Thompson, Beverly v. Wagner, David E.

In the
United States Court of Appeals
For the Seventh Circuit
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No. 02-1918
BEVERLY THOMPSON,
Plaintiff-Appellant,
v.
DAVID E. WAGNER and KEITH GARDNER,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 4266—John W. Darrah, Judge.
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ARGUED SEPTEMBER 17, 2002—DECIDED FEBRUARY 13, 2003
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Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.
EVANS, Circuit Judge. Several things don’t quite add
up in this bizarre little case, which started at a flea mar-
ket and ended with the brief arrest of a 50-year-old cake
decorator at a Kroger’s grocery store some 5 months later.
The case is here for our review of a district court’s grant
of summary judgment on qualified immunity grounds to
the defendants, two members of the Kane County (Illi-
nois) sheriff’s department.
We know little about the Kane County flea market
where this saga started, but we do know that a “flea mar-
ket” conjures up images of booths where sellers display
items—used household goods, antiques, pieces of bric-a-
2 No. 02-1918
brac, for example—on card tables, hoping to entice wan-
dering buyers to part with their money. We can assume,
for our purposes, such a scene in early December of 2000
when a seller, Diane Richardson, sold items to a purchaser
named Chuck Berry. We won’t assume, however, that
“Chuck Berry” was The legendary “Chuck Berry” who rode
classics like “Maybellene,” “Sweet Little Sixteen,” and
“Johnny B. Goode” into the Rock ‘n Roll Hall of Fame.
The items Richardson sold to Berry—two diamond
rings—strike us as odd for a flea market. The price
paid—over ten thousand dollars—seems even odder. And
the method of payment—two separate personal checks
from Berry, a stranger to Richardson, seems odder still. Yet,
that is what everyone seems to agree happened.
Soon after the checks—surprise, surprise—bounced,
Richardson complained to the Kane County sheriff’s de-
partment, and two deputies, our defendants David Wag-
ner and Keith Gardner, were put on the case. They inter-
viewed Berry 2 weeks after the sale at a correctional facility
where he was in custody on an unrelated matter. Berry
admitted writing two bad checks totaling $10,475 for the
rings, each a tad over a carat. Berry said two gentlemen,
Myers and Risch, who were with him when he purchased
the rings, had them. Myers and Risch were, like Berry,
local felons. The deputies interviewed Myers and Risch and
both admitted being present at the sale, but each denied
ever possessing the rings. Each said the other had the
rings and may have given them to a girlfriend. Later, 5
months removed from the flea market sale, Myers changed
his tune. He said he did, in fact, possess one of the rings
at one time (the man’s ring; the other was a woman’s),
and his new story went like this:
• Risch gave Myers a men’s 2 carat diamond ring
(never mind that the two flea market rings were
a carat each!);
No. 02-1918 3
• Myers gave the 2 carat diamond ring to his girl-
friend, Delores Henry;
• Henry removed the diamond from the ring and
placed the stolen diamond into one of her own rings;
• Henry gave her ring with the stolen 2 carat diamond
to her brother, Robert Thompson, in exchange for
a car;
• Robert Thompson removed the diamond from the
ring and placed it into the wedding ring of his
wife, Beverly;
• Beverly Thompson wears her wedding set, with the
2 carat diamond, on her left hand;
• Myers took back the men’s ring (minus the 2 carat
diamond) from Henry;
• Myers placed a cubic zirconia stone into the men’s
ring and was going to return it to Risch. The ring,
with the cubic zirconia stone, was given to the depu-
ties.
