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

MOSLEY v. CITY OF CHICAGO (July 29, 2010)

It was mid-summer 1999 when Jovan Mosley and three other individuals were standing near the porch of a friend when Howard Thomas walked by. The four of them ran at Thomas. Thomas was beaten to death and the four of them left the area together. All four were arrested and charged with murder. The police took statements from them as well as several eyewitnesses. One eyewitness, Anton Williams, viewed Mosley in a lineup and identified him as a person who was on the scene. The lineup was not documented until 15 months later and the report does not what Williams said about Mosley's particular role in the murder. Another eyewitness, Gregory Reed, implicated all four of the defendants in the beating and specifically identified Mosley as having participated. Reed never testified at trial because he admitted to the prosecutor just before trial that he was quite drunk the night of the incident and had no independent recollection. Mosley remained in jail for over five years until he was tried and acquitted by a jury (see this for commentary on that delay). He brought a § 1983 action against the City of Chicago and several individual police officers who were involved in the investigation. He alleged a due process denial for the withholding of exculpatory evidence, malicious prosecution, and civil conspiracy. Judge Coar (N.D. Ill.) granted summary judgment to the defendants. Mosley appeals.

In their opinion, Judges Flaum, Rovner, and Wood affirmed. The Court first addressed the main issue, the failure to produce exculpatory evidence under Brady. The claim has two parts: a) that the prosecutors did not inform Mosley that Williams told the police at the lineup that Mosley did not participate in the beating, and b) that the prosecutors did not tell Mosley that Reed admitted to being drunk on the night of the incident. The Court noted the "logical tension" in a Brady claim when the case results in an acquittal. The normal test for a Brady claim is that the non-disclosed evidence could put the case in a different light and undermine confidence in the verdict. That test makes no sense when the verdict is an acquittal. In fact, the Court noted that several circuits have concluded that a Brady claim cannot exist after an acquittal. The Court has reserved answering that question in the past and did so again. In Bielanski, the Court concluded that the elements of a post-acquittal Brady claim, if one even exists, are a) the withholding of material and favorable evidence, and b) that would have changed the prosecutor’s decision to try the case. Since Mosley cannot meet either element, his Brady claim fails. With respect to the lineup, the Court concluded that there was literally no evidence in the record that Williams told police that Mosley did not participate in the crime. Other than a one-word answer to a leading question on cross-examination, his testimony was inconsistent with that conclusion. In addition, even if it was said, the prosecutors approach would not have changed. It did not have to prove that Mosley actually participated to prevail on the accountability theory it was pursuing. With respect to Reed being drunk, the prosecutor had no obligation to disclose the statement since Reed never testified at trial. The Court next addressed the state malicious prosecution claim, one of the elements of which is the lack of probable cause. The Court had no difficulty in concluding that the district court's finding that probable cause existed was correct. Finally, with respect to the civil conspiracy claim, the Court pointed out that Mosley offered no evidence of the common scheme element of the conspiracy claim. At the summary judgment stage, Mosley cannot rest on the allegations of his complaint but must come forward with evidence.

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SWEARNIGEN-EL v. COOK COUNTY SHERIFF'S DEPARTMENT (April 22, 2010)

Swearnigen-El was a black male guard in the women's division at the Cook County Jail. He had a run-in with the head of the division, who wanted the correctional staff in the women's division to be comprised totally of women. Swearnigen-El thought that belief was discriminatory and he reported his concerns to other supervisors. Shortly thereafter, Swearnigen-El found himself in trouble when a female prisoner's allegations that male guards were engaged in sexual activity with female prisoners launched an investigation. The Sheriff's Police conducted the initial investigation, followed by an investigation by the State's Attorney’s office. Several prisoners reported that Swearnigen-El was having sex with a female prisoner. The prisoner herself admitted the activity. Swearnigen-El was de-deputized and transferred for violating a General Order that forbids "activities unbecoming" an employee. He was later charged with sexual misconduct and suspended with pay. Before he had a termination hearing with the merit board, Swearnigen-El resigned. After he was acquitted of the criminal charges, he filed a complaint alleging gender discrimination, race discrimination, Title VII retaliation, First Amendment retaliation, malicious prosecution, and intentional infliction of emotional distress. The district court dismissed the Title VII retaliation claim and granted summary judgment to the defendants on all other claims. Swearnigen-El appeals.

In their opinion, Judges Wood, Evans, and Sykes affirmed. The Court first upheld summary judgment on all gender and race discrimination claims because there was no adverse employment action. Swearnigen-El was de-deputized and transferred after a internal investigation demonstrated evidence of misconduct. His pay was not affected and there was no evidence that the conditions were intolerable. The Court concluded that no reasonable jury could find a constructive discharge under those circumstances. Alternatively, the Court found that Swearnigen-El a) failed to establish sufficient evidence of race or gender discrimination to create a triable issue, and b) was not meeting his legitimate job expectations. Next, the Court considered the First Amendment retaliation claim. The principal speech at issue was Swearnigen-El's disagreement with his superior regarding the staffing of the women's division and his subsequent complaints to other officials that her actions constituted discrimination. The Court concluded that the speech was not protected -- Swearnigen-El was speaking not "as a citizen" but as a public employee under Garcetti. Again, the Court came to the alternative conclusion that no reasonable juror could find the defendants' actions pretextual. On the claim of malicious prosecution, the Court found sufficient evidence of misconduct after the investigation to establish probable cause. Since the absence of probable cause is an element of a malicious prosecution claim, Swearnigen-El's claim must fail. Finally, the Court agreed that there was no "outrageous" conduct that would amount to an intentional infliction of emotional distress claim and upheld the district court's dismissal of the Title VII retaliation claim on the ground that Swearnigen-El failed to include it in his EEOC charge.

