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

MARCAVAGE v. CITY OF CHICAGO (October 4, 2011)

In July of 2006, Chicago played host to the seventh annual Gay Games, which consisted of a number of athletic and cultural events over several days. A number of volunteers from Repent America, a Christian ministry, appeared at various Gay Game venues to share their particular message about homosexuality. On July 15, the volunteers demonstrated around Soldier Field, where the opening ceremonies were taking place. A Chicago police officer directed the group off a public sidewalk and onto an adjacent gravel field. On July 16, volunteers arrived at Navy Pier for a similar demonstration. Again, Chicago police officers directed the group away from Navy Pier and the adjacent Gateway Park because they did not have a permit. A few volunteers were ultimately arrested. On July 22, one of the volunteers paced back and forth on the sidewalk outside of Wrigley Field, where the closing ceremonies were taking place. A Chicago police officer arrested him when he refused to stop his demonstration and "keep walking." The Repent America volunteers filed suit against the City of Chicago, several police officers, and the Metropolitan Pier and Exposition Authority (which owns Navy Pier and Gateway Park). They alleged violations of the First Amendment, the Fourteenth Amendment’s equal protection clause, the Fourth Amendment, the Illinois Religious Freedom Restoration Act, and state law. Judge Shadur (N.D. Ill.) granted summary judgment to the defendants. Plaintiffs appeal.

In their opinion, Seventh Circuit Judges Bauer, Manion, and Hamilton affirmed in part and reversed in part. The Court first addressed the First Amendment and equal protection claims related to the activities at Soldier Field and Wrigley Field. The Court conceded that the public sidewalks outside these two venues are traditional public forums and that access could not be broadly denied. But the time, place, and manner of activities at those locations can be regulated if the regulation: a) is content neutral, b) is narrowly tailored in support of a significant government interest, and c) allows for alternatives. The Court found that the police conduct at Soldier Field and Wrigley Field met those requirements. Plaintiffs presented no evidence of any police hostility to their message and, at both venues, they were simply directed away from busy pedestrian sidewalks and into locations where they could, and did, deliver their message. There was no First Amendment violation. The Court also concluded that there was no equal protection violation, in that plaintiffs were unable to identify similarly situated individuals that received preferential treatment. The Court also concluded that the arrest at Wrigley Field was not a Fourth Amendment violation. There was probable cause to believe that the volunteer was committing the offense of disorderly conduct. The Court turned to the allegations concerning the demonstration at Navy Pier and Gateway Park. The MPEA has a written policy for public expression at those venues. The policy requires a permit. The Court upheld the policy with respect to Navy Pier. Navy Pier is principally a private enterprise with some public benefits. The Policy for permits is first-come, first-served and viewpoint neutral. The volunteers never applied for a permit and there is no evidence in the record that the MPEA was hostile toward their views. Unlike Navy Pier, Gateway Park is a traditional public forum. The policy must be considered under the content neutral, narrowly tailored, ample alternative test. The Court was particularly troubled by the requirement that a group as small as five had to apply for a permit and give seven days notice and that a group smaller than five (including, apparently, an individual) also had to apply for a permit but without any notice requirement. The Court noted that five of its sister circuits have found permit requirements for groups as small as 10 constitutionally suspect. Ultimately, the Court concluded that the constitutionality of the Gateway Park permit requirement had to be considered in light of all the facts and circumstances, which were not addressed below. It remanded the claim for further proceedings. For much the same reasons as applied to the Soldier Field and Wrigley Field claims, the equal protection and Fourth Amendment summary judgment orders relating to Navy Pier and Gateway Park were affirmed.

Judge Hamilton concurred with the parts of the opinion relating to Soldier Field, Wrigley Field, and Navy Peer. He dissented from that portion of the opinion remanding the Gateway Park claims to the district court. He posited that plaintiffs waived the argument by not presenting it in a timely manner in the district court.

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HERNANDEZ v. FOSTER (August 26, 2011)

Fifteen-month-old Jaymz Hernandez’ parents brought him to the hospital where x-rays established that he had a broken arm. The Hernandezes reported that they thought he had fallen out of his crib. Although the fracture was common in children, a hospital nurse was suspicious. The parents had slightly inconsistent stories about the circumstances of the injury and about whether Jaymz could walk. Jaymz also had unexplained, old bruises. The nurse reported her suspicions to the Department of Children and Family Services. Although the DCFS instructed the hospital to release Jaymz to his parents, it also began an investigation, which it assigned to Pamela Foster-Stith. Foster-Stith interviewed the nurse and doctor and prepared an action plan for a home visit and risk assessment. After receiving the approval of her supervisor, she sent investigator Lakesha Foster to the home. Foster found nothing particular suspicious in her visit. Nevertheless, given the injury and the inconsistent stories, Foster and Foster-Stith wanted a home safety plan. The family resisted. Foster-Stith, in consultation with her supervisor, decided that the Department had to take Jaymz into protective custody. She communicated that decision to Foster, who was still at the family's home. Foster explained the decision to the family, including the fact that they could not have contact with Jaymz during the custody period, and took Jaymz in the custody. Jaymz was placed with his great-grandparents. The next day, two different doctors examined Jaymz. Both concluded that the injury was not suggestive of abuse. Foster also spoke with an assistant state's attorney, who advised her that there was not enough evidence to seek protective custody. Although the Department decided to terminate its protective custody, Foster would still not let the family visit Jaymz. The next day, Foster presented a safety plan to the Hernandezes which would require Jaymz to remain with his great-grandparents with supervised visitation by his parents. After being told that they could not see Jaymz without agreeing to the safety plan, the Hernandezes agreed. The Hernandezes signed another safety plan the following week, which the Department later agreed to terminate. The Hernandezes brought suit pursuant to § 1983 for violations of the Fourth and Fourteenth Amendments, naming Foster, Foster-Stith, and the supervisor. Judge Conlon (N.D. Ill.) granted summary judgment to the defendants on qualified immunity grounds. The Hernandezes appeal.

In their opinion, Seventh Circuit Judges Sykes, Tinder, and Hamilton affirmed in part and vacated and remanded in part. The question for a qualified immunity defense is whether the defendants violated a clearly established constitutional right. The Court considered each plaintiff’s claims separately. First, all three plaintiffs asserted substantive due process claims with respect to the initial seizure. The Court noted that since Jaymz had a Fourth Amendment claim, he could not assert a substantive due process claim. With respect to Jaymz’ Fourth Amendment claim, the Court concluded that the removal was supported by probable cause. It relied on the unexplained injury, the older injury, and the inconsistent and contradictory statements of the parents. Therefore, the defendants were entitled to qualified immunity on that claim. The parents’ substantive due process claims fail for the same reason. Second, the Court addressed the plaintiffs' substantive due process claims relating to the continued withholding. This claim arises from a right to familial relations. The defendants needed reasonable suspicion of abuse to override that right. Again, however, the court concluded that Jaymz’ claim was properly analyzed under the Fourth Amendment while his parents' claims should be analyzed under substantive due process. Here, the Court found genuine issues of material fact with respect to defendants' knowledge that the continued withholding violated constitutional rights. The Court relied heavily on the normal physical exams and the assistant state's attorney's response. Summary judgment was improper. Third, the Court addressed the substantive due process claims regarding the allegedly coerced safety plan. The Court concluded that the defendants had no reasonable suspicion that Jaymz was in danger of abuse when they presented the safety plan. The alleged threats were extremely coercive. The Court concluded that the district court erred in granting summary judgment on those claims. Next, the Court considered the plaintiffs' procedural due process claims. The basis of these claims was that the defendants took Jaymz into custody without any pre-deprivation hearing. Here, the Court concluded that the case law at the time of the removal would not have put a reasonable Department investigator on notice that a pre-deprivation hearing was required. The defendants were therefore entitled to qualified immunity on the due process claim relating to the removal. Again, however, the Court found genuine issues of fact on the due process claim with respect to the safety plan. With the allegations of misrepresentations and coercion, qualified immunity would be appropriate.

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ORTIZ v. CITY OF CHICAGO (August 25, 2011)

Acting pursuant to a confidential tip, the Chicago Police raided May Molina's apartment. They placed Molina under arrest. Molina happens to be a local civil rights activist and a harsh critic of police practices. Molina also suffers from diabetes, hypertension, and a thyroid condition. She takes medications for those conditions. Pursuant to department policy, she was not allowed to take her medication into the lockup. Molina died after approximately 27 hours of confinement. Her estate brought suit against a number of police officers involved in her detention pursuant to § 1983, alleging constitutionally inadequate medical care and an unreasonable delay in providing her a probable cause hearing. Judge Grady (N.D. Ill.) excluded the estate's expert witness and granted summary judgment to the defendants on both claims. The estate appeals.

