truant and harasser when he threw the ra-
dio and struck him.
“Probable cause does not require the same type of spe-
cific evidence of each element of the offense as would
be needed to support a conviction.” Adams v. Williams, 407
U.S. 143, 148-49 (1972). Based on the facts known to Jones
at the time of the arrest, supported with the statements
of several witnesses ruling out the possibility of self-
defense, we believe there was sufficient evidence to estab-
lish probable cause that the officer committed the crime
of battery.13
12
Indeed, at a subsequent administrative hearing a police re-
view board deemed Driebel’s violation of the use-of-force policy
to be severe enough to warrant a 20-day suspension without pay.
Driebel never has challenged the review board’s determination.
13
This was a close question. Even though we hold that Chief
Jones’s decision to arrest, charge, and book Officer Driebel was
lawful, this is not to say from the facts and circumstances in this
record that it was an exercise of good judgment.
(continued...)
36 No. 01-1689
(...continued)
As explained above and also in Part I.A, Driebel’s arrest was
handled in an unusual manner. The Department ordered Driebel
to stand around in the garage for almost four hours without
any explanation as to why he was being detained, much less
how long he might be detained. Jones testified in his deposition
that he believed Driebel’s use of force was unreasonable primarily
because he thought Driebel was chasing Schmidt for the non-
violent offense of truancy. (Jones claims to have been unaware
that Schmidt also allegedly harassed a group of schoolchildren
earlier in the day). However, neither Jones nor his aides ever
saw fit to obtain any statements from either Schmidt or Driebel’s
partner about whether Driebel’s pursuit of the suspect through
alleyways and backyards may have turned obstructive at any time
or might have resulted in possible misadventure or violence that
could possibly have justified throwing a radio in order to prevent
escape.
In addition, and in contrast to how Officers Huston, Pinchard,
and Sgrignuoli were treated, Asst. Dist. Atty. Marcella DePeters
testified that the Department deviated from local custom by
formally arresting, booking, and detaining Driebel without first
consulting the district attorney’s office. The record reflects that,
unless there is reason to believe that an officer is a threat to the
public or plans to flee the jurisdiction, MPD officials meet with the
district attorney and inquire whether the prosecutor acting in-
dependently is likely to press charges against the officer. An arrest
is rarely made unless charges are likely to be brought. Deputy Dist.
Atty. Reddin, after conducting an independent and thorough in-
vestigation, refused to press charges because he concluded that
Driebel’s discretionary use of force was reasonable. Even Lt.
Bruess—who supervised the investigation—felt that Driebel’s dis-
cretionary use of force in the situation facing him was not improper
to the degree that he should have been charged with a crime. (Doc.
No. 61 ¶ 184.)
We have difficulty conceiving why the chief of police ordered
the arrest and booking of this duly-sworn police officer under
(continued...)
No. 01-1689 37
See Spiegel v. Cortese, 196 F.3d 717, 723-24 (7th Cir. 1999).
“That is enough to support the district court’s conclu-
sion that [Driebel] suffered no deprivation of [his] federal
rights when he was arrested.” Williams, 269 F.3d at 784-85.
C.
We need not elaborate in great detail upon Officer
Pinchard’s claim, for it received little attention in the
briefs or at oral arguments. After Pinchard was ordered
by a lieutenant to report to the IAD, he was allowed to
drive himself unaccompanied in his own squad car to po-
lice headquarters. He was met at the IAD offices by de-
tectives and escorted to a conference room, where he waited
for approximately thirty minutes before being read his
Miranda rights and refusing to make a statement. We do
not know from this meager record whether Pinchard
was advised about the pending criminal investigation.