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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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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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AVILA v. PAPPAS (January 4, 2010)

Maria Avila was already in trouble. Her employer, the Cook County Treasurer's Office, was about to conduct a disciplinary hearing. Avila made it worse when she told one of her coworkers that she might "go postal." Her coworker advised her superiors. They not only added a disciplinary count for the implied threat and fired her but alerted the authorities. Avila was criminally prosecuted. The prosecutor charged a felony, taking the position that one of the targets of Avila's threat was a public official. Avila was acquitted, the court holding that he was not a public official. Avila filed suit against her superiors pursuant to §1983, alleging both constitutional violations and state law malicious prosecution. Although the court dismissed the federal counts, it retained the state law claim under supplemental jurisdiction and resolved it on the merits in favor of the defendants. Avila appeals the judgment on the state law claim.

In their opinion, Chief Judge Easterbrook and Judges Wood and Tinder vacated and remanded with instructions to dismiss for want of jurisdiction. The Court first addressed its jurisdiction. Although Avila asserted four federal law theories, the Court emphasized that a federal claim must have substance to create a basis for federal jurisdiction. The Court concluded that the federal claims -- substantive due process, conspiracy, failure to train, and equal protection -- were frivolous. The Court principally relied on the Supreme Court's decision in Albright and the Court's own decision in Newsome, holding that malicious prosecution does not violate the Constitution if state law recognizes it as a tort (which Illinois does).

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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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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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GOLDEN YEARS HOMESTEAD v. BUCKLAND (February 19, 2009)

Golden Years Homestead, Inc. (“Golden Years”) operates a nursing facility in Fort Wayne, Indiana. In early 2000, the Indiana Department of Health (“IDH”) conducted an annual certification inspection, as required by Golden Years’ participation in the Medicaid program. The inspection took place over a span of ten days. At some point during the inspection, the inspection team became upset with the conduct of the Golden Years’ team. From then on, the inspection team became loud, overly critical, hostile and accusatory. The team left information favorable to Golden Years out of its report. Golden Years was cited for seventeen violations. After a six-day evidentiary hearing and administrative appeals, all but one of the citations was reversed. Golden Years brought a lawsuit against the inspectors under 42 U.S.C. § 1983 for constitutional violations and state law claims for abuse of process and malicious prosecution. The district court granted summary judgment for the inspectors. Golden Years appeals the dismissal of the state law claims.

In their opinion, Judges Bauer, Rovner and Sykes affirmed. The Court first addressed Golden Years’s complaint that the court dismissed the state law claims sua sponte. The Court disagreed. Although the inspectors did not specifically address the state law issues in their motion, they did ask for all counts to be dismissed. Furthermore, Golden Years actually addressed the state law counts in its response. The lower court acknowledged the general rule that a court will decline to exercise jurisdiction over state law claims if all federal claims are dismissed before trial. The Court approved the lower court’s invocation of the exception to the rule when the state law claims are meritless. On the substance of the malicious prosecution claim, the Court stated that Golden Years was required to prove malice. Although it seemed to accept that the inspectors’ conduct was overzealous and unprofessional, the Court concluded that the evidence did not support personal animosity or malice. Similarly, the Court concluded that the evidence of hostility and rancor was insufficient to establish the ulterior motive requirement for abuse of process.

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DENG v. SEARS (January 5, 2009)

Yuming Deng was a software developer at Sears Roebuck and Co. (“Sears”). He compiled data that Sears used in making credit decisions. Unfortunately, Deng took serious issue with a 2001 performance review and erupted. Deng stopped coming to work, claiming a disability. He continued to show up at Sears occasionally, sometimes causing a disruption. On his last visit, he deleted from Sears computers much data and the software models Sears used in analyzing the data. After an internal investigation concluded that Deng destroyed the data in retaliation for the performance review, Sears reported his conduct to the local police. The police concluded that Deng had violated Illinois law and sought him out for his version of the story. Deng, however, had left the state. Charges against him were filed in his absence. A year and a half later, Deng was arrested and brought back to Illinois. When a witness did not appear at his preliminary hearing and the judge refused a request for a continuance, the prosecutor filed a nolle prosequi. Deng then brought this action for malicious prosecution against Sears. The court granted summary judgment to Sears, holding that the nolle prosequi was not a “favorable” outcome for Deng. Deng appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Evans affirmed. The relevant elements of the tort of malicious prosecution in Illinois are a) a favorable outcome in the criminal case, b) an absence of probable cause, and c) malice. The Court took note of the problems presented by the first element – favorable outcome – which was relied on by the district court. The Illinois Supreme Court has held that a nolle prosequi is not a favorable outcome if the case is abandoned for reasons not related to the innocence of the accused. But whether the failure of a witness to appear is a favorable outcome is an open question in Illinois. The Court questioned the merits of Illinois’ approach. Here, for example, the prosecutor was forced to attend and testify at a deposition - which the Court viewed as an intrusion on the prosecutorial function. Nevertheless, the Court respected Illinois’ right to its choice. The Court solved its dilemma by sidestepping the favorable outcome element of the tort and focusing on the absence of probable cause. Although Deng tried to explain away his conduct, the Court had no difficulty in finding probable cause.

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