In their opinion, Seventh Circuit Judges Rovner, Wood, and Evans (who, as a result of his death, took no part in the decision) affirmed in part and reversed and remanded in part. The Court first addressed the inadequate medical care count. It pointed out that, since Molina had not yet had a probable cause hearing, her estate’s claim was governed by the Fourth Amendment reasonableness standard and not the Eight Amendment deliberate indifference standard. Since the defendants did not argue burdensomeness or police interest, the only reasonableness factors at issue are whether each individual defendant was on notice of a serious medical condition and causation. With respect to notice, the Court identified the allegations with respect to each individual defendant and concluded, in each case, that the allegations created genuine issues of fact. Considering the evidence in the light most favorable to Molina, each individual defendants either heard her ask for medical attention, heard her cry for help, were told by her lawyer that she needed to be hospitalized, or received numerous telephone calls from friends and relatives advising that she needed her medication. Therefore, the Court concluded that each was on notice of her serious medical condition. With respect to causation, the question is whether, had the defendants responded and taken her to the hospital, she would not have died or suffered pain and suffering. The district court applied too narrow a test when it required the estate to prove that it was the failure to provide her medication that caused her death. Because the defendants' expert testified that she died from an overdose of drugs she ingested at the time of the police raid, and because the district court excluded the estate’s expert testimony that she died because she was not giving her medication, the district court concluded that the estate failed to prove causation. But the estate did not need to prove that it was the lack of medication -- it only needed to prove that it was the failure to take her to the hospital. The Court therefore concluded that the expert testimony was not even required on that point. There was enough lay testimony in the record to establish causation. The Court also found the district court improperly excluded the expert testimony because of its misunderstanding of the factual record. With respect to the defendants' qualified immunity claim, the Court had no difficulty concluding that failing to provide medical care to a prisoner with a serious health risk satisfied the estate’s burden (without deciding whether it should apply the deliberate indifference or objectively unreasonable standard). On the unreasonable delay count, the Court agreed with the district court. The Supreme Court adopted a 48-hour burden shifting rule in Gerstein. Therefore, this 27-hour detention is presumptively reasonable. The estate failed to overcome the presumption.

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 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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VODAK v. CHICAGO (March 17, 2011)

In early 2003, a group of people in Chicago opposed to the United States' anticipated invasion of Iraq wanted to express their opposition. They wanted to hold a march at the same time as the invasion, but they did not know when that would happen. A Chicago ordinance requires a permit for a demonstration and typically requires five days notice of the march's date and route. For "good compelling cause," the City will act within two days. When, as here, the two-day requirement cannot be met, the City has an informal practice of waiving the permit requirement. Although non-permitted demonstrations typically use the same standard route, the police and demonstrators never agreed on a route. The invasion took place on March 19. The protesters gathered on March 20. Part of the way along their announced route, thousands of the protesters detoured. They marched toward Michigan Avenue, a major commercial thoroughfare in Chicago. The police blocked access to the street and told the march organizers to return to their starting point or disperse. They threatened to arrest anyone entering Michigan Avenue. The police claim they also shouted these warnings through bullhorns. Most of the marchers either dispersed or began to return to their starting point. Along the way, hundreds of marchers started approaching Michigan Avenue again on a different cross street. There is a dispute in the record regarding the marchers' presence on that street -- there is some evidence that at least some of the marchers thought they were directed there by the police. The police again blocked Michigan Avenue. This time, however, they also sealed off the marchers in the other direction. They started arresting the marchers and any other person who happened to be on that one block stretch of Chicago Avenue. Most of those arrested were released without being charged -- others had their charges dismissed. Two lawsuits were filed against the City and several police officers pursuant to § 1983, alleging violations of the First and Fourth amendments, as well as state law. Judge Kendall (N.D. Ill.) dismissed both suits against the officers on qualified immunity grounds and against the City because no policymaker had been responsible for the officers' conduct. Plaintiffs appeal.

In their opinion, Circuit Judges Posner and Wood and District Judge Adelman reversed and remanded. The Court first noted that the police were well within their rights in blocking Michigan Avenue. A large protest march was getting out of control. They could, and did, order the crowd to disperse or return to their starting point. But, on the undisputed record, they only communicated their orders to the organizers. According to hundreds of affidavit filed in the record, many of the marchers were unaware of any order to disperse or return. The Court emphasized this point because the only reason the police gave for the arrests several blocks away from where they gave the orders is the marchers' defiance of these orders. At the time of the arrest, the police had no good reason to believe that the people they were arresting knew they were violating a valid police order. Of course, the police only needed probable cause to make the arrests. But because there was no permit, no agreed-upon route, and no effective means of communicating an order to the thousands of marchers, a police officer on Chicago Avenue could not have a reasonable belief that the hundreds of marchers there knew of the orders. The Court rejected the District Court's conclusion that the right allegedly violated was not "clearly established" at the time. Decades before the march, the Supreme Court held that, if police revoke permission to march, they must give notice of the revocation before arresting alleged violators. In fact, the Court even stated that this is one situation that is so obvious that precedent is not required. The police cannot give permission to march, then withdraw the permission without telling anyone, and arrest the marchers. With respect to the dismissal of the City, the Court also disagreed with the district court. In order to hold the city liable, plaintiffs must show that the conduct was authorized or directed by a policymaker. But that does not mean only the City Council. Here the City Council defers to the Superintendent of Police as the sole policymaker with respect to demonstrations. In addition to his sole policymaking role, the Superintendent monitored and approved the very police conduct at issue. That satisfies Monell.

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SILIVEN v. INDIANA DEPARTMENT OF CHILD SERVICES (March 16, 2011)

Teresa and Mark Siliven’s two-year-old son had been in daycare with Ashley Woods for almost a year. When Teresa picked him up one day in January 2008, Woods told her that the boy had been acting up. Later that evening, Teresa noticed bruises on her son's arm. Mark said he knew nothing about them, so they filed a child-abuse report with the Richmond, Indiana Police Department. The report was forwarded to the Indiana Department of Child Services(DCS). DCS caseworker Amber Luedike investigated. She interviewed Mark and Teresa, as well as Woods. Luedike also asked the Siliven’s to take their son to the emergency room for an examination. Although the emergency room report reached no conclusion as to the cause of the bruises, another doctor to whom Luedike showed the bruises opined that they were consistent with an adult grabbing the boy's arm. Six days into her investigation, Luedike learned that the DCS had substantiated an incident of child abuse involving Mark and his 15-year-old stepdaughter five years earlier. Luedike met with her supervisor, a staff attorney, and a DCS director. She recommended that DCS remove the boy from his home. She based her recommendation on the likelihood that he had been injured by an adult, the fact that the parents had not been eliminated as the cause, and Mark’s earlier incident. The others agreed, and also agreed that they should remove him on an emergency basis because they would be unable to obtain a court order before the upcoming weekend. Luedike and several sheriff’s deputies went to the Siliven's home, intending to take the boy into protective custody. The DCS director eventually agreed, however, to allow Teresa to take the boy to his grandmother's home in Ohio. The following Monday, a judge concluded that probable cause to believe that the boy’s physical health was seriously endangered did not exist. DCS closed its investigation. The Silivens filed suit against Luedike and the DCS director, alleging federal Constitutional and state law violations. Judge Lawrence (S.D. Ind.) granted summary judgment to the defendants based on qualified immunity. He did not address whether there was a constitutional violation but, under the second prong of the qualified immunity test, held that the constitutional rights allegedly violated were not clearly established at the time of the conduct. The Silivens appeal.

In their opinion, Judges Flaum, Manion, and Evans affirmed. The Court’s two-part test is familiar: whether the complaint alleges a constitutional violation and whether the rights allegedly violated were clearly established at the time of the conduct. Unlike the district court, which ignored the first prong and found the second prong dispositive, the Court started with the first prong and found it dispositive. With respect to the Fourth Amendment unreasonable seizure claim, the Court assumed without deciding that there was a seizure (remember that the boy never left his mother's side) but concluded that the defendants' acts were reasonable under an objective test. There was physical evidence of abuse, Mark had access to the boy, and the DCS had substantiated an earlier abuse claim against Mark. Those facts, particularly combined with the fact that the boy remained with his mother at all times, were enough for the Court to find reasonableness. With respect to the substantive due process claim, the Court noted that the constitutional right to familial integrity has to be balanced against the public interest in child safety. A caseworker need only have reasonable suspicion of past or threatened abuse to take a child into custody. Since that threshold is less demanding than the Fourth Amendment threshold the Court already discussed, the Court had no difficulty in concluding that there was no substantive due process violation. Finally, the Siliven's also alleged a procedural due process violation. Due process does require a pre-deprivation hearing before a child is removed from his home, unless there are exigent circumstances. This also requires an objective test, whether a reasonable caseworker would have believed the child was in immediate danger. Again, that test is less stringent than the Fourth Amendment test. The Court concluded that the defendants met the test.

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JOHNSON v. MANITOWOC COUNTY (March 10, 2011)

Steven Avery was convicted of rape in Wisconsin state court in 1986. After serving 18 years in jail, he was released in 2003 after DNA evidence suggested that he did not commit the crime. He filed a multi-million dollar lawsuit against Manitowoc County authorities. Avery lived in a trailer and garage rented  from Roland Johnson. A few years after his release, a magazine photographer disappeared after meeting with Avery on Johnson's property. An investigation ensued, with Avery a prime suspect. Several search warrants were executed at the trailer and garage. During the searches, the investigators broke up a portion of the concrete garage floor with a jackhammer, damaged the garage door, and damaged the trailer. They also seized a number of personal items. Johnson brought suit against County officials under § 1983, alleging violations of the Fourth, Fifth, and Fourteenth amendments. Judge Randa (E.D. Wis.) granted summary judgment to the defendants. Johnson appeals.

