Anderer, Joseph R. v. Jones, Arthur ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3669
JOSEPH R. ANDERER, JR.,
Plaintiff-Appellant,
v.
POLICE CHIEF ARTHUR JONES, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01-C-668—J.P. Stadtmueller, Judge.
____________
ARGUED FEBRUARY 25, 2003—DECIDED OCTOBER 6, 2004
____________
Before POSNER, COFFEY, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Joseph R. Anderer, Jr. is a
former Milwaukee police officer who was arrested for phy-
sically abusing a child. Though he was not prosecuted,
Anderer was terminated following an internal affairs inves-
tigation into this incident. Anderer sued the police chief, other
officers involved in his arrest, and the City of Milwaukee for
violating his Fourth Amendment rights by arresting him
without probable cause, and for terminating his employ-
ment after his representative spoke out against the arrest
and Anderer filed this lawsuit. Finding that probable cause
existed at the time Anderer was arrested and that the
2 No. 02-3669
speech at issue was not protected by the First Amendment,
the district court granted summary judgment to defendants.
We agree with the district court’s decision and affirm.
I. BACKGROUND1
On April 17, 2001, Milwaukee police officer Joseph
Anderer and several other officers arrested four juveniles
for burglarizing a boat. After the juveniles were handcuffed,
and while they were being escorted to the patrol cars, one
12-year-old boy (whom we will call JR) started shouting
that one of the officers who was escorting him to the car,
Officer Jeffrey Cook, was touching him on the buttocks and
trying to rape him. Three of the juveniles were then trans-
ported to the police station by Officer Cook and his partner
Officer Jeffrey Logan, while Sergeant Michael Jones, Officer
Janice Shoman, Anderer, and JR remained behind. JR was
placed in a patrol car and driven to the station by Anderer,
while Sgt. Jones interviewed witnesses before returning to
the station.
Once Anderer and JR arrived at the station, several offi-
cers noticed that JR was bleeding from the nose and mouth
and had blood on his clothing. Lieutenant Kim Stack asked
JR what happened, and he said that Anderer hit him in the
face. When Sgt. Jones heard Lt. Stack talking to JR, he
asked JR what had happened to him, and JR said that
Anderer hit him. Sgt. Jones then asked Anderer how JR
had received the bloody nose, to which Anderer responded,
“how would I know . . . I just transported him.” Several other
officers also interviewed JR, including Lt. Mary Hoerig and
1
Because “[t]he existence of probable cause turns on the infor-
mation known to the officers at the moment the arrest is made,
not on subsequently-received information,” Spiegel v. Cortese, 196
F.3d 717, 723 (7th Cir. 2000), we limit our recitation of facts to
those known at the time of the arrest.
No. 02-3669 3
Detective William Smith of the Internal Affairs Department
(IAD), and he told them all that he had been hit in the face
by Anderer.
When Det. Smith interviewed him, JR explained the de-
tails of the burglary for which he had been arrested. JR said
that when he was placed in Anderer’s patrol car, Anderer
did not immediately shut the door, but instead asked him
questions about what JR had been saying Officer Cook did
to him. JR then said that when he told Anderer that Officer
Cook nudged him in the buttocks with a flashlight, Anderer
started yelling at him and told him he shouldn’t be making
up “bullshit lies.” JR told Det. Smith that he got smart with
Anderer, ignored him, and looked away. JR stated that
when he turned back to face Anderer, Anderer struck him
in the face and caused his nose and mouth to bleed.2 JR
added that while he was being transported to the station,
Anderer was yelling at him and saying “do you understand
me?”, and at one point stopped the car, opened the back
door, and said he was going to “whip [JR’s] ass.” JR said he
thought they were alone when all of this occurred and did
not know if anyone else had witnessed it.
While others were talking to JR, Officer Cook contacted
JR’s mother to inform her that JR had been arrested. JR’s
mother admitted that she was not surprised that JR had
been arrested for burglary and advised Officer Cook that JR
was taking several prescription medications, including two
that Officer Cook recognized as pills to “help control a
person’s mental state.” She also told him that JR had not
taken his medication that day and needed to be released
from custody as soon as possible. Officer Cook informed Sgt.
Brunson and IAD Detectives Harrison and Smith that he
had been in contact with JR’s mother and that JR had been
prescribed a variety of drugs that he had not taken all day
2
Photographs were later taken that showed cuts on the inside of
both of JR’s lips, and blood on his shirt and pants.
4 No. 02-3669
and should be processed as soon as possible.
Det. Smith attempted to interview Officers Cook and
Logan about the facts surrounding JR’s arrest and the
cause of his injuries, but they refused to give a statement
without police union representatives present. Det. Smith
interviewed Sgt. Jones, who indicated that he was the last
person to leave the scene of the arrest and that he had not
seen any sign of injury to JR. Sgt. Jones informed Det.
Smith that he saw no blood on JR at the scene, and prob-
ably would not have noticed the cuts on the inside of JR’s
lips, but there was enough blood on his shirt at the station
that he would have noticed it if it had been there earlier.
Sgt. Jones then relayed to Det. Smith the substance of his
interview with JR, in which JR detailed the events that
resulted in his arrest and the interactions with Anderer
that resulted in JR’s bloody nose and lip.
Detectives Smith and Harrison then interviewed Officer
Janice Shoman, who also provided details about JR’s arrest.
She indicated that she left the scene to pursue another
crime before JR was transported to the station, but before
she left she saw Anderer with JR in the back of Anderer’s
car. She could not recall if JR had handcuffs on, but did not
see any physical confrontation between JR and Anderer.
She stated that she did not see any blood or injury on JR,
and said she would have noticed if there had been blood on
his shirt.
Anderer refused to give a formal statement without union
representation, but at one point asked, “off the record,”3
“What did he say I hit him with?” When he was told by one
officer that JR said he had punched him in the face, Anderer
stated that he was a 200 pound man and if he had punched
JR in the face it would have left bruises on JR. Anderer
3
While Anderer’s question was meant to be “off the record,”
Anderer put the contents of this “off the record” conversation in
both his affidavit and his briefs.
No. 02-3669 5
then let the investigating officers inspect his hands, but no
photographs were taken, as there did not appear to be any
marks or injuries on them. Anderer did not provide any ex-
planation for how JR received the cuts and bloody nose. He
did not indicate that there had been any force exercised in
effecting the arrest, nor did he suggest that any kind of ac-
cident or incident had occurred on the way back to the station.
Anderer states that during the course of his “off the record”
conversations with them, Detective Harrison, Lt. Stack, and
Officer Cook told him that they thought JR’s claim was
bogus, to which Anderer responded to Officer Cook that he
thought was going to get “Driebeled.”4
Lt. Hoerig placed a call to Milwaukee Police Chief Arthur
Jones to apprise him of the situation. Chief Jones asked Lt.
Hoerig if she thought there was probable cause to arrest
Anderer for physical abuse of a child, in violation of WIS.
STAT. § 948.03. Lt. Hoerig informed Chief Jones that she
believed there was probable cause to arrest, and the
investigating detectives concurred. Chief Jones asked Lt.
Hoerig if she would arrest Anderer if he were a private
citizen, and Lt. Hoerig indicated that she would. Chief
Jones then ordered Anderer’s arrest.
Immediately following his arrest, Anderer was taken to
the Milwaukee County Criminal Justice Facility, where he
was held for twelve hours before being released without
bail. That afternoon, April 18, Anderer appeared at the
Deputy District Attorney’s office to make a statement, but
4
Getting “Driebeled” is a slang term used by Milwaukee police
officers that refers to a police officer who is arrested without probable
cause. We assume the term takes its name from the facts under-
lying this court’s decision in Driebel v. City of Milwaukee, 298 F.3d
622 (7th Cir. 2002), in which we concluded that probable cause to
arrest did in fact exist at the time that Officer Robert J. Driebel
was arrested. Id. at 645. In that case, however, we did find that
there was no probable cause to arrest another officer (Officer
Johnny C. Sgrignuoli). Id. at 651.
6 No. 02-3669
because the union attorney was not present, his statement
was to be rescheduled. On April 19, after being authorized
by Anderer, union president Bradley DeBraska told a local
TV station that Anderer was arrested without probable
cause because of vindictiveness of the IAD Unit due to prior
run-ins between Anderer and one of the IAD investigators,
and the union was “hoping and praying” Anderer would sue
the police department to correct these wrongs.
On June 7, the district attorney’s office decided not to pur-
sue the criminal charges against Anderer with respect to
JR’s accusation. At that time, a local Milwaukee television
station reported that charges would not be pursued and
that Anderer had retained an attorney to file a complaint
against the Milwaukee Police Department and its police
chief. On June 13, the reopened criminal investigation into
JR’s allegations was closed and no further information was
developed to further a potential prosecution. On June 19,
Anderer was required to give a statement to the IAD for the
purpose of a work-rule-violation investigation of his exces-
sive use of force.
On July 2, Anderer filed suit in federal district court
alleging violations of his civil rights for arresting him without
probable cause with respect to JR’s accusation. On July 6,
the IAD commander issued charges against Anderer al-
leging that he violated rules and regulations with respect to
JR’s arrest, and in doing so he quoted from the allegations
in Anderer’s complaint. On July 17, Chief Jones terminated
Anderer’s employment, which Anderer has appealed to the
City’s Fire and Police Commission. Anderer then filed an
amended complaint, adding a count alleging that he was
terminated in retaliation for exercising his First Amend-
ment rights.
Defendants filed a motion for summary judgment, claim-
ing that there was probable cause to arrest Anderer and
that his First Amendment count failed to state a claim for
No. 02-3669 7
relief. The district court granted summary judgment on
Anderer’s Fourth and First Amendment claims, finding that
there was probable cause for his arrest and the speech at
issue concerned a private personal dispute that was not a
“matter of public concern.” Anderer appeals.5
II. ANALYSIS
A. Probable Cause to Arrest
We review a district court’s grant of summary judgment
de novo, and in doing so draw all reasonable inferences
from the record in the light most favorable to Anderer, the
non-movant. Woods v. City of Chicago, 234 F.3d 979, 986
(7th Cir. 2000). This court discussed at length the standard
for evaluating probable-cause-to-arrest challenges in § 1983
cases in Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir.
1999), and Driebel v. City of Milwaukee, 298 F.3d 622 (7th
Cir. 2002). Probable cause is “ ‘a commonsense determina-
tion, measured under a reasonableness standard.’ ” Spiegel,
196 F.3d at 723 (quoting Tangwall v. Stuckey, 135 F.3d 510,
519 (7th Cir. 1998)). Probable cause exists if, at the time of
the arrest, “ ‘the facts and circumstances within [the
arresting officer’s] knowledge and of which she has reason-
ably trustworthy information would warrant a prudent
person in believing that the suspect had committed or was
5
The district court, in granting defendants’ motion for a pro-
tective order, stayed all discovery pending the court’s resolution
of defendants’ summary judgment motion. The district court also
denied Anderer’s request for copies and use of JR’s post-arrest
medical records in defendants’ possession (apparently unlawfully
obtained). Because JR’s medical records were obtained after Anderer
was arrested, they are irrelevant to the probable cause determina-
tion. See Spiegel, 196 F.3d at 723. Therefore, we do not find that the
district court abused its discretion in denying Anderer’s request
for access to and use of the records.
8 No. 02-3669
committing an offense.’ ” Id. (quoting Qian v. Kautz, 168
F.3d 949, 953 (7th Cir. 1999)).
In evaluating whether probable cause was reasonably de-
termined, the court “must consider the facts as they would
have reasonably appeared to the arresting officer ‘seeing
what he saw, hearing what he heard’ at the time of the in-
cident.” Driebel, 298 F.3d at 643 (quoting Richardson v.
Bonds, 860 F.2d 1427, 1431 (7th Cir. 1988)); Spiegel, 196
F.3d at 723 (“The existence of probable cause turns on the
information known to the officers at the moment the arrest
is made, not on subsequently-received information.”). “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.’ ” Driebel, 298 F.3d at 643 (quoting Woods, 234 F.3d at
996) (emphasis in original). Accordingly, “ ‘as long as a
reasonably credible witness or victim informs the police that
someone has committed, or is committing, a crime, the
officers have probable cause to place the alleged culprit
under arrest, and their actions will be cloaked with quali-
fied immunity if the arrestee is later found innocent.’ ”
Spiegel, 196 F.3d at 723 (quoting Jenkins v. Keating, 147
F.3d 577, 585 (7th Cir. 1998)). In reviewing a probable
cause determination, the court should consider whether the
arresting officer “ ‘acted reasonably under settled law in the
circumstances, not whether another reasonable, or more
reasonable, interpretation of the events can be constructed
several years after the fact.’ ” Id. (quoting Humphrey v.
Staszak, 148 F.3d 719, 725 (7th Cir. 1998)). “Moreover, this
court has emphasized that once probable cause has been
established, officials have ‘no constitutional obligation to con-
duct any further investigation in the hopes of uncovering
potentially exculpatory evidence.’ ” Id. (quoting Eversole v.
Steele, 59 F.3d 710, 718 (7th Cir. 1995)).
With these standards in mind, we agree with the district
No. 02-3669 9
court’s conclusion that probable cause to arrest existed at
the time Anderer was arrested.6 In Wisconsin, a person
physically abuses a child when he intentionally or reck-
lessly “causes bodily harm to a child.” WIS. STAT. § 948.03.
Here, JR arrived at the police station in Anderer’s sole
custody and was bleeding from his nose and mouth with
split lower and upper lips, and no police officer observed
him in that condition at the time of his arrest or when he
was turned over to Anderer’s sole custody. JR told several
police officers the same story: Anderer had hit him in the
face when JR had gotten “smart” with Anderer.7 Anderer
6
The dissent’s analysis stresses that the summary judgment
standard requires us to view all facts in the light most favorable
to Anderer. While we certainly view all facts in the light most fa-
vorable to Anderer and draw all reasonable inferences in his favor,
Woods, 234 F.3d at 986, our review of a probable cause determina-
tion does not ask whether an officer’s belief in the existence of
probable cause is more likely true than not true. Driebel, 298 F.3d
at 643. Rather, our review focuses on whether a reasonable officer
would have believed that probable cause existed to arrest Anderer
based on the facts and circumstances known to the officer at the
time of the arrest. See id.; see also Beauchamp v. City of
Noblesville, 320 F.3d 733, 743 (7th Cir. 2003) (“Probable cause is
only a probability or substantial chance of criminal activity, not
a certainty that a crime was committed”) (citing Illinois v. Gates,
462 U.S. 213, 244 n. 13 (1983)).
7
Anderer claims that JR’s story is inconsistent because while all
the officers reported that JR said Anderer “hit” him in the face
(statements or reports of Officers Cook and Logan, Lt. Stack, and
Sgt. Jones), Anderer says one officer told him that JR had said
Anderer “punched” him in the face (Det. Harrison’s statement to
Anderer in “off the record” conversation), and one report indicates JR
said Anderer “back-handed” him in the nose and mouth (Det.
Smith’s report of JR’s statement to Deputy District Attorney the
day after Anderer was arrested). We think this is a difference without
a distinction, as they are all forms of “hits.” Furthermore, because
(continued...)
10 No. 02-3669
offered no explanation to the investigating officers for how
JR’s injuries might otherwise have occurred, and appears
only to have inquired about what JR claimed Anderer had
hit him with. Given these circumstances—a 12-year-old’s
injuries and bloody appearance, his consistency in reporting
how he had been injured, and Anderer’s total failure to
provide any explanation for the injuries when no other
officer observed JR in that condition prior to turning him
over to Anderer’s sole custody8—we believe the Milwaukee
police officers had probable cause to believe that Anderer
had intentionally or recklessly caused JR’s bodily injury.
See WIS. STAT. § 948.03.
Anderer claims that JR was not a credible victim because
(1) he had made other allegations about Officer Cook earlier
that evening, and (2) the officers investigating JR’s claims
knew JR was on medication for mental illness and had
failed to take his pills that day. We disagree with Anderer’s
conclusion with respect to both assertions. JR himself
7
(...continued)
the “back-handed” description was not known at the time of
Anderer’s arrest, it is irrelevant to our analysis. See Spiegel, 196
F.3d at 723.
8
Although the dissent contends that any reference to Anderer’s
failure to explain JR’s bloody appearance in the probable cause
analysis impinges on Anderer’s Fifth Amendment and contractual
rights, Anderer himself makes no such argument and, in fact,
concedes his inability to explain JR’s injuries. See Pl.’s Resp. to
Def.’s Motion for Summ. J. at 73 (“[D]efendants state they are
entitled to summary judgment because it is undisputed that
Anderer did not explain how J.R. was injured, or claim that he used
lawful force to maintain custody of J.R. In this respect, plaintiff
does not dispute these facts.”). Recall, too, that before Anderer
said he did not wish to make a formal statement without union
representation—the focus of the dissent’s argument on this point—
Anderer made several voluntary comments to other officers, in-
cluding that he did not know how JR received the bloody nose.
(Compl. ¶ 34; Anderer Aff. ¶¶ 60, 75, 79-81.)
No. 02-3669 11
reported to the investigators that he had made allegations
about Officer Cook and he explained that it was his repeti-
tion of those statements to Anderer that he believed
prompted Anderer’s hostility and violence. As for JR’s
failure to take his medication, the fact that the inves-
tigating officers knew about JR’s medication does not ipso
facto negate JR’s credibility or require the officers to further
investigate JR’s medical history to substantiate or refute
his claim of abuse by Anderer, see Driebel, 298 F.3d at 643;
Spiegel, 196 F.3d at 723. And the fact that investigators
later learned that JR had previously been diagnosed with
psychosis, paranoia, hallucinations, and self-mutilation is
irrelevant to what the officers reasonably knew at the time
they arrested Anderer. Spiegel, 196 F.3d at 723.9
9
As we have noted, “[t]he existence of probable cause turns on
the information known to the officers at the moment the arrest is
made, not on subsequently-received information.” Spiegel, 196
F.3d at 723. In addition to later-acquired knowledge about JR’s
medical history, we are puzzled by the dissent’s discussion of ir-
relevant facts which have no bearing on what the officers rea-
sonably knew when they arrested Anderer, such as: (1) the Deputy
District Attorney’s later decision not to pursue criminal charges;
(2) subsequent investigations into Anderer’s arrest; (3) statements in
affidavits signed after Anderer’s arrest containing information
other than that made known to officers before Anderer’s arrest; (4)
photographs of JR, as they were developed after Anderer’s arrest;
and (5) statements made by identification technicians after the
arrest. While the dissent’s discussion of these facts and the
adequacy of the department’s investigation might present a per-
suasive closing argument in a criminal trial, the officers did not
need to establish Anderer’s guilt of the underlying charge beyond
a reasonable doubt, or even by a preponderance of the evidence,
before arresting him. See United States v. Funches, 327 F.3d 582,
587 (7th Cir. 2003). Moreover, although the dissent emphasizes
that no officer saw Anderer hit JR, that no officer saw the action
does not negate the undisputed facts that a 12-year-old boy, unin-
(continued...)
12 No. 02-3669
Anderer further claims that no officers corroborated JR’s
allegation and that no effort was made to interview the oth-
er officers and citizen witnesses who were present at the time
of the arrest. First, while Sgt. Jones and Officer Shoman could
not corroborate JR’s allegation against Anderer, neither
could they refute it, and both stated that JR was not bloody
at the time he had been turned over to Anderer’s sole
custody. Second, Sgt. Jones and Officer Shoman were
interviewed, and there were efforts made to interview other
officers; Officers Cook and Logan were asked to provide a
statement prior to Anderer’s arrest, but they refused to do
so without union representation. Notably, when Officers
Cook and Logan finally agreed to give statements (very
shortly after Anderer’s arrest), they could neither corrobo-
rate nor refute JR’s allegations. Furthermore, they could
not explain JR’s bloodied condition, and both stated that JR
had not been bloody at the time he was turned over to
Anderer’s sole custody.10
Anderer also asserts that probable cause was lacking be-
cause two identification technicians (“ID techs”) who took
9
(...continued)
jured at the time he was turned over to Anderer, arrived at a police
station with blood on his face and shirt after being in Anderer’s
sole control, identified Anderer as the cause of his injuries, and
neither Anderer nor any other officer could offer any explanation
for the boy’s injuries.
10
Indeed, the statement given by Officer Cook, had it been given
prior to Anderer’s arrest, seems likely to have further supported
the investigating officers’ determination that probable cause ex-
isted to arrest Anderer. (He told the investigators that when Anderer
and JR arrived at the station, he “immediately noticed [JR] with
blood running down both nostrils, his chin, blood on his shirt and
both pant legs,” and “was taken aback because the kid was in
perfectly good shape before he went into the squad, but not when
he came out and thought that’s not good.”)
