Herzog, Maris v. Village of Winnetka

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1991
MARIS HERZOG,
Plaintiff-Appellant,
v.
VILLAGE OF WINNETKA, ILLINOIS, and WINNETKA POLICE
OFFICERS POWELL and COLLERAN,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 4439—William J. Hibbler, Judge.
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ARGUED SEPTEMBER 24, 2002—DECIDED NOVEMBER 5, 2002
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Before BAUER, POSNER, and KANNE, Circuit Judges.
POSNER, Circuit Judge. The plaintiff brought suit under
42 U.S.C. § 1983 against the Village of Winnetka, a suburb
of Chicago, and two of its police officers, charging false
arrest, and the employment of excessive force in the
course and aftermath of the arrest, in violation of the
Fourth Amendment (made applicable to state action by the
Fourteenth Amendment). Graham v. Connor, 490 U.S. 386,
394 (1989); Lester v. City of Chicago, 830 F.2d 706, 710, 713
(7th Cir. 1987). The district judge granted summary judg-
2 No. 02-1991
ment for the defendants; the plaintiff appeals only the dis-
missal of the claims against the individual defendants.
The defendants’ brief, in its statement of facts, states only
that “Defendants make no dispute with the factual state-
ment submitted by the Plaintiff [i.e., the statement of facts
in the plaintiff’s brief] and accept all statements made
therein as true and complete.” This amounts to a stipula-
tion that the appeal is to be decided on the basis of the
facts stated in the plaintiff’s statement of facts, whether
they are true or false. With immaterial exceptions, judges
do not interrogate factual assertions made by a party
unless his opponent contests them. “It is fundamental that
the Court of Appeals may accept the statement of the ap-
pellant touching on the facts of the case unless these are
controverted by the appellee. The Court cannot be ex-
pected to search the record for support of all of the state-
ments of fact made in appellant’s brief. It does so only
where a controversy as to such statement is created by a
contrary statement contained in the brief of the appellee.”
Investment Funds Corp. v. Bomar, 306 F.2d 32, 32-33 (5th Cir.
1962) (per curiam). See also Neuens v. City of Columbus,
303 F.3d 667, 670-71 (6th Cir. 2002); Williams v. W.M.A.
Transit Co., 472 F.2d 1258, 1259 n. 3 (D.C. Cir. 1972);
cf. Albrechtsen v. Board of Regents, No. 01-3577, 2002
WL 31397690 at *2 (7th Cir. Oct. 23, 2002); United States
v. Alvarez-Martinez, 286 F.3d 470, 475-76 (7th Cir. 2002). The
defendants were of course represented by counsel, and we
are not disposed to relieve them from the consequences
of their possibly improvident stipulation. The argument
section of their brief contains some factual assertions in-
consistent with the plaintiff’s submission, but at argu-
ment their lawyer acknowledged being bound by the
statement in their brief that the statement of facts in the
plaintiff’s appeal brief is “true and complete.”
No. 02-1991 3
The facts alleged are as follows. The plaintiff, Maris
Herzog, is a middle-aged, unmarried schoolteacher. After
a dinner at which she had two sips of wine, she was driv-
ing home on Sheridan Road, which connects Winnetka to
Chicago, where she lives, when she noticed something
wrong with the lights on her dashboard. Seeing a police
car in the vicinity she felt it safe (it was after midnight)
to pull over to the side of the road and get out of her car
to check her exterior lights. She was not speeding or violat-
ing any other rule regulating driving.
The police car, driven by defendant Powell, an inex-
perienced officer who had not yet completed her one-year
probationary appointment, pulled up behind Herzog’s car
and Powell ordered her to get back into her car; Herzog
obeyed. After checking her license and insurance card,
both of which were in order, Powell ordered Herzog out
of the car, walked her to the sidewalk, and pushed her
down, and she fell in some bushes and hurt her hands.
Powell then ordered Herzog to take a variety of “DUI per-
formance tests,” such as standing on one leg, touching
her nose, and counting backwards from 1000. Herzog
passed all the tests. Nevertheless Powell handcuffed
Herzog and told her she was under arrest for driving
under the influence. Herzog protested that she had only
two sips of wine that evening. Powell then forced a plas-
tic device (a “personal breath screening device”) into
Herzog’s mouth, cracking a tooth, and told her to blow
hard. The test revealed a blood-alcohol level of 0.00.
Powell transported Herzog to the Winnetka police sta-
tion, where the other defendant, Officer Colleran, laughed
at Herzog when she complained that the cuffs were too
tight, although after an hour loosened them. Powell ad-
ministered a breathalyzer test which confirmed the 0.00
blood alcohol—yet she told Colleran that she wanted to
4 No. 02-1991
take the plaintiff to a hospital for blood and urine testing,
and Colleran approved, though there was no reason to
believe that Herzog was intoxicated or had violated any
law. At the hospital Herzog was given a blood test and
then forced to give a urine specimen in the presence of
Powell, although the hospital had installed a special toilet
for taking urine samples while providing privacy and yet
preserving the integrity of the sample. She was told that
if she refused either test the consequence would be to
lengthen the period for which her driving license would
be suspended. Powell then returned Herzog to the Win-
netka police station and had her charged with speeding
and driving under the influence of drugs. Both charges
were dismissed at Herzog’s first court appearance. The
blood and urine tests of course proved negative.
