Timothy Harney v. City of Chicago , 702 F.3d 916 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-2095, 10-2817
T IMOTHY L. H ARNEY and
P ATRICIA A. M ULDOON,
Plaintiffs-Appellants,
v.
C ITY OF C HICAGO and
O FFICER JOSEPH M IDONA,
Defendants-Appellees,
and
P AMELA D EV ARELA,
Defendant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-02814—Joan Humphrey Lefkow, Judge.
A RGUED JUNE 1, 2011—D ECIDED D ECEMBER 10, 2012
Before F LAUM and SYKES, Circuit Judges, and C ONLEY,
District Judge.Œ
Œ
The Honorable William M. Conley, United States District
Court for the Western District of Wisconsin, sitting by designa-
tion.
2 Nos. 10-2095, 10-2817
C ONLEY, District Judge. Plaintiffs Timothy L. Harney and
Patricia A. Muldoon brought this civil action against the
City of Chicago and one of its police officers, Joseph
Midona, pursuant to 42 U.S.C. § 1983, alleging that defen-
dant Midona entered their residence and arrested them
without a warrant or probable cause in violation of the
Fourth Amendment of the United States Constitution.
The district court granted summary judgment to defen-
dants on all claims. Agreeing that there are no genuine
issues of material fact or legal grounds on which plain-
tiffs are entitled to proceed, we affirm that court’s grant
of summary judgment. The following facts are taken
from the undisputed findings submitted to the district
court, viewing the facts in a light most favorable to de-
fendants and drawing all reasonable inferences in
their favor.
I.
A. The Parties
Harney and Muldoon are married and occupy
one unit of a three-unit condominium building in
Chicago, Illinois. Pamela DeVarela occupies one of the
other two units.1 This lawsuit developed out of a history
of contentious interactions between these neighbors and
1
Plaintiffs also alleged state law claims against DeVarela. In
granting summary judgment to defendants the City of
Chicago and Midona on the federal claims, the district court
opted not to exercise its supplemental jurisdiction and dis-
missed the state law claims without prejudice. DeVarela is not
a party to the appeal.
Nos. 10-2095, 10-2817 3
the involvement of defendant Midona in this spat be-
tween neighbors.
B. History of Strained Relations
In April 2004, DeVarela contacted the Chicago Police
Department to complain about damage to a mirror on
her vehicle. Officer Midona was dispatched to respond to
her complaint. Although DeVarela had no proof, she
claimed that the damage was caused by Harney and
Muldoon. Lacking any evidence of the identity of
the offender, Midona’s police report indicated that the
damage was caused by an “unknown offender.” At this
time, Midona also apparently gave DeVarela his personal
cell phone number in the event of any further incidents.
On September 21, 2004, DeVarela’s dog bit Harney.
Harney reported the incident to the City of Chicago and
obtained medical treatment for the dog bite.
A couple days later, DeVarela telephoned Officer Midona
on his cell phone, requesting that he prepare a second
police report. This time DeVarela reported that on Septem-
ber 21, 2004, Harney and Muldoon chased her up the stairs
and pushed her as she tried to enter her unit’s door.
C. Events Leading Up To Plaintiffs’ Arrests
On May 16, 2005, DeVarela again called Midona to
complain about damage to her vehicle. The next day,
Midona and Sergeant Woznicki met with DeVarela and
were shown a videotape consisting of clips DeVarela
4 Nos. 10-2095, 10-2817
compiled from two separate videotapes.2 In her sum-
mary judgment opinion, the district judge aptly
described the clips as follows:
The first clip, on March 6, 2005, depicts a man, identi-
fied as Harney, performing a series of tasks. Harney
first examines his car’s rear left tire, then briefly
stops at DeVarela’s car’s rear left tire before
squatting by her rear right tire and fiddling with it.
He returns to his rear left tire, performs some work
on it, and then turns to look at DeVarela’s front left
tire. After some time passes, Harney pulls his car
partially out of the garage, changes the rear left
tire, and drives away.
...
The second clip, on March 26, 2005, depicts a woman,
identified as Muldoon, moving around the garage.