After speaking with Myers, and now 166 days after the
flea market sale, our two deputies decided to go to the
Kroger store in Ottawa, Illinois, where 50-year-old Bev-
erly Thompson had worked for more than 20 years in its
bakery department. Mrs. Thompson, by the way, had no
criminal record, and the officers’ visit was made without
any additional investigation on their part. For instance, no
one looked to see if Delores Henry had in fact recently
received a car from Robert Thompson, her brother. They
didn’t know if the ring (minus the diamond) received
from Myers matched one of the two sold by Mrs. Richard-
son at the flea market. Also, our deputies were not gem-
ologists. They had no training whatsoever in identifying
diamonds as to cut, clarity, carat weight, or value. For
all they knew, the “diamond” on anyone’s finger could
have come from “Imposters.”
4 No. 02-1918
Undaunted by their lack of knowledge about gems, and
without any further investigations, the officers went to the
Kroger store and introduced themselves to Mrs. Thompson.
They then went with her to the customer waiting area
of the store’s pharmacy. Thompson, the officers observed,
was wearing a diamond ring on each hand. She was told
she was not under arrest but that the officers believed
that she was in possession of a “stolen” diamond. If she
admitted “guilt,” she was told she would not be arrested
that day. The officers asked to take her rings which, they
said, would be returned to her if they turned out not to
be “stolen.” Thompson then told the officers she wanted
to call her husband. She rose from her chair and began
to walk away when Wagner blocked her way. He and
Gardner then secured her in handcuffs.
Gardner later testified that he believed Thompson
was committing, or was about to commit, the crime of
obstruction when she would not permit them to take the
rings, said she was going to call her husband, and began
to walk away. Wagner testified that he cuffed her be-
cause he suspected the diamond on her left hand was
stolen and that she was going to conceal or destroy it if
she left.
Thompson was upset, and she remained cuffed for about
5 to 10 minutes. When she calmed down, the cuffs were
removed and she gave up the rings. But she remained
in the officers’ custody, again asking to call her husband.
Wagner and Gardner then walked Thompson out of the
store and placed her in their squad car. Thompson was
in the squad car for about 10 minutes when her husband
arrived. He signed a property receipt for the rings and
Mrs. Thompson was released from custody. Although sub-
sequent matters are not important on the issue before
us, neither of the seized rings turned out to be the ones
sold at the flea market.
No. 02-1918 5
This police encounter at her place of employment must
have been embarrassing, for it prompted Mrs. Thompson
to sue under 42 U.S.C. § 1983 alleging that her constitu-
tional rights were violated. After some discovery, the
district court granted summary judgment to the officers
on qualified immunity grounds, a decision we review de
novo. White v. City of Markham, 310 F.3d 989 (7th Cir.
2002).
We start with a few basics. The Fourth Amendment
prohibits unreasonable searches and seizures. But a
warrantless arrest is permitted under the Fourth Amend-
ment if the arresting officer has probable cause. Sparing
v. Village of Olympia Fields, 266 F.3d 684, 688 (7th Cir.
2001) (citing United States v. Watson, 423 U.S. 411, 417-24
(1976)). Probable cause for an arrest exists if an officer
reasonably believes, in light of the facts and circum-
stances within his knowledge at the time of the arrest,
that the suspect has committed, or is committing, an of-
fense. See United States v. Carrillo, 269 F.3d 761, 766 (7th
Cir. 2001). Arresting officers may draw reasonable in-
ferences based on their training and experiences in deter-
mining whether suspicious circumstances rise to the
level of probable cause. Whether probable cause exists
“turns on the information known to the officers at the
moment the arrest [was] made, not on subsequently re-
ceived information.” Id. (citing Spiegel v. Cortese, 196 F.3d
717, 723 (7th Cir. 2000)). Because the issue of whether
probable cause for an arrest existed is linked to the de-
termination of whether the arresting officers are shielded
from liability by qualified immunity in a § 1983 action,
the two issues are often analyzed together, and it makes
good sense to do so in our case.
Qualified immunity shields police officers from liability
for civil damages insofar as their conduct does not vio-
late “clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow
6 No. 02-1918
v. Fitzgerald, 457 U.S. 800, 818 (1982). The defense of
qualified immunity, however, is not available to “the plainly
incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986).