In their opinion, Judges Flaum, Rovner, and Evans affirmed. The Court first considered Johnson's argument that the use of the jackhammers violated the Fourth Amendment. The Fourth Amendment requires reasonableness, and measures it under the totality of the circumstances. The Court rejected Johnson' argument that the availability of a less invasive tool made the use of the jackhammers unreasonable. The Fourth Amendment does not require the least destructive approach to the execution of a search warrant. The Court concluded that the use of the jackhammers was reasonable under the circumstances. The Court turned to Johnson's claim that the Fifth Amendment Takings Clause entitles him to compensation. But the Takings Clause does not apply when the "taking" results from a government power other than the power of eminent domain. Here, any property seized or destroyed by government authorities was done so under its police power. The Court did note that Johnson may have some state remedies, both for compensation for damages and the return of his property – but he does not have a federal constitutional claim.

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JONES v. CLARK (January 14, 2011)

Early one August morning, Christina Jones had begun her job reading meters for Commonwealth Edison. Jones is African-American. On this particular day, her job took her to Braidwood, Illinois. Braidwood, a small town about 50 miles southwest of Chicago, has an almost exclusively white population. Apparently, a "concerned citizen" thought that she was something other than a meter reader and called the police. [According to her complaint:] Officer Clark was the first to arrive and question her. Although she wore numerous articles of clothing with her employer's logo and provided two separate pieces of identification, Clark would not let her go. When he asked for her date of birth, she stepped away and started to call her supervisor on her cell phone. At that point, Officer Kaminski arrived. He screamed at her, knocked the phone out of her hand, cuffed her hands behind her back, threw her against the car, and arrested her. She was charged with obstructing a peace officer and released on bond. The charges were later terminated in her favor. Jones brought suit, alleging Fourth Amendment violations. Judge Andersen (N.D. Ill.) concluded that disputed issues of fact precluded resolution either of the merits or defendants' request for qualified immunity. Defendants appeal.

In their opinion, Judges Wood, Evans, and Sykes affirmed. The Court first addressed its appellate jurisdiction. Although the "collateral orders" exception to the finality rule does apply to the appeal of qualified immunity denials, it does so only in so far as the appeal raises an issue of law. Even in a case, like this, where there are disputed issues of fact, defendants can (and these defendants have) get their appeal if they limit it to plaintiffs version of the facts. Comfortable with its jurisdiction, the Court turned to the merits. Qualified immunity has two prongs: was there a constitutional deprivation and were the constitutional rights at issue clearly established. With respect to the second prong, the constitutional right at issue here -- the right to be free from an arrest without probable cause -- was certainly clearly established. Therefore, the only question for the Court on the merits is whether Clark and Kaminski violated Jones' rights. The Court appeared to have little difficulty in answering that question affirmatively (again, on Jones' version of the facts). The Court noted that there was nothing in the record that would provide reasonable suspicion that she was engaged in unlawful activity. Their initial detention of her was therefore a constitutional deprivation. In addition, her actual arrest was a constitutional violation. Since the officers had no reason to detain her in the first place, anything supporting probable cause to arrest her must have occurred after her detention. Her post-detention conduct does not support probable cause either for disorderly conduct or for obstructing a peace officer. With respect to the former, she acted professionally at all times. With respect to the latter, the offense requires a physical act rather than just an argument with a policeman. The officers are therefore not entitled to qualified immunity on this record.

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RAY v. CITY OF CHICAGO (January 5, 2011)

A Chicago Police officer pulled over Nona Ray for driving an night without headlights. He arrested her when he found cocaine in her car. She was charged with possession of a controlled substance and was detained for several hours. The officer also impounded her vehicle. The drug charges against her were eventually dropped. She contested the seizure of her automobile but a hearing officer found in favor of the City. Ray brought suit against the City and the officer, claiming a deprivation of her Fourth and Fourteenth Amendment rights. She also sought review of the hearing officer's finding and challenged the constitutionality of the seizure ordinance. Judge Zagel (N.D. Ill) dismissed the complaint. Ray appeals.

In their opinion, Seventh Circuit Judges Cudahy, Rovner, and Evans affirmed. First, the Court rejected Ray's claim that the officer lacked probable cause to believe that she possessed drugs. The officer had probable cause to believe she committed a traffic offense -- that is all he needed for the arrest. Second, the Court rejected Ray's claim that the length of her detention violated the Constitution. The Court noted that it has held that detentions of up to 14 hours were reasonable absent an improper purpose, which is not alleged here. Third, the Court rejected her malicious prosecution-type claim that the officer planted the drugs. Because Illinois recognizes a malicious prosecution tort, she cannot bring a constitutional claim. Fourth, to the extent she alleged a Brady claim and did not waive it, the Court rejected it. A Brady claim is not viable in a situation where a person is never prosecuted. Finally, the Court rejected her claim regarding the impoundment of her automobile. Not only did she fail to adequately state any reason to reverse the district court, the Court's independent review of the district court's rationale convinced it that it was correct.

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SALLENGER v. CITY OF SPRINGFIELD (December 17, 2010)

In early 2002, Andrew Sallenger was living with his mother, his sister, and his sister's four children at his mother's house in Springfield, Illinois. Sallenger suffered from bipolar disorder and schizophrenia. In the middle of the night on April 30, Sallenger experienced a psychotic episode. He was screaming, breaking things, and running around the house naked. His sister called 911. She warned the police of his condition and his strength (6 feet tall, 262 pounds). Three officers responded and eventually, although not without great difficulty, were able to subdue him. They used a hobble, a device that limits movement by strapping one's lower legs to one's hands. A few minutes after the officers subdued Sallenger with a hobble, he stopped breathing. The officers removed the hobble and administered CPR, without success. Sallenger’s Estate brought several claims against the officers and the City, including a § 1983 claim alleging a Fourth Amendment violation for failing to adequately respond to Sallenger’s medical needs and a Monell claim against the City for failure to train in the use of the hobble. They also brought excessive force claims against the three officers. Those claims were tried to a jury and resolved in the officers' favor. Judge Scott (C.D. Ill.) granted summary judgment against the Estate on the medical needs and Monell claims. The Estate appeals.

In their opinion, Seventh Circuit Judges Posner, Rovner, and Sykes affirmed. The Court applied an objective reasonableness standard to the medical needs claim and considered four criteria: the need for medical attention, the severity of the need, the nature of the required treatment, and any police interests. The Estate's case rests on the timing of two police calls and the inferences that can be drawn from them. One call came in at 2:15 a.m. In that call, one of the officers reported that Sallenger was unconscious. The second call, which came in at 2:22 a.m., was from a police lieutenant reporting that he was at the scene. Combined with the fact that the lieutenant was present when efforts to resuscitate began, the Estate argues that it is entitled to an inference that the officers waited seven minutes after knowing Sallenger was unconscious before they tried to resuscitate him. The Court rejected this inference. All inferences must be drawn in the Estate’s favor on summary judgment, but those inferences must be reasonable. Here, the officers and Sallenger's sister all testified that resuscitation efforts began as soon as they knew that he was unconscious. The lieutenant also testified that his call did not necessarily take place immediately upon his arrival. In light of that testimony, and without more support, the inference requested by the Estate is unreasonable. The Court also agreed with the district court's summary judgment ruling on the Monell claim. A municipality cannot be liable unless there is an underlying constitutional violation by an employee. Here, a jury found that none of the officers was liable for a constitutional violation on the excessive force claim and the Court affirmed summary judgment for the officers on the medical needs claim. Therefore, there can be no municipal liability. 

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JACKSON v. PARKER (December 3, 2010)

On a spring afternoon in 2006, Wayne Jackson was southbound on Chicago’s Lake Shore Drive ("Urban America's Most Beautiful Roadway") in his pickup truck. Unfortunately, his truck was licensed as a commercial vehicle and therefore prohibited on the Drive. Chicago police officer Joe Parker noticed the plates and also observed Jackson making two illegal lane changes. Parker stopped Jackson's car and then observed a windshield crack, another ordinance violation. He also administered field sobriety tests and a breathalyzer, which he claims Jackson failed. Jackson was released after approximately 12 hours at the police station. Although his arrest report lists DUI, the prosecutor later amended the charge to negligent driving. At trial, Jackson was found guilty of improper lane usage and failing to notify the state of an address change and was found not guilty of negligent driving and driving an unsafe vehicle charges. Jackson brought a § 1983 charge against Parker, claiming a Fourth Amendment false arrest violation. Jackson claimed that Parker falsified the DUI test results. He also presented evidence that Parker regularly reported such false information as part of a scheme to increase his compensation and that he was being internally investigated for his conduct. Judge Conlon (N.D. Ill.) granted summary judgment to Parker, concluding that the unlawful lane change provided sufficient probable cause for the arrest. In the face of that probable cause, Jackson could not prevail whether or not there was probable cause for a DUI arrest. Jackson appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Posner and Tinder affirmed. The Court agreed with the district court and noted that Jackson implicitly agreed as well. Parker had reason to believe that Jackson was violating the law by even being on the roadway in a commercial vehicle. Even though he was never charged with that offense, and even if he had an illicit motivation, the arrest is reasonable. Apparently recognizing that his false arrest claim was not going to survive the appeal, Jackson's counsel reconstituted his argument as a unreasonable detention rather than a false arrest. Unfortunately for Jackson, arguments that are not presented to the district court are normally forfeited on appeal unless the interests of justice require otherwise. The Court concluded that this was not such a case.