Nor do we know whether he was touched by any detec-
(...continued)
these circumstances, thereby exposing the officer and his family
to abject rumor, scorn, and disgrace, when there was substantial
doubt as to whether he would be prosecuted for committing the
crime charged. Commanding officers who are entitled to demand
and expect the respect of the beat patrol officer must earn that
respect by treating each and every officer like a professional at
all times. We cannot say that respect was paid here. Thus, al-
though we hold that the MPD technically had probable cause
to arrest, we question whether Chief Jones and the battery of
officers and detectives under his supervision advanced the in-
terests of public safety when they saw fit to bypass the independ-
ent prosecutor. Nevertheless, for the reasons explained above, we
agree with the magistrate’s decision to grant the Department’s
motion for summary judgment. See McNair, 279 F.3d at 467 (not-
ing that “the Constitution does not displace state and local gov-
ernments as the source of wise police practices”).
38 No. 01-1689
tive, threatened with physical restraint, placed in a locked
or unlocked room, or forced to submit to surveillance by
overbearing detectives. Indeed, immediately after Pinchard
refused to speak with the detectives, he was instructed
to return to the Gang Crimes Division and complete the
remainder of his shift. On these facts presented, and for
the reasons expressed in Part III.B.1, we conclude that
Pinchard’s claim of seizure is without merit.
D.
Officer Huston argues that he was seized beginning at
the time when the IAD detectives approached him and
his partner, Officer Sgrignuoli, and ordered them to report
to the Department’s headquarters. Huston further claims
that this custodial seizure continued in effect until such
time as he was released and ordered to return to duty
several hours later. This sparse and undeveloped record
is barren of key facts to support the essential elements of
Huston’s Fourth Amendment claim. Thus, on the basis of
this skeletal record, we conclude that Officer Huston’s
seizure claim must fail. Yet we wish to make clear that
this is a close call even on the basis of the meager record
before us, and we stress that officers with a more complete
record in future cases might very well avoid the entry of
summary judgment against them.
1.
As part of the sting operation, two detectives approached
Huston while he was searching for guns planted in a dump-
ster on the corner of South 14th and West Mitchell on
Milwaukee’s south side. At the time he was instructed to
accompany IAD detectives to Department headquarters,
Officer Huston was on duty and was obligated to per-
form any lawful task to which he was assigned. There is no
No. 01-1689 39
evidence that the detectives made a display of their weap-
ons, spoke in a menacing manner, made coercive state-
ments, or informed Huston that he was under arrest. It is
undisputed that Huston remained in possession of all of his
MPD-issued equipment, weapons, and identification at all
times.
As we explained in more detail ante at 28-30, a seizure
occurs when one’s freedom of movement is terminated
by the submission to a show of lawful authority or the
application of physical force by officers acting in their ca-
pacity as law enforcement agents. See Hodari D., 499 U.S.
at 626-27. It should be noted that Officer Huston was
not some naïve, awestruck individual confronting the po-
lice for the first time. Rather, he was a sworn, highly
trained law enforcement officer, who, we believe, was well
aware of his constitutional and workplace rights.14 Fur-
thermore, as we have emphasized throughout this opin-
ion, Huston and every other appellant accepted as a con-
dition of employment that any IAD detective was vested
with the power and authority to “immediately” interview
them at a suitable place as part of an inquiry into any
“complaint of delinquency or misconduct.” MPD Manual
§§ 2/700.10, 450.05D. Moreover, Huston was aware that
force could not be used to require him to submit to an in-
terview or prevent him from departing from the scene
unless he was formally arrested.
Huston does not state that he was touched or forcibly
moved by any detective. He does assert in a conclusory
fashion that the detectives “placed us under arrest I be-
lieve,” but the record is barren of concrete facts to sup-
14
Section 2/010.00 of the MPD Manual provides that: “All mem-
bers of the Department shall familiarize themselves with all the
provisions of the Department’s Rules and Procedures Manual
within 30 days of the issuance thereof.”
40 No. 01-1689
port this opinion. The failure to produce objective evidence
in response to the Department’s motion for summary judg-
ment is fatal to Huston’s claim, for it is clear that inciden-
tal physical contact between individuals and officers is in-
sufficient to establish a seizure. See Delgado, 466 U.S. at
220; United States v. Boone, 67 F.3d 76, 78 (5th Cir. 1995).