Muldoon closes the garage door and walks past the
rear of DeVarela’s car with an object in her right
hand. She then turns around, walking back toward
her own car, with her right arm at her side, her wrist
turned away from her body. Once she passes
DeVarela’s car, she turns her wrist over. She then
opens the garage door and walks out.
(App. 3.)
Midona testified at his deposition that the first clip
showed Harney removing the valve cap from DeVarela’s
2
Harney and Muldoon raise evidentiary objections to these
videotapes that are addressed below.
Nos. 10-2095, 10-2817 5
tire, letting out the air and putting the cap on his own
car. Midona acknowledged, however, that he could not
actually see Harney take the valve cap off or even see the
valve cap, but he believed the video corroborated
DeVarela’s claim that Harney had let the air out of her
tire and taken the valve cap.
As for the second clip, Midona described the video
as showing Muldoon walking behind DeVarela’s car,
scratching the back of the vehicle with some object,
then opening the garage door again and leaving. He
testified at his deposition that he heard a scratching
noise on the tape. DeVarela also showed Midona and
Woznicki the damage to her car that she believed
Muldoon had caused. Midona observed a long scratch
along the back of the car, although he did not recall at
the time of his deposition whether it was on the trunk
or the bumper.
DeVarela told Midona and Woznicki that she wanted
to press charges. Woznicki advised her to first obtain an
estimate of the cost of repairing her car and then
contact the police. DeVarela obtained an estimate that
same day.
The next day, on May 18, 2005, Midona received
another call from DeVarela. Midona then went to the
condominium building with detectives Kurt Kourakis
and Gloria Ekerman, who had been assigned to investi-
gate. The detectives went to DeVarela’s unit to talk
with her. While DeVarela gave Kourakis her account of
how her vehicle had been damaged, DeVarela’s roommate
showed Ekerman the video clips. DeVarela later played
6 Nos. 10-2095, 10-2817
the same video for Kourakis, identifying the people on
the videotape were Harney and Muldoon. Kourakis
later testified about the contents of the video he viewed,
which was consistent with the district court’s descrip-
tion above.
DeVarela then provided the detectives with this “compi-
lation” video as well as the repair estimate for her car.
After finishing with DeVarela, the detectives went with
Midona to arrest Harney and Muldoon.
D. The Arrests and Prosecution
Harney contends that he heard someone ring the door-
bell. The record is unclear as to the location of the
doorbell, but giving plaintiffs the benefit of any doubt,
we will assume it was located outside of the front walk-
way of the condominium building rather than directly
outside of Harney and Muldoon’s particular unit.3
In response to the doorbell, Harney exited his condomin-
ium unit and saw the officers inside the gate on the
front walkway to the condominium building.
Once Harney stepped outside his unit, Midona advised
that he was under arrest and that there was a videotape
3
The record also does not reveal when or how the officers
entered the condominium building itself, although it is only
reasonable to assume that DeVarela had already let them in or,
at the very least, had given them implicit permission for them
to enter common areas having just visited her condominium
unit in the same building.
Nos. 10-2095, 10-2817 7
of him letting air out of DeVarela’s tire. Midona also
asked to speak with Muldoon, informing Harney that
there was also a videotape of Muldoon keying DeVarela’s
car. Harney told the officers that Muldoon had been
injured and was in bed.
While still outside of his unit, Harney told the officers
that he would go get Muldoon. The officers followed
Harney into the unit. Harney did not invite the officers
in, but he also did not instruct them to remain outside
or tell them that he would be right back. The record
does not reveal whether the door had closed prior to the
officers entering the unit or if they slipped in behind
Harney prior to the door closing.4
The officers walked about eight to ten feet into the
unit to the kitchen. Harney went to the bedroom to tell
Muldoon that the police wanted to speak with her
about keying DeVarela’s car. While Harney was
speaking with Muldoon, the officers instructed Harney
and Muldoon that they needed to come out of the bed-
room. Harney had not heard the officers enter behind
him and did not know that they were in the unit until
he was instructed to leave the bedroom. Even so,
neither Harney nor Muldoon objected to the officers’
presence in their home.
Harney and Muldoon came out of the bedroom, and
Muldoon was informed that she was under arrest. Harney
and Muldoon then followed the officers outside of the
4
Harney did not attempt to close the door behind him, al-
though it closes automatically.