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PARKEY v. SAMPLE (October 27, 2010)

Indiana State Trooper Jason Sample was the Marijuana Eradication Coordinator in his northeastern Indiana police district. He was quite knowledgeable about marijuana, its use, and its growth. In early 2005, several things raised his suspicion about the activities of Hammond resident James Parkey: a) the DEA told him that Parkey received shipments from a company known to sell marijuana growing supplies, b) Parkey had a criminal record, and c) Parkey's basement windows were covered. Based on this suspicion, Sample inspected the trash containers behind Parkey's residence on two occasions. On each occasions, he discovered marijuana stems, marijuana cigarette remnants, and discarded mail addressed to Parkey. Sample obtained a search warrant based on the DEA tip, the trash inspection results, and Parkey's criminal record. The search resulted in the seizure of 10 marijuana plants. Although charges were filed against Parkey, they were later dismissed. Parkey filed suit pursuant to § 1983, alleging a violation of his Fourth Amendment right against unreasonable search and seizure. Judge Lee (N.D. Ind.) granted summary judgment to Sample. Parkey appeals.

In their opinion, Judges Posner, Kanne, and Sykes affirmed. Parkey principally attacks the veracity of the affidavit. But, the Court stated, there is a presumption of validity that attaches to the affidavit. In order to avoid summary judgment on that issue, Parkey must have evidence that Sample made misstatements "knowingly or intentionally or with a reckless disregard for the truth." He must also show that the misstatements were necessary to the determination of probable cause. The Court concluded that he did neither. Parkey does not contest the Sample received a tip from the DEA and that he found the stems and remnants in his trash. Instead, he asserts that Sample failed to prove that the remnants were his or that Sample researched his criminal history. Attacking the lack of evidence supporting a warrant affidavit is not sufficient to defeat summary judgment. The Court added that Parkey loses even if Sample misrepresented Parkey’s criminal record. The criminal record was not necessary to the finding of probable cause.

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CARLSON v. BUKOVIC (September 2, 2010)

June Carlson and her adult handicapped son Paul were shopping at their local Walmart store when Paul scratched himself on a fire hose box. They reported the incident to store personnel and were in the process of completing some forms when things got heated. The store manager eventually felt threatened and the police were called. Officer Bukovic interviewed the manager and the Carlsons. June Carlson, a woman in her 80s, became very upset, raised her voice, and accused the manager of lying -- but refused to cooperate with the Officer's interview. The manager told Officer Bukovic that he wanted Ms. Carlson to leave the store. After Ms. Carlson refused several requests to leave, Officer Bukovic gently placed his hands on her arm to guide her out. She began screaming and flailing about. Eventually, she calmed down and left the store -- and sued. She asserted a § 1983 Monell claim against the City of Darien and a Fourth Amendment excessive force claim against Bukovic. Magistrate Judge Nolan (N.D. Ill.) granted the City's summary judgment motion on the Monell claim. The excessive force claim was tried to a jury, which found that no “seizure” had occured. Carlson appeals.

In their opinion, Judges Ripple, Manion, and Sykes affirmed. The principal issue before the Court was Carlson's argument that the mere touching by Bukovic was a seizure as a matter of law and "per se" unreasonable. The Court rejected the argument. The Fourth Amendment inquiry has two prongs -- whether there was a seizure and, if so, whether it was unreasonable. There are a number of factors that go into the "totality of the circumstances" test to determine whether there was a seizure. Physical contact is one of those factors. But so are the number of officers, the display of a weapon, and the tone of voice. The Supreme Court has held that the purpose of the contact is relevant in physical contact cases. The mere fact that there is a touching or physical contact does not automatically create a seizure. The Court concluded that the district court properly submitted the question to the jury. Given the Court's disposition of the excessive force claim, it also rejected Carlson’s appeal of the Monell claim. There can be no municipal Monell liability without an underlying constitutional violation.

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FORREST v. PRINE  (August 31, 2010)

In responding to a 911 call, the Rock Island County Sheriff's police came upon Roger Forrest. Forrest was uncooperative and belligerent. After he struck an officer, the police employed a taser several times to subdue him. He was arrested and charged with a felony. Pursuant to County procedure, he was subject to a strip search. Forrest refused to cooperate, instead pacing back and forth in a small room, shouting obscenities and insulting the officers present. One of those officers, Michael Prine, warned him on several occasions that he would use a taser again if Forrest did not comply with the search. Eventually, he did use the taser. The testimony differs on this point. Prine and other officers testified that he aimed the taser at Forrest's back -- Forrest testified that Prine aimed at his face. In any event, one of the darts did hit his face. He fell and suffered a head injury. Forrest brought an action pursuant to § 1983 against Officer Prine. He complained of the use of excessive force in violation of the Fourth and Fourteenth Amendments. Magistrate Judge Gorman (C.D. Ill.) granted summary judgment to Prine. Forrest appeals.

In their opinion, Judges Posner, Ripple, and Kanne affirmed. The Court first commented on the basis for Forrest's claim. The Fourth Amendment grants certain rights to be free from excessive force but applies only in the search and seizure context. The Court admitted that it had not precisely defined the temporal contours of Fourth Amendment protection but concluded that allegations arising in the pretrial detention process, such as Forrest's, are clearly outside its temporal bounds. On the other end of the spectrum, the Eighth Amendment protects sentenced prisoners from claims of unnecessary or excessive force or punishment. Forrest's claims arise in the pretrial detainee context and are governed by the due process clause of the Fourteenth Amendment. In analyzing Forrest's claim, the Court applied an Eighth Amendment approach. The due process clause provides at least as much (and maybe more -- but Forrest did not argue so) protection as the Eighth Amendment. The test under the Eighth Amendment is whether the force is "unnecessary and wanton infliction of pain." The relevant factors include the need for and amount of force, the existence of a threat, any effort to use less force, and the extent of any injury. Applying that test here, the Court concluded that no reasonable factfinder could find Prine's use of force impermissible. Forrest was a large man in a small space, pacing and shouting, threatening and swearing, clenching his fists and refusing to follow orders. Prine warned him several times that he would use the taser if Forrest did not follow instructions. Finally, the Court refused Forrest's invitation to infer some malicious intent from the mere fact that one dart struck him in the face. There is simply no evidence to support such an inference.

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PORTIS v. CITY OF CHICAGO (July 23, 2010)

The City of Chicago arrests thousands of individuals each year for crimes punishable only by monetary fines. These crimes include disorderly conduct, peddling, and minor traffic offenses, among others. The police procedure after such arrests is to confirm the identity of the individual, the existence of probable cause, and that the individual is not wanted for a more serious offense. At that point in the process, an individual is entitled to be released on a personal-recognizance bond. All that remains is the bond’s processing and approval and the return of any personal belongings that were taken upon the arrest. The individual is then released. A number of persons who were subjected to this process brought a class action against the City. They allege that if the period of time between the entitlement to release and the actual release exceeds two hours, the confinement is unreasonable and in violation of the Fourth Amendment. Judge Gettleman (N.D. Ill.) agreed and certified the question for appeal. The City appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Evans accepted the appeal -- and reversed and remanded. The Court compared the district court's ruling with the Supreme Court's decision in McLaughlin. In that case, the Supreme Court adopted a 48-hour test for the reasonableness of the period between arrest and presentation to a magistrate. That test differed in two ways from the district court's test: first, it looked at the entire process between arrest and presentation rather than one phase of the process -- and second, the 48-hour test was a presumption rather than a bright line rule. McLaughlin specifically rejected the adoption of arbitrary bright lines by courts -- only a legislature should venture there. The reasonableness of a detention should be decided as a whole -- not with relation to its component parts -- and should be decided individually -- not as a class. So not only did the Court find error in the lower court's decision on the merits, it also directed the district court to decertify the class. The named plaintiffs may still proceed individually with their claims that their detention was unreasonable.

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JUNKERT v. MASSEY (June 21, 2010)

Roger Massey, the Sheriff of the DeWitt County, Illinois, began an investigation into a series of local burglaries. His investigation led him to Richard Baker. Baker provided much information to the police about his activities and those of Jeffrey McCall: a) he received stolen guns from McCall, b) he sold drugs with McCall, c) he named his cocaine source, d) McCall told him that McCall's attorney (a female) used cocaine, and e) McCall told him that he paid his attorney with stolen laptops. Massey corroborated some of the information from Baker. Additional investigation established that McCall's lawyer was Dodie Junkert, the only female lawyer in the county. Massey used the information from Baker in preparing an affidavit for a search warrant for Junkert's office and residence. When Massey informed Junkert of the existence of the search warrant, she admitted receiving the stolen laptops from McCall and arranged for their return. The police searched her office and home anyway. They found no computers but did find evidence of drug use. Junkert brought an action under § 1983, alleging that the Massey’s lack of probable cause for the search warrant violated her Fourth Amendment rights. A jury found in favor of Massey. Junkert appeals from Judge Mills' (C.D. Ill.) denial of her motion for judgment as a matter of law.