We are convinced that a reasonable officer in Huston’s
position would have believed—based on his experience
and understanding of the law and MPD policy—that the
detectives were ordering him to report to the Depart-
ment headquarters. However, the distressingly few facts
set forth in this “bare bones” record fail to support a rea-
sonable belief that the detectives would have compelled
Huston to leave the scene of South 14th and West Mitchell
against his will. See United States v. Watson, 423 U.S. 411,
424-25 (1976); United States v. Rice, 995 F.2d 719, 724
(7th Cir. 1993); Baird, 851 F.2d at 381-82; State v. Connor,
861 P.2d 1212 (Idaho 1993); see also Delgado, 466 U.S. at
220-21 (“While persons who attempted to flee or evade the
agents may eventually have been detained for question-
ing, respondents did not do so and were not in fact de-
tained . . . . Respondents may only litigate what happened
to them. . . .”). Accordingly, based upon this record, we
hold that Huston has failed to produce anything but
unsupported assertions—rather than objective evidence—
to support an allegation that he was seized during his
initial encounter with the IAD. See Lujan v. National Wild-
life Fed’n, 497 U.S. 871, 888 (1990) (“The object of [Rule
56(e)] is not to replace conclusory allegations of the com-
plaint or answer with conclusory allegations of an affida-
vit.”).
2.
Similarly, we have been unable to find anything in this
record that would suggest that Huston was seized dur-
No. 01-1689 41
ing the time he remained at the IAD’s downtown headquar-
ters for questioning pursuant to orders. Huston has not
claimed that he was physically restrained at any time
between when he began the trip to the IAD headquar-
ters and when he was directed to return to his regular
patrol shift later that evening. Nor has Huston placed
into this record any evidence that the doors to the confer-
ence room were locked. Nor does Huston allege that he
was refused permission or told he would be detained if he
left the IAD headquarters.
The record does establish that after being advised he
was under a criminal investigation and read his Miranda
rights, Huston was denied his request to contact a union
representative or an attorney and ordered to remain in a
room located in a somewhat remote, isolated location at
police headquarters on the third floor in an area with very
little foot traffic. These facts are indicative of a coercive
encounter. However, Huston was never informed that he
was the suspect for any particular crime, nor was he spoken
to in a menacing or threatening manner. Quite the con-
trary: we are told that Huston and Det. Ciske sat together
in silence for approximately three hours. Furthermore, it
is undisputed that Chief Jones requires that any and
all officers must be read their rights prior to any type of
questioning by detectives, even as part of an internal in-
vestigation. Thus, under these circumstances, we believe
that “the mere giving of such warnings does not trans-
form noncustodial questioning into nonconsensual custo-
dial interrogation.” Booker v. Ward, 94 F.3d 1052, 1058 (7th
Cir. 1996).
One circumstance that is very troubling is that Huston
was not permitted to use the restroom without the accompa-
niment to and fro by at least one detective standing out-
side of the restroom door. But at the same time, we must
remember that: (1) Huston retained possession over his
MPD-issued weapons, identification cards, badges, and
42 No. 01-1689
locker room keys while he was waiting at the IAD head-
quarters and using the restroom; (2) Huston was compen-
sated for his time spent at headquarters; and (3) Huston
produced nothing more than a conclusory assertion that
officers are accompanied to the restroom only when they
are being held in custody. The fact that Huston was nev-
er physically restrained and was permitted to retain his
departmentally-issued weapons, identification, and prop-
erty negates the inference that he was seized, especially
when we recognize the contrasting treatment of Officer
Driebel, who was ordered to turn in all of his police-issued
paraphernalia after being formally arrested.