Recall that for purposes of this appeal the defendants
have conceded that the facts we have recited are not only
true, but complete; that is, there are no other facts on
which to base our decision. Therefore we must accept
that the arrest was made without probable cause and
hence in violation of the Fourth Amendment’s prohibi-
tion against unreasonable searches and seizures; and
that without provocation or excuse Powell shoved the
middle-aged female plaintiff to the ground and Colleran
refused to loosen the plaintiff’s chafing handcuffs, both
instances of excessive force, which, contrary to the defen-
dants’ argument, does not require either “a severe element
of violence” or a threat of violence. “The Fourth Amend-
ment protects against unreasonable seizures, not sei-
zures that ‘shock the conscience’ or cause ‘severe inju-
ries.’ . . . The objectively unreasonable seizure itself (re-
gardless of the officer’s motive or whether any injury in-
flicted was severe) crosses the constitutional threshold.”
Lester v. City of Chicago, supra, 830 F.2d at 712; see also
Williams v. Boles, 841 F.2d 181, 183 (7th Cir. 1988) (dictum).
No. 02-1991 5
The applicability of this point (which follows a fortiori
from the cases, such as Hudson v. McMillian, 503 U.S. 1,
9 (1992), that hold that duly convicted criminals, com-
plaining of cruel and unusual punishment under the
Eighth Amendment visited on them by prison author-
ities, need not establish serious injury) to the present case
is made clear in a long line of tight-handcuff cases, see
Mickle v. Morin, 297 F.3d 114, 120 (2d Cir. 2002); Bastien
v. Goddard, 279 F.3d 10, 16 (1st Cir. 2002) (per curiam);
Martin v. Heideman, 106 F.3d 1308, 1312-13 (6th Cir.
1997); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993),
though there is some contrary authority. See Carter v.
Morris, 164 F.3d 215, 219 n. 3 (4th Cir. 1999); Glenn v. City
of Tyler, 242 F.3d 307, 314 (5th Cir. 2001).
And there is more. Forcible extraction of blood when there
is no reason to think it will yield evidence of crime is an
unlawful search, Skinner v. Railway Labor Executives’ Ass’n,
489 U.S. 602, 616 (1989); Schmerber v. California, 384 U.S. 757,
769-72 (1966); United States v. Husband, 226 F.3d 626, 630
(7th Cir. 2000), and therefore violates the Fourth Amend-
ment. Gratuitously forcing a person to urinate in the pres-
ence of another is an invasion of privacy in the most
elementary sense, and, as it seems to us, is (unless some
justification is offered—in which event it wouldn’t be
gratuitous, see Thompson v. Souza, 111 F.3d 694, 703 (9th
Cir. 1997); Wilcher v. City of Wilmington, 139 F.3d 366, 376-77
and n. 6 (3d Cir. 1998)) either an illegal search or a depriva-
tion without due process of law of a form of liberty pro-
tected by the Constitution’s due process clauses. Skinner
v. Railway Labor Executives’ Ass’n, supra, 489 U.S. at 617, 626;
Dimeo v. Griffin, 943 F.2d 679, 682 (7th Cir. 1991) (en banc);
Taylor v. O’Grady, 888 F.2d 1189, 1198 (7th Cir. 1989); Piroglu
v. Coleman, 25 F.3d 1098, 1101-02 (D.C. Cir. 1994). And when
an illegal arrest sets off a chain of indignities inflicted on
the hapless victim, including offensive physical touchings
6 No. 02-1991
that would be privileged if the arrest were lawful, she is
entitled to obtain damages for these indignities whether
or not they are independent violations of the Constitu-
tion. For they are foreseeable consequences of the illegal
arrest, and the ordinary rules of tort causation apply to
constitutional tort suits. Parrett v. City of Connersville, 737
F.2d 690, 695 (7th Cir. 1984); Jackson v. Sauls, 206 F.3d 1156,
1168-69 (11th Cir. 2000); Buenrostro v. Collazo, 973 F.2d
39, 45 (1st Cir. 1992); Moore v. Marketplace Restaurant, Inc.,
754 F.2d 1336, 1359 (7th Cir. 1985) (concurring opinion).
Any intentional offensive physical touching is a battery
unless privileged. That is the character of a false arrest
in which the arrested person is physically seized. Just as
in a battery case, so in a false arrest case, the defendant
is liable for the foreseeable consequences of his tort. So
even though cracking Herzog’s tooth by inserting the
personal breath-screening device into her mouth too
forcefully may have been accidental, she can obtain dam-
ages for that injury also, because it was a reasonably prob-
able consequence of an arrest made by a police officer
who, if the plaintiff’s facts are believed, was totally in-
competent. That is Powell; Colleran’s liability is limited to
the events that ensued after Powell brought Herzog to
the police station the first time.
As for Herzog’s having “consented” to the blood and
urine tests, Herzog did so under the threat that if she
refused, her driving license would be suspended for a
longer time than if she consented. That was coerced con-
sent. United States v. Jones, 234 F.3d 234, 243 (5th Cir. 2000);
Jones v. Unknown Agents of Federal Election Commission,
613 F.2d 864, 880 (D.C. Cir. 1979).
If the facts are as alleged, a reasonable police officer in
the position of these defendants would have known for
sure that their actions violated the Constitution, and so
No. 02-1991 7
the defendants cannot shelter behind the defense of offi-
cial immunity. See Wilson v. Layne, 526 U.S. 603, 614-15
(1999); Hughes v. Meyer, 880 F.2d 967, 970 (7th Cir. 1989).
So the judgment must be reversed. But we emphasize
as is always important to do in these cases that in recit-
ing the facts alleged by the plaintiff, we do not vouch for
their truth. They have been stipulated to only for pur-
poses of this appeal, the plaintiff has not moved for sum-
mary judgment and the defendants have reserved the
right to contest her allegations in further proceedings in
the district court should we reverse.
REVERSED AND REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-5-02