In their opinion, Judges Bauer, Evans, and Tinder affirmed. The Court addressed whether the affidavit provided probable cause for the search, applying a totality of the circumstances test. It focused on the degree of cooperation, the extent of personal observation, the amount of detail, the time interval, and whether the affiant appeared before the judge. The Court found the affidavit severely lacking -- it lacked personal observation, it specified no time period, and the affiant did not personally appear. Even with the other positive aspects of the affidavit, the Court found it "difficult to conclude" that the affidavit provided a substantial basis for the search. Without actually deciding whether probable cause existed, however, the Court addressed qualified immunity. It noted that Massey is personally liable for damages only if courts have held that a materially similar affidavit lacked probable cause or if the affidavit was so lacking that any reasonable officer would have known it lacked probable cause. The Court found neither. Notwithstanding the weaknesses in the affidavit, the Court concluded that there were enough indicia of probable cause to support Massey’s reliance on it. Massey was therefore entitled to a qualified immunity defense.

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CARMICHAEL v. VILLAGE OF PALATINE (May 21, 2010)

Palatine police officer Timothy Sharkey stopped an automobile being driven by Albert Carmichael and Keith Sawyer as they returned to their motel parking lot. Sharkey searched both Carmichael and the automobile. He found marijuana and cocaine. When asked why he had pulled them over, Sharkey stated that it was because the automobile lacked a front license plate and had tinted windows. After fellow officer Steve Bushore arrived, Sharkey conducted a search of Sawyer. In the motel parking lot, he pulled Sawyer's pants down and shined a flashlight into his underwear. The officers let Sawyer go but arrested Carmichael on drug charges. They also cited him for having no functioning taillights. In his report, Officer Sharkey made no mention of the tinted windows or absence of front license plate. At a hearing on a motion to suppress the evidence, Sharkey testified that the reason for his stop was the non-functioning tail lights, not the license plate or tinted window. Other testimony established that the tail lights were functioning at the time of the stop. The trial judge suppressed the evidence and all charges were dropped. Carmichael and Sawyer sued the Village and the officers under § 1983. They alleged unreasonable search and seizure, false arrest, and excessive force, as well as state law claims. Judge Kendall (N.D. Ill.) granted summary judgment to the defendants. She concluded, on the search and seizure claim, that the fact that a window was tinted and the front plate was missing provided probable cause. On Sawyer's unreasonable search claim, she concluded that it was constitutional without any detailed examination of the manner in which it was carried out. The court found the remainder of the claims waived. Carmichael and Sawyer appeal.

In their opinion, Judges Ripple, Manion, and Williams affirmed in part and reversed and remanded in part. A traffic stop is reasonable, said the Court, if the police have probable cause to believe that a violation has occurred. The inquiry is an objective one and focuses on what the officer knew at the moment of the stop. Here, the tinted window and missing license plate did constitute moving violations and could have supported a stop of the vehicle. However, the uncontroverted evidence is that Officer Sharkey was not aware of either violation at the time to stop. Therefore, probable cause did not exist. For much the same reason, the Court concluded that Sharkey was not entitled to qualified immunity. The Court also found summary judgment with respect to the search of Sawyer in error. Although the defendants purported to request summary judgment on all counts, they made no mention of this search in their brief in the district court. They bear the initial burden of demonstrating that the summary judgment requirements are met -- they failed to do so. Conversely, the district court was correct in concluding that the plaintiffs waived the remainder of their federal and state law claims because of their perfunctory response to the defendants' request for summary judgment on those issues.

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STUART v. RECH (May 5, 2010)

Federal officers executed a search warrant at a company owned by James Stuart. Stuart filed a pro se motion seeking the return of property seized during the execution of the warrant. The matter was assigned to the magistrate judge who issued the warrant. The judge denied the motion, which he had treated as a Rule 41(g) motion for the return of property. A few months later, Stuart filed a second pleading naming only the agent who had applied for the warrant. In that pleading, Stuart sought damages for what he alleged was the unconstitutional seizure of chemical formulas worth millions of dollars. The district court denied the request on the ground that it was the equivalent of the earlier pleading. Stuart appeals.

In their opinion, Judges Bauer, Posner, and Evans affirmed. The Court began, as an aside, by noting that the magistrate judge who denied the original pleading likely had no authority to do so. The appeal, however, related only to the denial of the second pleading. The Court concluded that the district court erred in treating that pleading as an equivalent to the 41(g) motion. The second pleading is nothing more or less than a common law action for damages against a federal officer who is alleged to have violated the Constitution -- more commonly known as a Bivens action. The complaint should not have been dismissed on res judicata grounds. Notwithstanding the lower court’s mistake, the Court affirmed the dismissal on other grounds. The only basis for Stuart’s claim of unconstitutionality is the “frivolous squared” theory that the federal government has no authority outside of federal property. It has no possible merit.

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STOKES v. BOARD OF EDUCATION (March 19, 2010)

Nyokia Stokes has four children who attend the same elementary school in Chicago. One of her children, a third-grade daughter, had a problem with a classmate. Ebony Scott, the classmate's mother, paid a visit to Stokes' home one night and allegedly threatened her. Stokes and her mother, Carnelita Stokes, met with the police and the school principal, Johnny Banks, the next morning. Banks agreed to host a meeting between Stokes and Scott. When Stokes and her mother returned to the school that very afternoon to pick up Stokes' kindergarten daughter, they encountered Ebony Scott and her cousin in the school office. The factual accounts of what happened next vary. What is clear is that Scott, Scott’s cousin, and Stokes were involved in a lengthy physical and verbal altercation. Most accounts agree that Scott was the aggressor and Stokes was the victim. Approximately thirty kindergarten students entered the office during the altercation and became extremely upset. Banks arrived in the office as the altercation was ending. He instructed Scott and her cousin to go into his office and instructed Stokes and her mother to go to another room. Stokes' mother refused to leave and continued yelling at Banks. Banks swore out criminal complaints against all four women and they were arrested. They were released several hours later and the charges against them were dismissed. The Stokes sued Banks and the school district under § 1983, alleging a violation of their Fourth Amendment rights. The district court granted summary judgment to the defendants. The Stokes appeal.

In their opinion, Judges Posner, Manion, and Hamilton affirmed. The gist of the Stokes' complaint is that Banks lacked probable cause to swear out the criminal complaints. The existence of probable cause, therefore, is an absolute bar to recovery. Because the case was decided on summary judgment, the Court examined the record to see if there was a genuine dispute of material fact with respect to the existence of probable cause. A complaining witness is not expected to determine whether a person's behavior satisfies the essential elements of a crime. To the contrary, probable cause involves the exercise of judgment and depends on the facts and circumstances of the case. Here, even resolving factual disputes in the Stokes' favor, the record shows that Banks entered the room and found Stokes involved in a violent and loud altercation. Many young school children were in the same room and visibly upset. Those undisputed facts provide probable cause for Banks to sign a criminal complaint against Stokes. Although Stokes' mother was not actually involved in a physical altercation, she was in the same room and Banks knew that she was Stokes' mother. Her yelling and refusal to comply with Banks' request to leave contributed to the chaos. Thus, Banks had probable cause to sign the complaint against Carnelita . The facts that were developed after the incident supported the Stokes' position that they were the victims of the altercation and that they did nothing to incite it nor did they retaliate. Nevertheless, the Court noted that Banks was not required to conduct an investigation. He was responsible for maintaining order and had to do so quickly. He exercised the judgment of a reasonable person in taking the action that he did.

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TULLY v. BARADA (March 17, 2010)

One night a resident of Rush County, Indiana, saw automobile headlights and another light near a bridge several hundred yards from his home. When he heard a shot coming from the same direction, he called the sheriff. He called the sheriff a second time when he heard a second shot. In responding to the report, Sheriff Chandler stopped a vehicle occupied by Michael Tully and a friend. There was a spotlight, a rifle, and a dead raccoon in the car. Both boys responded "yes" when Sheriff Chandler asked if they knew that shooting from a roadway is wrong. The county prosecutor, Paul Barada, charged both boys as juveniles with "shooting on or across a public highway." A trial court adjudicated Tully as a delinquent -- the appellate court reversed. Tully brought an action under § 1983 against Barada and the probation officer upon whose report his complaint was based. He alleged a constitutional right not to be summoned into court and prosecuted without probable cause. The district court granted defendants' motion to dismiss, concluding that there is no such right. Tully appeals.

In their opinion, Circuit Judges Bauer and Wood and District Judge Kennelly affirmed. The Court first noted that the Supreme Court has not spoken on the possibility of a right not to be prosecuted without probable cause. The Courts of Appeals that have spoken have taken various approaches. In fact, the issue is infrequently presented because prosecutors generally claim absolute immunity. Here, the Court noted that defendants waived not only their affirmative defense of absolute immunity, but also the affirmative defenses of the existence of probable cause and res judicata. Having been required to reached the merits, the Court concluded that there is no federal constitutional right under either the Fourth or Fourteenth Amendment not to be summoned into court and prosecuted without probable cause. Being summoned into court is not a "seizure" of Tully under the Fourth Amendment -- his state court vindication was due process under the Fourteenth Amendment.