8 Nos. 10-2095, 10-2817
condominium building and were taken to the police
station. Harney was charged with misdemeanor theft;
Muldoon was charged with felony property damage.
Both trials were to the bench. In both, the trial judge
directed a finding of not guilty, concluding that the
videotape evidence did not prove guilt beyond a rea-
sonable doubt.
E. District Court Proceedings
Harney and Muldoon then filed the present lawsuit,
alleging violations of § 1983 against Midona and the
City of Chicago and state law claims against DeVarela. The
district court granted summary judgment to Midona
and the City of Chicago as to all claims. The court
found that qualified immunity shielded Midona as to
plaintiffs’ false arrest claims. As for plaintiffs’ unlawful
arrest claims, the court concluded that Harney was ar-
rested in public and that the officers had implied consent
to enter Harney and Muldoon’s condominium unit to
arrest Muldoon. The court’s grant of summary judgment
to Midona mooted plaintiffs’ indemnification claim
against the City of Chicago.
II.
The court reviews the district court’s decision to
grant summary judgment to defendants de novo and may
affirm on any basis supported by the record and law.
See Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 681 (7th
Cir. 2007). In addition to the appeal of the district court’s
Nos. 10-2095, 10-2817 9
grant of summary judgment, appellants also raise an
evidentiary challenge to the district court’s considera-
tion of certain videotapes at summary judgment. The
court reviews this challenge for abuse of discretion. See
Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 475 (7th Cir.
2010). The court also reviews for abuse of discretion
the district court’s awarding of costs to defendants. See
U.S. Neurosurgical, Inc. v. City of Chi., 572 F.3d 325, 333
(7th Cir. 2009).
A. Evidentiary Issue Concerning Videotapes
Midona produced two videotapes in support of his
motion for summary judgment. Plaintiffs contend that
these videotapes are not the ones Midona viewed on
May 18, 2005. Rather, Midona viewed the compilation
video that DeVarela claims to have created from the
two separate videotapes submitted at summary judgment.
Harney and Muldoon fail to substantiate their sug-
gestion that Midona did not view the portions of the
video clips relevant to this lawsuit. As explained in the
district court’s opinion, while the videotapes submitted
in support of summary judgment contain footage not
contained in the compilation video, and therefore
Midona did not view the entirety of the footage sub-
mitted at summary judgment, there is no dispute that
Midona viewed the portions of the tape relevant to the
court’s determination of whether probable cause existed.
(App. 9 n.6.) The content of the videotape—what
Midona saw and how he interpreted it—is material to
whether probable cause existed, not the format of the
10 Nos. 10-2095, 10-2817
content absent some substantiated claim that the
excerpted video clips had been tampered. Accordingly,
the district court did not abuse its discretion in con-
sidering these videotapes in its discussion of plaintiffs’
false arrest claims.
For the first time on appeal, plaintiffs also argue that
the videotapes cannot be produced in an admissible
form. “In granting summary judgment, the court may
consider any evidence that would be admissible at trial.
The evidence need not be admissible in form (for
example, affidavits are not normally admissible at trial),
but it must be admissible in content.” Stinnett v. Iron
Works Gym/Exec. Health Spa, Inc., 301 F.3d 610, 613 (7th
Cir. 2002) (internal citation omitted). Even though defen-
dants were apparently unable to produce the original or
copy of the compilation video Midona viewed prior to
Harney's and Muldoon’s arrests, Midona himself was
competent to testify as to the portions of the two original
videotapes he viewed prior to their arrests. See Fed. R.
Evid. 1004 (allowing for admissibility of other evidence
of content).5
5
Here, the original videotapes are at least arguably better
evidence, because it is in unaltered form, limiting defendants to
justify the arrests based on actual conduct rather than some
excerpted clips taken out of context, unless plaintiffs’ theory
is that DeVarela excerpted clips that were more favorable
to defendants than the original.
Nos. 10-2095, 10-2817 11
B. False Arrest Claim
Turning to the merits of Harney and Muldoon’s
claim that they were falsely arrested, plaintiffs must
demonstrate that Midona lacked probable cause to arrest
them. See Mucha v. Vill. of Oak Brook, 650 F.3d 1053, 1056
(7th Cir. 2011). “Probable cause exists if ‘at the time of the
arrest, the facts and circumstances within the officer’s
knowledge are sufficient to warrant a prudent person,
or one of reasonable caution, [to believe] . . . that the
suspect has committed, is committing, or is about to
commit an offense.’ ” Mucha, 650 F.3d at 1056 (quoting
Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009)).
