Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

 BROOKS v. CITY OF AURORA (July 6, 2011)

Early one June evening in 2008, two Aurora police officers were staking out a location suspected of being a front for drug activity when they observed Michael Brooks driving through an adjacent parking lot. They knew Brooks but had never seen him drive. When they checked, they discovered that his license had been suspended for over a decade. Before they could take any action, however, they were called away. One of the officers later completed a traffic ticket and obtained a warrant for Brooks's arrest. The police served the warrant a few weeks later. When they arrived at his apartment, Brooks was barbecuing. An officer took him aside and explained the reason for the visit -- that he was under arrest. Brooks denied driving the car, claimed that it was not even working at the time, pulled his wrists away, and started backpedaling and waving his arms. The officer fired two bursts of pepper spray and ultimately immobilized Brooks. He was arrested and charged with the driving offense and resisting a peace officer. He was acquitted of both charges. Brooks filed suit against the police officers and the City of Aurora pursuant to § 1983. He alleged false arrest, false imprisonment, and excessive force. The defendants moved for summary judgment on the false arrest and excessive force claims and asserted qualified immunity on the excessive force claim. Judge Coar (N.D. Ill.) found probable cause and granted summary judgment on the false arrest claim. Sua sponte, he granted summary judgment on the false imprisonment claim for the same reason. Finally, he found that defendants were entitled to qualified immunity on the excessive force claim.

In their opinion, Chief Judge Easterbrook and Judges Ripple and Tinder affirmed. The Court first addressed probable cause on the false arrest and imprisonment claims. Probable cause depends on the facts and circumstances at the time of the arrest and whether a prudent person, with the officers knowledge, would believe that the suspect has committed, is committing, or is about to commit an offense. The offense at issue here, resisting a peace officer, requires "a physical act of resistance or obstruction . . . that impedes, hinders, interrupts, prevents, or delays the performance of the officer’s duties, such as by going limp or forcefully resisting arrest." Although Brooks claims that he had no intent to resist (but just to tell his wife to bring his wallet to the station), the undisputed evidence in the record supports the proposition that a reasonable officer could have believed that he did. Although there is disputed evidence regarding whether Brooks was actually driving a car on the night in question, that evidence is not material. First, resisting even an unlawful arrest violates the statute. Second, Brooks was not actually arrested and detained until after the officers had probable cause to believe that he had resisted the arrest. The Court saw no error in the false imprisonment summary judgment. The analysis is the same for both claims and Brooks never proffered a reason why an opportunity to respond to the false imprisonment claim was necessary. With respect to the excessive force claim, the Court did not decide the deprivation prong of the qualified immunity test. It noted that courts have held the use of pepper spray appropriate in resisting arrest situations and that courts have considered it excessive if its use is unprovoked or gratuitous. Here, regardless of Brooks's intentions, a reasonable police officer could have concluded that he was resisting arrest and that the use of pepper spray would be appropriate. Therefore, the officer is entitled to qualified immunity.

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PARISH v. CITY OF ELKHART (July 30, 2010)

A jury found Christopher Parish guilty of the 1996 shooting of Michael Kershner in his Elkhart, Indiana home. Evidence uncovered during his post-conviction proceedings supported a different conclusion: that Kershner was shot in a drug deal and was not even in his home at the time, and that local police threatened witnesses and otherwise fabricated evidence in an effort to falsely convict Parish of the crime. Parish's conviction was vacated in 2006 by the Indiana Court of Appeals. The state then dropped all charges. Parish brought suit pursuant to § 1983, alleging the denial of a fair trial. He also brought state claims for false arrest, false imprisonment, and intentional infliction of emotional distress (“IIED”). Judge Lozano (N.D. Ind.) dismissed all but the § 1983 fair trial claim on statute of limitations grounds. The court granted Parish's request for a Rule 54(b) certification. Parish appeals.