No. 02-3669 13
photographs of JR’s injuries and appearance within hours
of Anderer’s arrest believed that “there were no injuries on
JR” or that the injuries were “very minor.” Anderer appears
to believe that these ID techs should have been consulted by
the officers investigating JR’s claims prior to arresting
Anderer, but we fail to see why this would be necessary when
the investigating officers themselves regularly investigate
batteries against persons and are capable of assessing the
nature and possible cause of injuries. And once those offi-
cers determined that probable cause had been established,
they had “ ‘no constitutional obligation to conduct any further
investigation in the hopes of uncovering potentially excul-
patory evidence.’ ” Spiegel, 196 F.3d at 723 (quoting Eversole,
59 F.3d at 718). Furthermore, one ID tech did not photo-
graph JR until after Anderer had already been arrested,
and so would have had nothing to contribute to the probable
cause determination prior to his arrest, and the other ID
tech’s photographs were not developed until after Anderer’s
arrest.11
Finally, Anderer points to other occurrences after his
arrest as evidence to support his argument that probable
11
We note that the ID techs’ “observations” were not included in
the initial affidavits that they provided six months after the in-
cident, and were only included in the affidavits they provided a
year after they took the photographs. We review probable cause
determinations based on the information available at the time of
the arrest, to assess whether the arresting officer “ ‘acted reason-
ably under settled law in the circumstances, not whether another
reasonable, or more reasonable, interpretation of the events can be
constructed several years after the fact.’ ” Spiegel, 196 F.3d at 723(quoting Humphrey, 148 F.3d at 725) (emphasis added). Similarly,
the dissent’s conjecture that other factors could have caused JR’s
bloody nose and cuts to his face does not bear on our analysis. Again,
we emphasize that our inquiry focuses on whether probable cause
existed to arrest Anderer, not on whether other explanations for
JR’s injuries are also possible. See id.; Driebel, 298 F.3d at 643.
14 No. 02-3669
cause did not exist. Anderer challenges JR’s credibility by
arguing that the Deputy District Attorney’s decision not to
pursue criminal charges means there was no prosecutorial
merit to JR’s claim. The decision not to pursue criminal
charges,12 made months after the actual arrest and with
information not available at the time of the arrest, see
Driebel, 298 F.3d at 643, does not constrain or guide our
analysis of whether probable cause existed at the time
Anderer was arrested. See id. (“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.’ ”) (quoting
Woods, 234 F.3d at 996) (emphasis in original). It is sim-
ilarly not relevant to our analysis that the booking judge
commented, when ordering Anderer’s release without bail,
that JR’s “allegations against [Anderer] were baseless and
that the show up report presented no probable cause to
have [Anderer] arrested in the first place.”
B. Retaliation for First Amendment Speech
Anderer alleges that he was retaliated against and termi-
nated, in violation of his First Amendment rights, in response
to (1) statements made by union president Bradley DeBraska,
12
The Deputy District Attorney, in his memo explaining his deci-
sion not to pursue charges, recounted the facts of JR’s claims and
wrote that, while he could not “state with assurance what hap-
pened[,] [he] believe[d] it more probable, particularly in view of
[his] knowledge of prior complaints against Anderer, that Anderer
did strike [JR]. It is entirely conceivable, however, that given [JR’s]
agitation, mental problems and stated intentions to get money out
of this incident, that he inflicted the injuries to himself. Such spe-
culation, however, is not the stuff of criminal charges, and none
can be proven in this case.”
No. 02-3669 15
with Anderer’s apparent authorization,13 that Anderer had
been arrested without probable cause as a result of IAD
vindictiveness due to personal animus with one of the IAD
investigators, and that the union was “hoping and praying”
that he would sue the police department to correct these
wrongs, (2) Anderer’s confirmation that he had retained a
lawyer to look into the matter, and (3) his filing of this law-
suit against defendants.
Whether a government employee’s speech is protected by
the First Amendment is a legal question that we review de
novo. Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002). As
we explained in Gustafson, there are four elements to a
First Amendment retaliation claim,14 but the only element
at issue here is whether Anderer’s speech was a “matter of
public concern.” Id. at 906-07. “Whether a government em-
ployee’s speech addresses a matter of public concern depends
upon ‘the content, form, and context of [the speech] as re-
vealed by the whole record.’ ” Id. at 907 (quoting Connick v.
Myers, 461 U.S. 138, 147-48 (1983)). “Of these three factors,
13
We will assume, without deciding, that speech authorized by
one person but made by another could be the basis for an First
Amendment claim.
14
To prove a First Amendment retaliation claim in the employ-
ment context, “[f]irst, the plaintiffs must prove that their speech
was a matter of public concern. Next, they must prove that their
speech played at least a substantial part in the employer’s decision
to take an adverse employment action against them. If the plaintiffs
can carry their burden on these two elements, the defendants can
only prevail if they prove by a preponderance of the evidence that
the government’s interest, as an employer, in efficiently providing
government services outweighs the employees’ First Amendment
interests, or if they can prove that they would have disciplined the
employees even in the absence of the speech.” Id. (citing Klunk v.
County of St. Joseph, 170 F.3d 772, 775 (7th Cir. 1999); Hellstrom
v. United States Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.
2000)).
16 No. 02-3669
content is the most important.” Id. (citations omitted);
Campbell v. Towse, 99 F.3d 820, 827 (7th Cir. 1996). “The
‘public concern’ element is satisfied if the speech can fairly
be said to relate to a matter of political, social, or other concern
to the community, rather than merely a personal grievance
of interest only to the employee.” Gustafson, 290 F.3d at 907
(citing Connick, 461 U.S. at 146). If the speech is not on a mat-
ter of public concern, “it is unnecessary for us to scrutinize
the reasons for [the employee’s] discharge.” Connick, 461
U.S. at 146.
The content of the speech at issue here was, quite plainly,
a matter solely of Anderer’s private concern. The speech
concerned and addressed only Anderer’s arrest; nothing in
these statement alleges any greater societal impact than
Anderer’s possible grievance for being arrested, Connick,
461 U.S. at 147-48; Gustafson, 290 F.3d at 908. Anderer
claims that his speech was a matter of public concern be-
cause “pervasive and systematic misconduct” in the Milwau-
kee police department leads to a high number of arrests of
officers without probable cause and that bringing this to
light was the motivation for the speech. We acknowledge
that motive is relevant to the “matter of public concern
inquiry, [though] it is not dispositive,” Gustafson, 290 F.3d
at 908 (citations omitted), but “speech on a subject that would
be of interest to the public will not be protected if ‘the expres-
sion addresses only the personal effect upon the employee.’”
Id. (quoting Marshall v. Porter County Plan Comm’n, 32
F.3d 1215, 1219 (7th Cir. 1994)). And while we recognize
that there are few matters “of greater public concern in a
large metropolitan area than police protection and public
safety,” Auriemma v. Rice, 910 F.2d 1449, 1460 (7th Cir. 1990)
(en banc), nothing in the speech at issue here addresses or
seeks to resolve anything about what Anderer may or may
not have believed regarding the police department’s or Chief
Jones’s policies, other than his dissatisfaction with his ar-
rest and his desire for personal redress. As such, his speech
No. 02-3669 17
cannot fairly be described as a “matter of public concern,”
and any further inquiry into why he was terminated is un-
necessary given the wide latitude we afford government
officials in managing their offices. See Connick, 461 U.S. at
146; Driebel, 298 F.3d at 638 (discussing internal affairs
investigatory tactics employed by the Milwaukee police
department).
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
COFFEY, Circuit Judge, dissenting. Joseph Anderer, a
recently discharged Milwaukee police officer, argues on ap-
peal that his constitutional rights were violated when he
was arrested, booked and detained, and subsequently ter-
minated from his employment (3.5 years) on the orders of
Chief Arthur Jones of the Milwaukee Police Department
(“MPD”), based almost exclusively on the fabricated story of
an incorrigible and psychotic juvenile, without a scintilla of
corroborating evidence. The majority attempts to defend his
arrest and refuses to accept Anderer’s contention and
argument—which finds full support in the record—that his
accuser, an out-of-control juvenile named “JR,” who also
maliciously created another fabricated accusation against
a second officer stating that he had raped him, was likewise
wholly incredible. As the trial judge noted when finding JR
incredible: “[a]fter all, if J.R. could manufacture one obvious
lie against an officer, he might also manufacture a more
18 No. 02-3669
plausible lie against another officer.” Anderer v. Jones, No.
01-C-0668, at *6-7 (E.D. Wis., Sept. 30, 2002) (emphasis
added). The reality of the situation is that the false informa-
tion JR gave to investigators concerning Anderer’s involve-
ment in the alleged assault fell far short of establishing
probable cause to arrest him and the investigators’ belief in
JR’s veracity was just one component of a mishandled and
goal-oriented (have Anderer arrested) investigation which
lacked good-faith and which the majority now condones.
The majority also fails to recognize and avoids the fact
that the investigation fell far short of a proper police inquiry,
lacking in objectivity and fairness. Indeed, the Milwaukee
Police Department, INTERNAL AFFAIRS DIVISION (“IAD”)
investigators looking into JR’s false and malicious complaint,
for reasons unexplained, saw fit to systematically ignore the
exculpatory statement given by Officer Janice Shoman prior to
Anderer’s arrest and then proceeded to fail to timely inter-
view four other police officers, Officers Cook, Centeno,
Logan and Bohlen (all who would have given exculpatory
statements), and one lay witness, Mitchell (who investiga-
tors well knew prior to Anderer’s arrest would have exon-
erated him). See infra pp. 24-25, 28-30, 48-49, 57-58, 70-72.
There was absolutely no credible evidence uncovered by
the investigators even suggesting that Anderer had com-
mitted a crime prior to his arrest. For example, Officer
Shoman told IAD investigators prior to Anderer’s arrest
that she would have noticed any altercation whatsoever
between Anderer and JR because of her close proximity to
him if, in fact, it had taken place, and that she witnessed no
such incident. Notwithstanding the exculpatory nature of
this evidence, the majority distorts her testimony and cava-
lierly states that Shoman could not “refute” JR’s story.
Opinion at *12. Indeed, five of the six police officers present
at the scene, when questioned, later did corroborate Shoman’s
statement when testifying under oath (affidavit) that Anderer
did not strike JR while putting him in the squad car, as JR
No. 02-3669 19
had specifically stated that Anderer had done. See infra pp.
74-81. In the end, the only credible fact in the record that
the majority cites to suggest that Anderer committed, or
was committing, an offense is his failure to explain JR’s
alleged injuries. Anderer (as a police officer and American
citizen) was well aware that his refusal and/or silence was
fully protected under both his constitutional and contractual
rights. The majority’s attempt to use the police officers’
repeated refusals to answer questions as a fundamental
factor in establishing probable cause is completely misguided,
for no one, not even a law enforcement officer, can be forced to
give evidence against himself while the subject of a criminal
investigation. Indeed, no court has ever held that the refusal
to answer questions that might incriminate a suspect would
allow law enforcement officers to elevate reasonable
suspicion to probable cause based on such a refusal. Cf.
Hiibel v. Sixth Judicial Dist. Court, 124 S.Ct. 2451, 2460-61
(2004); see infra pp. 52-54. The majority implies that since
neither party raised this argument we do not have jurisdic-
tion to address this constitutional question; however, I am
confident the majority realizes that this Court does have the
discretion to resolve a constitutional issue discovered in the
record before us sua sponte, contrary to the majority’s
suggestion. See Opinion at *10 n.8. As the Supreme Court
has made clear “[t]he matter of what questions may be
taken up and resolved for the first time on appeal is one left
primarily to the discretion of the courts of appeals, to be
exercised on the facts of individual cases . . . . Certainly
there are circumstances in which a federal appellate court is
justified in resolving an issue not passed on below, as where
THE PROPER RESOLUTION IS BEYOND DOUBT, or
WHERE INJUSTICE MIGHT OTHERWISE RESULT.”
Singleton v. Wulff, 428 U.S. 106, 121 (1976) (emphasis
added) (internal citations omitted); See infra pp. 63-65. I
believe that it is our duty to do so. It is “well-settled . . .
[that] [p]olicemen . . . are not relegated to a watered-down
version of constitutional rights,” Driebel v. City of Milwau-
20 No. 02-3669
kee, 298 F.3d 622, 637 (7th Cir. 2002) (quoting Garrity v. New
Jersey, 385 U.S. 493, 500 (1967)), and we must not ignore the
serious constitutional problems raised by using Anderer’s
silence as a factor establishing probable cause.
In addition, the majority, without explanation, refuses to
accept the well known fact that there are maladies such as
a plain, everyday nosebleed or those nosebleeds of the type
frequently caused by the injestion of a myriad of prescribed
psychotropic drugs and other medications known and ac-
cepted as causing and contributing to nosebleeds. See infra
pp. 26-28, 46-47, 73-75, 86-88. This fact becomes even more
germane when viewed in combination with the established
evidence that the only person claiming Anderer committed
a crime was the out-of-control JR himself; a swearing, cursing
malcontent who, in his attempt to get even with the ar-
resting police officers (i.e., threatened that he would “get
paid” and “have [their] jobs”) accused one, Officer Cook, of
rape and accused the other, Anderer, of striking him in the
face and nose, causing him to bleed. See infra pp. 23-25, 30-
31, 42-44, 51-52, 70-72, 86-88. However, JR’s accusation
flies in the face of common sense and logic because the lying
juvenile burglar suffered no bruises, abrasions, lacerations,
contusions, much less swelling to any part of his face, nose
or lips which might give some credence to his allegation
that he had been struck by a 200 lb. police officer. This is
not to mention that in addition to the lack of physical signs
of abuse on the purported victim, there are five credible wit-
nesses who were present at the scene and stated that they
never witnessed Anderer assault JR at any time, much less
during the particular time frame when Anderer was
assisting him with his entry into the squad car. See infra
pp. 24-25, 28-30, 48-49, 57-58, 70-72, 75-81. Therefore, in
light of the relevant facts and circumstances, Anderer’s
arrest was not predicated on information from a “reason-
ably credible witness or victim,” as the trial judge found,
nor does it qualify as being based on “reasonably trustworthy
No. 02-3669 21
information [that] would warrant prudent person in believing
that [Anderer] had committed or was committing an offense.”
Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 2000) (quoting
Qian v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999)). In effect,
the majority is taking the word of a psychotic, uncontrollable,
lying juvenile over that of six credible witnesses and a pleth-
ora of very convincing circumstantial evidence.
Indeed, the trial judge went on to state that JR was not
a credible witness. Judge Stadtmueller found that “J.R.’s
statement alone [was] an insufficent basis for probable
cause.” Anderer v. Jones, No. 01-C-0668, at *6-7 (E.D.
Wis., Sept. 30, 2002). The majority disagrees with the trial
judge’s clear statement on the credibility subject and, in
support of this holding, argues that JR told other officers
that he made rape allegations against Cook and that he
“told several police officers the same story.” See Opinion at
* 9, *12. However, the record reflects that once the inves-
tigation concerning Anderer ensued, (in contrast to the
majority’s contention) JR when interviewed never repeated
his “rape” allegation, but claimed only that he had been
“nudged” in the buttocks. Smith Report ¶ 5. Nevertheless,
even if we were to assume, for purposes of this discussion,
that JR did repeat his ridiculous allegations against Cook
word-for-word to other officers, this does not ipso facto
negate all of the other facts which rendered JR’s allegations
incredible and would, in fact, only serve to further under-
mine the value of the juvenile’s description of events. See
infra pp. 43-45.
The majority also attempts to characterize a number of
post-arrest events as “irrelevant facts,” such as: (1) “the
Deputy District Attorney’s later decision not to pursue crim-
inal charges”; (2) “photographs of JR, as they were de-
veloped after Anderer’s arrest”; and (3) “statements made
by ID technicians after the arrest.” See Opinion at *11 n.9.
However, as we make clear, all of this evidence is used, not
as part of a probable cause review, but to further establish
22 No. 02-3669
that the IAD investigators responsible for conducting the
probable cause inquiry were neither being truthful nor fair
and objective when they claimed that JR was “seriously in-
jured” and that their investigation (which can best be
described as no more than a rush to judgment) suffered
from a serious lack of good-faith, resulting in an improper
finding that probable cause existed to arrest the officer. See
infra pp. 43-55, 83-85, 91-94 (discussing the deputy district
attorney’s decision not to prosecute); pp. 52-55 (discussing evi-
dence and testimony given by the I.D. Technicians).
Because this case is so fact-oriented and because the ma-
jority’s decision fails to provide an accurate representation
of the record, I have been forced to recite the facts with cor-
responding record cites, as well as my reasoning and con-
clusion in detail. My purpose is not to provide a closing
argument, as the majority for some reason saw fit to mock-
ingly suggest,1 but is an honest attempt to persuade my
colleagues that the district court’s decision should be re-
versed and set aside and that Anderer should, at the very
least, be afforded his day in court in order that he might
present his case to a jury of his peers and furthermore that
a history of investigative problems of this nature in the
Milwaukee Police Department might be exposed to the light
of day. See also Driebel v. City of Milwaukee, 298 F.3d 622(7th Cir. 2002).
I. Factual Background
At approximately 7:28 p.m. on April 17, 2001, the Mil-
waukee Police Department received two telephone com-
plaints, one from James C. Mitchell and the other from Eric
Guenther, alerting the police that there was a burglary in
progress aboard a boat at 2011 South First Street, the
1
See Opinion at *11 n.9.
No. 02-3669 23
Pump House Marina (the “Marina”), on Milwaukee’s South
Side. Officer Anderer, the subject of this case and a 3 ½-
year veteran on the Department, was assigned to work
without a partner that evening and was dispatched to the
crime scene with six other officers: Sergeant Michael Jones,
and Officers Jeffrey Cook, Jeffrey Logan, Todd Bohlen, Victor
Centeno, and Janice Shoman. These seven police officers, after
arriving at the crime scene, and while conducting their inves-
tigation, came upon four juveniles (one African-American
male, JR, and three white males) that had been observed
breaking into a boat parked at a slip in the Marina and
stealing a fire extinguisher and high-powered flashlight
from aboard the vessel (burglary). Sergeant Michael Jones
patted down the suspects and, with the assistance of Officers
Jeff Logan and Jeffrey Cook, escorted the juveniles from the
boat slip over to the Marina mainland for questioning.
As the officers were escorting the four juvenile burglars,
JR became abusive, loud, and obscene and acted out in a
most strange and “extremely obnoxious” manner. Cook Aff.
¶ 10. In the presence of Officers Logan, Cook and Anderer,
JR began “yelling and screaming [obscenities],” ignored the
Officers’ commands, and during this time “accus[ed] [police
officer Jeffrey Cook] of hitting him in the buttocks with the
flashlight and attempting to rape him.” Cook Aff. ¶ 10-12,
16 (emphasis added); Logan Aff. ¶ 10. When the juveniles
reached the Marina mainland they were assembled for
further questioning, and “JR . . . [again] accused [Cook] of
attempting to rape him” (while possibly experiencing a psy-
chotic episode or hallucination) and “continually screamed
that he would get paid, that he would get a check, and he
would have [the police officers’] jobs,” Cook Aff. ¶¶ 12, 16
(emphasis added),2 implying that he would sue the officers
2
JR’s insolent behavior was not solely directed at Officer Cook;
indeed, the child “call[ed] all the police officers at the scene ob-
(continued...)
24 No. 02-3669
for money and get them fired from the Department.
After the officers completed their questioning, the four
juvenile burglars were arrested, handcuffed and searched.
Cook Aff. ¶ 13. Officers Logan and Cook took three of the
juveniles into custody, and escorted them to their squad,
while Officer Anderer was assigned to escort the fourth
individual, JR, to his single-manned squad car (possibly be-
cause it would be easier to separate the out-of-control,
threatening, and foul-mouthed juvenile from the other three).
James C. Mitchell, the citizen witness who had earlier
reported the burglary to police, stood nearby and continued
to observe Anderer and JR as the officer “guide[d and se-
cured] [him] into the back seat of the squad, . . . [and]
close[d] the door to the car . . . .” Mitchell Aff. ¶ 14. Mitchell
heard JR continue to scream obscenities directed at the
officers and continue to act out in an obnoxious and bellig-
erent manner. Mitchell continued to observe Anderer as he
escorted JR to the car, and testified that at no time did he
witness Anderer strike the juvenile. Mitchell states in his
affidavit that he:
[W]atched every step of the way while Officer Anderer
was taking [JR] to his squad car [and as] Officer
Anderer guide[d] [JR] into the back seat of the squad,
[he (Mitchell)] saw Officer Anderer seatbelt JR, close
the door securing him in the back of the squad
and . . . [a]t no[ ] time did [he] see Officer Anderer
strike [JR] or act in any abusive manner toward
him. . . [Instead, Mitchell observed that] at all
times . . . Anderer acted in a very professional
manner [toward JR].
Mitchell Aff. ¶¶ 14-16 (emphasis added).
2
(...continued)
scene names . . . .” Cook Aff. ¶ 12.
No. 02-3669 25
Once Anderer positioned JR into the squad, he (Anderer)
left the Marina and proceeded directly to the Second
Precinct Police Station, which was only a stone’s throw from
the Marina (the recorded trip time was only two minutes
and two seconds). Anderer Aff. ¶ 43. When Anderer’s car
arrived at the station, Officer Cook helped unload JR and
noticed blood dripping onto the juvenile’s chin. Cook Aff.
