Marks, Alvin v. Carmody, Larry ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2037
ALVIN MARKS,
Plaintiff-Appellant,
v.
LARRY CARMODY and ANTHONY CINQUEGRANI,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 97 C 5013--Matthew F. Kennelly, Judge.
Argued November 8, 2000--Decided December 12,
2000
Before Bauer, Rovner, and Diane P. Wood,
Circuit Judges.
Diane P. Wood, Circuit Judge. On August
1, 1996, Detective Larry Carmody and
Sergeant Anthony Cinquegrani, both of the
Wheeling, Illinois, Police Department,
arrested Alvin Marks for issuing a bad
check with intent to defraud, in
violation of the Illinois Deceptive
Practices Act, 720 ILCS sec. 5/17-1.
Although the state court immediately
dismissed the criminal charges against
him at the first preliminary hearing,
upon the state’s attorney’s nolle
prosequi motion, Marks was not satisfied.
Following up on a threat he had made, he
sued both arresting officers under 42
U.S.C. sec. 1983 for false arrest. The
district court concluded that the
defendant officers were protected by
qualified immunity from suit, and on that
basis granted their motion for summary
judgment. We agree that this was the
proper disposition of the case, and we
therefore affirm.
I
Marks was the owner of LTD Travel
Agency, Inc., located in Wheeling, and
Judith Bechar owned a competing agency,
Bravo Travel Services. In late 1995,
Marks and Bechar decided to merge their
operations. As a first step in that
process, Marks incorporated a new entity,
Bravo/LTD Travel. Bechar moved her
operations into LTD’s premises. At the
same time, Marks gave up LTD’s Airline
Reporting Corporation (ARC) number
(something a travel agency must have in
order to issue tickets), and both LTD and
Bravo used Bravo’s ARC number.
In December of 1995, Marks purchased
some personal airline tickets through
Bravo/LTD, but because the formal merger
had not yet taken effect, they were
charged to Bechar’s account for Bravo as
a "house credit" transaction. Marks and
his family used the tickets for a family
vacation, and returned in early January
1996. On Friday, January 5, 1996, Nessim
Bechar (Judith’s husband), confronted
Marks and demanded an immediate payment
of some $1,800 for the tickets. Marks
pointed out to Nessim that Bravo owed him
approximately $3,000 in commissions, and
he suggested an offset. Nessim refused,
but (according to Marks, whose account we
accept for purposes of summary judgment
review) the two agreed that Marks would
issue a check for the $1,800, and the
next day Judith (who was unavailable, and
who was the only one authorized to write
checks for Bravo) would issue a check to
Marks for the $3,000 in commissions. As
Marks understood it, this would be
accomplished mechanically by having Marks
write his check to Bravo/LTD, having
Judith do the same, and then having
Bravo/LTD issue an $1,800 check to Judith
for Bravo and a $3,000 check to Marks.
Marks accordingly gave Nessim a check
for $1,800, which showed Bravo/LTD as the
payee and was post-dated one day forward,
to January 6, 1996. The very next day
Judith pulled out of the merger and
refused to issue the $3,000 commission
check. In the meantime, however, the
Bechars had promptly attempted to cash
the $1,800 check on January 5. Either
because Marks’s account, without the
$3,000 deposit, did not have sufficient
funds to cover the $1,800 check, or
because Marks was upset about the
termination of the merger, Marks stopped
payment on the check. When Judith
received the returned check, she brought
civil charges against Marks seeking the
$1,800 and other damages resulting from
the collapse of the merger. Her civil
suit was eventually dismissed without any
money changing hands.
The feud between the would-be business
partners did not end with civil
litigation, unfortunately. In mid-
February 1996, the Bechars lodged a
criminal complaint with the Wheeling,
Illinois, Police Department and, in
support of their complaint, gave
Detective Carmody the following
information. The Bechars (or Bravo, which
amounted to the same thing) were charged
for airplane tickets that Marks bought
for personal use. Marks purported to pay
them for the tickets, but the check that
he issued was returned for insufficient
funds. (The bank later admitted that it
actually meant to return the check under
the stop payment order, rather than for
insufficient funds. This detail is
unimportant to our case, because as
Detective Carmody discovered, the bank
records showed that if the stop payment
order had not been issued, the check
would still have been returned for non-
sufficient funds.) Carmody investigated
the Bechars’ complaint for several
months. During that time, he discovered
that at the time Marks wrote the check
and for three days afterward, the account
did not have enough funds to cover the
check. Additionally, subpoenaed bank
records revealed that four other checks
drawn on Marks’s account had been
returned within the same 30-day time
period. He also interviewed Marks by
telephone and learned about the failed
merger and the stop payment order.
On August 1, 1996, Detective Carmody
contacted Marks and asked him to come to
the police station for a personal
interview. Marks agreed, and showed up
with his lawyer. Marks and the lawyer
pointed out to the detective the fact
that the $1,800 check had been made
payable to Bravo/ LTD, not to Judith
Bechar or to Bravo. The lawyer showed the
detective the articles of incorporation
of Bravo/LTD, which revealed that Marks
alone was an incorporator of the company
and Judith was not. This fact, Marks
argued, made it logically impossible for
him to have committed a fraud, because
the only entity he would have been
defrauding was one that he owned himself.
The lawyer also showed Detective Carmody
a 23-year-old case from the Illinois
appellate court that appeared to hold
that the issuance of a worthless check
for a preexisting debt did not violate
the statute under which Detective Carmody
was proceeding, 720 ILCS sec. 5/17-1. See
People v. Cundiff, 305 N.E.2d 735, 737-38
(Ill. App. Ct. 1973). Marks also gave
Carmody documents related to the civil
suit between himself and the Bechars
(which included a claim for the disputed
$1,800) and a copy of the airline tickets
showing that they had been used before
the check was issued. All of this meant,
in the view of Marks’s lawyer, that Marks
did not have the intent to defraud
required by the criminal statute.