Probable cause does not require that the existence of
criminal activity is more likely true than not, rather (true
to its label) probable cause simply requires “a probability
or substantial chance of criminal activity exists.” Mucha,
650 F.3d at 1056-57 (citing Purvis v. Oest, 614 F.3d 713, 722-
23 (7th Cir. 2010); Mannoia v. Farrow, 476 F.3d 453, 457
(7th Cir. 2007)).
Moreover, the court’s inquiry is limited to what the
officer knew at the time of the arrest and not what has
been gained from hindsight. Mucha, 650 F.3d at 1057. The
court considers the evidence from the “perspective of
a reasonable person in the position of the officer.” Mucha,
650 F.3d at 1057 (citing Gonzalez, 578 F.3d at 537).
Here, Midona had ample reason to find probable
cause for Harney’s and Muldoon’s arrests. Initially,
Midona relied on DeVarela’s complaint, namely her
statement that air had been released from her tire
while located in a closed garage to which only a few,
12 Nos. 10-2095, 10-2817
including defendants, had access and that the back of
her car had been scratched, along with Midona’s own
visual inspection of the car.6 Importantly, the history of
tension between the neighbors did not require Midona
to disregard DeVarela’s complaint. See Spiegel v. Cortese,
196 F.3d 717, 724 (7th Cir. 2000) (“While the lengthy
and ongoing dispute culminating in the altercation and
the other charges Cherny had filed might tend to
establish Cherny’s bias, these facts do not render
Cherny’s report incredible as a matter of law.”); Guzell v.
Hiller, 223 F.3d 518, 519-20 (7th Cir. 2000) (“Police are
entitled to base an arrest on a citizen complaint, whether
of a victim (as here) or a nonvictim witness, without
6
The parties dispute whether DeVarela signed a complaint
before or after plaintiffs’ arrest. Viewing the facts in the light
most favorable to plaintiffs, the district court correctly assumed
the complaint was not signed until after Harney and Muldoon
were arrested. (App. 8.) As a result of this finding, the district
court concluded that it could not rely on DeVarela’s complaint
to support a finding of probable cause. There is no dispute,
however, that Midona spoke with DeVarela prior to the
arrests. The district court does not cite a case, nor could this
court find one, supporting the district court’s assumption that
a formal, written statement is required to constitute a victim
complaint sufficient to support a finding of probable cause.
See Bledsoe v. City of Chi., No. 96-2815, 1997 WL 374808, at *2 (7th
Cir. June 24, 1997) (unpublished) (finding probable cause
based on “oral complaint” of victim and dismissing § 1983
false arrest claim). What matters is what the officer knew at the
time of the arrest—regardless of whether that information
came from an oral statement or a formal written complaint.
Nos. 10-2095, 10-2817 13
investigating the truthfulness of the complaint, un-
less—this turns out to be an important qualification—they
have reason to believe it’s fishy.”); Gerald M. v. Conneely,
858 F.2d 378, 381 (7th Cir. 1988) (“We are not unaware
that a person who dislikes another has a motive to lie to
the detriment of that person, but motive without at least
a shred of evidence suggesting that the motive was
acted on does not taint a statement.”).
Even if Midona’s reliance on DeVarela’s complaint
was somehow questionable, the videotape obviated any
taint from the complaint. The videotape shows Harney
bending down to examine DeVarela’s tire and shows
Muldoon walking past DeVarela’s car with keys in her
hand. While far from definitive proof, these video
clips substantiate motive (Harney’s own deflated tire),
opportunity (Harney’s and Muldoon’s uninterrupted
access to DeVarela’s car) and means (Harney’s unex-
plained, prolonged inspection of DeVarela’s tire).