¶ 26. When Sergeant Michael Jones approached JR and
asked why he was bleeding, JR continued his pattern of
false accusations and in a flippant and offhand manner
(while laughing and joking with the three other children)
“point[ed] [at] Officer Anderer [and stated], ‘[t]hat officer hit
me,’ and then pointed at [the other officer,] Cook and
stated, ‘that officer raped me.’ ” Id. ¶ 30. Upon further ques-
tioning, and in the presence of Sergeant Jones and Officers
Cook and Anderer, JR voiced his claim that Anderer “ ‘hit
[him] when he put [him] in the [squad] car.’ ” Sgt. Michael
Jones Aff. ¶ 6. JR went on to allege that as Anderer was
securing him in the squad car, “he said something to
[Anderer],” who “told him ‘don’t get smart’ and [then] hit
him one time [on] the mouth and nose [and] g[ave] him a
bloody nose and bloody lip.” JR’s Citizen’s Complaint ¶ 5.
As the police were commencing their investigation into
the burglary charges against the juveniles (including JR),
they became aware of information concerning JR’s mental
health problems and his history of run-ins with the police.
This fully confirmed by that point what should have become
clear—that JR, the juvenile burglary arrestee, was at best a
most highly incredible and suspect claimant. Specifically,
police, at this time, learned from JR’s mother that her son,
on that very day, had failed to take any of his prescribed
drugs (five or six different prescriptions).3 Cook Aff. ¶ 35.
3
According to Officer Logan, the information that JR was on
psychiatric drugs “put everything in perspective,” because JR had
(continued...)
26 No. 02-3669
And given the type of drugs prescribed for JR, police in-
vestigators were well aware that at least two of those drugs,
the ones Cook recognized, were used to treat JR’s psychiat-
ric and behavioral disorders.4 Moreover, JR’s mother made
it clear to the officers that these prescription drugs were
vital to her son’s mental well-being, and she urged the
officers to “release[ ] [him] from custody as soon as possible”
in order that he might ingest his medication immediately.
Cook Aff. ¶ 34. Considering JR’s out-of-control, belligerent
and obnoxious behavior that night and combined with the
revelation that he had failed to take a number (3) of his
prescribed psychotropic drugs that very day, investigators
should have viewed all of JR’s statements with caution and
skepticism.
As if this were not sufficient reason to raise a red flag of
suspicion and serve to discount JR’s false and malicious
accusations, the investigating officers, at this time, also
became aware that this was not JR’s first run-in with the
law. Officer Shoman informed the IAD investigators that JR
3
(...continued)
not seemed “right” to him “from the beginning[,] as his behavior
was way out of line.” Cook Aff. ¶ 31.
4
In fact, three of the prescribed drugs JR was taking are used to
treat mental disorders: Paxil (which treats depression, anxiety,
and obsessive compulsive disorder, see “What Does Paxil Treat?”,
available at http://www.paxil.com/about/ab_trt.html); Seroquel
(which treats schizophrenia and which would help control the
voices HR was hearing, see “Understanding Seroquel,” available
at http://www.seroquel.com/cons_asp/undersero/undersero.asp, as
well as symptoms such as hallucinations, see “About Medications:
Seroquel,” available at http://www.naminys.org/ abmed_ser.htm); and
Adderall (which treats attention-deficit hyperactivity disorder, see
“Adderall XR Q&A,” available at http://www.adderallxr.com/
adderallxr_adderallxr.html). See Dr. O’Grady (psychiatrist)
Report, Anderer Aff. Ex. 30, at 2 (noting that JR was on Paxil,
Seroquel, and Adderall).
No. 02-3669 27
was a known trouble-maker who had proven to be a constant
problem in her patrol area. Shoman Aff. ¶ 6. Shoman’s
account of JR’s problems with the law was further corrobo-
rated by his own mother, who stated to the officers that she
was “not [at all] surprised” that her son had been arrested
for burglary. Cook Aff. ¶ 32. The fact that JR had prior run-
ins with the law, and that his mother was not suprised he
had been arrested, should have further served to put in ques-
tion and possibly discredit JR’s fabricated story and again
cause each one of the officers involved to question the veracity
of this psychotic and out-of-control juvenile.
In addition, the complete lack of any physical trauma to
JR’s face (not one mark, contusion, abrasion, or bruise) fell
far short of supporting his allegations that he was punched
in the mouth and nose by a 200 lb. male. I.D. Technician
David Brown, who photographed JR at 10:05 p.m. that
same night (while the police investigation was in progress)
noted that the only visible injuries on JR’s body were the
two cuts inside his mouth (upper and lower lip), which
“looked to [be] nothing more than . . . pre-existing dried[-
up] lip[s] that cracked open just like lips do in the winter,”
Brown Aff. ¶ 15 (emphasis added) and which JR himself
could have intentionally bit open with his teeth. Indeed,
Brown stated that, in his opinion, JR’s inner lip cuts were
“not caused by a punch.” Id. ¶¶ 5, 6. Interestingly, when
Brown was subsequently informed that “officer [Anderer]
had just been arrested for allegedly punching [JR],” I.D.
Technician Brown “told those [police] officers they must be
kidding, [because he (Brown)] had [just] taken pictures of
[the] kid [JR] and there were no injuries on JR . . . .” Id.
¶¶ 14-15 (emphasis added).
Kara Kathrein, who had in excess of nine years experience
with the MPD and more than three years specializing as an
I.D. Tech while on the MPD, took pictures of JR on the
morning of April 18, 2001, at 1:30 a.m. and, like Brown,
28 No. 02-3669
testified in a sworn affidavit that the “small cut to [JR’s]
lower lip” was a “very minor injury” and “was not consistent
with being struck in the face by an adult male.” Kathrein
Aff. ¶¶ 14-16 (emphasis added). Moreover, she stated that
“there were no observable injuries to JR other than the cut to
his lower [interior] lip.” Id. ¶ 17 (emphasis added). Because
Kathrein had such extensive experience photographing and
observing victims of abuse (she “ha[d] [previously] taken many
photographs of injuries caused to victims by battery”) and
because she was of the “opinion that the injury JR allegedly
sustained was not consistent with being struck in the face by
an adult male,” id. ¶ 16, Kathrein stated that she was
“surprised [when she learned] that JR’s allegations le[d] to
an officer’s arrest . . . .” Id. ¶ 20 (emphasis added).
Also, it is most interesting and convincing to note that the
record is barren of even one report of any finding of any
traces of blood or any type of abrasion, bruising, scratches or
other evidence of trauma on either of Officer Anderer’s hands
much less any evidence of blood, tears, dirt, or debris on his
uniform or hands—investigators performed a thorough
inspection of Anderer’s hands with a high-powered flash-
light at Anderer’s insistence, and furthermore had ample
opportunity to inspect his clothing. See Smith Report at 9;
Anderer Aff. ¶ 98. Indeed, it was Anderer himself who
requested that an I.D. Technician take pictures of his hands
to document the fact that they were neither bruised,
marked, cut, nor injured in any manner. Anderer Aff. ¶ 81.
This request was summarily rejected by IAD Detective
Mercedes Cowan, who had arrived at the Second Precinct
Police Station just a few minutes earlier with Lt. Hoerig;
however, she did examine Anderer’s hands with a high-
powered flashlight when concluding that he didn’t “need a
photo tech.” Id. at ¶ 85-98. Evidence suggesting that
Anderer’s hands were in pristine condition is consistent
with Sergeant Jones’ statement to Detective Harrison when he
No. 02-3669 29
stated that he had “s[een] no evidence of any physical fight
[between Anderer and JR;] [n]or [any] injury to the juvenile”
at the arrest scene. Jones Aff. ¶ 3 (emphasis added).
In addition, investigators were aware5 that a bystander,
citizen James Mitchell, was present on the scene at the time
the incident allegedly took place, and was willing, able and
available to provide exonerating testimony delineating the
professionalism that Anderer exhibited while directing JR
to, and placing him in, his squad car. However, for reasons
unexplained, investigators, who had knowledge that Mitchell
5
Both Anderer and Mitchell state in their affidavits that they
informed numerous MPD officers and investigators (at least
three, including Sergeant Jones and Detective Harrison) of
Mitchell’s contact information, and Anderer furthermore informed
Detective Harrison exactly the nature and scope of the informa-
tion Mitchell could provide—namely, that Mitchell “[had]
watched [Anderer] place JR into the squad and could
[testify] that [he] did not hit th[e] [juvenile].” Anderer Aff.
¶ 77 (emphasis added).
Furthermore, since the majority claims to be “puzzled” by my
reference to some of the affidavits in the record (noting that these
affidavits were “signed after Anderer’s arrest”). Opinion at *11
n.9. I must note that time is not wasted at the scene of a police
investigation making out affidavits and swearing to the same—
particularly in a case such as this, in which the investigators
invoked a jet-speed arrest procedure, investigating and proceeding
to arrest Anderer with remarkable haste. Nevertheless, all of the
observations were made contemporaneously with the events
detailed herein and all of the affidavits provided to the court and
contained in the record were submitted by duly sworn individuals
under oath, and each statement has been signed, sworn and
notarized in compliance with the rules and regulations thereof and
the MPD.
30 No. 02-3669
would exonerate Anderer,6 neither conducted an in-person
interview of Mitchell nor did they even bother to pick up the
phone to call and ask any questions of him at any time prior
to Anderer’s arrest and confinement. Why?
Completely disregarding the wealth of factors mitigating
against JR’s reliability, trustworthiness and honesty, as
well as the lack of even a scintilla of proof anywhere in the
record that JR had been injured by Anderer, Lt. Hoerig de-
termined there was probable cause to arrest Anderer at the
close of her alleged investigation. At this time Hoerig rec-
ommended to Chief Jones that Anderer be arrested for child
abuse, based exclusively upon her findings, as set forth in
her affidavit testimony as follows:
(a) “JR was 12 years old”;
(b) “JR was not injured at the time he was
turned over to Officer Anderer to be conveyed
to the Second District station in Anderer’s
squad”;
(c) “JR was in Anderer’s custody exclusively
while conveyed to the Second District sta-
tion”;
(d) “JR was handcuffed in the back of Anderer’s
squad when he was conveyed to the Second
District Station”;
(e) “JR had injuries consistent with being hit
in the mouth when he arrived at the Second
District station [sic]”;
(f) “JR IDENTIFIED OFFICER ANDERER AS THE
POLICE OFFICER THAT HIT HIM IN THE
MOUTH”;
6
See infra, pp. 48-49, 57-58, 70-72.
No. 02-3669 31
(g) “ANDERER DID NOT EXPLAIN HOW JR WAS
INJURED”; and
(h) “Anderer did not report use of force involv-
ing JR or any incident involving JR, or any
injury to JR”
Hoerig Aff. ¶ 16. However, at least four officers, not including
Anderer (Cook, Shoman, Centeno, and Bohlen), two I.D.
Technicians (Kathrein and Brown), and one lay witness
(Mitchell) came to conclusions that were in stark contradic-
tion to Hoerig’s. Indeed, Hoerig also falsely reported that JR
had been “serious[ly]” injured, yet Hoerig neither saw fit to
have JR evaluated by a medical professional nor to convey
the juvenile to a hospital so that he could be treated if
necessary (as the MPD rules and regulations and Wisconsin
law would have required her to do if in fact JR had truly
been “serious[ly]” injured). See, e.g., infra p. 71 note 21, and
accompanying text.
After Hoerig informed Chief Jones of her recommenda-
tion, at 12:30 a.m., without any investigation into JR’s
obvious and self-evident mental troubles or medical history
(of which investigators were on notice), without attempting
to solicit statements from any other officers (Centeno or
Bohlen—Cook had refused to make any statement without
representation, as did Anderer, and Shoman had said she
did not witness any fight between JR and Anderer and that
JR was a constant problem in her patrol area) or the citizen
witness (Mitchell) at the scene, and without even consider-
ing seeking the counsel of the DA or his Deputy,7 Chief
7
We again call attention to the fact that, as we noted in Driebel,
the more desirable practice during criminal investigations in-
volving law enforcement officers is for MPD officials to meet with
a representative of the district attorney’s office before proceeding
(continued...)
32 No. 02-3669
Jones went full speed ahead and ordered police detectives
Smith and Harrison to place Anderer under immediate
arrest. Anderer was then booked, fingerprinted and con-
fined in jail for nearly 12 hours on a malicious (and fabri-
cated) charge of physical abuse of a minor.
Anderer was released without bail at noon the next day
without having any criminal charge brought against him.
Some sixty days later, in the first week of June 2001, “[Lt.
Hoerig] was notified by Deputy District Attorney Jon Reddin
that the case involving . . . Anderer and [JR] would be no
processed8 . . . BASED ON THE FACT THAT THE CASE
LACKED PROSECUTABLE MERIT,” and, in fact, the crim-
inal prosecution of the case was closed without any mis-
demeanor or ordinance violation, much less criminal felony,
charges being brought against Officer Anderer. See Hoerig
Aff., Ex. 1001 at 2-3 (emphasis added). Thus, Lt. Hoerig and
Chief Jones were both rebuffed by the Deputy DA’s decision
refusing to bring criminal charges against Anderer.
On June 11, 2001, despite Deputy District Attorney Jon
Reddin’s outright refusal to charge Anderer with any crime,
7
(...continued)
to arrest any officer under investigation—and, at that time, “in-
quire whether the prosecutor acting independently is likely to
press charges against the officer.” Driebel, 298 F.3d at 645 n.13.
This is for the simple reason that “[a]n arrest is rarely made
unless charges are likely to be brought.” Id. Although Driebel was
decided after the events that gave rise to this case had taken
place, we again advocate this procedure in order that the arrest of
a police officer, in spite of a complete vacuum of corroborating
evidence, may be averted. See id.8
The formal explanation for this action, “nolle prosequi,” is the
bringing of a motion before a judge on the part of a prosecutor to
“voluntar[ily] withdraw[ ] . . . [all] proceedings on a criminal
charge.” See BLACK’S LAW DICTIONARY (6th Ed.).
No. 02-3669 33
Chief Jones, not satisfied with that result, saw fit to re-open
and continue the criminal investigation into JR’s false and
malicious accusations against Anderer on his own initiative.
At this time the Chief, offering a hollow excuse, stated as
the reason for continuing his harassment of Anderer that he
“wanted to make sure the investigation was complete
and . . . the investigating officers had not missed any facts.”
Jones Aff. ¶ 10.9 Lt. Hoerig was then instructed by Chief
Jones to “re-interview all parties involved in this case.” See
Hoerig Aff., Ex. 1001 at 3 (emphasis added). However, in her
summary report after completing the second Anderer
investigation, Hoerig stated, upon completing these inter-
views, that she had failed to turn up “[any] information” to
merit “further criminal prosecution” of Anderer. Id.9
It is interesting to note that Chief Jones, by his own admission,
had forwarded the case to the Deputy District Attorney Jon
Reddin without having assured himself that he had a complete
investigation report before him—for even he himself was pur-
portedly concerned that his investigators might have “missed any
facts” (In reality, this is an admission by Chief Jones that he
ordered the arrest of one of his duly sworn officers in spite of the
fact that he had not conducted a complete and through investiga-
tion). Jones Aff. ¶ 10.
In any case, Chief Jones’s unrelenting insistence on again re-
investigating JR’s claim for a third time—even after the initial
police investigation, as well as the Deputy District Attorney’s
investigation, failed to uncover sufficient evidence to prosecute,
and in light of Deputy District Attorney Jon Reddin’s previous
express refusal to prosecute—was (at best) a most unusual oc-
currence. As a former police officer, Bradley DeBraska, now the
president of the Milwaukee Police Association, stated in his
affidavit: “this [wa]s the first and only time [he] ha[d] [ever] seen
any police chief restart a criminal investigation after it ha[d] been
closed by the District Attorney’s office.” DeBraska Aff. ¶ 17
(emphasis added).
34 No. 02-3669
Chief Jones—in an obvious last-ditch effort to have
Anderer criminally prosecuted (with all his authority as the
Chief of Police of a large department) went over the head of
the Deputy District Attorney and now personally requested
that the District Attorney himself, Mr. E. Michael McCann,
review and re-evaluate his Chief Deputy’s (Jon Reddin’s)
prior decision not to prosecute; now, a fourth (second
independent) investigation into the malcontent juvenile
burglar and troublemaker JR’s fabricated and flippant
allegation ensued. After independently reviewing and
considering all of the information, McCann also refused to
pursue any criminal charge, and “informed [Jones] that the
District Attorney’s office would not change its prior no-
charge decision.” Jones Aff. ¶ 12 (emphasis added). In
explanation of why he chose to uphold the Deputy DA’s
(Reddin’s) prior decision refusing to prosecute the meritless
case, McCann provided Jones “with a copy of a confidential
memorandum written by . . . Reddin dated June 7, 2001,”
id., in which Reddin stated:
I have interviewed [JR], Anderer, officers Janice
Shoman, Jeff Cook and Jeff Logan, and civilian
James Mitchell. Based on those interviews I have
concluded that we cannot prove how and by whom
[JR]’s injuries were incurred, and consequently [I
conclude that] no criminal charges can be sus-
tained. . . . Whether Anderer struck him or he in-
flicted the injuries to himself by smashing his face
into something in the back of the car will probably
never be known to anyone but [JR] and Anderer. I
cannot say with any assurance what happened. I
believe it more probable, particularly in view of my
knowledge of prior complaints against Anderer, that
Anderer did strike [JR]. It is entirely conceivable,
however, given [JR]’s agitation, mental problems and
stated intentions to get money out of this incident,
that he inflicted the injuries to himself.
No. 02-3669 35
Jones Aff., Ex. 1002 at 1-2 (emphasis added).10 Thus, after
Jones personally requested, on two separate occasions, that
criminal charges be filed against Anderer, the chief law en-
forcement officer in Milwaukee County, District Attorney E.
Michael McCann, and his Chief Deputy Jon Reddin both
found no merit to the charges and declined to prosecute
Anderer.
On July 2, 2001, probably to clear his name and reputation,
and to save his family from further disgrace and humilia-
tion, Officer Anderer filed a lawsuit against Chief Jones, the
IAD and the MPD command officers who investigated JR’s
claims (Lt. Hoerig, Detective Mercedes Cowan and Deputy
Inspector Charles Grisham) for violation of his constitu-
tional rights. Chief Jones (possibly in a retaliatory manner)
directed the new commander of the IAD, Steven
Settingsgaard, on July 6, 2001, (a mere 96 hours after
Anderer filed his lawsuit, and approximately a month after
District Attorney E. Michael McCann’s final decision not to
institute criminal charges against Anderer) to institute
internal charges against Anderer alleging that he had
violated MPD Rule 4, Section 2/455.0011 on the purported
10
I have reviewed Anderer’s complete file in the record and realize
that he has a less than exemplary employment history including
other instances of alleged suspected misconduct during his career.
However, I am of the opinion that it was unnecessary and ill-
advised for Reddin to make any reference to past (suspect)
complaints against Anderer. I am confident any alleged previous
complaints should not be, and were not, a factor in Reddin’s
decision to prosecute or not to prosecute Anderer. Reddin under-
stood, as I do, that any incidents contained in Anderer’s previous
complaint file should not have been considered, and have ab-
solutely no bearing on the probable cause issue. Cf. United States
v. Jerez, 108 F.3d 684, 693 (7th Cir. 1997).
11
MPD Rule 4, Section 2/445.00 reads: “Members of the police
(continued...)
36 No. 02-3669
basis that he unnecessarily struck JR on April 17, 2001.
This, in spite of the fact that Lt. Hoeirg’s second investiga-
tion and two independant investigations by the D.A.’s office,
one by Deputy District Attorney Reddin and the other by
District Attorney E. Michael McCann himself, failed to
uncover evidence which would support criminal charges of
any kind. In bringing this back-up internal child abuse
charge, Chief Jones once again exhibited his unrelenting
determination to remove Officer Anderer from the force,
and finally succeeded in having him terminated on July 17,
2001.
Given that four investigations (two by the MPD’s Internal
Affairs Divison, one by the Deputy District Attorney Jon
Reddin (who concluded that “he could not say with any
assurance what happened”) and an additional review of the
matter by District Attorney E. Michael McCann failed to
uncover evidence to sustain any type of felony or mis-
demeanor criminal charge against Anderer, and considering
no person alive witnessed the alleged blow to JR’s mouth or
nose other than the unruly psychotic juvenile himself, Chief
Jones’s continued his unrelenting insistence on getting
Anderer off the police force by pursuing a rules violation
charge against Anderer was at best a most shocking display
of continued harassment and bad judgment. At worst, as the
11
(...continued)
force are strictly forbidden to argue with prisoners, to speak to
them unnecessarily, to address them in obscene or profane lan-
guage, or to threaten them. Members of the police force guilty of
unnecessarily striking or manhandling a prisoner or mistreating
them in any manner shall be subject to dismissal. A member of
the police force having supervision of any police building, bureau
or office, to which prisoners are conveyed or in which they are de-
tained, shall be responsible for the proper and humane treatment
of such prisoners.”
No. 02-3669 37
timing of his bringing this charge implies (a mere 96 hours
after Anderer filed suit against the MPD), this constituted
an example of retaliation reflecting poorly not only on the
Chief of the Department, but on each of the individual
officers of the MPD who participated in this speedy,
lightning-like, careless, and almost pre-determined investi-
gation, arrest and subsequent termination decision. In any
case, the questionable conduct during the investigation and
filing of the internal MPD rules and regulations charges,
resulting in Anderer’s dismissal, casts a dark cloud of suspi-
cion over Anderer’s initial arrest as well as the entire
contrived and orchestrated procedure, and only serves to
strengthen Anderer’s claim that the MPD’s internal investi-
gation into the matter was unreasonable and lacking in
good-faith, and that his arrest was not based on probable
cause.
