Wagner, Carl v. Washington County Sh

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2045
CARL WAGNER,
Plaintiff-Appellant,
v.
WASHINGTON COUNTY, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 C 1034—Rudolph T. Randa, Chief Judge.
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ARGUED JANUARY 24, 2007—DECIDED JULY 12, 2007
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Before RIPPLE, ROVNER, and WILIAMS, Circuit Judges.
PER CURIAM. Carl Wagner filed suit under 42 U.S.C.
§ 1983 claiming, as significant here, that his Fourth
Amendment rights were violated when sheriff’s deputies
in Washington County, Wisconsin, arrested him during
a town-hall meeting on the belief that his presence vio-
lated a protective order awarded to a husband and wife
who were also in attendance. The district court granted
summary judgment for the deputies after concluding
that they had probable cause to arrest Wagner. Although
we disagree with the court’s legal determination, we affirm
the judgment on the alternative ground that the deputies
are immune from suit under the doctrine of qualified
immunity.
2 No. 06-2045
I. BACKGROUND
In October 2003 husband and wife Jeffrey and Patti
Metzger obtained from the Washington County Circuit
Court identical “harassment injunctions,” see WIS. STAT.
§ 813.125(4), commanding Wagner to “avoid the residence
and any premises temporarily occupied” by the Metzgers.
One month later the Metzgers planned to attend a Plan
Commission meeting in West Bend, Wisconsin, to oppose
a “reserved road right of way” on their street. When the
Metzgers pulled into the parking lot at West Bend’s town
hall, where the meeting was to be held, they observed
Wagner entering the building. Unsure how to proceed, the
Metzgers contacted the Washington County Sheriff ’s
Department, which sent Deputies Christopher Killey and
Brian Herbst to the scene.
According to an affidavit submitted by Deputy Killey
at summary judgment, Patti Metzger showed Killey a copy
of her harassment injunction and informed him that
she wished him to enforce it so that she might enter
the town hall. Killey thus escorted the Metzgers into the
Plan Commission meeting where Wagner already was
seated in the front row. After the Metzgers were seated,
Deputy Killey approached Wagner and asked him to step
into the hallway. Once in the hallway, Wagner confirmed
that he was the subject of the harassment injunctions
obtained by the Metzgers. Killey told Wagner he was
violating those injunctions and must leave the premises,
but Wagner, who had a personal interest in one item on
the agenda, refused and returned to his seat inside the
meeting room.
Still convinced that Wagner was violating the injunc-
tions, Deputy Killey called his commanding officer, who
agreed with Killey’s assessment. Killey thus approached
Wagner inside the meeting room again and asked him to
step into the hallway for a second time. After Wagner
No. 06-2045 3
complied, Deputy Killey told him he was violating the
injunctions and could be arrested if he did not leave the
area immediately. Wagner did not leave and instead
returned to his seat inside the meeting room. Deputy
Killey followed him and told him to leave, but Wagner
refused. Thus, Killey and Deputy Herbst arrested Wagner
and took him to the county jail where he was charged
under WIS. STAT. § 813.125(7) with violating a harass-
ment injunction. He was released two hours later after
posting bail.
On October 21, 2004, Wagner filed suit against Washing-
ton County, the county’s insurance company, Deputy
Killey, Deputy Herbst, and the Metzgers. (Wagner actu-
ally named the sheriff’s department instead of the county,
but the department is a division of the county and not
a justiciable entity. See Whiting v. Marathon County
Sheriff’s Dept., 382 F.3d 700, 704 (7th Cir. 2004)). Wagner
claimed that the Metzgers conspired with Deputies Killey
and Herbst to arrest him without probable cause in
violation of the Fourth Amendment. In addition, Wagner
asserted state-law claims for false arrest, defamation,
abuse of process, intentional and negligent infliction of
emotional distress, and false imprisonment. All of the
defendants moved for summary judgment.
The district court granted the defendants’ motions for
summary judgment, holding that the deputies had proba-
ble cause to arrest Wagner and were therefore required to
arrest him under WIS. STAT. § 813.125(6). The court thus
dismissed the Fourth Amendment claim against the
county, the county’s insurer, and the deputies. The court
also dismissed Wagner’s federal claim against the
Metzgers, reasoning that the absence of a Fourth Amend-
ment violation precluded him from establishing an essen-
tial element of his conspiracy theory. The court then
declined to exercise supplemental jurisdiction over Wag-
ner’s state-law claims.
4 No. 06-2045
II. ANALYSIS
We review the district court’s grant of summary judg-
ment de novo. Tibbs v. City of Chicago, 469 F.3d 661, 663
(7th Cir. 2006). Summary judgment is appropriate “if the
pleadings, 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; see Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). On review we must
construe the evidence in the light most favorable to
Wagner, the non-moving party, and draw all reasonable
inferences in his favor. See Tibbs, 469 F.3d at 664.
To begin, neither the county or its insurance company
were viable parties to Wagner’s claim under § 1983. In
order to prevail against the county, Wagner would have to
demonstrate that he suffered a deprivation of his constitu-
tional rights based on some official policy, widespread
custom, or deliberate act of a county decision-maker of the
municipality or department, see Monell v. Department of
Soc. Servs., 436 U.S. 658, 694 (1978); Davis v. Carter, 452
F.3d 686, 691 (7th Cir. 2006), which Wagner failed to do.