The district court concluded that fact issues as to what
the videotape actually depicts precluded a finding that
Midona had probable cause to arrest as a matter of
law. (App. 10.) Still, the district court granted summary
judgment to defendants, finding qualified immunity
shielded Midona from liability. In so holding, the court
concluded that a reasonable officer could have believed
that the arrests were lawful. (Id. at 14.) Arguably at
least this is all that probable cause itself requires—namely,
a showing that “a prudent person, or one of reasonable
caution” with the officer’s knowledge at the time of the
arrest believed that the suspect committed an offense.
14 Nos. 10-2095, 10-2817
Mucha, 650 F.3d at 1056. As the district court apparently
held, a good faith defense arguably requires something
even less than probable cause—that is, a good faith
belief that there is a basis to believe. Since the undis-
puted facts meet the burden of probable cause, this court
need not attempt to discern any differences on a good
faith standard.
Here, plaintiffs Harney and Muldoon failed to put
forth evidence to create a genuine issue of material fact
as to whether Midona lacked probable cause at the time
of their arrests. Contrary to plaintiffs’ apparent position,
the fact that the state trial judge decided the video-
tape evidence was insufficient to find either Harney
or Midona guilty beyond a reasonable doubt does not
undercut the finding of probable cause for the arrests.
Scruggs v. United States, 929 F.2d 305, 307 (7th Cir. 1991)
(“Acquittal does not establish the lack of probable
cause[.]”). Moreover, though not required, the fact that
Midona undertook to engage two detectives in further
investigation and the decision to arrest undermines
any argument of even subjective bad faith here. The
court, therefore, affirms the grant of summary judgment
as to this claim, albeit on a different basis than that
relied on by the district court.
C. Unlawful Arrest Claims
In addition to the false arrest claim, Harney and
Muldoon also challenge the lawfulness of their arrests
without a warrant, but for divergent reasons.
Nos. 10-2095, 10-2817 15
1. Harney’s Arrest
“[P]olice officers may constitutionally arrest an individ-
ual in a public place (e.g., outside) without a warrant,
if they have probable cause.” Sparing v. Vill. of Olympia
Fields, 266 F.3d 684, 688 (7th Cir. 2001). Harney contends
that he was arrested in the curtilage of his condo and,
therefore, his warrantless arrest was in violation of his
rights under the Fourth Amendment. The “curtilage” has
been described by this court as the area “so close to and
intimately connected with the home and the activities
that normally go on there that it can reasonably be con-
sidered part of the home.” United States v. French, 291
F.3d 945, 951 (7th Cir. 2002). In United States v. Dunn, 480
U.S. 294, 300-01 (1987), the United States Supreme Court
described four factors to be considered in determining
whether an area constitutes the curtilage of a home:
[1] the proximity of the area claimed to be curtilage
to the home, [2] whether the area is included within
an enclosure surrounding the home, [3] the nature of
the uses to which the area is put, and [4] the
steps taken by the resident to protect the area from
observation by people passing by.
It is undisputed that Harney’s arrest occurred in the
walkway outside of the condominium building, but
inside of a gate.7 While the proximity of the area of
7
While the district court stated in its opinion that it was
unclear whether the arrest occurred inside or outside of the gate
(App. 11), the parties both represent in their briefs to this
(continued...)
16 Nos. 10-2095, 10-2817
Harney’s arrest to the condominium building and the
fact that it occurred behind a gate may support a finding
that this area fell within the curtilage of a the condomin-
ium building, the record contains no photographs or
detailed descriptions of the area from which a fact finder
could determine whether the gate created a barrier,
shielding the area from public view. This is plaintiffs’
burden. See Reeves v. Churchich, 484 F.3d 1244, 1254 (10th
Cir. 2007) (explaining that the burden of establishing
a claimed invasion of the curtilage is on the party
asserting a Fourth Amendment violation). A plaintiff
must begin to meet this burden by submitting admissible,
supporting evidence in response to a proper motion
for summary judgment. See Delapaz v. Richardson, 634
F.3d 895, 900 (7th Cir. 2011).
More critically, the record does reveal that the area
of Harney’s arrest was in an area shared by all of the
tenants of the condominium building. Absent certain
particular facts not alleged here, there is no reasonable
expectation of privacy in common areas of multiple
dwelling buildings. See, e.g., United States v. Villegas, 495
F.3d 761, 767-68 (7th Cir. 2007) (finding no reasonable
expectation of privacy in the common hallway of a
7
(...continued)
court that the arrest occurred inside the gate. To the extent a
dispute remains, it is, as the district court also found, immate-
rial. An arrest outside of the gate is plainly in public, requiring
no warrant. Plaintiffs’ claim, therefore, turns on the lawful-
ness of an arrest occurring inside of the gate to the condo-
minium building property.