II. Analysis
The Rule 56(c) summary judgment standard provides for
the granting of summary judgment only when "the plead-
ings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c) (emphasis added); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). Said differently, sum-
mary judgment is only proper where “a rational trier of fact
[could not] find for the non-moving party,” here Anderer.
See Wolf v. Northwest Indep. Symphony Soc’y, 250 F.3d 1136,
1141 (7th Cir. 2001). Of paramount importance in this case
is that “[i]n reviewing the propriety of a district court sum-
mary judgment ruling under Fed. R. Civ. P. 56, we review
de novo and adhere to the same standards as the district
court set forth in its memorandum opinion and order.”
Dykema v. Skoumal, 261 F.3d 701, 704 (2001) (internal
38 No. 02-3669
citations omitted) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986)). Also, it is critically important, in the
instant case, to recall that “[t]he evidence of the non-
movant is to be believed, and all justifiable infer-
ences are to be drawn in [Anderer’s] favor.” Id. (citing
Anderson, 447 U.S. at 255).
A. The District Court’s Determination that Probable
Cause Existed
It is well-settled that a law enforcement officer has prob-
able cause to make an arrest only when “ ‘the facts and cir-
cumstances within [his] knowledge and of which [he has]
reasonably trustworthy information [are] sufficient to warrant
a prudent person in believing the suspect has committed or
is committing an offense.’ ” United States v. Mounts, 248
F.3d 712, 715 (7th Cir. 2001) (quoting United States v. Gilbert,
45 F.3d 1163, 1166 (7th Cir. 1995)). Keeping in mind that the
resolution of a probable cause question “typically falls within
the province of the jury,” Lanigan v. Village of East Hazel
Crest, 110 F.3d 467, 473 (7th Cir. 1997) (emphasis added),
it is appropriate for a court to conclude that probable cause
exists as a matter of law only “when THERE IS NO ROOM
FOR A DIFFERENCE OF OPINION concerning the facts or
the reasonable inferences to be drawn from them.” Id.(emphasis added).
In this case, the trial judge stated:
JR’S STATEMENT ALONE IS AN INSUFFICIENT
BASIS FOR PROBABLE CAUSE . . . . ANDERER RAISES
SERIOUS ISSUES CONCERNING JR’S CREDIBILITY
BY SHOWING THAT JR MADE FANCIFUL ALLEGA-
TIONS AGAINST ANOTHER OFFICER. AFTER ALL, IF
JR COULD MANUFACTURE ONE OBVIOUS LIE
AGAINST AN OFFICER, HE MIGHT ALSO MANUFAC-
TURE A MORE PLAUSIBLE LIE AGAINST A DIFFER-
No. 02-3669 39
ENT OFFICER. WITHOUT MORE THAN JR’S WORD,
THEREFORE, ISSUES OF FACT EXIST AS TO
WHETHER A REASONABLE OFFICER WOULD HAVE
CONCLUDED THERE WAS PROBABLE CAUSE TO
ARREST ANDERER. . . .
Anderer v. Jones, No. 01-C-0668, at *6-7 (E.D. Wis., Sept.
30, 2002) (emphasis added). As evinced by this statement,
the trial judge found no credence in JR’s allegation, as the
judge properly recognized that JR’s demonstrated propen-
sity to lie rendered his abuse claim against Anderer suspect
and untrustworthy. Thus, the trial court concluded that,
“JR’S STATEMENT . . . [WAS] UNRELIABLE” Id. at *9.
In spite of this clear single phrase in the statement of his
findings, the district court judge ultimately took an end run
around the established facts and proceeded to do a curious
flip-flop, somehow holding that there was probable cause to
arrest Anderer in light of other facts. Specifically, the dis-
trict court anchored its speculative probable cause finding
on “THE BLOOD ON JR’S FACE AND SHIRT . . . AS
WELL AS THE TIME IN WHICH ANDERER WAS ALONE
IN HIS SQUAD CAR WITH JR, AND ANDERER’S INA-
BILITY TO EXPLAIN JR’S NOSEBLEED.” Id. at *8
(emphasis added). The trial court found that these circum-
stances “would have given a prudent police officer probable
cause to arrest Anderer.” Id. I disagree.
I am of the opinion that a consideration of the totality of
the evidence available to investigators at the time of Anderer’s
arrest would have failed to convince a “prudent person” that
“an offense” had been committed (that Anderer had hit JR).
See Mounts, 248 F.3d at 715; see also Beauchamp v. City of
Noblesville, 320 F.3d 733, 743 (7th Cir. 2003). As discussed
infra, prior to Anderer’s arrest, JR never claimed that he was
struck during the time frame he was alone with Anderer in
the squad car on the way to the station. Also, I must note
that, although the trial judge, in his decision, cited the
40 No. 02-3669
blood on JR’s shirt as evidence of abuse, no testing was ever
performed verifying that the stains were fresh blood. Indeed,
the I.D. Technicians stated that the blood stains did not
look “real fresh” and that “JR’s clothing and coat had been
soiled and appeared to have been worn for several days.”
Brown Aff. ¶ 16; Kathrein Aff. ¶ 13. Anderer agreed, stating
that JR’s “clothes had ground-in dirt and looked very worn.”
Anderer Aff. ¶ 28. The fact that some of the blood on JR’s
shirt did not appear “fresh” suggests that JR had been
experiencing nose bleeds in the days and hours leading up
to his arrest and, thus, the presence of blood on JR’s shirt
does nothing to advance the theory that Anderer struck the
juvenile.
Furthermore, although the district court and the majority
made much of the fact that no witnesses observed blood on
JR’s shirt at the arrest scene, see Opinion at *12, it should
be made clear that when the officers “first observed JR [at
the Marina], [the juvenile] was wearing a hooded jacket
with Japanese writing and WAS ZIPPED CLOSED.” Logan
Aff. ¶ 11 (emphasis added). The fact that JR’s jacket was
zipped closed, as Logan stated, explains why none of the
witnesses observed blood, most probably from past nose-
bleeds, on JR’s shirt at the Marina. Therefore, such obser-
vations (or the lack thereof) do absolutely nothing to cor-
roborate JR’s claim of abuse, contrary to the district court
and the majority’s contention. See Opinion at *12 (“both
[Sgt. Jones and Officer Shoman] stated that JR was not
bloody at the time he had been turned over to Anderer’s sole
custody”).
Also, any reference to Anderer’s “inability” (refusal) to ex-
plain the nosebleed suggests that the trial judge must not
have been aware of Anderer’s right, as a suspect of a
criminal offense, to protection under the Fifth Amendment
to the United States Constitution which entitles him to
refuse to give a statement that might be used against him
in a criminal proceeding, nor of his contractual employment
No. 02-3669 41
right not to make a statement without a representative
present. See MPD Manual, Anderer Aff., Ex. B. The record
is barren of, and there is no possible explanation by the
trial judge, as to why and how he believed Anderer’s refusal
to give a statement could be used as a prong of the founda-
tion for his finding of probable cause.
B. JR’s Lack of Credibility
The majority would like us to affirm the district court’s
unfathomable and unexplained grant of summary judgment
to the Defendants, on the basis that, “as long as a reason-
ably credible witness or victim informs the police that
someone has committed, or is committing, a crime, the
officers have probable cause to place the alleged culprit
under arrest . . . .” Opinion at *8 (emphasis added) (quoting
Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 2000)). I am
forced to disagree with the majority’s unsupported conten-
tion that JR was a “reasonably credible” witness. The
juvenile, JR, under the facts and circumstances set forth
herein, could not be classified as reliable or trustworthy,
much less reasonably credible. Thus, what the majority fails
to take into consideration is that the fictitious claim made
by the 12-year-old juvenile in this case—THAT OF A
PSYCHIATRICALLY CONFUSED DELINQUENT JUVE-
NILE ACTING OUT-OF-CONTROL WITHOUT THE BEN-
EFIT OF HIS PRESCRIBED PSYCHOTIC MEDICATION—
was found by the trial judge “NOT [TO BE] SUFFICIENTLY
RELIABLE OR TRUSTWORTHY.” And unlike the majority,
I refuse to cast aside and pay no heed to that portion of the
trial judge’s specific finding that JR was NOT a reasonably
credible witness; for this (lack of) credibility determination
by the trial judge is well established in the record.
Based upon the facts and circumstances set forth herein,
it is imprudent and most ill-advised for the majority to rely
on the juvenile’s complaint and such highly questionable
42 No. 02-3669
facts surrounding JR’s statements to conclude that probable
cause existed to arrest Officer Anderer. See Opinion at *10.
I understand that, generally, the “complaint of a single
witness or putative victim alone [is] generally . . . sufficient
to establish probable cause,” EXCEPT IN THOSE IN-
STANCES WHERE THE “COMPLAINT [BY ITSELF]
WOULD LEAD A REASONABLE OFFICER TO BE SUS-
PICIOUS,” for in those cases “THE OFFICER HAS A
FURTHER DUTY TO INVESTIGATE.” Beauchamp, 320
F.3d at 743 (emphasis added). As this Court explained in
Hebron v. Touhy, 18 F.3d 421 (7th Cir. 1994):
Sometimes information from or about a person claim-
ing to be the victim of crime would lead a reasonable
officer to be suspicious, making further investigation
prudent—and, because the “reasonableness” standard
of the fourth amendment links the constitutional obli-
gation to the standard of prudent conduct, the officer
must do more.
Id. at 422-23 (emphasis added). Therefore, I must point out
that while I fully understand that “ ‘the law does not require
that a police officer conduct an incredibly detailed inves-
tigation at the probable cause stage,’ ” Spiegel, 196 F.3d at
724-25 (quoting Gerald M. v. Conneely, 858 F.2d 378, 381
(7th Cir. 1988)), certainly in the investigation of a situation
such as the one presented to us, which could and did result
in a grave injustice—Anderer’s arrest (and his ultimate
termination from the police force), an investigating officer
“SHOULD CONDUCT FURTHER INVESTIGATION” espe-
cially when he or she is aware of certain “information from
or about a putative victim of crime [that] WOULD LEAD A
REASONABLE OFFICER TO BE SUSPICIOUS.” Id. at 724
(emphasis added).
The record establishes that the investigating officers
possessed more than ample information that would and
should have led a well-trained and competent officer, ex-
No. 02-3669 43
ercising reasonable judgment based upon the knowledge
he or she possessed, to be suspicious and most cautious of
young JR’s fabricated allegation of abuse. This, in turn,
should have mandated that the officers go forward and
perform a good-faith investigation in an unbiased, fair and
objective effort to satisfy the probable cause standard.
However, there is no evidence in the record that IAD officers
were cautious or suspicious, much less objective; for they
never even took the simple step of checking JR’s juvenile
court contact record, but instead accepted JR’s fabricated
allegations at face value. As noted above, JR was shouting
obscenities and threats, as well acting in an out-of-control
and very strange manner on the night of the incident, for in
addition to off-handedly remarking that Anderer had hit
him in the mouth, JR repeatedly stated, in front of a number
of other police officers, that Officer Cook had raped him
(possibly hallucinating), and repeatedly inferred that he
would sue (“get money”) and get the arresting officers, in-
cluding Cook and Anderer, fired. The mentally disturbed JR
(who had not ingested his psychiatric medication that day)
had a clear motive to make up a malicious lie in order to
“harm others” and get Anderer and Cook in trouble, and
thus was unworthy of belief concerning his “rape” allegation
against Cook and his abuse allegation against Anderer. Again,
as the trial judge aptly found, “if JR could manufacture one
obvious lie against an officer, he might also manufacture a
more plausible lie against a different officer.” Anderer v.
Jones, No. 01-C-0668, at *7 (E.D. Wis., Sept. 30, 2002) (em-
phasis added). As I stated earlier, I wholeheartedly agree
with that part of the district court’s finding and statement
that JR’s allegation of abuse does fall far short of fulfilling
the good-faith standard required to establish probable
cause.
Also, the majority’s contention that “JR told several police
officers the same story,” Opinion at *9, is inaccurate and
misleading; for the record reveals the contrary, i.e., that JR
44 No. 02-3669
was neither truthful nor forthcoming with the IAD investi-
gators about his previous rape allegations against Cook. At
the Marina, the scene of the burglary, after JR had been
apprehended by Officer Cook, he began “screaming and
yelling and accusing [Cook] of attempting to rape him.”
Cook Aff. ¶ 11. JR also continued his barrage of obscenities
and threats by stating that Cook was a “f***ing pig and I’m
going to get you.” Hoerig Aff., Ex. 1001 at 25. Once again,
after JR had been transported to the Second Precinct Police
Station, JR again accused Cook by pointing at him and
stating “that officer raped me.” Cook Aff. at ¶ 30. However,
once the investigation into the allegations against Anderer
commenced, at no time did JR repeat this absurd and
ridiculous rape allegation to IAD investigators. Instead, JR
only stated to them that Cook “nudged him on his buttock
with a flashlight.” Smith Report ¶ 5 (emphasis added). This
statement (that Cook had “nudged” him in the buttock) was
in all likelihood more “true” than JR’s “obvious lie” that
Cook raped him, but it does not support the majority’s
conclusion that “JR told several police officers the same
story . . . .” Opinion at *9. Moreover, even if JR had re-
peated his prior rape statement to the investigating
officers—rather than restore his credibility, the juvenile’s
willingness to repeatedly make a specious rape claim against
police officers (which the district court judge termed as an
“obvious lie”), if anything, would have served to further
diminish JR’s credibility concerning his concomitant child
abuse allegation.
As for the very powerful evidence that JR was presently,
and in the immediate past had been, undergoing treatment
for psychiatric and behavioral problems which necessitated
the prescription of a myriad of psychotropic drugs—and that
he had failed to take his medicine on the day in question (the
very day he participated in the boat burglary, levied false
allegations of rape and abuse against Cook and Anderer, made
numerous threats of harm against the arresting officers and
somehow ended up with a bloody nose and accused a police
No. 02-3669 45
officer of causing it) should have raised the red flag of
caution and suspicion for investigators—the majority says
only that “the fact that the investigating officers knew
about JR’s psychiatric medication does not ipso facto negate
JR’s credibility or require the officers to further investigate
JR’s medical history to substantiate or refute his claim of
abuse by Anderer.” Opinion at *11. No one says now, or at
any time, that this one fact alone would even be sufficient
to refute the abuse claim. Surprisingly, in an attempt to
support their assertion, the majority relies on this Court’s
holdings in Dreibel v. City of Milwaukee and Spiegel v.
Cortese. See Opinion at *11. But Dreibel is wholly inapposite,
for in that case (unlike the instant case), the purported
victim’s allegation that he was struck by a police officer was
bolstered by “numerous witnesses who [were allowed to]
g[ive] [more than] sufficient corroborating testimony to
establish that [the police officer] may have committed a
battery . . . .” Dreibel, 298 F.3d at 644 (emphasis added).
Yet, in this case, not one living, breathing individual
corroborated JR’s allegations of abuse. ARE WE REALLY
TO BELIEVE THAT ANDERER, ALL FOUR OF HIS
FELLOW OFFICERS (WHO WERE ON THE SCENE) AND
MITCHELL ARE ALL LIARS? Moreover, there was
absolutely nothing to interfere with the MPD and Chief
Jones from waiting a few days, or even weeks, while they
pursued their investigation and gathered sufficient evidence
about the allegation. At the very least they should have
consulted with the independent senior law enforcement officer
of the county, i.e., the D.A. or his representative, before
taking the most serious step of subjecting Officer Anderer
to arrest (as is the department’s modus operandi for an
investigation into an alleged crime with accompanying serious
consequences), confinement and ultimate discharge.
The majority’s reliance on Spiegel is likewise inappropri-
ate, for the complainant in Spiegel was found to be reason-
ably credible, despite “inconsistent” statements to officers.
46 No. 02-3669
See Opinion at *11; Spiegel v. Cortese, 196 F.3d 717, 724
(7th Cir. 2000). By contrast, in the case before us, the police
had available to them a plethora of evidence, beyond that of
merely “inconsistent” statements to authorities, establish-
ing beyond doubt that JR was unbelievable and untrustwor-
thy: (1) he had made a false allegation of rape— an “obvious
lie”—against Officer Cook at the same time he accused
Anderer of abuse; (2) he had expressed a clear and unam-
biguous intent to sue and make money off of his arrest and
to “have the arresting officers’ jobs”; (3) he was supposed to
be ingesting five or six prescription drugs each
day—including three (Paxil, Seroquel, and Adderall) which
treat mental and behavioral deficits (schizophrenia, gener-
alized anxiety disorder, attention deficit disorder, etc.)—
and he had not taken his medication that day; (4) he had a
history of delinquency, was a “constant problem” on Officer
Shoman’s beat, and furthermore his mother was “not
surprised” that he was arrested for burglary; and (5) there
was not one noticeable sign of physical abuse on his body,
much less evidence that would suggest he had been punched
in the face or nose, i.e., there were no marks, bruises, cuts,
abrasions or lacerations on the boy’s face or nose, except the
two small cuts on the inside of his lip; which more likely
were from sources other than an alleged punch from a 200 lb.
male to the facial area.12 I am convinced that the very
nature of this evidence should have led “a reasonable officer
to be suspicious.” Hebron, 18 F.3d at 422-23. The combina-
tion of these factors, when considered in their totality should
have severely undermined and/or destroyed the validity of
JR’s fabricated and malicious statements, as reflected in the
12
The majority’s characterization of JR as having “split lower and
upper lips” is highly inaccurate. Opinion at *9. Furthermore, it
defies logic to suggest that a reasonable person would conclude
that JR had been punched in the face when, although there were
minor cuts on the inside of the juvenile’s mouth, there were no
corresponding cuts, contusions, lacerations, swelling or any other
sign of impact on the outside of JR’s face, nose or mouth.
No. 02-3669 47
district court’s finding that JR’s previous “fanciful allega-
tions against [Officer Cook]” raised “serious issues concern-
ing JR’s credibility.” Anderer v. Jones, No. 01-C-0668, at *7
(E.D. Wis., Sept. 30, 2002) (emphasis added).
While I am well aware, and agree, that the law does not
require investigating officers to “exclude every suggestion
that a victim is not telling the truth” prior to making an
arrest, Spiegel, 196 F.3d at 724 (emphasis added), the facts
and circumstances of this case most certainly would have
“le[d] a reasonable officer to be suspicious” and most cau-
tious of his claims. Beauchamp, 320 F.3d at 743. Under
these conditions, where investigating officers knew that the
position of an officer who had been employed by the Depart-
ment (3 ½ years service on the force) was in jeopardy, and
that the claimant was an incorrigible, malcontent, out-of-
control psychotic juvenile, JR (12 years of age), who made
what may best be characterized as flippant and offhand
accusatory statements13 that he had been hit by Anderer
and raped by Cook; can the majority really argue on legal
grounds that the investigators did not have a duty to do
more investigating into the juvenile and his statement? I
think not. I am therefore at a loss to understand the major-
ity’s conclusion that JR was a reasonably credible witness
and that no further investigation into his allegation was
necessary, which is in sharp contrast with the credibility
findings of the trial judge, as well as my personal appraisal.
See Opinion at *8-10 (citing the “reasonably credible wit-
13
Officer Logan testified that just before JR made his allegation,
i.e., pointing at Anderer and stating “that officer hit me,” JR and
the other juveniles were seated at a table in the garage and while
Logan “was watching the juveniles at the table, they were all
laughing (including JR) about their situation. Therefore, despite
the implication by the majority that JR made his claims against
Anderer in a sober and reflective manner, JR was actually just
continuing his laughing, joking, boisterous and out-of-control
behavior when he implicated Anderer.
48 No. 02-3669
ness” standard, and refuting “Anderer[‘s] claim[ ] that JR
was not a credible victim . . . .”).
C. Lack of Evidence Corroborating JR’s Claims of Abuse
As clearly portrayed in the photographs taken immediately
after the alleged assault as well as the reliable affidavit
testimony of officers that examined JR (Officers Logan and
I.D. Techs Brown and Kathrein), there wasn’t one scratch
or bruise nor any type of abrasion, contusion or blemish on
the outside of JR’s face, nose or mouth. In spite of this, the
majority attempts to lend credence to the trial judge’s spe-
culatory statement (i.e., that “J.R.’s statement that Anderer
hit him was consistent with the blood on J.R.’s face and
shirt”). In doing this the majority evidently relies on JR’s
bloody nose and dirty and worn shirt, as well as two cuts on
the inside of his mouth and upper lip, see Opinion at *10, to
somehow validate JR’s (otherwise unbelievable) story and
relieve the police from performing a reasonable investiga-
tion into the validity of his delusionary claim of abuse. In so
doing, the majority completely casts aside any and all
exonerating testimony from the citizen witness (Mitchell)
and six police officers (two of whom clearly stated they did
not see any physical confrontation between Anderer and JR,
and four of whom stated no such confrontation took place).