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WHITLOCK v. BROWN (February 24, 2010)

The Whitlocks were camping with their daughter at the Indiana Dunes State Park in July of 2005. They came across some personal property at what appeared to be a deserted camp site. They put the items in their vehicle and told a neighboring camper that they would turn it in to park rangers. Instead of turning it in immediately, however, they left the park and went shopping. Upon their return, they left a voicemail for the property owner (having obtained his number from information found in the property) advising him that they had his property and were going to leave it with the park ranger. The owner of the property had already reported it missing and park authorities were investigating. When the Whitlocks eventually turned in the property, they were accused of theft. The investigation confirmed the Whitlocks' explanation. State investigator Brown prepared a case report and an "Affidavit for Probable Clause." He sent the affidavit to the local county prosecutor's office, and there is a dispute over whether he attached his case report to it. The Whitlocks were charged with conversion and an arrest warrant was issued. When they were stopped for a traffic violation a month later, they were arrested and held in jail for four days before the prosecutor dropped the charges. The Whitlocks sued Brown under § 1983, specifically alleging that he withheld their explanation for why they held the property for so long from his case report or application for a warrant. The district court concluded that Brown did violate their Fourth Amendment rights by withholding the exculpatory information but also concluded that he was entitled to qualified immunity because a reasonable officer could have believed that probable cause to arrest the Whitlocks existed. The Whitlocks appeal.

In their opinion, Circuit Judges Posner and Sykes and District Judge Dow affirmed. Qualified immunity, stated the Court, involves two inquiries: whether there is a constitutional violation and whether a reasonable officer, considering clearly established law, would have known his actions were unconstitutional. Here, the claim is that Brown intentionally or recklessly withheld exculpatory information from the prosecutor, which could overcome the general presumption of the validity of the warrant. The information omitted, however, must be material to the existence of probable cause. The Court first addressed the alleged withholding of the case report itself. The district court had concluded that Brown withheld the report, inferring so from its absence from the prosecutor's file. The Court disagreed. Brown testified that he had submitted the case report. Although self-serving, the testimony was not speculation and was based on Brown's personal knowledge. In contrast, the Whitlocks presented no evidence or reasonable inference that the report was not sent. Although therefore concluding that the report itself was not withheld, the Court also considered an omission in the report -- Brown's failure to include the Whitlock's innocent explanation for why they did not turn in the property immediately. The Court turned to the materiality of that missing information. The statute upon which the warrant was based prohibits "unauthorized control over property" of another. It does not require an intent to permanently deprive. Although the Court hypothesized a situation in which the explanation could be material under a theory of implied consent from the owner of lost property, it found no such theory recognized under Indiana law. The Court concluded that a reasonable officer would not have known if the innocent explanation was material to probable cause and that Brown was therefore entitled to qualified immunity.

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PARISH v. CHICAGO (February 3, 2010)

Michael Parish was arrested in May of 2005 and held in custody until June of 2007, when he was acquitted of a murder charge. Parish brought suit against the City of Chicago and several police officers under § 1983, claiming malicious prosecution in violation of the Fourth Amendment. He alleged, among other findings, that the officers suppressed favorable evidence, prepared false reports, and fabricated evidence. Parish conceded in the district court that the prevailing Seventh Circuit precedent of Newsome precluded his claim. The district court dismissed. Parish appeals

In their opinion, Judges Coffey, Evans, and Williams affirmed. In Newsome, the Seventh Circuit held that the existence of a state law malicious prosecution claim precludes a constitutional tort under the due process clause. Parish concedes as much but seeks reconsideration of Newsome in light of a footnote in the Supreme Court's subsequent opinion in Wallace. In that footnote, the Supreme Court stated that it had never and was not evaluating a §1983 Fourth Amendment malicious prosecution claim. The Court noted that it had already once rejected an invitation to revisit Newsome in Johnson v. Saville. It saw no reason to do so now. However, as an aside, the Court stated that Newsome did not preclude a Brady-type due process claim. Given Parish's allegations, he may well have had such a claim after his acquittal.

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SUAREZ v. TOWN OF OGDEN DUNES (September 11, 2009)

William Suarez hosted a high school graduation party on the beach behind his parents' home in Ogden Dunes, Indiana. Beer was served. Around 11:00 p.m., a local police officer happened by and noticed the activity. While warning one young man for his illegal parking, he was verbally abused by several others. Believing that the party was getting out of control, the officer left to get help. Meanwhile, Suarez ended the party, put out the bonfire and invited a small group of his friends inside to spend the night. Suarez' mother, concerned that the police may return, instructed the boys to remain upstairs. The officer returned with a bevy of squad cars. He saw that there were still several cars in the driveway, although no people were present. Suspicious that the underage drinking was continuing inside the house, the officer telephoned a local judge for a search warrant. He described the earlier scene of abuse and fairly raucous behavior. He added that there were bottles in the back yard, that a number of teenagers retreated into the house and that teenagers hiding behind couches were visible through a window of the house. He got his warrant -- they broke down the door -- they arrested Suarez and his mother. William was wrestled and pepper-sprayed during his arrest. Suarez and his mother brought this action under § 1983, alleging an unlawful search and an unlawful arrest. William also complained of excessive force. Most of the case was resolved with summary judgment in the defendants' favor. The excessive force claim against three of the officers was tried to a jury, resulting in a defense verdict. William and his mother appeal.

In their opinion, Judges Flaum, Williams and Tinder affirmed. The illegal search claim, stated the Court, depends on the existence of probable cause. Because the plaintiffs challenged the statements made by the officer to the judge, as opposed to the decision of the judge, they must show that the officer made false statements knowingly or with reckless disregard for the truth and that the statements were necessary for the determination of probable cause. The Court first considered the claim that he made false statements by implying that he actually saw the teenagers retreat into the house and by omitting the fact that almost an hour elapsed between the earlier raucous behavior and his return to the home. The Court concluded that these were not materially false statements. The officer's earlier observations combined with the fact that a number of cars were still at the house supported an inference that the party was still taking place. The Court also rejected the claim that the officer did not personally observe every fact reported to the judge. He was entitled to rely on the collective knowledge of the gathered officers. Probable cause therefore existed and the search was lawful. The existence of probable cause for the search disposes of William's unlawful arrest claim. As for his mother's, the officers had reason to believe that she was permitting minors to consume alcohol in her home, a violation of Indiana law. Her arrest, also, was lawful.

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GONZALEZ v. CITY OF ELGIN (August 20, 2009)

A number of former high school classmates attended a wedding. Afterward, they gathered at the home of one of them. They visited late into the night and early morning. As the group was about to break up, one of them (who had left earlier to go to a local restaurant) returned to tell the others that his wife and brother were being assaulted outside the restaurant. Several members of the group went to the restaurant. The fight was over and the attackers were gone – but the police had arrived. Here, the testimony in the record supports two versions of a story. Several members of the group described a situation in which a number of police officers were out of control. They testified to beatings, kicks, and pepper-sprays. The police, on the other hand, described an unruly mob, disorderly conduct and resisting arrest. The police arrested several of the group. Most of the charges were dismissed. Six members of the group brought an action against the City and several police officers. They alleged violations of the Fourth Amendment, under § 1983, for unlawful arrest, excessive force, and failure to intervene. They also alleged state law malicious prosecution and a respondeat superior claim against the City. The district court granted summary judgment to the defendants and added that the defendants were also entitled to qualified immunity. Plaintiffs appeal.

In their opinion, Judges Posner, Flaum and Wood reversed and remanded. On the unlawful arrest claim, the Court noted that the plaintiffs had to show an arrest without probable cause. The Court reviewed the evidence in support of probable cause for the arrests for mob action, resisting arrest and battery. In each case, the Court concluded that the facts were contested. The plaintiffs’ version supported a conclusion that probable cause did not exist. On the excessive force claims, the Court again criticized the lower court for not viewing the facts in a light most favorable to plaintiffs. A reasonable jury could find that the police used greater force than necessary considering the totality of circumstances. For the same reason, the failure to intervene judgment was reversed. Next, the Court had little difficulty in rejecting the qualified immunity argument. The plaintiffs stated constitutional violations of an arrest without probable cause and the use of excessive force. Both constitutional rights are clearly established. Finally, the Court reversed with respect to the state law claims for much the same reason – there were genuine issues of material fact.

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BENTZ v. CITY OF KENDALLVILLE (August 14, 2009)

The local police arrived at the home of Dr. Bernard Leonelli, responding to reports of a domestic dispute. An officer observed a large fire on the front lawn and was told by bystanders that a fight was taking place inside the home. The officer approached Leonelli, who was standing on his front porch, and asked to speak with him. Instead, Leonelli walked into the house, where the officer observed him reaching for something. The officer entered the house, arrested Leonelli and searched the premises for a possible victim of domestic abuse. Leonelli brought an action against the city under § 1983, alleging that both the arrest and the search were unreasonable and unlawful. The district court granted summary judgment to the defendants. Leonelli appealed -- but died before the appeal was heard. His personal representative seeks to continue the appeal on his behalf.