Courts have properly denied summary judgment mo-
tions in seizure or false imprisonment cases when plain-
tiffs were escorted to and from the restroom by a police
detective waiting outside the restroom door. See, e.g.,
Johnson, 147 F. Supp.2d at 1277; Angara v. City of Chi-
cago, 897 F. Supp. 355, 358 (N.D. Ill. 1995). However, we
are more reluctant to infer seizure in a similar situation
when the plaintiff is a police officer and the police depart-
ment articulates a legitimate reason for following the of-
ficer. Law enforcement agencies are entitled to deference,
within reason, in the execution of policies and administra-
tive practices that are designed to preserve and main-
tain security, confidentiality, internal order, and esprit
de corps among their employees. See Kelly v. Johnson,
425 U.S. 238, 246 (1976); Kuchenreuther, 221 F.3d at
975; Bruer v. Hart, 909 F.2d 1035, 1041 (7th Cir. 1990);
Egger v. Phillips, 710 F.2d 292, 325 (7th Cir. 1983) (en
banc) (Coffey, J., concurring). Huston concedes that he
may have been followed to the restroom because the De-
partment understandably wished to observe whether he
was leaving the conference room in order to communicate
with other officers about the ongoing investigation, perhaps
by phoning the officers or encountering them at headquar-
ters directly. Although we might well have reached a dif-
No. 01-1689 43
ferent conclusion if we had the benefit of a more complete
record, we conclude based on the facts before us that a
reasonable officer would have believed that Huston was
being followed so that his activities could be monitored
rather than for purposes of detention. See Palmer v. City
of Chicago, 755 F.2d 560, 578 (7th Cir. 1985) (“The Fed-
eral courts have no business whatsoever meddling in or
attempting to control the daily maintenance and admin-
istration of the [MPD] . . . absent a clear and defined
constitutional violation.”).
Thus, we repeat that a reasonable observer might con-
clude from this record that Huston would have been ter-
minated, suspended, or disciplined if he refused to cooper-
ate with the IAD detectives.15 However, for the reasons
expressed above, we hold that this record fails to establish
that Huston was deprived of the opportunity to avoid
seizure by terminating his encounter with the police.16 See
Fournier, 160 F.3d at 757.
15
It is interesting to note, however, that two years after this
investigation by six commanding officers failed to produce any
evidence that Officer Huston violated any statute, ordinance, or
departmental rule, Huston was promoted to the rank of detective.
16
We emphasize again that this record case is poorly developed.
We have no reason to decide, and thus do not mean to imply any
view about whether the same result would follow if there had been
evidence establishing, among other things, whether Huston was:
(1) physically touched or “separated” from his partner; (2) placed
in a locked room; (3) relieved of his weapons; (4) confronted by
armed officers; (5) questioned by officers using a menacing tone of
voice or making coercive statements; (6) explicitly denied a re-
quest to leave or told he was not free to leave; (7) treated in a
manner that differs from standard MPD guidelines or customs for
questioning police officers; or (8) accompanied to the restroom
solely for purposes of harassment or when other officers would
not have been so accompanied and watched.
44 No. 01-1689
E.
On the other hand, we are convinced that a rational jury
might very well conclude that Officer Sgrignuoli, unlike
Officer Huston, was seized by the detectives who accosted
him at the corner of 14th and West Mitchell. Det. Ciske
exerted physical force when “grabbing Sgrignuoli, turn-
ing him around and directing him back towards the squad
car.” By grabbing Sgrignuoli and “turning him around,”
Ciske restricted the officer’s freedom of movement. Al-
though the MPD Manual authorizes detectives to inter-
view police officers who are suspects in criminal inves-
tigations, the same manual forbids superior officers from
using force to subdue the officer and effectuate the in-
terview. Based upon this conduct and other evidence re-
counted herein, a jury could find that a reasonable officer
would have believed that Sgrignuoli faced detention rath-
er than merely the pains of a future adverse employment
action had he refused to comply with the order. Cerrone,
246 F.3d at 199-203.
Because Officer Sgrignuoli was seized, the next ques-
tion we ask is whether the seizure was supported by prob-
able cause. The Department’s attorneys argue, in direct
contradiction to Lt. Bruess’s statements discussed below,
that it had reason to believe that Sgrignuoli had committed
misconduct in public office, which occurs if a public em-
ployee “exercises a discretionary power in a manner incon-
sistent with the duties of the officer’s or employee’s office
or employment or the rights of others and with intent to
obtain a dishonest advantage . . . .”. WIS. STAT. § 946.12(3).