See Opinion at *12. The majority also somehow sees fit to
ignore the sworn affidavit testimony and exhibits (photo-
graphic renditions of JR), see Opinion at *12-13, submitted
by the trained and knowledgeable I.D. Technicians, David
Brown and Kara Kathrein, who concluded that JR’s lip cuts
were most likely due to “a pre-existing condition” and that
they did not appear to be “caused by a punch . . .,” Brown
Aff. ¶ 5, 6; see also Kathrein Aff. ¶15, and which instead
could more likely have been caused by JR biting his inner
lip or as a result of a dried out mouth condition and a
canker sore. Indeed, Brown claimed—and we must accept
as true his statement—that “th[e] injury was so minor that
it was not worth taking a picture of except for the purpose
No. 02-3669 49
of being able [to] identify in the future the exact extent of
the alleged injury [JR]” referred to. Brown Aff. ¶ at 6. As
Kathrein maintained, the “small cut appeared [to be a] bit[e]
[to the inner] lip or . . . a canker sore,” rather than an injury
caused by a “punch to his face.” Kathrein Aff. ¶¶ 15, 16
(emphasis added).
The majority attempts to cast to the winds and dismiss
the photographs and affidavit testimony submitted by the
I.D. Techs’ out of hand, on the purported basis that “one ID
tech did not photograph JR until after Anderer had already
been arrested, and so would have had nothing to contribute
to the probable cause determination prior to his arrest.”
Opinion at *13. This statement is also inaccurate, for the
fact remains that I.D. Technician David Brown did take the
photographs of JR well prior to Anderer’s ar-
rest—photographs taken at 10:15 p.m.—a full two and a
half hours before Anderer’s 12:35 a.m. arrest. The majority
also criticizes the time frame during which these photo-
graphs were developed by stating that the “photographs [of
JR] . . . were not developed until after Anderer’s arrest.”
Opinion at *11. The question naturally arises: are photo-
graphs usually taken and DEVELOPED at the very scene of a
crime of this nature? I think not (at least not before the
advent of digital cameras which, at the time, were not
carried by police officers).
Furthermore, although the photographs were not developed
until post-arrest, the majority’s argument that they are
thus irrelevant is a red herring.14 See Opinion at *13. These
14
I take issue with the majority’s description of the statements
made and photographs taken by the I.D. Techs as “irrelevant facts
which have no bearing on what the officers reasonably knew when
they arrested Anderer.” Opinion at *11, n.9. Although I agree that at
the time of arrest these facts may have been irrelevant on their
own, they do demonstrate that the IAD’s assessment of the
evidence in this case was unreasonable and that further investiga-
(continued...)
50 No. 02-3669
photographs are relevant to the probable cause inquiry be-
cause the developed negatives support the determination of
ID Technician David Brown that the cut on JR’s inner lip
was the result of a “pre-existing condition” such as a “dr[ied-
up] lip” or “canker sore” and thus did not appear to be
“caused by a punch.” Brown Aff. ¶¶ 5, 6; Kathrein Aff. ¶16.
Furthermore, the majority fails to recognize that David
Brown’s determination that JR’s “injuries” were not consis-
tent with abuse was made well before Anderer’s arrest
(at 10 p.m., two hours prior to Anderer’s arrest). Thus, both
the pictures of JR’s lips before and after the arrest, and the
testimony of the I.D. Technicians who took them, support
the conclusion that JR’s injuries were not consistent with
a punch to the face from a 200-lb. man and, thus, casts
grave doubt on Chief Jones’s and his command officers’
decision to place Anderer under arrest for abuse and Officer
Hoerig’s less than forthright statement that the cuts on JR’s
lips were either “serious” in nature or consistent with
abuse. See Hoerig Aff. ¶ 16.
Additionally, contrary to the majority’s contention,
although the other I.D. Technician, Kara Kathrein, took
pictures of JR approximately an hour after Anderer’s arrest,
her stated observation that JR’s lip cut “was not consistent
14
(...continued)
tion was warranted because JR’s alleged “injuries” were not
serious enough to make his allegations of being hit by a 200-lb.
police officer reasonable. See supra pp. 47-55. In addition, when
viewed in the light of all of the other factors which made JR an
unreliable witness (such as: (a) his out-out-of-control behavior; (b)
his failure to take his medication; (c) his propensity to make up
allegations about other officers, i.e., stating that Cook “raped
him”; and (d) the lack of one bruise, scratch, abrasion or laceration
on his face or nose) the ID Tech’s pictures and statements give us
a clear picture of what the situation was that night, and the
shocking lack of good-faith and judgment the IAD used when the
proceeded to arrest Anderer on these utterly baseless and
unreasonable charges. See infra pp. 43-44, 52-54, 81-85.
No. 02-3669 51
with being struck in the face by an adult male,” Kathrein
Aff. ¶ 16 (emphasis added), is certainly relevant to the
reasonableness of the probable cause determination, since
Kathrein’s observations of JR were very proximate in time to
Anderer’s arrest. See Opinion at *13. Again, the majority
appears to misconstrue Anderer’s argument regarding the
importance of the I.D. technicians’ observations that the
“injuries” referred to were inconsistent with a punch. The
majority states in its opinion that I.D. Technician Brown’s
and Kathrein’s accounts of JR’s injuries on the night of his
arrest are irrelevant because police officers “themselves reg-
ularly investigate batteries against persons and are capable of
assessing the nature and possible cause of injuries” and,
thus, there was no reason “these ID techs should have been
consulted by the officers investigating JR’s claims prior to
arresting Anderer.” Opinion at *12-13. Might I make clear
that I am not arguing that the investigating officers were
under any duty, much less an obligation, to ask the I.D.
Technicians for their opinions before reaching their determi-
nation that the injuries were or were not caused by Anderer.
Instead, Anderer argues (and I agree) that the observations
of these QUALIFIED EXPERTS who personally observed,
witnessed and photographed JR’s alleged lip lacerations
after he arrived at the station—and, more specifically, their
opinion that the condition of JR’s lip injuries were inconsis-
tent with the allegations of abuse—are relevant in determining
whether Lt. Hoerig’s assessment of the juvenile’s injuries to
the contrary was reasonable or credible. It was not. Just as
there is no requirement that investigators consult with I.D.
Technicians about the possible cause of injuries to an
alleged victim, neither is there any requirement that an indi-
vidual get a second opinion when diagnosed with a malignant
brain cancer which requires surgery; however, such an
opinion is often helpful and instructive and could very well
inform the initial examining doctor of something he or she
may have overlooked. After all, two minds, especially those
specifically trained and possessing a great amount of experi-
52 No. 02-3669
ence, are frequently considered more convincing and helpful
than one.
It was illogical and indicative of incredibly poor judgment
for Hoerig and the IAD investigators to cite JR’s “inju-
ries”—including his inner lip cuts—as evidence supporting
their decision that there was probable cause to arrest
Anderer for abuse of a child without a scintilla of evidence
as to any bruise, abrasion, blemish, contusion or laceration
to JR’s outer facial area consistent with the juvenile’s flip-
pant and offhand accusation that he was punched in the
face and mouth by a 200-lb. man while entering the squad
car. There is no evidence in the record that JR’s inner lip
cut had changed in appearance (improving or worsening) in
the short space of time between Hoerig’s examination of JR
(approximately 9:15 pm), Brown taking his photographs
(10:15 pm), Anderer’s being arrested (12:30 am) and the
time at which Kathrein took her photographs (1:30 am).15
Thus, as I have pointed out earlier, viewing the facts in a
light favorable to Anderer, as we must at this stage of the
proceedings, veteran officer Kathrein’s observations that
JR’s inner lip cuts resembled “pre-existing” canker sores or
a “bitten lip” causing bleeding were, contrary to the majority’s
contention, highly relevant to the probable cause inquiry.
See Opinion at *13. This evidence casts serious doubt on Lt.
Hoerig’s most questionable and unfathomable determination
that “JR[‘s] [lip] injuries [were] consistent with being hit in
the mouth,” Hoerig Aff. ¶ 16 (emphasis added), and thus
15
Because there is no evidence that the injury changed in
appearance between the time when Lt. Hoerig examined JR and
when Kathrein took her photographs, Kathrein’s opinion that the
cut was “very minor,” there was “no bruising on his face . . . [h]e
did not have a swollen or fat lip,” “he had no visible signs of
injury,” and thus his condition was “not consistent” with a punch
(formed at the time she took the photographs) should be consid-
ered as evidence that the alleged wound was not consistent with
JR’s allegation of abuse. Kathrein Aff. ¶16; see Hoerig Aff. ¶ 16.
No. 02-3669 53
also serve to undermine Hoerig’s careless and unsupported
judgment that there existed probable cause to arrest
Anderer.16 Did this constitute a good-faith probable cause
inquiry? The answer is NO. Thus, I reiterate that the
statements of the I.D. Technicians, which are contrary to
those of Hoerig and the IAD investigators, were highly
relevant when considering the question of whether there
was probable cause.
It is obvious that Anderer’s arrest, which the district
court and the majority have seen fit to uphold as supported
by probable cause, was at least in part predicated on Lt.
Hoerig’s recommendation to Chief Jones that probable
cause existed. See Opinion at *8-9. This is in spite of the
fact that no living person interviewed either before or after
the Anderer’s arrest could corroborate JR’s claims of abuse.
For example, Officers Michael Jones and Jeffrey Logan
testified that they had no idea what caused the alleged in-
16
Over and above Brown’s and Kathrein’s testimony regarding
JR’s injury, the photographs themselves (true and accurate rep-
resentations of the condition of the juvenile’s facial area after
reaching the police station) reflect only a minor laceration on the
inside of JR’s bottom lip and a slight blemish inside the upper
lip—the type of blemishes that would be consistent with and
which would be more likely attributable to any number of other
factors, such as JR biting his lip or canker sores caused by a dry-
mouth condition associated with, and intensified by, the combina-
tion of the myriad of medications JR had been ingesting. See
David Dunplay, et al., PHYSICAN’S DESK REFERENCE 1587 (58th
ed. 2004) (giving the incidence of dry mouth associated with Paxil,
just one of the medications JR was taking, as about 18% in clinical
trials). Importantly, the photographic evidence as well as the ID
Tech’s testimony, establishes the fact that there was no swelling,
bruising, redness, trauma or abrasions of any kind anywhere on
the juvenile’s facial area, which one would observe on a child who
has been hit by a 200-lb. man. See Brown Aff., Exh. 1000; see also
Kathrein Aff., Exh. 1006.
54 No. 02-3669
jury to JR. In addition, as outlined above, I.D. Techs Brown
and Kathrein testified as to the lack of any bruise, blemish,
abrasion or laceration on JR’s face or nose and to the fact
that JR’s “injuries” were not consistent with being punched
in the mouth or nose by a 200 lb. man. Also, as set forth
infra, Officers Shoman, Centeno, Cook, and Bohlen, as well
as the lay witness, Mitchell, testified that they did not
witness any altercation whatsoever between Anderer and
JR, contrary to JR’s allegations. In conjunction with the tes-
timonial evidence, the pictures taken both before and after
Anderer’s arrest do not corroborate JR’s story. Rather, these
photographs and statements establish that there were no
cuts, bruises, abrasions, lacerations, contusions or other
signs of trauma to JR’s face which might tend to give some
credence to his claim that Anderer had punched him. Thus,
when all the facts and circumstances in the record are
viewed in the light most favorable to Anderer as the law
requires us to do at this stage of the proceedings, I remain
convinced that probable cause was not established and,
furthermore, that it was unreasonable for Lt. Hoerig to
deduce, for the district court to speculate, and for the
majority to similarly conclude, that Anderer “had commit-
ted . . . an offense.” Spiegel, 196 F.3d at 723 (quoting Qian
v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999)).
D. Anderer’s Fifth Amendment and Contractual Rights
More importantly, THE MPD’S PROBABLE CAUSE DE-
TERMINATION, AS WELL AS THE DISTRICT COURT’S
FINDING AND THE MAJORITY’S OPINION RATIFYING
THAT DECISION, leave a great deal to be desired insofar
as each one of them rely on Anderer’s “TOTAL FAILURE
TO PROVIDE ANY EXPLAINATION FOR THE INJURIES”
AS A “CIRCUMSTANCE” SUPPORTING JR’S CLAIM OF
ABUSE. Opinion at *10 (emphasis added). After all,
Anderer properly invoked his lawful contractual
No. 02-3669 55
right—which is protected by his employment contract with
the MPD—not to give a statement without representation
present while he was under investigation for a crime. In ad-
dition, like any other citizen of the United States, including
law enforcement officers, Anderer had every right to refuse
to make any statement that could be used against him in a
criminal proceeding under the Fifth Amendment to the
Constitution.
As to his contractual rights, the MPD Rules and Regulations
set forth that:
In investigations that require an immediate inter-
view, the member will be allowed a reasonable op-
portunity to obtain the presence of and to consult
with a representative of his/her choice before and
during the interview. If a representative of the
member is not readily available and if the supervisory
officer determines that it is necessary to immediately
continue the interview to complete the investigation,
the supervisor shall consult with the Commanding
Officer of the [IAD] prior to the continuation of such
an investigation. If any member being interviewed by
a supervisory officer requests representation, and that
representation is denied, the supervisory officer shall
prepare an In the Matter of Report indicating the
circumstances which led up to the request for repre-
sentation and the reason why the representation was
denied.
MPD Rule 3/450.05(D)(8) (emphasis added). Additionally, I
must note that, according to the MPD Rules and Regulations
which were received into the record as evidence, an officer
can be compelled to answer questions posed by an investi-
gating supervisory officers only when, prior to the inter-
view, the officer IS GRANTED IMMUNITY and advised that
any answers to questions presented and responses made
thereto “and the fruits thereof, cannot be used against [him]
56 No. 02-3669
in any criminal proceeding.” See MPD Manual §3/450.05(D)(5);
see also Driebel, 298 F.3d at 638 n.8. At no time was
Anderer offered immunity and he was never compelled to
give a statement, nor was he provided with a union repre-
sentative as he demanded, because he was arrested shortly
thereafter. However, IAD officers did attempt to coerce a
statement from him in complete disregard for their own
regulations. Detective Harrison “asked if [Officer Anderer]
would give a statement,” and Anderer told Harrison, “ab-
solutely not, not without union representation.” Anderer Aff.
¶¶ 71, 72. Also, Detective Harrison, who, as an acting MPD
command officer (and like every other MPD officer), is sworn
to uphold the laws of the State of Wisconsin and the ordi-
nances of the City of Milwaukee, then proceeded to blatantly
threaten Anderer when stating that she was “going to get
a sergeant [t]here to [do a] PI-21.” Id. at ¶¶ 73, 74. This
meant she was going to get a sergeant to compel and force
Anderer to give a statement under threat of demotion,
disciplinary action or even discharge. See MPD Rule 3/450.05
et seq. What was not stated to Anderer was that any state-
ment that might have been given as the result of a PI-21
could not be used against him in any criminal proceeding.
As it turned out, Harrison and the IAD investigators had no
intention of ever “PI-21ing” Anderer because their goal
throughout this pre-ordained and result-orientated process
was to arrest him, therefore, the speedy arrest process
continued while Anderer remained silent.
It is interesting to note that, at this time, before his ar-
rest and after her threat to compel him to speak, Anderer
did speak to Detective Harrison “off of the record . . . .”
Anderer Aff. ¶ 75. Anderer asked Harrison what he was
going to be charged with and, according to Anderer she
responded: “That’s what doesn’t make any sense. He’s ac-
cusing you of PUNCHING HIM WITH THE BACK OF YOUR HAND
AND THE KID HAS NO INJURIES OTHER THAN A SMALL CUT ON
THE INSIDE OF HIS LIP, WHICH YOU CAN BARELY SEE, AND
No. 02-3669 57
WHICH IS NOT CONSISTENT WITH A PUNCH.” Id. at ¶ 76
(emphasis added). Anderer then gave the eyewitness James
Mitchell’s address and phone number to Harrison and
watched as she transcribed this information in her note-
book, trusting that he (Mitchell) might be contacted to
corroborate Anderer’s lack of involvement in the alleged
incident. Id. at ¶77-78. Anderer also asked Harrison if Officer
Cook was going to be charged with rape, and Harrison
replied that Cook was not going to be charged and that he
(Anderer) was the sole target of the investigation. Id. at
¶79. Anderer responded by saying “that’s bullshit, I’m 200
pounds, if I would have punched that kid, I would have left
some brusing or swelling on his face, and would have cuts
or redness on my hands . . . .” Id. at ¶ 80. Anderer then
requested that JR be taken to be “medically cleared” (or ex-
amined by a medical professional). Id. In addition, Anderer
displayed his hands to the detectives, which Harrison
examined, and at that time he (Anderer) requested that his
hands be photographed. Id. at ¶80-81. Harrison told
Anderer that the I.D. Technician had left, but she later
reassured him that “WE KNOW [ALL OF] THESE COMPLAINTS
ARE BULLSHIT . . . WE ARE GETTING TIRED OF INVESTIGATING
17
FALSE ACCUSATIONS.” Id. at ¶ 81-82 (em-phasis added). A
few minutes later, Anderer once again requested that
photographs be taken of his hands. Id. at ¶ 94. Instead,
Harrison’s superior, IAD Detective Mercedes Cowan, exam-
17
In a curious and unexplained about-face Detective Harrison
subsequently changed her story and, now playing in tune with the
Jones orchestra, told Lt. Hoerig that she believed JR’s story and
that, in her opinion, there was probable cause to arrest Anderer.
Harrison Aff. ¶ 21. Whether Harrison was playing good-cop/bad-
cop or she was pressured by Hoerig and officers above her to go
along with her (Hoerig’s) verison of events is unknown. However,
assuming Harrison’s statements to Anderer were truthful (i.e., that
she thought JRs complaint was false) she did not believe there was
probable cause to arrest Anderer.
58 No. 02-3669
ined Anderer’s hands with a high-powered flashlight and
stated “you don’t need a photo tech.” Id. at ¶ 98. Photo-
graphs never were taken of Anderer’s hands nor was the
pristine and unblemished condition of his hands ever noted
in the record, and, as noted above, the MPD “fast-track”
arrest process resulted in Anderer being arrested shortly
thereafter. Was this blatant declination of his request for
photographs of his hands an example of good-faith and
fairness? I think not.
Furthermore, in their haste to arrest, confine and humil-
iate Anderer, the MPD went so far as to ATTEMPT TO HAVE
ANDERER BOOKED AND JAILED IN HIS POLICE UNIFORM,
apparently in an effort to further demean him. However,
the Milwaukee County Sheriff’s Department officers, in an
exercise of good judgment, refused to admit and accept
Anderer into the Criminal Justice Facility (county jail)
dressed in his police uniform, and sheriff’s officers directed
that he change into his street clothes. Thus, following the
IAD’s rush to judgment, Anderer was seized and arrested
and, to add insult to injury, was very close to being subjected
to further ridicule, and possible physical harm, by almost
being jailed in his police uniform (there being little affection
between prisoners and law enforcement personnel).
As mentioned above, under his employment contract with
the City of Milwaukee Police Department (specifically, MPD
Rule 3/450.05(D)(7)), Anderer was entitled to “have a
representative of [his] choice present” during questioning;
thus he was fully justified in relying on his CONTRACTUAL
RIGHT TO REFUSE TO ANSWER QUESTIONS, SPECULATE OR
ATTEMPT TO PROVIDE ANY TYPE OF EXPLANATION AS TO WHEN,
WHY AND HOW JR SUFFERED THE NOSEBLEED. The fact that
“Anderer made no comment or report concerning how JR
[might have been] injured,” Jones’s Br. at 20, could not and
should not have been held against him. Also, by no stretch
of the imagination, could Anderer’s refusal to speculate as to
the cause of JR’s alleged injuries be considered a factor in
establishing probable cause to arrest him for abuse (pursu-
No. 02-3669 59
ant to his Fifth Amendment right not to incriminate himself).
Nevertheless, the district court, without a scintilla of
precedential support, exhibited faulty reasoning and
SPECULATED THAT ANDERER’S LACK OF “EXPLA[NATION FOR]
THE CAUSE OF JR’S BLOODY NOSE” could be considered a
“factor[ ] sufficient to supplement any lack of credibility in
JR’s statement[s].” See Anderer v. Jones, No. 01-C-0668, at
*11 (E.D. Wis., Sept. 30, 2002) (emphasis added). Even more
unfortunate is that my colleagues in the majority readily
adopted this unsound rationale, without any support in the
law, holding and stating that:
Given these circumstances—a 12-year-old’s injuries
and bloody appearance, his consistency in reporting
how he had been injured, and Anderer’s total failure
to provide any explanation for the injuries when no
other officer observed JR in that condition prior to
turning him over to Anderer’s sole custody—we believe
that Milwaukee police officers had probable cause to
believe that Anderer had intentionally or recklessly
caused JR’s bodily injury.
Opinion at *10 (emphasis added). The majority’s mysterious
use of Anderer’s refusal to give a statement as a premise on
which to base their determination of probable cause, is un-
supported with any case law and rests on a foundation of
quicksand.