Furthermore, although the county’s insurance company
may be obliged to indemnify county officials found liable
in a suit under § 1983, the insurer is not an appropriate
party to the suit because it is not a state actor, nor did
it deprive Wagner of any constitutional rights while act-
ing under the color of a state statute. See Flagg Bros., Inc.
v. Brooks, 436 U.S. 149, 155-56 (1978); Thurman v. Vill. of
Homewood, 446 F.3d 682, 687 (7th Cir. 2006).
Similarly, the federal claim against the Metzers was
properly dismissed at summary judgment. Although
Wagner argues that the Metzgers acted under color of
state law by conspiring with Deputies Killey and Herbst
to violate his rights under the Fourth Amendment, there
No. 06-2045 5
is no evidence in the record to support this contention. The
Metzgers simply called the sheriff’s department after
seeing Wagner at the town-hall meeting and showed Mrs.
Metzger’s injunction to Deputy Killey. This interaction
is not evidence of a conspiracy.
Thus, the only question left is whether the district court
appropriately concluded that Deputies Killey and Herbst
had probable cause to arrest Wagner. Probable cause to
arrest is an absolute defense to any claim against police
officers under § 1983 for wrongful arrest, even where
the defendant officers allegedly acted upon a malicious
motive. Mustafa v. City of Chi., 442 F.3d 544, 547 (7th Cir.
2006). Police ordinarily have probable cause 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, in believing, in the
circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.” Michigan v.
DeFillippo, 443 U.S. 31, 37 (1979); see Sornberger v. City
of Knoxville, Ill., 434 F.3d 1006, 1013 (7th Cir. 2006);
Anderer v. Jones, 385 F.3d 1043, 1049 (7th Cir. 2004). In
evaluating whether an officer had probable cause, we
“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 incident.” Driebel
v. City of Milwaukee, 298 F.3d 622, 643 (7th Cir. 2002)
(quoting Richardson v. Bonds, 860 F.2d 1427, 1431 (7th
Cir. 1988)); accord United States v. Parra, 402 F.3d 752,
764 (7th Cir. 2005).
Here, Deputies Killey and Herbst knew that Wagner had
entered the town hall prior to the Metzgers to attend a
meeting of the Plan Commission, that the Metzgers wished
to attend the meeting, and that they possessed harassment
injunctions commanding Wagner to “avoid . . . any pre-
mises temporarily occupied by [the Metzgers].” The intent
6 No. 06-2045
of the issuing court, as is evident from the language of the
harassment injunctions, was to stop Wagner from
actively harassing the Metzgers. Thus, if Wagner had
followed the Metzgers to the public meeting and entered
after them, there might be more support for an arrest
(assuming one ignores any First Amendment implications)
than in this situation where Wagner arrived at a meeting
prior to the Metzgers and was there because an item on
the agenda related directly to him and his family. See
Bachowski v. Salamone, 407 N.W.2d 533, 538-39 (Wis.
1987) (explaining that for conduct to violate Wisconsin’s
harassment injunction statute, Wis. Stat. § 813.125, it
must be intentional and devoid of “any legitimate pur-
pose”).
We cannot agree with the district court that the deputies
had probable cause to arrest Wagner in this situation. If
we were to do so, the possibilities for the Metzgers to use
the injunction to harass Wagner would be limitless; the
Metzgers could follow Wagner around town and force him
to leave stores, restaurants, movie theaters, hospitals,
et cetera. The district court, by selectively quoting the
language of the harassment injunctions, overstated the
command of those court orders. The orders do not prohibit
Wagner from “being on” any premises occupied by the
Metzgers; rather, the orders command that he avoid
such premises. Thus, we conclude that upholding the
district court’s assessment of probable cause would
undermine, not promote, the state legislature’s goal in
enacting the harassment statute of preventing “repeated
assaults on the privacy interests of individuals without
unnecessarily infringing on their freedom to express
themselves through speech and conduct.” Bachowski, 407
N.W.2d at 538.
That said, we nonetheless uphold the judgment in favor
of the deputies because we conclude that they are immune
from suit under the doctrine of qualified immunity. As
the Supreme Court has explained, “the qualified im-
No. 06-2045 7
munity defense . . . provides ample protection to all but the
plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs, 475 U.S. 335, 341 (1986); accord
Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 761 (7th Cir.
2006) (reiterating that “the doctrine of qualified im-
munity leaves ample room for mistaken judgments by
police officers” (citations and quotation marks omitted)).
Thus, so long as “officers of reasonable competence could
disagree on this issue, immunity should be recognized.”
Malley, 475 U.S. at 341; accord Wollin v. Gondert, 192 F.3d
616, 625-26 (7th Cir. 1999).
Examining the facts, not as an omniscient observer
would perceive them but as they would have appeared to
a reasonable person in the position of the arresting
officers, see Mustafa, 442 F.3d at 547, we can understand
how the deputies could believe that Wagner was violat-
ing a harassment injunction that required him to
“avoid . . . any premises temporarily occupied” by the
Metzgers when he remained in the town hall after the
Metzgers arrived. That the deputies’ supervisor—and
even the district court—agreed with their assessment
only strengthens the argument that the deputies should
be protected from civil liability by qualified immunity.
III. CONCLUSION
Accordingly, we AFFIRM the decision of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-12-07