Nos. 10-2095, 10-2817 17
duplex building); United States v. Espinoza, 256 F.3d 718,
723 (7th Cir. 2001) (noting that tenants in a multi-family
building lack a reasonable expectation of privacy in
common areas of the building); United States v.
Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991) (holding
that the defendant lacked a reasonable expectation of
privacy in an apartment building’s common entrance).
Moreover, the fact that a gate barred—to some
unknown extent—public viewing or access does not
create a reasonable expectation of privacy in common or
shared areas. See United States v. Nettles, 175 F. Supp. 2d
1089, 1093 (N.D. Ill. 2001) (“Generally speaking, there is
no reasonable expectation of privacy in common or
shared areas of multiple dwelling buildings. This is so
even where the common areas are otherwise locked to
exclude persons that are not tenants of the buildings.”
(citations omitted)). Indeed as noted, the record at least
suggests, if not definitively establishes, that the officers
were invited into this area by plaintiffs’ co-tenant
DeVarela in the course of their investigation.
Having failed to put forth sufficient evidence from
which a reasonable jury could find that the area of
Harney's arrest constituted the curtilage of the condomin-
ium building, plaintiffs have not established Midona was
required to have a warrant to arrest Harney. Accordingly,
the court affirms the district court’s grant of summary
judgment to defendants on Harney’s claim of unrea-
sonable arrest.
18 Nos. 10-2095, 10-2817
2. Muldoon’s Arrest
“A warrantless entry into a residence to effect an
arrest is presumptively unreasonable under the Fourth
Amendment.” United States v. Walls, 225 F.3d 858, 862
(7th Cir. 2000). Where someone with the authority to
do so gives consent to enter, however, the entry is reason-
able and not in violation of the Fourth Amendment.
Id. Moreover, consent may be manifested in a non-verbal
manner. Id. For example, this court, on more than one
occasion, has found that the act of opening a door and
stepping back to allow entry is sufficient to demonstrate
consent. See, e.g., Walls, 225 F.3d at 862-63; Sparing v. Vill. of
Olympia Fields, 266 F.3d 684, 690 (7th Cir. 2001).
Plaintiffs cite to Hadley v. Williams, 368 F.3d 747 (7th
Cir. 2004), for support that Midona lacked consent to
enter. In Hadley, the court concluded that “[t]he consent
of Hadley’s mother was procured by an outright and
material lie, and was therefore ineffectual.” 368 F.3d at
749. Recognizing that Hadley is clearly distinguishable
on its facts from those here, plaintiffs instead point to the
court’s recognition that “[t]he fact that a person answers
a knock at the door doesn’t mean that he agrees to let
the person who knocked enter.” Id. at 750. But this, too,
does not reflect the situation Midona and his fellow
officers encountered.
Instead, Midona followed Harney into his and
Muldoon’s condominium unit after Harney informed
them that he would go and get Muldoon from their
bedroom. As the district court recognized, this situation
closely mirrors the facts in Gerald M. v. Conneely, 858
Nos. 10-2095, 10-2817 19
F.2d 378, 384 (7th Cir. 1988). In Gerald M., Officer Conneely
knocked on the door and asked to speak with Mrs. Macek’s
sons. 858 F.2d at 384. “Mrs. Macek states that when the
officer came to the door and asked to speak to her sons,
she agreed to call them up from the basement, but she
instructed Officer Conneely to ‘wait here.’ ” Id. As
Mrs. Macek went to get the boys, Officer Conneely
entered the home and proceeded down the hallway to
the kitchen, following Mrs. Macek’s path. Id. Mrs. Macek
stated in her deposition that she was “surprised” by
Officer Conneely’s presence in her home, but “did
nothing to indicate to him that she disapproved.” Id.The court held that, while Mrs. Macek’s instruction to
the officer to “ ‘wait here’ . . . give[s] us pause,” “[h]er
subsequent silence and apparent acquiescence per-
suades us that Conneely’s presence in the home was
not against Mrs. Macek’s apparent wishes.” Id. at 384-85.