In their opinion, Judges Cudahy, Posner and Kanne granted the defendants’ motion to dismiss the appeal. Section 1983 is silent on whether a claim survives death. Instead, the Court stated, the state’s survival statute applies. A court must first characterize the § 1983 claim and decide which state tort is most analogous. With respect to the arrest claim, the Court noted that the plaintiff had to establish the fact of a seizure and its unreasonableness. The Court concluded that the closest Indiana tort was false imprisonment, the elements of which are almost identical to those for false arrest. Since an Indiana tort of false imprisonment does not survive the death of the plaintiff, neither does Leonelli's false arrest claim. With respect to the unlawful entry and search, the Court stated that the facts of the case were closely analogous to both a state trespass claim, which does survive, and a state invasion of privacy claim, which does not survive. The proper analysis, however, focuses on the elements of the federal claim, not the specific facts of the case. Looking at it from that perspective, the Court concluded that an expectation of privacy is the core of the unreasonable search claim. The federal claim is more analogous to invasion of privacy than it is to trespass. The claim does not survive.

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SCHOR v. CITY OF CHICAGO (August 13, 2009)

The City of Chicago passed an ordinance that prohibits the use of a mobile phone while driving unless it is used in conjunction with a "hands-free" device. Three individuals who were ticketed for violating the ordinance filed an action against the City, alleging violations of the Fourth Amendment, the Equal Protection Clause and Illinois law. The district court dismissed the claims and refused to allow an amendment to the complaint. The plaintiffs appealed.

In their opinion, Judges Manion, Rovner and Wood affirmed. The Court rejected the Fourth Amendment claim. The officers making the stops observed each plaintiff violating the ordinance. Those observations provided probable cause for the stop – and thus no Fourth Amendment violation. The Equal Protection Clause claim was a "class of the one" claim. To succeed on that claim, the Court stated, the plaintiffs had to show that they were treated differently and that there was no rational basis for the difference in treatment. Here, the drivers were treated differently than other drivers who were not using mobile phones. The basis for the differential treatment, however, was the violation of an ordinance -- clearly a rational distinction. The Court rejected the plaintiffs' Monell claims as well. A direct claim against a municipality must be based on an underlying constitutional violation, which is not present here. Finally, the Court concluded that the district court's refusal to allow an amendment to the complaint was not an abuse of discretion. In the amendment, the plaintiffs sought to include a claims that the ordinance violated their fundamental right to travel and a claim that the ordinance was void for vagueness. The plaintiffs failed to indicate how the ordinance infringed any right to travel or how its terms were so vague that an ordinary person could not understand.

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MCBRIDE V. GRICE (August 11, 2009) 

Dytaniel McBride owns and operates a clothing store in Peoria. One day, McBride got into a disagreement with one of his employees. She began calling him names and generally creating a scene. McBride summoned the police by activating an alarm. Instead of waiting for the police to arrive, however, he physically removed his employee from the store. She called the police and met them when they arrived in response to the alarm. A police officer interviewed both of the individuals and reviewed some portion of a security tape -- and then arrested both of them. After the charges against McBride were dismissed, he filed a lawsuit alleging that his constitutional rights were violated because of his arrest without probable cause. The district court granted summary judgment to the defendants. McBride appeals.

In their opinion, Judges Posner, Kanne and Sykes affirmed. The Court first addressed the burden of persuasion in a § 1983 case. The person complaining that he was arrested without probable cause bears the burden of establishing the absence of probable cause. The same holds true, added the Court, for a state law claim of illegal arrest. On the merits, the Court had little difficulty in finding probable cause. In fact, the employee told the police officer that McBride hit her in the head. A police officer is entitled to base his determination of probable cause on information he receives from the victim -- assuming he reasonably believes she is telling the truth. Although an officer should not ignore facts or inquiries that might clarify the situation, he may end his investigation once he is satisfied that probable cause exists. The witness’ statement and a scratch on her head were enough for the officer to reasonably believe that McBride committed the offense of battery under Illinois law. 

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BAIRD v. RENBARGER (August 3, 2009)

Joe Baird owned a body shop in Shelbyville, Indiana. After he purchased an antique automobile, he had his office call the police department to check the vehicle's motor number. Although an officer verified the number, he soon thereafter reported his suspicion to a prosecutor that the number was altered. He obtained a search warrant for the automobile and he and several other officers, including Officer Renbarger, executed the warrant. Officer Renbarger carried a 9 mm. submachine gun and rounded up a number of people in the surrounding shops and warehouses, including a group of Amish men. He held the individuals for almost two hours while the search was conducted. The officers located the car and concluded that the motor number had not been altered. Baird brought suit against the officers pursuant to 42 U.S.C § 1983. He alleged violations of the Fourth Amendment and state law claims for trespass, negligence and false imprisonment. The district court denied Renbarger's motion for summary judgment on the basis of qualified immunity. Renbarger appeals.

In their opinion, Judges Bauer, Flaum and Wood affirmed. The Court set out the two-step Saucier inquiry: whether a constitutional right has been violated and whether that right was clearly established at the time of the conduct. Whether the seizure was unreasonable is an objective test requiring an analysis of the severity of the alleged crime, the presence of an immediate threat and whether there is any resistance. Here, these factors all support the unreasonableness of the seizure. The only alleged crime concerned a vehicle motor number. No officer had any reason to believe there was any imminent threat. No one resisted the detention. The Court concluded that a jury could find that Renbarger violated Baird's rights. With respect to the second step of the inquiry, the Court concluded that it was clearly established that police officers are not entitled to point guns at citizens when there is no suggestion of any danger. The Court concurred with the district court's denial of qualified immunity.

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JOHNSON v. SAVILLE (July 29, 2009)

For several years, Larry Johnson worked in a youth correctional facility in Illinois. When a former female inmate alleged that she and Johnson had sexual relations while she was an inmate, the Illinois Department of Corrections began an investigation. Illinois State Police Officer Karl Saville was assigned to the case. Saville gathered substantial evidence of Johnson's guilt, including several statements by the witness implicating Johnson. Saville was not aware of a prior statement by the same witness denying any sexual relations with Johnson. The State decided to prosecute Johnson. He was found not guilty in a bench trial. He later brought a § 1983 action against Saville, alleging malicious prosecution under both state and federal law. The district court granted summary judgment to Saville. Johnson appeals.

In their opinion, Judges Evans, Williams and Tinder affirmed. With respect to the state malicious prosecution claim, the Court stated that one element of the claim is the absence of probable cause. The Court found probable cause: the victim stated that she and Johnson had sexual relations, several other inmates gave statements corroborating the victim’s story, Johnson had no alibi, and the facility's records showed that Johnson had access to the victim on the date in question. The Court recognized certain disputes regarding the facts and also appreciated that the victim had, on one occasion, denied having sexual relations with Johnson. Nevertheless, it concluded that the undisputed facts created probable cause to believe that Johnson was guilty. With respect to Johnson's federal Fourth Amendment malicious prosecution claim, the Court agreed that Johnson forfeited the claim by not developing it in the district court. It rejected, on several grounds, Johnson's pleas to overlook the forfeiture.

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CATLIN v. CITY OF WHEATON (July 21, 2009)

Police officers from the City of Wheaton and several neighboring jurisdictions conducted a major law enforcement operation targeting a drug conspiracy in August of 2003. Several Wheaton police officers were given the task of arresting Robert Ptak. Ptak was considered armed and dangerous and had a history of resisting arrest. The officers were dispatched to a local motel where Ptak was believed to be staying. They had a photograph and a physical description and had been told that he was seen riding a yellow sport motorcycle. The officers located an individual that met Ptak’s physical description on a yellow sport motorcycle in the vicinity of the motel. Unbeknownst to the officers, however, the individual was not Ptak. It was Jonathan Catlin. According to Catlin, the officers jumped out of their vehicle while they were stopped at a traffic light and ran toward him. They grabbed him, threw him down, and eventually handcuffed him. They did not identify themselves as police officers until after the arrest. They soon realized their mistake and released Catlin within 20 minutes. Catlin brought an action for false arrest and excessive force under § 1983. The district court found that the defendants were entitled to qualified immunity and granted summary judgment. Catlin appeals.

In their opinion, Judges Cudahy, Posner and Kanne affirmed. The Court stated that Catlin had to show a violation of a constitutional right and that the right was clearly established at the time. With respect to the false arrest claim, the Court found no constitutional violation. The officers had a reasonable belief that the person they arrested was Ptak. The fact that they might have taken additional steps to be more certain does not affect the reasonableness of their belief. With respect to the excessive force claim, the Court stated that the reasonableness of force depends on the circumstances of the case. The Court conceded that summary judgment is frequently not appropriate in excessive force cases because of factual disputes. Here, given the absence of any factual dispute and the particular circumstances of who the police thought they were dealing with, the Court concluded that the presence of excessive force was a question of law. The Court was troubled by the officers' failure to identify themselves until after the arrest. Earlier identification might have reduced the need for the amount of force used. Even accepting it as a close question, however, the Court concluded that the right, if it existed, was not "clearly established." The Court was unaware of any court of appeals decision holding that police officers have a constitutional obligation to identify themselves when carrying out a public arrest. Qualified immunity therefore attached.