Detective Carmody did not see things
that way, however; he indicated instead
that he was going to arrest Marks. The
lawyer then threatened Carmody with a
suit under 42 U.S.C. sec. 1983, at which
point Carmody brought Sergeant
Cinquegrani into the room. Marks’s
attorney then reviewed the entire matter
for the two officers. In the end, with
Sergeant Cinquegrani’s approval,
Detective Carmody placed Marks under
arrest.
As promised, Marks followed up with the
present lawsuit under sec. 1983. In it,
he claimed that his Fourth and Fourteenth
Amendment rights had been violated, his
reputation had been sullied, and he had
suffered pecuniary injuries. Upon the
defendants’ motion for summary judgment,
the district court concluded that even
though it was not prepared to hold that
there was probable cause for the arrest,
the two officers were entitled to
qualified immunity on this record.
II
The question now before us is thus not
whether the officers were ultimately
correct when they concluded that there
was probable cause to arrest Marks for a
violation of the Illinois Deceptive
Practices Act. It is instead the
objective question whether a reasonable
officer, knowing what these two knew,
would have known that the law as applied
to these circumstances clearly
established that an arrest would be
unlawful for lack of probable cause. As
the district court recognized, qualified
immunity protects arresting police
officers from suit if a reasonable
officer would have believed the arrest to
be lawful, in light of clearly
established law and the information that
the arresting officers possessed. Hunter
v. Bryant, 502 U.S. 224, 227 (1991). This
standard "gives ample room for mistaken
judgments" by protecting "all but the
plainly incompetent or those who
knowingly violate the law." Id. at 229,
quoting Malley v. Briggs, 475 U.S. 335,
343, 341 (1986). See also Anderson v.
Creighton, 483 U.S. 635, 640 (1987)
(emphasizing the need to assess qualified
immunity claims at the correct degree of
particularity).
Illinois’s Deceptive Practices Act makes
it a crime for an individual, with intent
to defraud, to issue a check, knowing
that it will not be paid by the
depository bank, either to pay for
property, labor or services or to make a
payment of an amount owed in a credit
transaction. 720 ILCS sec. 5/17-1(B)(d)
and (e). In making the decision to arrest
Marks for this crime, the officers had
the following information before them:
Bravo (i.e., Judith Bechar) had paid
approximately $1,800 for airline tickets
that Marks had ordered and used for his
own personal use; Nessim Bechar asked
Marks to pay for the tickets, and Marks
responded with a check that was returned
unpaid; bank records show that, at the
time that Marks issued the check, and for
the next three days, his checking account
did not contain sufficient funds to cover
the check. A reasonable police officer
would not have had any reason to believe
that these facts were not enough to bring
Marks’s actions within the language of
the deceptive practices statute.
The fact that Marks had alerted the
officers to possible defenses he might
have had to the crime does not change
this result. Thus, for instance, the
officers were not required to view the
fact that Marks made out the check to a
company that he himself had incorporated
as something definitively negating the
violation. Nor did they need to accept as
established the evidence Marks had
proffered that tended to show that he did
not act with the requisite intent to
defraud the Bechars. Issues of mental
state and credibility are for judges and
juries to decide. Spiegel v. Cortese, 196
F.3d 717, 725 (7th Cir. 1999); Hebron v.
Touhy, 18 F.3d 421, 423 (7th Cir. 1994).
And while we can grant for present
purposes that the evidence of intent on
which the officers relied would not have
been sufficient for a conviction, see
People v. Bormet, 491 N.E.2d 1281, 1284-
85 (Ill. App. Ct. 1986), probable cause
does not require such a high degree of
certainty. Humphrey v. Staszak, 148 F.3d
719, 727 (7th Cir. 1998).
Marks also argues that, because the
check was postdated by one day, Detective
Carmody should have realized that it was
in legal effect a promissory note at the
time it was tendered, rather than a
check. See People v. McLaughlin, 462
N.E.2d 875 (Ill. App. Ct. 1984). But the
defendant officers did not have before
them any evidence that the parties agreed
that the check could be postdated, or
even that Nessim Bechar noticed the one-
digit discrepancy. Without such evidence,
it would be impossible to say that
noreasonable officer could have concluded
that the instrument Marks proffered was
what it appeared to be--a check.
Finally, the defendants were not
required to accept the assertion of
Marks’s attorney that the 23-year-old
decision from the Third District of the
Illinois Appellate Court in People v.
Cundiff precluded a finding of probable
cause. We are aware of no rule that
requires police officers to accept the
legal arguments offered by a suspect’s
attorney. Even if the officers had both
read and fully understood Cundiff as well
as a trained lawyer might, for all anyone
at the police station knew, the case
could have been narrowed or even
overruled since it was first issued in
1973. Detective Carmody was not required
to run off and run a computer search on
the case’s subsequent history and later
interpretations of the statute from other
Illinois courts before making an arrest.
In short, the officers here acted within
reasonable bounds when they concluded
that probable cause existed for Marks’s
arrest, even if, with the benefit of more
time for reflection, the district court
was also correct to conclude that this
might have been an error. Marks wrote a
check to cover the cost of airline
tickets that had been charged to Bravo
without Judith Bechar’s consent, and that
check was not honored. It was probably
obvious to the officers that there was
some bad blood between the Bechars and
Marks, but the arresting officers were
not required to resolve those issues. The
district court’s judgment dismissing the
case against them on qualified immunity
grounds is therefore Affirmed.