Seventh Circuit Rules Detective Entitled to Qualified Immunity

Wheeler v. Lawson

Today the Seventh Circuit issued an opinion in Wheeler v. Lawson (attached), affirming the district court's granting of summary judgement in a false arrest case.


Plaintiff had a detached garage on her property. After an explosion in the garage, the police found "a furnace, two propane tanks that were ruptured, thirty cans of starter fluid and lithium batteries that had been broken apart. Someone had used a can-opener to open the bottom of the starter fluid cans. Police also found a clear plastic bag with a powdery substance that later was determined to be methamphetamine; autopsy tests of someone who was in the garage "revealed the presence of methamphetamine in his system". "Detective Lawson noticed that the valves of the propane tanks had been altered, and, based on his prior experience, Detective Lawson knew that these tanks and the type of connection on them often are used in metham-
phetamine labs.

Detective Lawson had only two brief talks with the plaintiff immediately before and immediately after the fire was extinguished. During these short conversations, plaintiff told the Detective that she did not know the cause of the fire, that she was not aware that [someone] had been inside the garage and that she was not aware of any methamphetamine production taking place on her property.

About two weeks later, on June 22, Detective Lawson arrested her on the charge of maintaining a common nuisance. The charges were later dropped and plaintiff brought suit.

The Seventh Circuit ruled that there was no probable cause to arrest plaintiff for maintaining a common nuisance.

The court explained that defendant could not show that plaintiff had constructive possession of the contraband.

One way defendant attempted to show constructive possession was through information learned in discovery, but the Seventh Circuit dismissed this information because "[a]ny evidence . . . that came to light after the arrest,” we have explained, “is not relevant to the probable cause inquiry.” Maltby v. Winston, 36 F.3d 548, 557 (7th Cir. 1994). Before the district court and on appeal, Detective Lawson asserts that Ms. Wheeler stored numerous personal items, including bicycles, a lawnmower, patio equipment and clothing, inside the garage and that she used the garage about once a week. In support of this factual assertion, however, Detective Lawson relies only upon Ms. Wheeler’s deposition that was taken for purposes of this case. Critically, nothing in Detective Lawson’s deposition or in the reports that were created in the course of the investigation indicates that, at the time that he arrested Ms. Wheeler, he knew that she kept personal items in the garage or that she used the garage once a week. This absence of evidence thus eliminates one of the corroborating circumstances upon which Detective Lawson relies.

Nevertheless, the Seventh Circuit found that the detective was shielded by qualified immunity

The Court explained:

"These circumstances provided a reasonable, although ultimately mistaken, basis for Officer Lawson to believe that Ms. Wheeler was aware of the activities taking place in the garage. Although Detective Lawson could have conducted a more thorough investigation under the circumstances, given the information that he knew and given that the burden is on Ms. Wheeler to defeat his qualified immunity defense, we cannot conclude that a reasonable officer could not have believed that there was probable cause to arrest Ms. Wheeler for maintaining a common nuisance."


Seventh Circuit Affirms Kunz v. City

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 Today the Seventh Circuit  affirmed the district court’s judgment in its entirety in Kunz v. City.

"On March 22, 1999, Jeremy Kunz spent the afternoon and evening in a bar watching March Madness and consuming a few Guinnesses....Kunz left [to run an] errand—which turned out to be the delivery of some drugs—he grazed a parked car and kept driving. His actions prompted a 911 call from a witness; Officer DeFelice and his partner responded. Despite the flashing lights on the police car, Kunz kept driving, with the police in pursuit. [the car he was driving was reported stolen]. When Kunz finally stopped the car, he got out and tried to flee on foot...[and toss his drugs]."  

"As he was being handcuffed, multiple police officers kicked Kunz, eventually causing a sharp pain later diagnosed as a broken rib. The police then dragged the injured and restrained Kunz to their squad car and took him back to the station, where they placed him in a room on a stool, still cuffed and facing DeFelice. DeFelice repeatedly punched Kunz in the face hard enough to make him pass out several times. "

Kunz plead guilty, severed his time, and then brought a lawsuit.

Kunz prevailed, winning jury verdicts against Officer DeFelice for $10,000 in compensatory damages and $250,000 (later reduced to $90,000) in punitive damages, as well as a verdict against the City for another $15,000 in compensatory damages. 

The parties cross-appealed. 

The Court affirmed keeping out a retail theft conviction and affirmed the exclusion of James O'Donell, the toxicologist.   Judge Zagel excluded O'Donell because his testing was not based on a sound methodology.  Moreover, the Seventh Circuit held noted that  "O’Donnell was a 
singularly unimpressive witness. His credentials were weak, at best: his degree is called a Pharm.D.; he earned it after one year of classes, only one of which was in pharmacology. Despite the title, his Pharm.D. is not actually in pharmacology, and O’Donnell admitted elsewhere to advertising falsely that it was.

The Seventh Circuit also affirmed the exclusion of witnesses as Zagel barred their testimony  as a discovery sanction under FED. R. CIV. P. 37.  DeFelice claimed that named were in the police reports, "but with nothing to signal that they had anything useful to add. The district court found that it would place an excessive burden on the plaintiff to require him to sift through every single name turned over in discovery."

On the cross-appeal, Kunz challenged the granting of summary judgment on his unlawful detention and malicious prosecution.  Specifically, Kunz challenged the district court's denial of his theory that "the coercive force DeFelice used proximately caused his extended detention and ensuing damages...under the Fourth or Fifth Amendment.  However, Kunz did not develop his fifth amendment his "novel legal theory" at the district court level and therefore it was waived. 
Joseph Roddy represented Officer DeFelice, Jon Loevy represented Kunz.

Verdict for Defense!!!

On July 31, 2008, federal jury returned verdict in favor of Chicago Police: The case is Willie Luckett v. Police Officers CONLAN and PALIDER. 07 C 3300. Plaintiff claimed that on June 28, 2005, the SOS Defendants falsely arrested him and caused him to be subjected to a malicious prosecution. Plaintiff also claimed that the SOS Defendants conspired with other non-named SOS Defendants to falsely arrest and maliciously prosecute him by raiding a apartment he was in for drugs, and arresting him for drugs that were not his. Plaintiff claimed SOS defendants then created false reports to coverup their raid. Plaintiff claimed severe emotional injuries as a result. In actuality, Defendant Officers arrested Plaintiff on June 28, 2005 in the alley behind the address of 4930 S. Laflin in Chicago, for possession of a controlled substance, after recieving info from a anonymous citizen about drug sales. Officers then approached for field interview and observed in plain view plaintiff discard suspect narcotics. This case was tried before Judge Delow. Jury returned a verdict in favor of defendants on all counts. Defendants were represented by Tom Freitag, Tom Aumann, and Arlene Martin - Corporation Counsel's Office Plaintiff was represented by Ed Fox & Associates