A police officer violates the statute by threatening another
person with extortion, Hanley v. State, 104 N.W. 57 (Wis.
1905), or by planting evidence on someone in order to ef-
fectuate an unlawful arrest. Cf. State v. Schmit, 340 N.W.2d
752 (Wis. Ct. App. 1983).
We have set forth the law of probable cause in Part V.B.2
and see no need to repeat that discussion here. We add
No. 01-1689 45
only that because “the overriding function of the Fourth
Amendment is to protect personal privacy and dignity
against unwarranted intrusion by the State,” McNair, 279
F.3d at 486 (Coffey, J., concurring), the police must pursue
reasonable avenues of investigation and have “more than
a bare suspicion” that criminal activity is afoot prior to
effectuating a seizure. Woods, 234 F.3d at 996.
The facts viewed most favorably to Sgrignuoli—as they
must be at this stage of the proceedings—establish that
neither Chief Jones nor his subordinate superior officers had
evidence that Sgrignuoli was guilty of committing any type
of misconduct in public office or violating any other statute,
ordinance, or rule and regulation of the MPD. Indeed,
Jones’s personally-selected officer in charge of the sting
operation, Lt. Bruess, admitted that the decision to detain
and question Sgrignuoli was made despite the fact that: (1)
Sgrignuoli’s “name never came up in the [Department’s]
investigation” of the Ramos incident; (2) Sgrignuoli “wasn’t
involved at all” in the incident; and (3) Sgrignuoli was
seized only because he “happened to be unlucky enough to be
partnered up with Brett Huston” on the day of the sting.17
17
In response to questions from Plaintiffs’ counsel about
Ramos’s allegations of a shakedown and IAD’s investigation of
Sgrignuoli’s involvement with the events of January 21-28, 1998,
Bruess responded as follows:
Q: Okay.
A: We didn’t know about Sgrignuoli at the time [of the
sting], though. His name never came up in the investiga-
tion, I don’t believe.
Q: Do you know what Sgrignuoli’s involvement in the situ-
ation was?
A: He just happened to be working with Huston in the office
that day when the call came in. He wasn’t involved at all.
(continued...)
46 No. 01-1689
The Department’s investigation revealed that Officers
Huston and Pinchard—not Sgrignuoli—were the two pa-
trolmen who were present on the scene and allegedly
took $30 from gang member Ramos as part of a shakedown
on January 21, 1998. These officers—not Sgrignuoli—also
allegedly threatened to unlawfully arrest Ramos for drug
possession unless he obtained two guns for them. Indeed,
the IAD detectives learned that Huston or Pinchard—not
Sgrignuoli—proceeded to page Ramos several times the
next day and even stop by his home several times to inquire
about the gun. Two additional witnesses stated that they
observed Ramos paging the police and allegedly speaking
with an “Officer Huston,” but there is no evidence that
Officer Sgrignuoli’s name was ever mentioned by these
witnesses.
The Department does not contend that Sgrignuoli had
any contact with Ramos at any time. On the evening of
the previously-discussed sting operation, which was de-
signed primarily to see how Huston would react if
Ramos contacted them and stated he had the guns that
Huston previously requested, Jones directed Bruess to place
two handguns inside a dumpster on the corner of South
14th and West Mitchell. Bruess also planted a hidden
camera in some nearby bushes, in order to monitor any
activity that might transpire with respect to the weapons.
At the instruction of the IAD, Ramos telephoned Huston
some time after 5 p.m. and advised Huston that he had
placed two guns in a dumpster at 1438 W. Mitchell. After
receiving this phone call, Huston proceeded to drive to
(...continued)
Q: So he just happened to be unlucky enough to be part-
nered up with Brett Huston on that day?
A: Correct.
(Bruess’s Dep. at 106.)
No. 01-1689 47
the location to pick up the planted firearms, while accom-
panied by Patrolman Sgrignuoli as his assigned partner
that day.