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NARDUCCI v. MOORE (July 9, 2009)

Many years ago, the Bellwood, Illinois comptroller became concerned that some finance department employees were making personal phone calls on village time and also were subjected to harassing phone calls from irate village residents. The village approved a proposal to begin recording department phone calls. Nicholas Narducci took over as controller several years later. When he learned about the recording, he advised village trustees that it was illegal, he alerted the FBI and he directed the Chief of Police to discontinue the activity. In 2001, he brought an action against the village, the mayor, and the police chief on behalf of a class of finance department employees whose calls were recorded. He brought a Fourth Amendment claim under § 1983 and an illegal wiretapping claim under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as well as state law claims. The mayor and the police chief moved for summary judgment on qualified immunity grounds. The district court denied the motion with respect to the § 1983 claims and some of the Title III claims. The mayor and the police chief appeal.

In their opinion, Judges Flaum, Williams and Lawrence affirmed. The issue on appeal, whether the defendants were entitled to qualified immunity, required the Court to examine whether there had been a violation of a constitutional right and, if so, whether it was "well-established." With respect to the Fourth Amendment violation, the Court looked to the totality of the circumstances. It first found, drawing all reasonable inferences in Narducci's favor, that he had demonstrated a reasonable expectation of privacy. The Court next concluded that Narducci presented enough evidence to survive summary judgment, given that the recording lasted more than six years with no notice to the employees. Although the Court realized that no Supreme Court or prior Seventh Circuit decision squarely addressed the issue, it concluded based on decisions of other circuits that the right was sufficiently clear to preclude qualified immunity. Lastly, the Court rejected the defendants' qualified immunity defense to the Title III claims. The Court concluded that the lower court did not err in holding that defendants waived the argument by not presenting it in their opening brief. 

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STAINBACK v. DIXON (June 30, 2009)

Several police officers, after a report of his involvement in a minor disturbance, arrested Charles Stainback. They asked Stainback to put his hands behind his back. Instead of doing so, he asked that he not be handcuffed. All he said was that he thought it would hurt. The officers handcuffed him anyway. Stainback was handcuffed in a police vehicle for approximately 20 minutes. During that time, he complained that the handcuffs were hurting him and asked for them to be removed. Stainback alleges that he required medical treatment as a result of the episode. He sued the officers, alleging the use of excessive force. The lower court concluded that the officers were entitled to qualified immunity because the amount of force was reasonable under the circumstances. The court granted summary judgment to the police officers. Stainback appeals.

In their opinion, Judges Flaum, Ripple and Sykes affirmed. The Court stated that whether force is reasonable depends on the circumstances surrounding the arrest. The circumstances must be viewed as they would have been by a reasonable officer on the scene. Here, the officers used an amount of force that would not have harmed a typical arrestee. Given that the officers were not aware that Stainback suffered from any particular condition or injury, the Court concluded that their actions were reasonable.

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GUZMAN v. CITY OF CHICAGO (May 13, 2009)

Sgt. Bonnstetter of the Chicago Police Department met with an ex-convict who wanted to share information regarding gang activity with the police. The informant provided valuable information and identified pictures of known gang members. He specifically advised Sergeant Bonnstetter that he was aware of the location of gang member Ruben Estrada. He told Bonnstetter that Estrada lived with his family in a single-family residence at an address on the west side of Chicago. He advised that he had seen Estrada at the residence with a handgun. He even drove by the house with an FBI agent and confirmed the location. Although there was a small sign in the front window, the agent assumed that it was a single family residence. Based on this information, Bonnstetter obtain an affidavit to search the premises and Estrada's person. When the officers arrived to execute the search warrant, they realized there was a separate door leading to a business and another door leading to a stairway to the second floor. At some point, it became clear that the building contained a first floor office, a first floor apartment, and a second floor apartment. The officers broke into the second-floor apartment and encountered Maira Guzman. With guns drawn, the officers searched the apartment -- but found nothing. Guzman brought a lawsuit against the City and several officers under 42 U.S.C § 1983, alleging that the search was unreasonable and a violation of her constitutional rights. The district court granted summary judgment to the City. Guzman appeals.

In their opinion, Judges Kanne, Rovner and Evans reversed and remanded. The Court identified the two different ways of evaluating an alleged violation of the Fourth Amendment. A court must look at both the issuance of a warrant and the execution of the warrant. Here, with respect to its issuance, the Court determined that there was sufficient indicia of reliability with respect to the informant to support probable cause. The informant provided information known to the police and identified a number of known gang members. With respect to the execution of the warrant, however, the Court disagreed with the district court. The Court specifically noted the "not uncommon" problems that arise with multiple living units. In executing the warrant in this case, the Court concluded that the officers were aware early in their search that the building was not a single-family residence, as expected and as described in the warrant. The proper course at that stage was to have called off the search. By continuing the execution of the warrant, the police violated Guzman's constitutional rights.

Judge Rovner wrote separately and concurred in the holding and reasoning. She did not join in that part of Judge Evans’ opinion in which, in dicta, he discussed Fourth Amendment rights in the context of civil actions as opposed to criminal suppression motions.

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MARION v. THE CITY OF CORYDON (March 23, 2009)

Having been caught shoplifting, Trent Marion fled from police, scuffled with police, fled again, and led police on a high-speed chase down a divided highway. For miles, Marion eluded the police and their attempts to stop him. Even with three deflated tires, Marion refused to stop. Eventually, Marion swerved into the median and drove toward the other side of the highway. The police surrounded and fired shots at the vehicle. Marion continued to rev his engine and shift from forward to reverse. The police continued firing at the vehicle until Marion stopped. Marion suffered serious gunshot wounds. He filed suit under §1983, claiming that the police violated his Fourth Amendment rights. The district court granted summary judgment to the defendants. Although Marion opposed the motion, he did not file an affidavit. He did submit an affidavit with a motion to reconsider. The court denied the motion. Marion appeals.

In their opinion, Judges Flaum, Williams and Kapala affirmed. The Court first concluded that it would not consider Marion's affidavit. The Court could consider it only if it consisted of newly discovered evidence, which it did not. On the merits of Marion's Fourth Amendment excessive force claim, the Court stated that it would apply an objective reasonableness standard and consider the totality of the circumstances. The Court concluded that it was reasonable for the police officers to believe that Marion posed a threat to their safety and the safety of nearby motorists while he was in the median. The amount of force they employed was therefore reasonable.

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BIELANSKI v. COUNTY OF KANE (December 18, 2008)

Kane County set up a Child Advocacy Center (“Center”) to coordinate the investigation and prosecution of child sexual abuse. The Child Advocacy Advisory Board (“Board”) is responsible for drafting the policies and procedures for those investigations and prosecutions. Kathryn Berg and David Byrne were a child protection investigator and police officer, respectively, assigned to the Center. [The facts that follow, given the posture of the appeal from a motion to dismiss, are taken from the complaint.] In mid-2001, Berg and Byrne interviewed a six-year old boy and his parents. The boy claimed he had been sexually abused by “Lorri.” Berg and Byrne failed to follow accepted techniques used in child victim interviews. They did not use techniques to identify the perpetrator and did not even ask the boy to describe her. Within days, Lorri Bielanski, a fifteen-year-old neighbor of the boy, was notified that credible evidence existed that she had sexually assaulted the boy. Sometime shortly after Berg and Byrne’s interview of the boy, they learned that: a) he was taking medication for Attention Deficit Hyperactivity Disorder, b) he was in special education classes, c) he was known, on two occasions, to have undressed with others and tried to get others to undress, d) his parents confronted him about the undressing incidents and punished him, and e) his parents suggested to him that he may have been sexually abused. Berg and Byrne did not disclose this information to the prosecutors or Bielanski. The county filed a Petition for Adjudication of Wardship, alleging the commission of two sexual assault felonies. As a result, Bielanski was forced to attend court hearings and an interview with a probation officer and was not allowed to travel out of the state without court permission. Bielanski was eventually acquitted of all charges and was successful in getting her record expunged. She filed a complaint against the County, the Center, the Board, Berg, and Byrne. Based on § 1983, she alleged: a) that the defendants violated her Fourth Amendment rights by compelling her to attend the court hearings and restricting her movement, and b) that Byrne and Berg violated her rights to a fair trial and due process by withholding the information they had about the boy. The district court granted defendants’ motion to dismiss. Bielanski appeals.

In their opinion, Judges Posner, Kanne and Rovner affirmed. The Court began with Bielanski’s Fourth Amendment claim. In order to make out such a claim, the plaintiff must allege a seizure and that it was unreasonable. Since Bielanski was not seized in the normal sense of an arrest, the Court reviewed Justice Ginsburg’s “continuing seizure” concurrence in Albright and other circuits’ approaches in similar situations. In Albright, Justice Ginsburg supported a Fourth Amendment analysis whereby a defendant who was arrested, released, and then summoned back to court based on the misleading testimony of a police officer could state a claim for unlawful seizure. No other Justice has adopted the analysis. The Court concluded that a summons, even when combined with travel restrictions and a forced probation officer interview, is an insufficient restraint on freedom to constitute a seizure. The Court then addressed the fair trial claim. The elements of that claim are that: a) the evidence is favorable to the accused, b) that it was suppressed by the government, and c) that it was material. The Court noted that materiality was the only element in dispute and that the Supreme Court had not addressed a case in which evidence was withheld and the defendant was later acquitted. Several other circuits have concluded that a Brady claim cannot survive an acquittal or dismissal of charges. The Court concluded that Bielanski had no Brady claim since earlier disclosure of the evidence would not have resulted in a dismissal of the charges.

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