The district court’s, as well as the majority’s, willingness
to rely on Anderer’s refusal to give a statement as an es-
sential prong of the “evidence” establishing probable cause
to arrest him for a crime is particularly troubling when one
considers and reflects upon over 200 years and volumes of
precedent in case law supporting Anderer’s Fifth Amendment
right protecting him against self-incrimination. IT IS INDEED
“WELL-SETTLED . . . [THAT] ‘[P]OLICEMEN . . . ARE NOT RELE-
GATED TO A WATERED-DOWN VERSION OF CONSTITUTIONAL
RIGHTS.’ ” Driebel, 298 F.3d at 637 (quoting Garrity, 385
60 No. 02-3669
U.S. at 500) (emphasis added). And the Fifth Amendment’s
self-incrimination protections, which prevent the “govern-
ment [from] forc[ing] a person to make a statement, even
out of court, that might be used as evidence that he had
committed a crime,” Atwell v. Lisle Park Dist., 286 F.3d 987,
990 (7th Cir. 2002), are well-established. Id. Thus, I am at a
loss to understand how the MPD, the district court, and
now the majority include Anderer’s proper and justified
exercise of his well-established Fifth Amendment right to
refuse to give a statement which might incriminate him (in
addition to his separate and distinct contractual right not
to give a statement absent representation) as a factor in
satisfying the probable cause standard. After all, a person
“may not be detained even momentarily without reasonable,
objective grounds for doing so; and his refusal . . . to answer
does not, without more, furnish those grounds,” Florida v.
Royer, 460 U.S. 491, 497-98 (1983) (emphasis added)—much
less can a refusal to answer potentially incriminating
questions ever be construed as constituting an element of the
probable cause requirement to arrest.
Again, I am well aware that according to MPD Rules, and
consistent with the law, a police officer who is under
investigation in matter which may result in a criminal
proceeding may be compelled to give a statement during an
investigation—but NOT UNTIL SUCH TIME AS HE HAS BEEN
GRANTED IMMUNITY FROM CRIMINAL PROSECUTION IN THE
MATTER UNDER INVESTIGATION. See Driebel, 298 F.3d at 638
n.8; accord Lefkowitz v. Cunningham, 431 U.S. 801, 806
(1977). This was obviously not the case here (because
Anderer was never compelled to give a statement), and so
this exception has no bearing on Anderer. Nonetheless, con-
sidering Anderer’s contractual employment right, as
separate and distinct from his Fifth Amendment rights, the
MPD’s concerted effort to compel a statement absent
representation (even by threat)—and then to make use of
his lawful refusal to comply without the requested repre-
No. 02-3669 61
sentative present as a basis for probable cause—is clearly
violative of his contractual employment rights, as well as
his well-established constitutional rights to refuse to
answer.
Indeed, in the context of a lawful Terry stop (an investiga-
tory questioning supported by reasonable suspicion)—
which may be the most analogous situation—the question of
whether an investigating officer may detain an individual
for refusing to answer a potentially incriminating inquiry,
or whether he may use such refusal to elevate his mere
suspicion to the level of probable cause, is an issue neither
the U.S. Supreme Court nor this Court has resolved to date.
See, e.g., Tom v. Voida, 963 F.2d 952, 959 n.8 (7th Cir.
1992); cf. Cf. Hiibel v. Sixth Judicial Dist. Court, 124 S.Ct.
2451, 2460-61 (2004).
The majority insists on using Anderer’s “failure to provide
an[ ] explanation for [JR’s] injuries” as a factor supporting
probable cause. Opinion at *4, *10 (emphasis added). To the
extent that the majority relies on Anderer’s proper invoca-
tion of his contractual rights, as well as his inherent Fifth
Amendment rights to refuse answer potentially incriminat-
ing questions when the suspect in a criminal investigation,
to “permit the [MPD] officer[s] to elevate [their] reasonable
suspicion into probable cause,” Tom v. Voida, 963 F.2d at
959 (emphasis added), I disagree with this newly created
theory of law which employs most novel reasoning. In their
attempt to support their argument, the majority has seen
fit to follow the ill-advised MPD and district court’s errant
finding, which includes his “refusal” to answer as a factor
establishing probable cause, and has entered into an unchar-
tered area of the law; essentially creating this new spurious
theory of the law which runs contrary to Anderer’s well-
established rights. Why the MPD, district court and now
the majority relied on this legal hand grenade, is most
puzzling. Anderer properly invoked his contractual rights
when he stated to Detective Harrison that he would
62 No. 02-3669
absolutely not answer any questions without union represen-
tation present. Given this fact, Anderer was acting well
within his protected rights (both constitutional and contrac-
tual) when he refused to give a statement to the IAD investi-
gators.18 Thus, as a matter of logic, there was no reason for
anyone to assume Anderer should have known how the
bloody nose occurred, for there is no evidence in the record
that Anderer has ever undergone medical training (e.g., any
type of training as a paramedic). Also, at the time JR’s nose
began bleeding, Anderer was seated in the driver’s seat
operating the police squad car while the juvenile was seated
and secured alone in the back seat of the vehicle during his
conveyance to the police station.
In the majority’s brief and most limited response to my
analysis on this issue, they initially state, in a footnote,
that “the dissent contends that any reference to Anderer’s
failure to explain JR’s bloody appearance in the probable
cause analysis impinges on Anderer’s Fifth Amendment and
contractual rights, Anderer himself makes no such argument
and, in fact, concedes his inability to explain JR’s injuries.”
Id. (emphasis added). I disagree with this unsupported free-
lance interpretation of Anderer’s statements in the record.
The majority seems to infer that because Anderer, in their
opinion, did not make an argument regarding his contrac-
tual and Fifth Amendment rights, they are of no concern; I
disagree. See Opinion at *10, note 8. It should be noted
that, in his complaint Anderer alleges that he was deprived
of “rights secured to him by the Constitution and laws of
the United States and the State of Wisconsin.” Anderer
Complaint at *1. Anderer specifically refers to violations of
18
It should be noted that Officers Shoman and Cook also exercised
their contractual rights not to make a statement without an
attorney or union representative present when questioned about
the alleged incident involving Anderer and JR.
No. 02-3669 63
his Fourth and Fourteenth Amendment rights as well as
violations of § 1983 in his complaint on more than one
occasion and it is most clear that any probable cause
determination, by its very nature, implicates the Fifth
Amendment once an individual, as in this case, is deter-
mined to be a suspect in a criminal investigation and
questions are posed to him in the course of that investiga-
tion. In addition, in his complaint Anderer (as well as the
other officers) pled his contractual rights when stating that
he told IAD investigators that “he wanted union representa-
tion before making any statement,” and that he knew the
IAD was “there to investigate criminal allegations.” Id. at
*8, ¶ 40, 43. Undoubtedly Anderer, as a three and a half
year veteran of the MPD, was well aware of his constitu-
tional rights, for he was required to inform suspects of them
each and every time he made an arrest in the course of his
duties. Once Anderer was the suspect of a criminal investi-
gation, his Fifth Amendment, as well as his contractual
rights, came into play; therefore, the “operative facts” giving
rise to a violation were pleaded as part and parcel of
Anderer’s Fourth Amendment claim. See Kyle v. Morton
High Sch., 144 F.3d 448, 455 (7th Cir. 1998); see also
Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 168 (1993).
However, even if we are to assume that in this case the
issue was not pled or argued (as seems to be the majority’s
point of view), THE LAW IS VERY CLEAR TAHT A CON-
STITUTIONAL ISSUE MAY BE RAISED SUA SPONTE
AT ANY TIME WHEN IT COMES TO THE ATTENTION
OF THE PRESIDING JUDGE OR JUSTICE THAT AN
INJUSTICE MIGHT RESULT BY NOT ADDRESSING
THE ISSUE. Singleton v. Wulff, 428 U.S. 106, 112 (1976).
This is particularly true in a situation where, as here, A
GRAVE INJUSTIVE DID RESULT, i.e., OFFICER
ANDERER BEING UNCONSTITUTIONALLY ARRESTED
AND, AS A DIRECT RESULT, LOSING HIS TENURED
64 No. 02-3669
POSITION AS A POLICE OFFICER WHICH HE HAD
HELD FOR 3.5 YEARS BASED ON THE FABRICATED
TESTIMONY OF A PSYCHOTIC JUVENILE. As the
Supreme Court pointed out in Singleton v. Wulff:
The matter of what questions may be taken up and
resolved for the first time on appeal is one left
primarily to the discretion of the courts of appeals,
to be exercised on the facts of individual cases . . .
Certainly there are circumstances in which a federal
appellate court is justified in resolving an issue not
passed on below, as where the proper resolution is
beyond any doubt, or where injustice might other-
wise result.
428 U.S. at 121 (internal quotations and citations omitted)
(emphasis added); see also, United States v. Heater, 63 F.3d
311, 332 (4th Cir. 1995); Cruz v. Melecio, 204 F.3d 14, 22
n.7 (1st Cir. 2000); Popovich v. Cuyahoga County Court of
Common Pleas, 276 F.3d 808 (6th Cir. 2002); Davis v.
Blackburn, 803 F.2d 1371 (5th Cir. 1986). But cf. Pearce v. E.F.
Hutton Group, Inc., 828 F.2d 826 (D.C. Cir. 1987). Anderer’s
well reasoned claim, which is supported in the record, that the
City lacked probable cause to arrest him under the Fourth
Amendment is itself a constitutional question. It follows that
the Anderer’s Fifth Amendment rights are implicated because
they are so inextricably intertwined with the issue of whether
or not the City had probable cause to arrest him based, in
part, on his silence. This case should be resolved by this
Court in a way that does not offend the Federal Constitution
or its long-standing principle, embodied in the Fifth
Amendment, that suspects in criminal prosecutions cannot
have their silence, refusal or failure to explain used against
them in a court of law. See, e.g., Griffin v. California, 380
U.S. 609 (1965). I believe that I would be derelict in my
ethical duty if I failed to address this (Fifth Amendment)
issue in view of the fact that Anderer has suffered a grave
No. 02-3669 65
injustice including the loss of his tenured employment as a
Milwaukee Police Officer (3.5 years on the job) based on
what amounts to nothing more than fabricated testimony.
Next, the majority attempts to (in a self-serving interpreta-
tion of his words) highlight the fact that Anderer, in their
opinion, “concedes his inability to explain JR’s injuries,” and
that “Anderer made several voluntary comments to other
officers, including that he did not know how JR received the
bloody nose.” Opinion at *10, n.8. I disagree with this
statement as presented by the majority. As noted above,
although Anderer did make voluntary comments, some of
those qualified as “off-the-record” and the rest were made be-
fore he ever became a suspect. However, they all amounted to
a “refusal” to even attempt to explain what caused JR’s nose-
bleed. I fail to see how these additional references to the rec-
ord (and to “off-the-record” statements by Anderer) have any
relation to, or in any way undermine, Anderer’s well-
established constitutional right under the Fifth Amendment
to refuse to give a statement or his refusal to even attempt
to explain the facts (which was, i.e., a refusal to answer)
and circumstances of an event in which he was suspected of
committing a crime. An “inference of guilt for failure to
[explain the] facts peculiarly [or supposedly] within [Anderer’s]
knowledge,” Griffin v. California, 380 U.S. 609, 614 (1965),
is constitutionally impermissible when based on Anderer’s
refusal to explain or speculate how JR’s nose started to
bleed (indeed one wonders how Anderer, who is not a medical
professional, and who was seated in the front seat of the
vehicle driving the squad car with JR seated in the rear, could
be expected to diagnose the cause of JR’s alleged “nosebleed,”
which was in fact “mostly [mucus] mixed with some blood,”
see Logan Aff. ¶¶ 25-26, and not what would be expected to
result if JR was, as he alleged, punched in the nose by a 200
lb. male). Frankly, the majority misses the point.
66 No. 02-3669
What the majority has failed to consider, reply to or
support in any way with relevant case law or precedent is
the fact that Anderer’s rights under the Fifth Amendment
entitle him to absolute protection from self-incrimination
beginning at the very moment he became a suspect in a
criminal prosecution. Anderer’s statements to Sgt. Jones,
which were informal, off-the-record and made prior to an
investigation being launched, as well as his clearly articu-
lated “off-the-record” comments to IAD. See Opinion at *4.
In addition, Anderer’s “on-the-record” refusals to answer
any questions posed to him and right to remain silent con-
tinued to be protected throughout the course of the IAD’s
query into JR’s preposterous allegations. See United States
v. Hale, 422 U.S. 171, 180 (1975); see also Driebel, 298 F.3d
at 637 (“IT IS INDEED “WELL-SETTLED . . . [THAT]
‘[P]OLICEMEN . . . ARE NOT RELEGATED TO A WATERED-DOWN
19
VERSION OF CONSTITUTIONAL RIGHTS.’ ”). Indeed, the IAD
officers attempted to side-step and take an end-run around
their own regulations by threatening Anderer in an attempt
to coerce him (threats) into giving a statement, however,
cognizant of his rights Anderer once again refused to fall
into the trap and give a statement. I am convinced that it
was constitutionally impermissible for the MPD (as well as
the district court and now the majority) to base their
probable cause determination on “Anderer’s total failure to
provide any explanation for [JR’s] injuries.” See Opinion at
*10; Griffin, 380 U.S. at 614. Such an approach has never
19
It is important to note that the comment Anderer made to Sgt.
Jones immediately after JR was taken out of the car was made off-
the-record and well before he was ever considered a suspect. In
addition, statements made to IAD investigators regarding the
charges were explicitly “off-the-record” when Anderer made them.
In no way can these statements be considered as rising to the
level of a waiver of Anderer’s Fifth Amendment or contractual
rights. See Opinion at *2, *4.
No. 02-3669 67
been endorsed by either the United States Supreme Court
or this Court. See, e.g., Tom v. Voida, 963 F.2d at 959 n.8.
It matters not in the slightest that Anderer related his
refusal or inability to explain JR’s alleged injuries to his fel-
low officers (either before becoming a suspect or after going
“off the record”). It matters even less that Anderer constantly
maintained this position long after the District Attorney and
his immediate subordinate decided that there was no merit
to the charges against him. Also, the fact that Anderer
included a statement conceding his refusal to explain the
cause of JR’s alleged injuries in his pleadings before the
district court (a fact that the majority now believes somehow
affects his Fifth Amendment rights, see Opinion at *10 note
9) is likewise irrelevant. What is important, and what the
majority chooses to overlook or even address in their
opinion, is that at the time the MPD made the determina-
tion to arrest Anderer, its investigators were acting in
violation of his Fifth Amendment protection against
compelled incrimination. By using his “failure to explain
JR’s injuries,” or his absolute refusal to make any formal
statements as to the reason or alleged cause of JR’s bleeding
nose, against him the MPD was impermissibly acting in
derogation of Anderer’s constitutional rights. See Griffin, 380
U.S. at 614.
Furthermore, the majority’s approach to this issue ignores
the forest in search of a solitary tree by disregarding the
exculpatory import of Anderer’s statement. As the majority
points out, Anderer maintained in off-the-record statements
before his arrest, and maintains to this day, that to this day
he does not know how JR’s alleged fabricated injury oc-
curred. Opinion at *10 n.8. For, as this dissent illustrates:
How was Anderer to know the source of JR’s fabricated
injury (which was likely no more than the result of a good
sneeze)?
If anything, the majority’s additional citations to the
record only serve to underscore the fact that Anderer
68 No. 02-3669
throughout this period consistently denied any knowledge
of the cause of JR’s alleged injury and on numerous oc-
casions voiced his ignorance of how and why JR suffered his
“bloody nose.” The majority cannot have it both ways, i.e.,
Anderer’s refusal to speak cannot be used against him while
Anderer’s “off the record” statements about his lack of
knowledge as to how JR’s nose started bleeding are also
used to elevate reasonable suspicion to probable cause.
Anderer’s repeated refusal to answer and avowed ignorance of
what caused the boy to start bleeding does nothing to in-
crease the “probability or substantial chance” that Anderer
was guilty of some wrongdoing such that there could pos-
sibly have risen to the crescendo of establishing probable
cause to arrest him. See Beauchamp, 320 F.3d at 743. Indeed,
Anderer’s conceded and consistent refusal and truthful
inability to explain what had occurred should have, if
anything (and if the IAD had even had knowledge of these
statements, as the majority seems to suggest) been viewed
by a reasonable officer as evidence that Anderer was indeed
telling the truth and not guilty of any wrongdoing. There is
no proof in this record of any inconsistency in the “off-the-
record” statements Anderer made to IAD investigators or
pre-investigation statements he made to his coworkers. In
the end, the majority suggests no justification whatsoever for
the use of Anderer’s constitutionally (and contractually)
protected right to refuse to answer questions against him in
the course of a criminal investigation. See Stewart v. United
States, 366 U.S. 1, 7S8 (1961).
E. Evidence Exculpating Anderer
The great weight of the evidence, including the sworn
statements of six police officers (Officers Logan, Jones,
Cook, Shoman, Bohlen, and Centeno) and one lay witness
(Mitchell), establishes the fact that Anderer did not strike
JR at any time, including the time frame when JR was
No. 02-3669 69
being secured in Anderer’s squad car. However, the district
court, in its order granting summary judgment for the
defendants, journeyed into the wide and boundless abyss of
speculation and conjecture and took it upon itself to state
that ANDERER HAD AN OPPORTUNITY TO HIT JR SOMETIME
AFTER JR WAS IN THE SQUAD CAR by citing “THE TIME IN
WHICH JR WAS ALONE WITH ANDERER IN ANDERER’S SQUAD
CAR,” AS ONE OF THE CIRCUMSTANCES WHICH “WOULD HAVE
GIVEN A PRUDENT OFFICER PROBABLY CAUSE TO ARREST
ANDERER.” Anderer v. Jones, No. 01-C-0668, at *8 (E.D.
Wis., Sept. 30, 2002).
However, the record clearly establishes that Anderer radi-
oed the station (according to police protocol) as he was
leaving the Marina, and arrived at the station “exactly two
minutes and two seconds later.” Anderer Aff. ¶ 43
(emphasis added). Morever, Anderer testified via affidavit
that “[a]t no time did I stop my squad car for anything other
than traffic lights from the time I left the Pump House
Marina until I arrived inside the District No. 2 garage, nor
did I speak to JR during the transport, nor did I hit JR
anytime, ever.” Anderer Aff. at ¶ 44. Nonetheless, JR was
once again deliberately lying and/or fantasizing when he
told Detective Smith, after Anderer’s arrest, that Anderer
had stopped the squad car on the way to the police station
and exited the vehicle in order to yell at him (JR). This
scenario certainly enters into the realm of impossibility,
considering Anderer could have just as easily yelled at the
juvenile from the front seat (there was no need to stop the
automobile) and the uncontroverted fact that Anderer
did indeed arrive at the police station, with JR
secured in the back seat of his squad car, 122 seconds
after leaving the Marina. I am at a loss to understand
how anyone could have believed that the juvenile (JR) was
truthful when telling Detective Smith that Anderer “stopped
the car,” got out of the driver’s seat, “opened the [back]
70 No. 02-3669
door,” and then proceeded to “t[ell] [JR] that he was going
to ‘whip his ass.’ ” With the time that it would have taken
for Anderer to stop the squad car, turn off the ignition switch
(per MPD procedure), remove the key from the ignition,
unfasten his seat belt, open the driver’s side door, exit the
vehicle, close the front door, open the rear door, proceed to
yell at the juvenile, close the rear door, open the front door,
re-enter the vehicle, re-fasten his seatbelt, insert the key,
start the engine, and continue to District No. 2, there is no
possible way all of this could have been accomplished within
the 122 second recorded time frame.
Furthermore, in contrast to the trial judge’s unexplained,
speculative thought process, JR repeatedly specifically stated
that Anderer hit him in the face as he was entering the
vehicle at the Marina and while being secured therein
before the commencement of his conveyance to the
station, not at any other time.20 Nonetheless the district
court, in its journey into the wide and boundless abyss of
speculation, inappropriately chose to rely on “the [amount]
of time Anderer spent alone with JR” on the way to the
police headquarters (only 122 seconds) as evidence corrobo-
rating JR’s claim of abuse. Anderer v. Jones, No. 01-C-0668,
at *11 (E.D. Wis. Sept. 30, 2002). Prior to Anderer’s arrest, JR
never claimed to have been screamed at or slapped during the
conveyance to the police station (while alone with Anderer),
JR only stated that he was hit in the face and mouth as he
was being placed in the squad car, and not at any time
thereafter.
Also, as Anderer points out in his complaint, the MPD
broke with ITS OWN PROTOCOL WHEN, DESPITE LT.
HOERIG’S REPORT THAT JR WAS “SERIOUS[LY]” IN-
20
By all relevant witness accounts (e.g., citizen Mitchell and
Officers Shoman, Bohlen and Centeno), Anderer placed JR in the
squad car without incident.
No. 02-3669 71
JURED, see Hoerig Aff. Exh. 4, THE MPD FAILED TO
TRANSPORT JR TO THE HOSPITAL TO HAVE HIM
MEDICALLY CLEARED, AS REQUIRED TO DO UNDER
BOTH STATE LAW AND MPD RULES AND REGULA-
TIONS. See Wis. Stat. § 938.20(g)(4); see also MPD Manual
§ 3.090.95(H)(5)(b).21 Nonetheless, had anyone medically
trained been called to perform even a cursory examination
of JR (considering Hoerig’s description of JR as being “ser-
iously” injured), such as a paramedic, jail nurse or physician,
the MPD/IAD investigators not only would have discovered
that JR’s lip cuts were inconsistent with a punch (no bruis-
ing, swelling, contusions or abrasions) to his face, they also
would have learned from a proper investigation, interroga-
tion and cursory physical examination, that two weeks
before this incident, THE JUVENILE HAD ENGAGED IN
INFLICTING SELF-MUTILATION UPON HIMSELF (he
had cut crosses into both of his arms). These crosses ob-
viously were still visible on JR’s person.