In their opinion, Judges Posner, Flaum, and Williams affirmed in part and reversed in part. Parish conceded, at oral argument, the propriety of the dismissal with respect to the claims for false arrest and false imprisonment. Thus, the only issue on appeal is the dismissal of the IIED claim. The parties agreed that the statute of limitations for the claim is two years from the date it accrued. The Court discussed four cases in its analysis of when an Indiana IIED claim accrues. In Heck, the Supreme Court held that a state prisoner could not bring a § 1983 suit for damages until his conviction was overturned. A judgment would have implied the invalidity of his conviction – the claim was therefore an improper collateral attack on the conviction. An Indiana appellate court followed Heck in Scruggs, when it dismissed false imprisonment claims. The Scruggs plaintiffs, still imprisoned, were also attacking the validity of their convictions. Next, in Wallace, the Supreme Court held that a claim for false arrest or false imprisonment requires a detention without legal process and therefore ends when legal process (e.g., appearance before a magistrate) is granted. The cause of action accrues at the same time -- when the false imprisonment ends. The Court distinguished Heck. Unlike in Heck, the Wallace claim for false imprisonment did not challenge the validity of a conviction. In fact, it did not even require a conviction. Finally, in Johnson, another Indiana appellate court concluded that a false arrest claim accrued at the time of arraignment (when process was granted) but that other claims of emotional discretion and invasion of privacy based on an unreasonable search accrued at the time of the search. Thus, the general rule requires an examination of whether the tort was complete before conviction (e.g., an IIED claim tied to an unreasonable search) or not (e.g. an IIED claim tied to a false conviction). If the former, the claim accrues upon completion of the tort. If the latter, the claim accrues upon completion of the tort unless it directly implicates the validity of the conviction. If it does, the claim does not accrue until the conviction has been lifted. Applying these principles to Parish's claim, the Court concluded that the IIED claims were not complete prior to conviction. In fact, the conviction was an integral part of Parish’s IIED allegations. The Court then concluded that the claim also attacks the validity of Parish's conviction and could not have been brought while the conviction was still outstanding. Parish brought the claim within two years of his exoneration – it is timely.

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BROOKS v. THE CITY OF CHICAGO (May 1, 2009)

Terence Brooks was arrested, allegedly without probable cause, in May 2004 by two Chicago police officers. The charges were dropped and he was released after about three weeks in custody. A few months later, he was indicted as a result of evidence seized at the time of the arrest. A warrant was issued when he failed to appear in court on the indictment. Brooks was arrested on the warrant by different police officers in May of 2007. Again, the charges were dismissed and Brooks was released. Brooks brought an action against the City of Chicago and the police officers who were responsible for the 2004 arrest. He brought due process and false arrest claims under § 1983, as well as claims under state law. The district court dismissed the complaint on the ground that, although it purported to complain of the 2007 arrest, it depended entirely on the 2004 arrest. Claims based on the 2004 arrest were barred by the statute of limitations. Brooks appealed.

In their opinion, Judges Flaum, Manion and Rovner affirmed. The Court recognized that Brooks' theory was that the 2007 arrest culminated from a series of events that began with the allegedly unlawful 2004 arrest. The Court noted, however, that the existence of the warrant supported probable cause for the 2007 arrest. One cannot maintain a false arrest claim based on an arrest made with probable cause. Even if Brooks had a false arrest claim in 2004, his arrest in 2007 cannot revive that claim. The Court also rejected Brooks' due process claim on the grounds that it was merely a recast false imprisonment claim.

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LUCTERHAND v. GRANITE MICROSYSTEMS, INC. (April 28, 2009)

Mark Lucterhand was the Director of Global Operations for Granite Microsystems, Inc. (GMI). In late 2004, he fell and seriously injured his leg while at work. Daniel Armbrust, GMI's president, witnessed the accident but nevertheless forced Lucterhand to attend a scheduled business meeting. When finally allowed to do so, Lucterhand went to the hospital, had surgery and spent several days recovering. Armbrust fired Lucterhand a few days after he returned to work. Lucterhand sued GMI and Armbrust for intentionally terminating his employment in retaliation for exercising his FMLA rights. He also brought state law claims for false imprisonment and intentional infliction of emotional distress. Federal Insurance Company and Vigilant Insurance Company insured GMI under a variety of policies.. GMI tendered the lawsuit. The insurance companies refused the tender, intervened in the lawsuit, and sought and received a declaratory judgment that there was no coverage. GMI appeals.

In their opinion, Judges Ripple, Sykes and Tinder affirmed. Wisconsin law, which governs the suit, requires an insurer to defend an insured if the allegations of the complaint raise the possibility of coverage. The Court examined the allegations of the complaint to make that determination. The complaint contained allegations of intentional conduct -- that GMI intentionally terminated Lucterhand and that it intentionally inflicted emotional distress and falsely imprisoned him. Insurance policies generally do not cover losses that are the result of intentional conduct. Here, the policies cover losses incurred only as the result of an “accident." The Court recognized the debate between courts that hold that an act is an "accident" if the resulting damage is unintentional and courts that hold that an unintended consequence is irrelevant if the act itself was intentional. In fact, the Wisconsin Supreme Court issued two opinions recently on the issue. Although the decisions produced many different opinions and left some unresolved issues, the Court concluded that they provided enough guidance to resolve the case. The complaint alleges both the intent to act and an intent to harm. As such, the losses are not accidental and, under Wisconsin law, the insurance companies have no obligation to defend.

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