FLEMING V. LIVINGSTON COUNTY (March 28, 2012)
Roger Fleming was walking his dog in a Flanagan, Illinois alley in the early morning hours one summer day when Sheriff's deputy David Turner arrested him for burglary and aggravated sexual assault. Turner had come from a local residence where two teenage girls reported being sexually assaulted in their living room. Fleming and his clothing matched the general description given by one of the girls and Turner came across him just a short distance from the crime scene. Before arresting Fleming, Turner spoke with a local state's attorney to confirm his belief that he had probable cause for the arrest. He told the prosecutor that he came upon Fleming two to three minutes after first hearing of the assault. The prosecutor confirmed his belief that probable cause existed. Before transporting Fleming to jail, Turner also had one of the girls identify him in "show up" under a streetlight. Charges were later dismissed and Fleming filed suit against Turner for false arrest and against the County for indemnification. During summary judgment briefing, and after the close of discovery, Fleming submitted a report from a private investigator that concluded that the activities in the time span Turner estimated at 2 to 3 minutes would have had take almost 7 minutes to complete. Although Judge McDade (C.D. Ill.) granted the defendants' motion to strike the evidence, he nevertheless considered it in ruling on the summary judgment motions. He granted summary judgment to the defendants on qualified immunity grounds. Fleming appeals.
In their opinion, Seventh Circuit Judges Manion and Williams and District Judge Castillo affirmed. The Court noted that Turner would prevail either a) if probable cause existed or b) if he was entitled to qualified immunity. The Court declined Turner's invitation to revisit the district court's refusal to conclude that probable cause existed as a matter of law because of its belief that the district court was correct to find qualified immunity. The arresting officer is entitled to qualified immunity in a false arrest case if a reasonable officer could have concluded that probable cause existed, even if that conclusion is a mistaken one. Here, the Court had no difficulty in concluding that "arguable probable cause" existed. Fleming was spotted within minutes of the assault, he was the only person around, and he matched the victim's description in most respects. Turner even took the additional step of confirming his belief with the prosecutor. The fact that Turner may have been wrong about the 2 to 3 minutes and that Fleming's t-shirt may not have matched the description perfectly do not compel a different conclusion. In order to attack Turner's probable cause finding on the ground that he fabricated evidence with respect to the time span, Fleming would have to show that Turner was either intentional or reckless in disregarding the truth and that the falsifications are material. He can satisfy neither of those requirements. Since Turner is entitled to qualified immunity, the indemnification claims must also fail.