Relying on the undisputed fact that Mrs. Macek did
not “verbally object” or “physically respond in any way
that might relay the message she disapproved of his
movement,” the court found Mrs. Macek’s simple
surprise at Officer Conneely’s presence “falls well short
of demonstrating that under the totality of the circum-
stances her consent was not voluntary.” Id. at 385.
The facts at issue here present a far easier question
than that posed in Gerald M. Before going into his condo-
minium, Harney was informed that he was under arrest
and that the officers intended to place Muldoon under
arrest. Most likely, Harney did not ask Midona and the
other officers to wait outside of the condominium
20 Nos. 10-2095, 10-2817
unit because he understood (or should have under-
stood) that, having himself been arrested, he was not
free to go anywhere without the officers accompanying
him or, at least, consenting to his doing so without
them. In any event, Harney simply told them that he
would go and get Muldoon out of the bedroom. Further,
like in Gerald M., the fact that neither Harney nor
Muldoon objected to the officers’ presence in their con-
dominium unit or otherwise indicated that they had
not consented to their presence provides additional
support that Harney implicitly consented to the offi-
cers’ entry. See also Walls, 225 F.3d at 863 (“Her consent is
further illustrated by her actions after they entered the
residence in motioning for them to follow her to the
kitchen where she could speak with them privately.”).8
Even if the court were to find consent lacking, plaintiffs
fail to demonstrate—and cannot demonstrate in light of
this court’s holding in Gerald M.—that Officer Midona’s
following of his prisoner Harney into his apartment
was unreasonable, much less a clearly established
violation of the Fourth Amendment. See Sparing, 266
F.3d 684, 691 (finding officers entitled to qualified im-
munity because the law surrounding “doorway arrests”
was not clearly established at the time of the arrest).
8
In their reply brief, plaintiffs appear to argue that the only
way Muldoon and Harney could have objected to the offi-
cers’ presence was by physically resisting arrest, which is a
violation of Illinois state law. (Reply Br. 21.) But nothing
would have prevented Harney and Muldoon from voicing
an objection to the officers’ presence in their home.
Nos. 10-2095, 10-2817 21
Indeed, this court’s holding in Gerald M. would under-
mine any sense of “fair warning” to Officer Midona that
his conduct was unlawful. Wheeler v. Lawson, 539 F.3d
629, 640 (7th Cir. 2008) (describing policy underlying
qualified immunity). As such, even construing the facts
in the light most favorable to plaintiffs, Midona would
still be entitled to qualified immunity.
E. Challenges to Award of Costs
Under Federal Rule of Civil Procedure 54(d)(1), a prevail-
ing party is entitled to recover “[c]osts other than attor-
neys’ fees . . . as of course.” Among the costs a court may
tax are: “(1) Fees of the clerk and marshal; (2) Fees
for printed or electronically recorded transcripts neces-
sarily obtained for use in the case; (3) Fees and disburse-
ments for printing and witnesses; [and] (4) Fees for ex-
emplification and the costs of making copies of any
materials where the copies are necessarily obtained for
use in the case.” 28 U.S.C. § 1920.
Plaintiffs challenge the district court’s award of costs
pursuant to 28 U.S.C. § 1920 in four respects, three of
which warrant little discussion. Dealing with those three
first—the district court’s award of (1) costs for binding
deposition transcripts; (2) so-called “excessive” costs
for transferring VHS tapes to DVDs and duplicating the
DVDs; and (3) $529 for copies of Midona’s cell phone
records—the court agrees that plaintiffs have failed
to demonstrate that these costs are unreasonable or
otherwise contrary to the Judicial Conference policy
since all fall within allowable categories of expenses. See
22 Nos. 10-2095, 10-2817
Beamon v. Marshall & Isley Trust Co., 411 F.3d 854, 864
(7th Cir. 2005) (noting that the losing party has the
burden of demonstrating that taxed costs are not appro-
priate).
