Pasiewicz v. Lake County Forest Preserve

Page 520

270 F.3d 520 (7th Cir. 2001)

EDWARD J. PASIEWICZ, Plaintiff-Appellant, v. LAKE COUNTY FOREST PRESERVE DISTRICT; RAY HENNING, individually and in his official capacity as a Ranger/Police Officer for the Lake County Forest Preserve District; KNUTE SANDAHL, individually and in his official capacity as a Ranger/Police Officer for the Lake County Forest Preserve District; DEBRA PHILLIPS; and MICHELLE PETERSON, Defendants-Appellees.

No. 00-4270

United States Court of Appeals For the Seventh Circuit

Argued September 10, 2001

Decided November 2, 2001

Appeal from the United States District Court for the Northern District of Illinois, Matthew F. Kennelly, Presiding.

Before POSNER, KANNE, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Two women, while out riding horses on a Sunday morning, spotted a naked man cavorting in the woods. Unfortunately for Edward Pasiewicz, he was subsequently arrested and charged with two misdemeanor counts of "public indecency" under Illinois law growing out of the incident. Fortunately for Pasiewicz, he was acquitted after a bench trial in state court on both counts. After his acquittal, Pasiewicz sued the officers who made the arrest, the two women who said he was the cavorter, and the Lake County Forest Preserve District, the employer of the arresting officers.

Many of the "facts" supplied by the parties on this appeal are irrelevant to the issues before us. We will, however, spend a few moments wading through the details so the issue we will ultimately consider can be put in better focus. We start with the Sunday morning horseback ride.

Two women, Michelle Peterson and Deborah Phillips, were riding horses in the forest preserve (Van Patten Woods in Lake County, Illinois) when they saw a naked man standing in the middle of their trail. This occurred around noon, and the women reported their observations to a forest preserve ranger/officer named Shannon a half an hour later. Both women said they saw the man for only a short time, but Phillips said she got a face- to-face view of the man before he slipped away into the bushes. Peterson added that the man appeared to be looking at a group of children playing in a clearing a short distance away. As with all descriptions, Phillips and Peterson did not agree on every detail, yet both essentially described a man around 6 feet tall, heavyset and bald, who appeared to weigh in the neighborhood of 240 pounds and who looked to be in his fifties.

The next day, Peterson dropped her daughter off at the Our Lady of Humility school where she was a kindergarten student. While walking back to her car (as later reported to the forest preserve police), she noticed a man sitting in a blue Taurus. In her mind, the man in the car was the man she had seen in the woods the day before.

The next day, Peterson said she saw the same man pull into the school parking lot. Peterson asked another woman who the man was and was told his name was Edward Pasiewicz and that he had children attending Our Lady of Humility. Peterson, indulging in a little detective work, obtained Pasiewicz's address and telephone number from the school directory and, along with Phillips, went to the forest preserve police and gave the identifying information to two officers. The next day, Ray Henning, one of the preserve officer defendants in this suit, called the Pasiewicz home and left his pager number, with instructions for Pasiewicz to get in touch with him. Pasiewicz did so later that day, and Henning asked him to come to the Lake County Forest Preserve office that evening. Pasiewicz declined the invitation but, after confirming Henning's identity, contacted him the next day and said he would meet him at Waukegan East High School, where Pasiewicz worked in the maintenance department. The school was, of course, outside the physical boundaries of the forest preserve.

Independent of Henning's line of inquiry, a supervising officer concluded that Pasiewicz should be arrested. The officer, Roy Johnson, spoke with the women, primarily Phillips, numerous times since the incident, and he also spoke with other officers regarding Shannon's initial report. Johnson instructed another officer, the second defendant Knute Sandahl, to arrest Pasiewicz. Henning and Sandahl went to the high school, and Pasiewicz escorted them to the athletic office. Although the officers apparently asked Pasiewicz whether he had been at the Our Lady of Humility school parking lot, and Pasiewicz said that he had, the officers did not specifically inquire into his whereabouts on August 30, the day Peterson and Phillips saw the nude man in the woods. Ten minutes into the meeting, Sandahl informed Pasiewicz that he was accused of public indecency and that he was under arrest. Pasiewicz called the accusation "unbelievable." The officers handcuffed Pasiewicz and took him to the Lake County jail for processing. In an hour or so he posted a $100 bond and was released from custody. As a result of the arrest, Pasiewicz was suspended from his job, his supervisor informing him that, given the charges, it was best that he not work around children.