So, what this all boils down to is that the officers here
are entitled to qualified immunity, and Thompson’s
§ 1983 action against them must be dismissed without
a trial if a reasonable officer could have believed that, in
light of the facts and circumstances within the officers’
knowledge and clearly established law, Mrs. Thompson
had committed or was committing an offense. See Hunter
v. Bryant, 502 U.S. 224, 227 (1991). A reasonable but
mistaken belief that probable cause exists is sufficient
for entitlement to qualified immunity. Id. at 227. In cases
involving the issue of whether probable cause existed to
support an arrest, “the case should not be permitted to
go to trial if there is any reasonable basis to conclude
that probable cause existed.” McDonnell v. Cournia, 990
F.2d 963, 968 (7th Cir. 1993) (quoting Cross v. City of
Des Moines, 965 F.2d 629, 632 (8th Cir. 1992)). So we see
that in getting around the defense of qualified immunity
in a probable cause to arrest situation, plaintiffs have
a very difficult hurdle to pass. Difficult, but not impos-
sible. We now get to the point.
Although Mrs. Thompson was told she was not under
arrest when she went with the officers to the waiting
area in the store’s pharmacy, she was clearly arrested
when the officers blocked her from leaving, cuffed her,
and questioned her. She remained under arrest until
she was released from the squad car. The whole episode,
from what we can gather, appears to have taken about
a half hour.
The officers are a bit inconsistent on just what they
contend formed the basis for their arrest. Several pos-
sibilities are suggested. At one point they say they “mis-
No. 02-1918 7
takenly believed that one of the diamond rings which
plaintiff was wearing was the diamond ring which had
been sold at the flea market.” So the basis for the arrest,
this statement implies, was possession of stolen property
or, more accurately, property acquired by fraud or de-
ception, for Mr. Berry didn’t sneak off with the rings; he
took them after leaving bad checks as the considera-
tion for the sale. But in the district court, the defendants
emphasized another theory—the officers arrested Thomp-
son for “obstruction” when she got up to leave, saying
she was going to call her husband.
On the facts of this case, neither theory holds up. The
“probable cause” theory has to fail because it was unrea-
sonable to assume that probable cause existed. What the
officers had was simply this: the statement, 5 months
after the “crime,” by a convicted felon who admittedly
lied to them earlier in their investigation. Without even
a modicum of additional investigation, we think a rea-
sonable officer would not have believed he had probable
cause to place Mrs. Thompson under arrest based on
what Myers said in his second statement. Add to this
what the officers didn’t have—knowledge about dia-
monds—and we have more fuel to add to the fire of unrea-
sonableness.
The “obstruction” theory also fails. Mrs. Thompson
voluntarily went with the officers to the waiting area. She
was told she was not under arrest. When she wanted to
get up and go to call her husband, she had a right to do
so. To hold otherwise would be to say that anyone who
decides to terminate a voluntary conversation with a po-
lice officer commits a crime. It would not be reason-
able—or consistent with the Fourth Amendment—for a
police officer to hold this view.
Finally, Mrs. Thompson’s cuffing and detention cannot
be justified under Terry v. Ohio, 392 U.S. 1 (1968), as
8 No. 02-1918
the officers have made no attempt to say their actions
were necessary for their own protection.
So, what we have here is a situation where the offi-
cers seem to have decided on their course of action be-
fore they even entered the Kroger store. If Mrs. Thomp-
son had a diamond, and refused to give it up, she would
be arrested. Without probable cause or a valid charge of
obstruction, their actions cannot be protected by qual-
ified immunity. It may well be that Mrs. Thompson is
entitled to win on the liability issue, but the district
court didn’t rule on her motion for summary judgment.
And we will not do so here. All we are saying at this time
is that qualified immunity is not a valid defense in
this case. The judgment of the district court is REVERSED
and the case REMANDED for further proceedings consis-
tent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-13-03