Plaintiffs also challenge the district courts award of
$475.00 for court reporter “appearance fees” in addition
to the per page transcript fee. The parties agree that
the Northern District of Illinois Local Rule 54.1 governs
the award of transcription costs. It provides in
pertinent part:
(b) Transcript Costs. Subject to the provisions of
Fed.R.Civ.P. 54(d), the expense of any prevailing
party in necessarily obtaining all or any part of a
transcript for use in a case, for purposes of a new trial,
or amended findings, or for appeal shall be taxable
as costs against the adverse party. If in taxing costs
the clerk finds that a transcript or deposition was
necessarily obtained, the costs of the transcript or deposi-
tion shall not exceed the regular copy rate as established
by the Judicial Conference of the United States and in
effect at the time the transcript or deposition was
filed unless some other rate was previously provided
for by order of court. Except as otherwise ordered
by the court, only the cost of the original of such
transcript or deposition together with the cost of one
copy each where needed by counsel and, for deposi-
tions, the copy provided to the court shall be allowed.
(Emphasis added.) Plaintiffs argue that defendants are
entitled to $3.65 per page—the regular copy rate estab-
lished by the Judicial Conference of the United States. In
Nos. 10-2095, 10-2817 23
addition to this amount, the district court also awarded
appearance fees which exceed the per page allowable
amount and which plaintiffs contend are contrary to
the plain language of Rule 54.1.
In Extra Equipmentos E Exportacao v. Case Corp., 541 F.3d
719, 727 (7th Cir. 2008), we affirmed the district court’s
award of attendance fees, holding that “the separate
attendance fee is properly regarded as a component of the
fee for the transcript.” See also Held v. Held, 137 F.3d 998,
1002 (7th Cir. 1998) (“[W]e have previously held that
even though [deposition attendance fees] are not specifi-
cally mentioned in the statute, the district court may
award them in its discretion pursuant to 28 U.S.C.
§ 1920(2).”). This holding does not fully resolve the
issue posed here—namely, whether the local rule’s limit
on the per page reimbursement includes appearance
fees. Indeed, there appears to be a split among the
district judges in the Northern District of Illinois, with
some judges awarding appearance fees in addition to
the maximum allowable per page transcript fee and
other district courts limiting the taxable costs to the per
page rate. Compare Dishman v. Cleary, 279 F.R.D. 460, 467
(N.D. Ill 2012) (Denlow, M.J.); Comrie v. IPSCO Inc., No. 08-
3060, 2010 WL 5014380, at *3 (N.D. Ill. Dec. 1, 2010)
(Darrow, J.); Wagner v. University of Illinois Medical Center,
No. 09 C 7591, 2010 WL 4074376, at *1 (N.D. Ill. Oct. 12,
2010) (Conlon, J.), with Serwatka v. City of Chi., No. 08 C
5616, 2011 WL 2038725, at *1 (N.D. Ill. May 24, 2011)
(Feinerman, J.); Perry v. City of Chi., No. 08-4730, 2011 WL
612342, at *5 (N.D. Ill. Feb. 15, 2011) (Schenkier, M.J.);
24 Nos. 10-2095, 10-2817
Fletcher v. Chi. Rail Link, LLC, No. 06 C 842, 2007 WL
4557816, at *1 (N.D. Ill. Dec. 20, 2007) (Kennelly, J.).
Some of the district courts awarding appearance fees
above the per page rate point to this court’s award of
appearance fees in addition to the maximum allowable
rate in Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 457
(7th Cir. 1998). While in Cengr, the court awarded a
per page transcription costs and “court reporter ser-
vices” fees, there is no indication in the opinion that
the losing party raised a challenge or the court even
considered whether an award of appearance fees would
result in a per page amount exceeding the maximum
allowed under Local Rule 54.1. Certainly, the plain lan-
guage of Local Rule 54.1 does not appear to support
awarding appearance fees where the total award
would exceed the allowable per page amount, but simi-
larly, the rule does not expressly preclude such an
award rather than addling the prevailing party with
this cost. Since this issue arises solely out of the applica-
tion of the district court’s own local rule and would
appear best addressed by an amendment of that rule
clarifying the availability of court reporter appearance
fees over and above the allowable per page amount, and
since it would appear plaintiffs fail to address this issue
at all in their reply brief, the issue will be deemed
waived here.
The judgment of the district court is therefore A FFIRMED.
12-10-12