After Pasiewicz's acquittal on the charges,¹ which came during a bench trial after the State rested its case, Pasiewicz filed this suit under 42 U.S.C. § 1983 alleging violations of the Fourth and Fourteenth Amendments. Another count in the complaint named the Lake County Forest Preserve District on a claim that it had failed to train and properly supervise its officers. A final count alleged a state law claim of defamation against Peterson and Phillips.

The district court, concluding on summary judgment that the defendant officers had probable cause for the arrest as a matter of law, dismissed the case against everyone except Phillips and Peterson. There being no federal claim against them, the court relinquished jurisdiction of the final count in the complaint to a state court forum.

Much is made, by Pasiewicz, of the "fact" that he was an "innocent" man unjustly accused. In some ways that's understandable. The charges brought against him, although only misdemeanors, are serious and stigmatizing. Had he been charged with other misdemeanors--like unlawful possession of fireworks, battery, or negligent operation of a motor vehicle, to name a few--it is unlikely he would have been immediately suspended from his job as a school maintenance worker as soon as the charges were publicly leveled. But his actual (or just legal) "innocence" is not material to the issue we are considering. So his brief, where he proclaims his innocence and goes on and on for page after page about his whereabouts on the day the horseback riders saw the naked man, are beside the point.

One second-to-last word about "innocence." In wrapping up his brief, Pasiewicz writes that the district court (Judge Kennelly) "found that Pasiewicz was innocent of the crime for which he was arrested, and likewise found that Pasiewicz could have been spared his ordeal if the officers had undertaken any sort of investigation into the facts." While the second part of this sentence may be true, the first part isn't: Judge Kennelly did not find that Pasiewicz was innocent. That wasn't his job. A final determination-- whether a defendant is to be found guilty beyond a reasonable doubt in a court of law--rests with a trier of fact, and that was outside the scope of the proceedings before Judge Kennelly in the district court.

And now a last word about innocence. As we said, Pasiewicz was acquitted in state court after the prosecution presented its case against him. But as far as we can see, the accuracy of the "eyewitness identifications," which Pasiewicz lays out as his major beef against the arresting officers, appears to have played no role in that decision. As Pasiewicz himself alleges in his amended complaint, "the reason for the directed verdict was that the State had absolutely no evidence of lewd conduct on the part of the naked man witnessed by PETERSON and PHILLIPS in Van Patten Woods on August 30, 1998."

So finally, although Pasiewicz seems to have an airtight alibi--as disclosed by depositions in this case--and might very well have won his acquittal on that basis in state court if the case went that far, it came to an early end on a failure of proof on the elements of the charge--not because the judge said Pasiewicz was not the man in the woods in his birthday suit on the day in question.

So we now come to our review of the grant of summary judgment. Our review is de novo. Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). The rules governing motions for summary judgment, as set forth in Federal Rule of Civil Procedure 56(c), and as interpreted in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), are familiar, so we can skip that and get right to the point.

Pasiewicz brings claims against Henning and Sandahl for arresting him in violation of the Fourth Amendment (count I) and Fourteenth Amendment (count II). These two amendments share a common concern with protecting a person's physical liberty from government restraint. Because the Fourth Amendment's requirements are more specific, "a seizure that passes muster under the Fourth Amendment should also satisfy the requirements of the due process clause viewed as an independent source of constitutional norms." McKinney v. George, 726 F.2d 1183, 1187 (7th Cir. 1984). Collapsing the two inquiries is particularly appropriate here as the parties have briefed only the applicability of the Fourth Amendment.

Pasiewicz can find no quarter in the Fourth Amendment. When police officers obtain information from an eyewitness or victim establishing the elements of a crime, the information is almost always sufficient to provide probable cause for an arrest in the absence of evidence that the information, or the person providing it, is not credible. Sheik-Abdi v. McClellan, 37 F.3d 1240, 1247 (7th Cir. 1...