Had the MPD conducted an adequate physical investiga-
tion, and had JR been asked to explain how he obtained
21
LT. HOERIG APPARENTLY INTENTIONALLY EXAGGERATED AND
MAGNIFIED THE INCIDENT REPORT SHE COMPLETED BY STATING THAT
JR WAS “SERIOUSLY” INJURED WITH “SEVERE CUT[S]/LAC[ERATIONS].”
Hoerig Aff. Exh. 1001. However, even if one were to assume this
is true, the report also states that JR “refused” treatment. Id. If JR
was “serious[ly]” injured, the Lieutenant in charge of the investi-
gation (Hoerig) violated MPD policy and procedure, and possibly
state law, by failing to transport JR (an allegedly seriously injured
person) to a hospital for treatment and obtain a medical release
stating medial attention was refused. See § 938.20(g)(4); see also
MPD Manual § 3.090.95(H)(5)(b) and (c). On the other hand, if JR
was not “seriously” injured, as the uncontroverted evidence (sworn
statements and photographs) set forth and accurately displayed
in this dissent establishes, Det. Lt. Hoerig filed a falsified police
report. Under either scenario this casts Lt. Hoerig’s judgment as
to probable cause in serious doubt.
72 No. 02-3669
these obvious scratches, marks and abrasions on his arms
just below the shoulder, assuming he answered honestly,
the investigators would have learned that they had been
self-inflicted. As Dr. O’Grady stated in an assessment of the
patient, dated April 10, 2001 (it is interesting to note that
Dr. O’Grady’s assessment was performed almost contempo-
raneously to the to the incident in which JR falsely accused
Anderer of assault, April 17, 2001), JR had recently experi-
enced “PARANOIA AND AUDITORY HALLUCINATIONS
[IN WHICH] VOICES WERE TELLING HIM TO HARM
HIMSELF, OR TO HARM OTHERS.”22 See O’Grady Report,
Anderer Aff., Ex. 29 at 1 (emphasis added). JR’s treating
psychiatrist further opined that JR suffered from depres-
sion, ADHD, and psychosis, and that HE WOULD CON-
TINUE TO POSE A “MODERATE” RISK FOR CONTIN-
UED PSYCHIATRIC ILLNESS PROBLEMS “UNTIL HE
C[OULD] BE STABILIZED FOR SOME LENGTH OF
TIME ON [HIS] MEDICATIONS.” Id. at 3 (emphasis
added).
Thus, given JR’s troubled psychiatric condition and be-
havioral disposition at this particular time (history of self-
mutilation, “voices” he heard which “t[old] him TO HARM
HIMSELF OR OTHERS,” and repeated examples of run-ins
with police), JR was fully capable of contriving a story in
relation to his alleged abuse and resulting alleged nose-
bleed in order to cause the previously threatened trouble for
his arresting officer so as to carry out his contrived psy-
chotic intent to harm others and get Anderer and Cook
22
As of June 13, 2001, according to JR’s mother, JR was still
undergoing treatment for “hearing voices,” Hoerig Aff., Ex. 1001
at 48, a fact that is confirmed by reports from JR’s physician at
the time, Dr. Block. See Anderer Aff. Ex. B at 69 (“Hearing voices
telling him to kill himself.”). JR was prescribed Seroquel to help
control his psychological condition and inhibit the “voices” he was
hearing. Id. at 49.
No. 02-3669 73
fired.23 Indeed, JR’s nosebleed was most likely the result of
a normal/hearty sneeze, rupturing a thin membrane or a
blood vessel in his nasal passage, thus causing a nosebleed
(which may have occurred on more than one occasion in the
immediate days leading up to this incident) and thus produced
nasal discharge consisting of “mostly [mucus] mixed with
some blood,” Logan Aff. ¶25.
In any case, what this brief glance into JR’s medical con-
dition makes clear is that even a minimal medical investiga-
tion (consulting a medical health worker to perform a
cursory physical examination) would have alerted investiga-
tors to a plethora of possible alternative medical and logical
explainations for the bleeding exhibited by JR at the Precinct
2 Police Station, the extent to which he had been medicated,
and would have also revealed serious psychiatric problems
manifesting in self-mutilation, which most certainly would and
should have contributed to raising serious doubts as to JR’s
credibility. Instead, Chief Jones and his MPD command
officers placed Anderer on the “express track” to arrest, and
it appears that the four or five investigators involved found
neither the time, THE ENERGY NOR THE INCLINATION TO
COMPLY WITH THEIR OWN RULES AND REGULATIONS (WHICH
REQUIRE THAT A PERSON COMPLAINING OF AN INJURY WHILE IN
CUSTODY SUCH AS JR (LT. HOERIG STATED JR HAD SUSTAINED
23
In addition, had the investigating officers even attempted to
make an in depth inquiry into JR’s medical record or obtain an
explanation for his out-of-control behavior that night they would
have discovered that two of JR’s prescribed medications—Depakote
and Paxil—are listed as having caused abnormal bleeding in users
(the combination of which may have intensified the effect). See
Depakote Side Effects, available at http:www.canadatrustrx.com/
Depakote-information-Depakote-discount.htm; see also, Dunplay,
et. al. PHYSICIAN’S DESK REFERENCE 1585-87 (58th ed. 2004). This
also could help to explain the dried blood on JR’s shirt, which
most likely was the result of previous nosebleeds.
74 No. 02-3669
“SERIOUS INJURY”) BE PHYSICALLY EXAMINED, see supra note
21, and accompanying text) PRIOR TO HAVING ANDERER
ARRESTED.
As for the lack of even one living, breathing person’s tes-
timony corroborating JR’s claim of abuse, reaching out the
majority states that “Sgt. Jones and Officer Shoman could
not corroborate JR’s allegation against Anderer,” but at-
tempts to discount the import of such a fact by noting that
“neither could [Jones or Shoman] refute it.” See Opinion at
*12. As to Shoman, this is an incorrect summary of the
record, for as a reading of her affidavit reveals, Shoman
stated that she was positioned in her squad car slightly in
front and to the right of Anderer’s squad car and witnessed
Anderer walk JR over to the squad car. Although Shoman
did not see Anderer place JR into the car she went on to
state that: “[she] would have noticed a fight [between JR
and Anderer] if one had occurred,” but rather “did not notice
any commotion between Officer Anderer and [JR].” Id.
¶¶ 21, 22 (emphasis added). However, Shoman went on to
tell investigators that she had seen JR “in the back of
Anderer’s squad [car]” and that she had observed “no
physical confrontation [or] injuries or blood on JR” at any
time. Harrison Aff. ¶ 15. Both of these sworn statements by
Officer Shoman also belie JR’s claim that Anderer punched
him immediately after securing him in the back seat of the
squad car. Thus, we must ask ourselves: why should anyone
(Lt. Hoerig, Chief Jones, the district court judge, or the
majority) give any credence to, much less believe, the incor-
rigible psychotic juvenile JR (without even a minimal
investigation into his credibility) over this reliable witness
Officer Shoman? Was Officer Shoman lying?
The majority not only goes about mischaracterizing
Shoman’s exculpatory testimony (incorrectly stating that
Shoman’s testimony did not “refute” JR’s allegation of
abuse), see Opinion at *12, it also casts aside without ex-
planation, in an unusual manner, the additional exculpatory
No. 02-3669 75
testimony from four other police officer witnesses (Bohlen,
Centeno, Logan, and Cook) and the citizen witness (Mitchell)
that, for whatever reason was not sought by MPD investiga-
tors in the time period prior to Anderer’s arrest (Negli-
gence? Bad faith? Orchestrated disregard of fair play and
justice?—call it what you will).
As outlined above, James Mitchell, a citizen who was on
the scene at the time of JR’s arrest, according to his sworn
affidavit, states that he “watched every step of the way while
Officer Anderer [took] [JR] to his squad car,” and that he
continued to observe JR “as Officer Anderer guide[d] [him]
into the back seat of the squad, [affixed JR’s] seatbelt . . .,
[and] close[d] the door [to the car].” Mitchell Aff. ¶ 14
(emphasis added). Mitchell, whose observations were
contemporaneous with the specific time period that JR
claims he was hit or punched, is emphatic that he (Mitchell)
“[a]t no time [saw] Officer Anderer strike [JR], or act in an[ ]
abusive manner toward him,” id. ¶ 15 (emphasis added),
and that Anderer “at all times . . . acted in a very profes-
sional manner” toward the juvenile. Id. ¶ 16 (emphasis
added). Again, I must ask: is it rational to conclude that the
witness Mitchell is lying about what happened and that the
unruly, belligerent and out-of-control psychotic (less than
law-abiding) juvenile is the only person telling the truth?
Does the majority really believe Mitchell was lying?
This is absurd; and given that the investigating officers
were fully aware of the information Mitchell could provide,
and were in possession of his address and phone number,
and considering the incredibility of the fabricating juvenile,
JR, (the claimant himself, and the only person who alleged
abuse had taken place—rape and assault—with proof of
neither), it was furthermore unreasonable for the MPD
command officers and the IAD investigating officers to cut
short their investigation before even attempting to obtain
Mitchell’s, or the other officers’, accounts of the alleged
situation when they well knew the most questionable and
76 No. 02-3669
troublesome character and behavioral traits of the juvenile
they were dealing with.
Corroborating Mitchell’s testimony, Officer Bohlen states
in his affidavit that he “watched Anderer walk JR to his
squad” and “did not notice anything out of the ordinary
when Officer Anderer placed JR in his squad.” Bohlen Aff.
¶¶ 10, 12 (emphasis added). Bohlen also claims that he had
“a direct vantage point to make these observations as there
w[ere] no obstructions in [his line of] view of Officer Anderer
escorting and placing JR in his squad, and at no time was
[he] more than 25 to 30 feet away from Officer Anderer and
JR.” Id. at ¶ 13 (emphasis added).
Officer Centeno (another exculpatory witness and officer
at the scene of the alleged crime) also “saw Officer Anderer
place the boisterous juvenile [JR] in[to] his squad,” and
remarked that “[n]othing unusual happened” between the
officer and the suspect (JR). Id. ¶¶ 13, 14 (emphasis added).
In fact, Centeno goes so far as to remark that “it was not
possible for Officer Anderer to have struck [JR] as [he
(Centeno)] was but one car length away from [Anderer’s]
squad and would have noticed [if] Officer Anderer [had
assaulted JR].” Id. ¶ 23 (emphasis added). Was Officer
Centeno lying?
In spite of the fact that Centeno’s partner, Officer Bohlen,
“spoke to a supervisor at [the Second Precinct Police Station]
and told the supervisor that [he and Centeno] were at the
[Marina] and . . . should be identified as individuals to be
interviewed in any further investigation,” neither officer
was ever interviewed by investigators prior to Anderer’s
arrest. Why? Orchestrated investigation possibly?
Officer Logan, who was also on the scene of the arrest,
corroborated the testimony of the other officers and noted
that he “[did not] observe[ ] Anderer strike [JR],” Logan Aff.
¶ 47. Furthermore, Logan stated that as he had passed
Anderer’s squad car on the way out of the Marina, he had
No. 02-3669 77
“observed [JR] seated in the backseat of the squad and [JR]
did not appear to be injured in any way.” Id. ¶ 17 (emphasis
added).
Finally, Officer Cook, who unlike the others, was asked to
give a statement prior to the arrest, but stated, at the time,
that he “did not wish to make a[ ] statement[ ] WITHOUT [A]
UNION REPRESENTATI[VE]” present—was eventually
granted immunity from criminal prosecution and compelled
to answer questions at 12:45 a.m., fifteen minutes AFTER
Anderer’s arrest and was therefore not used as part of the
probable cause determination by Hoerig.24 Cook Aff. ¶¶ 41,
24
The majority suggests that if “the statement given by officer
Cook, had . . . been given prior to Anderer’s arrest, [it] seems
likely to have further supported the investigating officer’s deter-
mination that probable cause existed to arrest Anderer. Opinion
at *12 n.10. To support this the majority exaggerates Cook’s
statements to the extent that they cite him as having stated that
after arriving at the station he “immediately noticed [JR] with
blood running down both nostrils, his chin, blood on his shirt and
both pant legs,” and that he “was taken aback because the kid was
in perfectly good shape before he went in to the squad, but not
when he came out and thats [sic] not good.” Id. However, this
mischaracterizes Cook’s testimony under oath. In Cook’s affidavit
he does state that he saw “blood dripping out of [JR’s] nostrils
straight down his chin,” Cook Aff. ¶ 26, but nowhere does he state
that he saw blood on the boy’s shirt and pants. Also, Cook actually
states that he was “shocked because when Officer Anderer took JR
to his squad, JR was not bleeding,” Id. at ¶ 27, however, the
majority conveniently refuses to accept the fact Cook goes on to
affirm that “[h]ad Anderer encountered any difficulty placing J.R.
into his squad, I would have been in a position to have noticed any
such commotion.” Id. at ¶ 20. This by no stretch of the imagina-
tion can be classified as evidence which would “have further
supported the . . . probable cause determination.” Opinion at *12
n.10. Indeed, this is actually exculpatory evidence which (had the
investigators bothered to gather it) would have severly damaged
(continued...)
78 No. 02-3669
45 (emphasis added). At that point, Cook stated he had
“s[een] Officer Anderer speaking to JR” after JR had been
placed “in the back of Anderer’s squad.” Cook Aff. ¶¶ 18-20.
Contrary to JR’s continuance of his false and malicious
allegations that Anderer had “yell[ed] at [him]” at this time,
Smith Rep. at 7, Cook stated that he “never heard Officer
Anderer scream at JR,” and furthermore that Anderer had not
“encountered any difficulty in placing JR into his squad.”
Cook Aff. ¶¶ 18-20 (emphasis added). Cook emphasized that,
had Anderer encountered “any difficulty” placing JR in the
squad, Cook “would have been in a position to have noticed
any such commotion.” Id. ¶ 20.
24
(...continued)
their unfathomed probable cause determination, despite the
majority’s intimation.
Furthermore, in the affidavit testimony given by Cook, he em-
phasized that the investigation conducted by the IAD was“unfair”
and asserted that the “[IAD] had the power to get anyone they
wanted for any purpose, and [that] this [situation] was reminis-
cent of Berlin in 1939.” Cook Aff. at ¶ 71. Cook also chastized the
IAD officers by producing his rules notebook and went on to state
that “[t]hese rules you hold so precious, go out the window when
you want to ‘get’ someone” as he threw the notebook over his
shoulder. Id. at ¶ 72. It should be reiterated that Cook believed he
was going to be a target of JR’s outrageous and ridiculous
accusations as well. See supra pp. 1-8, 11, 27, 32-37, 48, 69.
Therefore, even after the incident, Cook feared that he would be
subjected to the same unfair procedure that had befell Anderer,
indeed Cook told A.D.A. Jon Reddin that he “was afraid the [IAD]
of the MPD would trade up if they could not get Anderer by
getting [him] for raping J.R. instead.” Cook Aff. at ¶ 61. Therefore,
despite the twist that the majority puts on out-of-context selective
pieces of Cook’s testimony, he would not have been beneficial to
the IAD in their search for probable cause. In reality, Cook was
not compelled to testify until after Anderer’s arrest because he
would have damaged the IAD’s fabricated and terribly weak
probable cause case against Anderer.
No. 02-3669 79
Obviously Chief Jones chose not to believe even one of his
four officers (nor the citizen witness Mitchell) who all
affirmatively stated that Anderer did not abuse the juve-
nile. Nonetheless, Chief Jones, after being consistently re-
buffed in his attempts to prosecute Anderer, he ultimately
used internal procedures to terminate Anderer from the
Department, after his 3 1/2-year tenure, for internal abuse
charges in spite of the mountain of exculpatory evidence in
the record and the Deputy District Attorney Jon Reddin and
D.A. E. Michael McCann’s finding that no charges could be
substantiated. Was Officer Cook (along with Officers Bohlen,
Logan, Centeno, Shoman and witness Mitchell) also lying?
Moreover, if not by design, why did the MPD command
officers and the IAD investigating officers wait to compel
Cook’s statement until fifteen minutes after Anderer’s arrest?
Why wasn’t this done hours, half an hour or even fifteen
minutes earlier? Didn’t they want his damaging exculpating
testimony in the record on the probable cause issue?
It is interesting to note that the IAD investigators also
determined (probably with malice or forethought) not to in-
terview these five exculpatory witnesses (Bohlen, Logan,
Centeno, Cook, Mitchell), and because of this it was unrea-
sonable for them to proceed with the arrest of Anderer. As
Deputy District Attorney Jon Reddin stated in his memo-
randum, once these people were interviewed (Shoman, Cook,
Mitchell, as well as Officers Logan and Anderer were
ultimately interviewed by Reddin himself), the only logical
conclusion was that no criminal charges could be sustained.
See Reddin Memo., Jones Aff. Ex. 1002 at 1 (“I have inter-
viewed [JR], Anderer, officers Janice Shoman, Jeff Cook and
Jeff Logan, and civilian James Mitchell [and] [b]ased on
those interviews I have concluded that we cannot prove
how and by whom [JR’s] injuries were incurred, and
consequently [I conclude that] no criminal charges can be
sustained.”) (emphasis added).
80 No. 02-3669
F. Lack of Good-faith in Investigation and Termination
of Officer Anderer
I must reiterate that my purpose in reciting, in minute
detail, the vast amounts of exculpatory testimony and evi-
dence (which the investigators purposely failed to gather
before arresting Anderer) in the respective time frames is
not to play Monday morning quarterback nor to nitpick the
record for minor (although these are far from minor)
deficiencies in their investigation. Instead, it is my inten-
tion to convince my fellow colleagues that Anderer, who did
not receive the protection he is entitled to as a U.S. citizen
under the Fourth and Fifth Amendment as well as under
his employment contract with the MPD, be given his day in
court. I also wish to point out that the conduct of the
officers who took part in this investigation leaves much to
be desired and can best be described as surprising.
I am well aware that the law does not ordinarily “require
that a police officer conduct an incredibly detailed investi-
gation at the probable cause stage.” Spiegel, 196 F.3d at
724-25. Nor does it “require law enforcement officers to . . .
conclusively resolve[ ] each and every inconsistency or con-
tradiction in a victim’s account” prior to arrest, id. at 725,
for, as this Court has made clear on prior occasions, “once
[the officers] perform[ ] a good-faith investigation and as-
semble[ ] sufficient information from the totality of the
circumstances to establish probable cause, they are not
required . . . to continue searching for additional evidence.”
Driebel, 298 F.3d at 643-44 (emphasis added).
Under these circumstances, I am confident that the activ-
ity on the part of the command officers of the MPD and the
IAD is not worthy of being classified as a proper inves-
tigation—much less a good-faith25 investigation—but should
25
Black’s Law Dictionary defines good-faith, in pertinent part as:
“A state of mind consisting of (1) honesty in belief or purpose, [or]
(continued...)
No. 02-3669 81
be more precisely characterized as an orchestrated inquiry
in which the investigators merely went through the mo-
tions. The investigation amounted to, at best, no more than
a sham inquiry (failure to follow police protocol) and
produced what may have been (in the worst-case scenario)
a pre-ordained result. The unreasonableness of this so-
called “investigation” raises a dark cloud of suspicion over
each and every one of the superior officers of the MPD and
members of the IAD who participated in this detail. These
officers failed to follow appropriate police procedures and
selectively failed to interrogate in a timely fashion at least
four police witnesses and the lay witness Mitchell who were
unfavorable to the command officer’s decision to arrest
Anderer. Furthermore, the only “evidence” the investigators
gathered in their “investigation” was a smattering of se-
lected information which, when considered in its entirety,
failed to establish probable cause.26 The evidence was thus
25
(...continued)
(2) faithfulness to one’s duty or obligation . . .” BLACK’S LAW
DICTIONARY 701 (7th ed. 1999). In addition, in Driebel, we char-
acterized a good-faith investigation in the context of probable
cause as one where investigators “assemble[ ] sufficient informa-
tion from the totality of the circumstances to establish probable
cause.” Driebel, 298 F.3d at 644. Under either formulation, the
officers investigating JR’s allegations against Anderer fell far
short of “good-faith.”
26
As discussed above, the universe of information relied upon by
investigators was: (1) a baseless claim of abuse launched by an
obviously lying juvenile witness suffering from auditory hallucina-
tions urging him to do harm to himself and others (Cook, Logan
and Anderer) and who was thus not “reasonably credible” (even
the district court found and admitted JR’s “statement alone [wa]s
an insufficient basis for probable cause”), and (2) a bloody nose
and cut inner lip which, under the circumstances (namely, JR’s
(continued...)
82 No. 02-3669
“objectively [in]sufficient to warrant a prudent person in
believing that [Anderer had] committ[ed] [the abuse].”
Mounts, 248 F.3d at 714. This is most tragic considering the
oath that the investigating officers took to uphold the law
and faithfully discharge the duties of the office to which they
were appointed, for they failed to carry out their sworn duty
in a fair, unbiased and impartial manner.