Sgrignuoli exited the squad car, retrieved the planted
weapons, and placed them in the car. The Department con-
cedes that Officer Sgrignuoli would have been subject to
discipline (on the grounds of recklessly jeopardizing pub-
lic safety) had he refused to retrieve the guns that he had
been directed to secure from a dumpster in a residential
neighborhood.18 But the Department has failed to produce
any evidence that Sgrignuoli had any knowledge or infor-
mation concerning Huston’s alleged threat to arrest Ramos
and the alleged demand for $30. Thus, the Department
had no reason to believe that Sgrignuoli may have sus-
pected that Huston was involved in questionable tactics
designed to get guns off the streets.
“The concept of guilt by association is repugnant to our
notion of elemental justice and fair play.” United States v.
Swayne, 700 F.2d 467, 469-70 (8th Cir. 1983). The facts
viewed in a light most favorable to Sgrignuoli establish
that his seizure was attributable entirely to guilt by as-
sociation: he “happened to be partnered up with Brett
18
Bruess was questioned in his deposition as follows:
Q: Now, as far as an officer, when he gets a phone call from
a known gang member that he’s got guns in a trash
dumpster at some location on the south side, what is that
officer’s responsibility in regard to retrieving those guns?
A: He’s got to go get them or he’s got to send somebody else to
do it.
Q: Why is that?
A: You can’t leave guns sitting in there. Someone else is
going to find them.
(Id. at 105.)
48 No. 01-1689
Huston” on the day of the sting. These facts demonstrate
that Chief Jones and his officers assigned to assist with
this case lacked probable cause—or even arguable prob-
able cause—to order the seizure and detention of Offi-
cer Sgrignuoli for committing misconduct in public office.
See Marshall, 284 F.3d at 771-72; BeVier v. Hucal, 806
F.2d 123, 127-28 (7th Cir. 1986); Moore v. Marketplace Rest.
Inc., 754 F.2d 1336, 1345-47 (7th Cir. 1985).
VI.
Chief Jones argues that he is entitled to qualified im-
munity because he reasonably believed that it was lawful
to detain a police officer under his command based on
the lesser standard of reasonable suspicion rather than
probable cause.19 We are convinced that the law was clear-
ly established long before January 1998 that a law enforce-
ment officer could not seize another officer as part of a
criminal investigation without probable cause. Thus, we
reject Chief Jones’s defense of qualified immunity.
“Qualified immunity shields from liability government
officials who are performing discretionary functions in the
course of duty to the extent that their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Spiegel,
196 F.3d at 723. “The law is ‘clearly established’ if ‘var-
ious courts have agreed that certain conduct is a consti-
tutional violation under facts not distinguishable in a
fair way from the facts presented in the case at hand.’ ”
Campbell v. Peters, 256 F.3d 695, 700 (7th Cir. 2001)
(quoting Saucier, 121 S.Ct. at 2156).
19
The facts in Part V.E strongly suggest that Jones lacked even
reasonable suspicion to believe that Sgrignuoli had committed
misconduct in public office.
No. 01-1689 49
The Supreme Court held more than thirty years ago
that “policemen, like teachers and lawyers, are not rele-
gated to a watered-down version of constitutional rights,”
Garrity, 385 U.S. at 500, and innumerable decisions ren-
dered prior to January 1998 have clearly established the
right to be free from arrest without probable cause. See,
e.g., Dunaway, 442 U.S. at 216; Davis, 394 U.S. at 726-28;
United States v. Gilbert, 45 F.3d 1163, 1166 (7th Cir. 1995).
Furthermore, it has been explicitly held that as early
as 1995 “the law was clearly established that a seizure of
a police officer in the context of a criminal investiga-
tion required probable cause.” Cerrone, 246 F.3d at 196.