Considering the lack of reliable evidence of Anderer’s
guilt, I, unlike the majority, am convinced it was unreason-
able for the investigatory detail to cast aside (and refuse to
incorporate) the overwhelming amount of available known
exculpatory testimony from officers (Centeno, Logan, Bohlen,
and Cook) and a civilian witness (Mitchell) at the scene. It
was entirely unreasonable for the investigators to rely on
selected tainted “evidence” of the alleged abuse that fell far
short of being “reasonably trustworthy” or, for that matter,
“sufficient to warrant a prudent man in believing that
[Anderer] had committed [a battery].” Beck v. Ohio, 379
U.S. 89, 91 (1964); Mounts, 248 F.3d at 715.
Of course, the MPD command’s unrelenting insistence in
clumsily attempting to validate JR’s allegation against
Anderer—despite the lack of evidence (direct and/or cir-
cumstantial) of his guilt—did not stop with his arrest. Chief
Jones, in particular, would not be deterred, for he personally
insisted on pursuing the charges against Anderer. Initially,
Jones had Anderer arrested without first referring the
matter to the District Attorney’s office for an independent
review and determination, which is the more proper and
26
(...continued)
“pharmacopoeia” of medications and mental problems—self-abuse
and “hallucinations telling him to harm himself or others”) could
have had a host of explanations other than physical abuse from
Anderer.
No. 02-3669 83
desired procedure.27 Also, after four investigations (two
independent) turned up insufficient evidence to pursue crim-
inal (either felony or misdemeanor) child abuse charges
against Anderer, the IAD insisted on pursuing Anderer by
converting the unsuccessful and clumsy criminal investiga-
tion into a last-ditch internal investigation to determine
whether Anderer had possibly violated ANY MPD rule or
regulation, probably due to Chief Jones’s insatiable desire
to have Anderer terminated.28 Ultimately, after the possi-
bility of criminal charges against Anderer had been eclipsed,
and just 96 hours after Anderer filed a lawsuit against the
department, the newly appointed IAD command officers had
the temerity and audacity to bring a police rule violation
charge against Anderer producing the dubious charge of
abuse of a child, of which there is no proof. This rule violation
charge is what, in the end, resulted in Anderer’s termination
from the police force (again, without any felony, misdemeanor,
or even city ordinance violation ever being brought, much
less substantiated).
The nature of the internal charge was also most question-
able when considering the timing of the charge in relation
to the other facts and circumstances. The termination
charges were brought only after Anderer’s case had laid
dormant for approximately a month and were filed just 96
hours—or three days—after Anderer filed his lawsuit against
Chief Jones, Charles Grisham, Lt. Hoerig, Detective Cowan,
and the City of Milwaukee. The decision to bring these
27
See supra note 7 and accompanying text.
28
Furthermore, it is interesting that they brought the internal
charges against Anderer without conducting any further investi-
gation into JR’s allegation of abuse. Thus, they charged Anderer
internally, and had him discharged, on the same (now complete)
record and for the same offense that had generated multiple re-
fusals to prosecute the criminal case against him by the DA’s
Office (two independent determinations by the Deputy District
Attorney and the District Attorney himself).
84 No. 02-3669
charges is inconsistent with the District Attorney’s Office’s
clear and repeated affirmation of the decision that there
was insufficient evidence to prosecute Anderer for abuse.
See Jones Aff., Ex. 1002 at 1-2 (“I cannot say with any
assurance what happened . . . . It is entirely conceivable . . .
that [JR] inflicted the injuries to himself”).29
III. Conclusion
This case, being very fact-intensive, begins and ends with
the utter lack of credibility of JR’s complaint against
Anderer alleging that the officer struck him in the face
and/or nose with his fist as he (Anderer) was positioning
and securing JR in the back seat of the squad car—before
the two-minute-two-second drive to the police station began.
And on that score, as the district judge properly in part
concluded,“Anderer raises serious issues concerning JR’s
29
The majority’s contention that the “the Deputy District Attor-
ney’s later decision not to pursue criminal charges” is an “irrele-
vant fact” is a red herring, Opinion at *11, n.9, because although
the decision by Jon Reddin was made after Anderer had been
arrested (contrary to the preferred course of action, see supra note 7),
such a determination simply lends further credence to Anderer’s
argument that the probable cause determination by the IAD,
district court and majority was unreasonable. Arthur Jones Aff.,
Exh. 1002 (Reddin concludes that what happened to JR “in the
back of the car will probably never be known to anyone but JR and
Anderer,” and that the speculative nature of the accusations
against Anderer were “not the stuff of criminal charges.”). It also
serves to further establish that another independent law enforce-
ment official was of the opinion that JR was utterly and totally
unreliable as a witness, because as Jon Reddin noted in his
written decision not to prosecute: “It is entirely conceivable [that]
given [JR’s] agitation, mental problems and stated intentions to
get money out of this incident, that he inflicted the injuries to him
self.” Id. Also, Reddin’s decision helps establish that the IAD
failed to conduct a reasonable good-faith investigation, for had one
been performed, Anderer would not have been arrested because
probable cause never existed.
No. 02-3669 85
credibility . . . .” Anderer v. Jones, No. 01-C-0668, at *7
(E.D. Wis. Sept. 30, 2002). To recap the pertinent parts of
the record, the MPD and IAD command and investigating
officers, including the Chief, were aware of (or, had they
conducted a reasonable and unbiased investigation, would
have at least been aware of) the following factors which
should have served to put JR’s credibility in serious doubt,
if not destroy it completely:
(1) JR had a demonstrated behavioral problem
(he exhibited outrageous, out-of-control, profane and
obscene language at the scene of the arrest, and furth-
er Officer Shoman stated he was a “constant problem”
in her patrol area);
(2) JR had threatened to sue his arresting
officers for money and get them (Anderer,
Cook, and Logan) fired;
(3) JR had exhibited a propensity to lie (he had
accused Officer Cook of raping him—which the trial
court found to be an “obvious lie,” Anderer v. Jones,
No. 01-C-0668, at *7 (E.D. Wis. Sept. 30, 2002));
(4) JR was supposed to be heavily medicated
(but had failed to ingest his prescriptions on
the day of the arrest) (and at least two of JR’s
prescribed drugs, as the officers well knew, were
used to control his psychiatric and behavioral prob-
lems);
(5) the medications JR had failed to ingest that
day were vital to his mental and physical well-
being (JR’s mother had urged the officers to
“releas[e] [her son] from custody as soon as possi-
ble” in order that he might ingest his drugs, Cook
Aff. ¶ 34);
86 No. 02-3669
(6) not one individual, including those inter-
viewed by police, ever corroborated JR’s allega-
tion, and at least five individuals—four police
officers (Shoman, Cook, Bohlen, and Centeno)
and one citizen witness (Mitchell)—affirma-
tively refuted JR’s hallucinatory tale (although
only Shoman was interviewed by police prior to the
arrest);
(7) there is no record of any blood or other
stain on Anderer’s uniform, and, viewed under
a high-powered flashlight, Anderer had no
blood, abrasions, brusing, scratches, or swell-
ing of tissue on his hands, much less any evi-
dence of trauma, see Smith Report at 9; Anderer
Aff. ¶ 98;
(8) JR’s minor inner lip cuts were not consis-
tent with the juvenile’s allegation that he was
hit in the face by a 200-lb. adult male (the I.D.
Technicians testified—and we must accept as true
at this stage—that the “small [lip] cut appeared as
though [JR] may have bitten his lip or had a canker
sore,” and thus “was not consistent with [the juve-
nile’s allegation that he was] struck in the face by
[Anderer],” Kathrein Aff. ¶ 16);
(9) although JR, in an offhanded and flippant man-
ner claimed he was struck in the face by Anderer,
and suffered a nosebleed as a result, there was not
a scintilla of evidence of bruising, abrasions,
swelling, or any other sign of trauma to JR’s
face, nose, mouth or lips which would corre-
spond with being hit in the face with a hand or
fist. Also, the cuts on the inside of JR’s lips, as
well as the nosebleed, in the absence of any
mark, laceration, bruise or abrasion on the
No. 02-3669 87
outside of JR’s face are NOT consistent with a
blow to the face from a 200 lb. adult male
police officer. It is more accurate to believe
that the minor inner-lip injuries resulted from
a self-inflicted bitten lip which perhaps re-
sulted from JR’s injestion of a myriad of medi-
cations which, in combination, caused his
dried-out mouth condition (canker sores) and
that the nosebleed was caused by a normal/
hearty sneeze which ruptured the thin nasal
membrane or a small blood vessel (contributed
to by abnormal bleeding caused by the medica-
tion he was ingesting) in the nasal passage;
and
(10) JR had been diagnosed by a psychiatrist
as suffering from auditory and visual halluci-
nations as well as with the propensity to
“harm himself and others” and he had the
opportunity to inflict harm upon himself (self
mutilation on both arms) and others (i.e.,
falsely accusing Cook of rape and claiming he
would sue both Cook and Anderer and have
them fired; chewing or biting his lip)
The majority somehow looks past all of the recorded ex-
culpatory evidence which seems to make clear JR’s obvious
propensity to fantasize and lie while (in stark contrast to
the trial judge’s contrary finding that JR was not a reason-
ably credible witness) embracing JR’s claim, that the 200-lb.
Officer Anderer hit him in the face with his fist as he was
being placed in the squad car, as being reasonably credible.
See Opinion at *9-11 (finding in favor of JR’s credibility).
The majority concludes that because: (a) JR arrived at the
police station with a bloody nose; (b) while sitting at a table
with the other burglary suspects, all of whom were laughing
and joking about their situation, JR made the off-hand com-
ment that “[t]hat officer hit me,” Cook Aff. at ¶ 30; and (C)
88 No. 02-3669
ANDERER REFUSED TO GIVE A STATEMENT IN THE MATTER;
there was enough evidence to support Chief Jones’s decision
to arrest Anderer for abuse. See Opinion at *10.
Furthermore, the majority improperly and without
any legal authority, relies on Anderer’s invocation of
his contractual right to refuse a statement absent
representation, and his resulting “failure” to give a
statement, as support for their probable cause deter-
mination. Opinion at *10. Contrary to the reasoning
employed by the MPD, the trial court, and now the
majority; no court of law has ever allowed or approved
of using a suspect’s exercise of his constitutional right
to refuse to give a statement in a criminal investiga-
tion in which he is a suspect as a factor establishing
probable cause. In addition, Anderer was entitled to
invoke his right to have a representative present
during any questioning pursuant to his employment
contract with the MPD; therefore, that request should
not have been used or construed against him. Thus,
there are two insurmountable hurdles and roadblocks,
one constitutional and the other contractual, to the
majority, district court, and MPD’s attempt to use
Anderer’s refusal to give a statement as a factor
establishing probable cause for his arrest. Indeed,
what the MPD, district court, and majority accom-
plished was to unacceptably twist Anderer’s invoca-
tion of his contractual rights as well as his inherent
constitutional rights and use them against him as a
basis for his arrest.
It is apparent that JR’s statement alone was also not
sufficient to establish probable cause, for, as the district
court correctly found and I agree, it is well-settled that a
claimant’s allegation of criminal activity establishes prob-
able cause to arrest only when “it seems reasonable to believe
[that person] is telling the truth.” Gramenos v. Jewel Co.,
797 F.2d 432, 439 (7th Cir. 1986) (emphasis added). AND
No. 02-3669 89
HERE, FOR THE REASONS SET FORTH IN DETAIL
HEREIN, AND ESPECIALLY CONSIDERING THE FACT
THAT THE INNER LIP CUTS WERE NOT CONSISTENT
WITH ANY EVIDENCE OF AN OUTSIDE BLOW OR
TRAUMA TO THE FACE FROM A 200-LB. ADULT MALE,
GIVEN THAT THERE WAS NO BRUISE, ABRASION,
LACERATION MUCH LESS ANY OTHER SIGN OF
TRAUMA TO THE OUTER SKIN OF HIS FACE OR NOSE,
AND CONSIDERING THAT JR WAS FULLY CAPABLE
AND HAD THE OPPORTUNITY, INTENTION, AND MO-
TIVE TO HARM HIMSELF AND OTHERS (ANDERER
AND COOK) AS DIAGNOSED AND RECORDED BY THE
CHILD PSYCHIATRIST DR. O’GRADY, it was entirely
unreasonable for the police officers to arrest Anderer on the
assumption that JR was truthful in launching the malicious
and fictitious abuse allegation—at least without performing
a proper investigation into the matter (which the police
utterly failed to do).
Viewing all of these factors together as part of the total
picture, as well as the law applicable thereto at this par-
ticular stage of the proceedings, it was indeed unreasonable
that the police proceeded to arrest Anderer without conduct-
ing an adequate investigation (no physical or medical exami-
nation of JR) and without interviewing the relevant police
and lay witnesses (and not just a select few) such as the
citizen witness Mitchell and the officers who were witnesses
at the alleged crime scene, whom investigators well knew
were available and able to give testimony exculpating
Anderer. As I have noted, Officers Centeno, Bohlen and Cook,
as well as Mitchell, would have exonerated Anderer—but
not one of these witnesses were interviewed prior to Anderer’s
arrest. We must ask ourselves: Why was not even one of the
four exculpatory police witnesses or Mitchell timely inter-
viewed?
But possibly, given the tenacity and haste with which
Chief Jones repeatedly pursued both criminal and internal
90 No. 02-3669
charges against Anderer, in the face of the overwhelming
amount of exculpatory evidence, it very well may be that
the investigating officers were prodded by their Chief and/or
other command officers into conducting an ‘express track’
investigation of officer (Anderer). Chief Jones’s subsequent
(post-arrest) treatment of Anderer’s case, despite the moun-
tain of evidence exonerating Anderer available to him in the
decision making process, certainly reflected a most unusual
and dogged determination to have Anderer prosecuted and
discharged from the force, given that:
(1) After the Deputy District Attorney Jon Reddin
determined Anderer’s charge would be “no processed,”
because it utterly “lacked prosecutable merit,” Jones
refused to accept that judgment and proceeded
to reopen the criminal investigation into JR’s
accusations—allegedly to ensure “the investigat-
ing officers had not missed any facts.” Jones Aff.
¶ 10. In addition, although mentioned by Reddin in
his no prosecute letter, any reference to alleged
prior disciplinary actions taken against Anderer
could and should not be considered under these
circumstances;(2) although this re-investigation
turned up “[n]o information . . . to further [a]
criminal prosecution,” Hoerig Aff., Ex. 1001 at 3,
Chief Jones nonetheless had the temerity to re-
quest, after another fruitless investigation by
Lt. Hoerig, that District Attorney E. Michael
McCann re-evaluate Jon Reddin’s prior deci-
sion not to press charges;
(3) McCann reaffirmed the prior decision not to pros-
ecute, again concluding the criminal charge lacked
prosecutable merit; in supporting his decision not to
prosecute Anderer, McCann cited Reddin’s original
no-prosecute memo where Reddin stated: “I cannot
say with any assurance what happened . . . . It is en-
tirely conceivable . . . given [JR’s] agitation, mental
No. 02-3669 91
problems and stated intentions to get money out of
this incident, that he inflicted the injuries to him-
self.” Arthur Jones Aff., Exh. 1002.
(4) then, just after Anderer filed the instant lawsuit
on July 2, 2001, Chief Jones’s IAD Commander,
Steven Settingsgaard decided forthwith—without
any new or additional evidence of Anderer’s guilt—
on July 6, 2001, to press internal charges (levied
just 96 hours after Anderer filed suit against
Jones and the case had laid dormant for a
month) against Anderer for mistreatment of a
prisoner, resulting in an order by Chief Jones
to terminate Anderer.
Viewed in light of Jones’s own unremitting determination
to prosecute and discharge Anderer for “abuse,” the failure
of investigators to conduct an adequate investigation prior
to arresting Anderer (all at Jones’s request), though no less
unreasonable, is at the very least less surprising. Indeed, we
must wonder if this type of unreasonable, careless and im-
proper investigation (unfortunately) may have happened be-
fore at the MPD during the past few years. See, e.g., Driebel,
298 F.3d at 622.30 This begs the following question: How
30
The investigation techniques employed by the IAD investigators
in this case may, at best, be described as shocking. Many of the
potential witnesses in this case were subjected to intimidation and
threats by IAD officers seeking to somehow gather evidence that
would suggest Anderer had committed a crime. On the night of
the alleged incident, Officers Cook and Logan were both asked to
give a statement dealing with the criminal investigation of JR’s
allegations against Anderer. Both officers refused to make a
statement until they were provided with a representative, as
guaranteed them under the MPD rules and regulations. Neither
were provided with representatives, but were threatened with a
PI-21 (which would compel them to give a statement notwith-
standing the denial of representation). Later that same night,
(continued...)
92 No. 02-3669
30
(...continued)
Cook was threatened with immediate suspension if he did not give
a statement, and he relented. The first question asked of him was
whether “Officer Shoman was involved with Officer Anderer.”
Cook Aff. ¶ 46. Cook told the investigators that he “did not know,
nor was it germane to the subject.” Id. Cook then asked that the
investigators note that every answer he was giving was “under
duress,” which investigators failed to note on any of the docu-
ments included in the record. Id. at 49. Also, the next day, on
April 18, 2001, Officer Logan requested that he have a rep-
resentative present before answering any questions and was told
that if he did not give a statement he would be “suspended until
further notice.” Logan Aff. ¶ 38. Logan then answered the IAD
investigators’ questions.
During Lt. Hoerig’s second investigation into JR’s allegations
the same type of coercive and intimidating tactics were employed.
Officers Shoman, Cook, Logan, and Anderer were all subjected to
threats and coercion throughout the investigation. On June 12,
2001, Officer Shoman (invoking her contractual rights) also re-
fused to make a statement without representation. Hoerig re-
sponded by bringing two sergeants in to compel Shoman to make
statement. Shoman continued to refuse to make a statement
without a representative and was threatened with suspension.
Detective Harrison told her: “It’s not worth your job.” Shoman Aff.
¶ 34. After sitting in silence for 15 minutes Shoman finally broke
down and said that she would give a statement, but requested
that it be noted in the reports that she was speaking “under
duress.” Id. at 35. At the end of the interview Officer Shoman
indicated her displeasure with the proceedings and voiced her
opinion that the entire investigation was “personal” and “crooked.”
Id. at 48.
Officers Cook and Logan had similar experiences with the IAD
officers during the second round of investigation. Under threat of
suspension each eventually agreed to answer questions (however,
it took 20 minutes of discussion and Cook offering his firearm to
investigators as well as threats and coercion by the IAD before the
officers caved in and talked). Both officers voiced their displeasure
with the investigatory process: Cook stating that he believed IAD
(continued...)
No. 02-3669 93
many other officers, if any, were subjected to the same type
of hurried and prejudicial rush to judgment and arrested
without probable cause?
Perhaps the majority’s ill-advised and less than compli-
mentary statement insisting that my detailed discussion of
the facts exonerating Anderer, combined with the inadequacy
of the MPD’s investigation “might present a persuasive
closing argument,” Opinion at *11 n.9, merely reflects the
depth of their frustration over the fact that they are unable to
overcome the overwhelming evidence of Anderer’s lack of
culpability and the important Constitutional questions raised
in my dissent. Anderer, like every other citizen of the
United States, is entitled to have his freedom from search
and seizure vigorously protected by the courts and to be
presumed innocent until proven guilty by a jury of his peers
in a court of law; thus, the fact that he is a police officer
does not mean that he is “relegated to a watered-down
version of constitutional rights.” Driebel, 298 F.3d at 637.
And in this case, after reviewing the record as a whole and
the law applicable thereto, I am convinced that the conduct
of the IAD during the investigation into JR’s abuse charge
constituted an unreasonable and careless inquiry and that
it amounted to nothing but an utter sham, pursued without
regard for the truth and, in fact, was in violation of Anderer’s
Fourth and Fifth Amendment, as well as his contractual,
rights. When the record is viewed as a whole and the
evidentiary record construed in his favor as is required at
this stage in the proceedings, it is apparent that Anderer
has presented more than enough evidence to survive sum-
mary judgment, for it is clear that a reasonable juror could
(and would) find, based on the undisputed facts Anderer has
30
(...continued)
and MPD command officers were out to “get” Anderer; and Logan
stating that he believed that Anderer’s termination was an act of
“retaliation.”
94 No. 02-3669
presented and the absence of evidentiary support to the
contrary, that probable cause did not exist to arrest
Anderer. See Applebaum v. Milwaukee Metro. Sewerage Dist.,
340 F.3d 573, 578-79 (7th Cir. 2003). Accordingly, I dissent
from the majority’s opinion and URGE THAT THE DIS-
TRICT COURT’S GRANT OF SUMMARY JUDGMENT
FOR DEFENDANTS BE REVERSED AND THIS CASE BE
REMANDED TO THE DISTRICT COURT FOR TRIAL IN
ORDER THAT ANDERER MAY BE ALLOWED TO PRE-
SENT HIS CASE, IN ITS ENTIRETY, BEFORE A JURY
OF HIS PEERS.31
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
31
While I am of the opinion that the district court’s decision granting
summary judgment in favor of Jones and denying Anderer a trial
on the merits of his claim that his constitutional rights were
violated when he was arrested without probable cause was in
error, I concur with the majority’s decision on Anderer’s First
Amendment claim and need not discuss the issue.
USCA-02-C-0072—10-6-04