The Department attempts to distinguish the above-cited
cases, but we have been unable to discover any case law
that would justify a reasonable belief that an officer sus-
pected of criminal misconduct may be seized during a
criminal investigation and detained for questioning based
on the reasonable suspicion standard. The two cases heav-
ily relied upon by Chief Jones deal with detentions for
internal investigations, as opposed to criminal investiga-
tions, and thus have no relevance to the situation before
us. Cf. Shields, 874 F.2d at 1206-07 (holding that work-
related investigatory search of officer’s desk may be sup-
ported by reasonable suspicion; noting that employee did
not argue that search was “part of any criminal investiga-
tion”); Biehunik v. Felicetta, 441 F.2d 228, 231 (2d Cir.
1971) (holding that police department could order employ-
ees to appear in police lineup intended for use in “adminis-
tering disciplinary measures”; although information ob-
tained might possibly be used in future prosecution, court
expressly declined to consider “the propriety of enjoining
a similar lineup conducted exclusively with criminal pros-
ecution in mind”).
The Fourth Amendment requires that the police estab-
lish probable cause prior to seizing an individual; any les-
ser quantum of proof has been permitted only on those
50 No. 01-1689
rare occasions “when ‘special needs, beyond the normal
need for law enforcement, [made] the warrant and proba-
ble-cause requirement impracticable.’ ” Griffin v. Wisconsin,
483 U.S. 868, 873 (1987) (quoting New Jersey v. T.L.O.,
469 U.S. 325, 351 (1985) (Blackmun, J., concurring in judg-
ment)). Accordingly, we hold that the law was clearly
established, and Chief Jones should have known in Jan-
uary 1998 that he needed probable cause rather than
reasonable suspicion in order to seize and detain Officer
Sgrignuoli for purposes of a criminal investigation. “Since
Chief Jones allegedly ordered [the seizure of Sgrignuoli
without probable cause], the defense of qualified immunity
must fail as applied to him.” Delgado v. Jones, 282 F.3d
511, 521 (7th Cir. 2002).
VII.
The magistrate judge properly granted the defendants’
motion for summary judgment with respect to the claims
raised by Officers Driebel, Huston, and Pinchard, for
Huston and Pinchard never were seized and Driebel was
seized with probable cause. The judge erred, however, when
granting summary judgment on the claim raised by Officer
Sgrignuoli, for a reasonable jury might very well deter-
mine that he was seized without a hint of probable cause.20
20
For the reasons explained throughout this opinion, it is un-
constitutional to seize a police officer, as part of a criminal in-
vestigation, on anything less than a determination of probable
cause. Because the district court erroneously granted summary
judgment on the merits of Officer Sgrignuoli’s claim, it had no
occasion to consider whether liability may attach to the City of
Milwaukee, pursuant to Monell v. New York Department of Social
Services, 436 U.S. 658 (1978). On remand, the court in all prob-
ability will have to address the issue of municipal liability, keep-
(continued...)
No. 01-1689 51
The judgment of the district court is AFFIRMED IN PART and
REVERSED IN PART. This case is REMANDED for further pro-
ceedings consistent with this opinion.
DIANE P. WOOD, Circuit Judge, concurring. I am happy
to concur in my colleagues’ judgment affirming the district
court’s grants of summary judgment in favor of the de-
fendants with respect to the claims brought by Officers
Driebel, Huston, and Pinchard. Based on the thorough
review of the record that the majority has undertaken, I
also concur in the judgment reversing the judgment in
Officer Sgrignuoli’s case and remanding for further proceed-
ings. I write only to emphasize that I do so on the under-
standing that the comments made in the majority’s opin-
ion with respect to various facts pertaining to Officer
Sgrignuoli’s case, such as the knowledge of various mem-
bers of the Police Department at various times and the
circumstances surrounding his own conduct, refer only to
the summary judgment record, where we are taking every-
thing for present purposes in the light most favorable to
the non-moving party. At trial, the defendants will natu-
rally have an opportunity to contest those facts and have
the trier of fact resolve all disputed issues.
(...continued)
ing in mind the City’s admission that it has enforced an official
policy of seizing and questioning its police officers based on
reasonable suspicion, rather than the constitutionally mandated
standard of probable cause. (Appellants’ Br. at 27).
52 No. 01-1689
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-29-02