Jeffery Lawson v. Robert Veruchi, et al
Filing
Filed opinion of the court by Manion. The grant of summary judgment is REVERSED to Veruchi. Likewise, the district court s grant of summary judgment is REVERSED to the City of Rockford, as that decision was premised on the failure of the claim against Veruchi. The case is REMANDED pursuant to Rule 36 for further proceedings consistent with this opinion, and the dismissed state law claims should also be considered anew on remand. Richard A. Posner, Circuit Judge; Daniel A. Manion, Circuit Judge and David F. Hamilton, Circuit Judge. [6282785-3] [6282785] [10-1318]
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In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1318
JEFFERY A. L AWSON,
Plaintiff-Appellant,
v.
R OBERT V ERUCHI, D ETECTIVE, B ADGE N O . 167,
named in his individual capacity, and
C ITY OF R OCKFORD , an Illinois municipal corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 08 C 50079—Frederick J. Kapala, Judge.
A RGUED S EPTEMBER 8, 2010—D ECIDED JANUARY 28, 2011
Before P OSNER, M ANION, and H AMILTON, Circuit Judges.
M ANION, Circuit Judge. Jeffery A. Lawson (“Jeffery A.”)
was arrested for assaulting Kimberly Colvin and held
in jail for more than one month before he was released when police learned the alleged culprit was
really Jeffrey W. Lawson (“Jeffrey W.”). Following his
release, Jeffery A. sued the officer who swore out his
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arrest warrant, Rockford Police Detective Robert Veruchi,
as well as the City of Rockford (“Rockford”), under 42
U.S.C. § 1983. Jeffery A. alleged that Veruchi arrested
him without probable cause in violation of the Fourth
Amendment, and Rockford violated his constitutional
rights by not having policies in place to prevent such
wrongful arrests. Jeffery A. also alleged pendent state
law claims. The district court granted Veruchi and
Rockford summary judgment on the § 1983 claims and
then declined to exercise jurisdiction on the state law
claims. Jeffery A. appeals. We reverse.
I.
On June 9, 2007, Kimberly Colvin was in a Target store
in Rockford, Illinois, with her friend Genesis Matthiesen,
and Genesis’s younger siblings Arcadia Matthiesen and
Tony Franco. Inside the store, there was a verbal confrontation between Colvin and an unknown man and
woman. Colvin decided it was best to leave the store,
but as she and her friends got into her car in the Target
parking lot, they discovered that the couple had followed
them out. Colvin drove off, but at a stoplight she
exited her vehicle, apparently in order to write down
the couple’s license plate number. After seeing the unknown man approaching her, Colvin tried to reenter
her car, but as she did so, he slammed the car door on
her head; Colvin suffered a long cut on one side of her
face requiring 40 to 50 stitches.
The next day, Colvin reported the incident to a patrol
officer in Rockford, describing the perpetrator as a
white male in his 40s, about six feet tall and approxi-
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mately 190 pounds. Colvin also informed the officer that
her attacker drove a green vehicle and provided him
with the license plate number which Arcadia had typed
into her cell phone. The license plate was for a 2006
Saturn registered to a Donny Lawson in Rockford.
Detective Veruchi of the Rockford Police Department
was assigned to follow up on Colvin’s complaint. Veruchi
called the Donny Lawson residence and Patsy Lawson,
Donny’s wife, informed Veruchi that the Saturn belonged to her son Jeffrey W. and that she would have
him call Veruchi. Donny and Patsy Lawson’s son “Jeffrey
W.” is not the innocent “Jeffery A.” who is the plaintiff
in this case—notice the different spellings of the name
and different middle initials. We will use the different
spellings and middle initials throughout the opinion to
correctly identify the “Jeff” of whom we are speaking,
but obviously when the actors in this case spoke of
Jeffrey (or Jeffery) they did not specify the spelling of
the name or the middle initial.
After speaking with Patsy, but before hearing from
Jeffrey W., Veruchi received a telephone call from
Frank Montalbano who was a courtroom bailiff in
Rockford. Montalbano informed Veruchi that his
daughter Stephanie was Jeffrey W.’s girlfriend and that
Stephanie had told him that Jeffrey W. got into an altercation with someone around the Target store over
the weekend. Montalbano stated that he would have
his daughter and Jeffrey W. call him. About thirty
minutes later, Jeffrey W. contacted Veruchi. After Veruchi
asked Jeffrey W. whether he was willing to come to
the police station to discuss the case, Jeffrey W. asked
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how much trouble he was in. Veruchi told Jeffrey W.
they could discuss that when they met and Jeffrey W.
agreed to come in the following morning at 9:00 a.m.
However, the next day Jeffrey W. left a message
for Veruchi that he would not meet with him and that
Veruchi should contact his attorney Jeff Heckinger if
he had any questions.1
By this time, though, Veruchi had already arranged
to conduct a photo array with Colvin and Arcadia. (It
is unclear from the record why Veruchi did not
arrange to show the photo array to Tony Franco or
Genesis Matthieson.) To obtain a photograph of
Jeffrey W., Veruchi searched the Winnebago County Jail
system. The transcript of Veruchi’s depositions and the
defendants’ statement of undisputed facts state that
Veruchi looked up “Jeffrey Lawson” in the jail system.
It appears that this is an inadvertent error on the defendants’ part and that they meant to assert that Veruchi
looked up “Jeffery Lawson” because that’s whose photograph Veruchi put in the photo array, along with several
other photographs of similar looking men.2
1
Veruchi claims that he left a message for attorney Heckinger,
but Jeffery A. claims that that is impossible because Veruchi’s
police report incorrectly identified Jeffrey W.’s attorney as
Heckerson, and there is no attorney Heckerson in Rockford.
Attorney Heckinger also denied receiving any message from
Veruchi. Whether Veruchi ever called Heckinger, however,
is irrelevant to the question on appeal.
2
Apparently, Jeffery A. had a record and thus his photograph
appeared in the Winnebago County Jail system.
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At this point, what happened is disputed and because
of the significance of the dispute, we provide a detailed
description of the opposing versions of events, excerpting
the relevant deposition testimony where helpful. According to Veruchi, after explaining the photo array
procedures to Colvin, he placed six photos in front of
her all at once. Veruchi maintains that Colvin identified
Jeffery A. as the person who had assaulted her, signed
the back of Jeffery A.’s photograph and initialed the
photographs of the other individuals in the lineup. In
his deposition, Veruchi testified that he showed the
same photo lineup to Arcadia Matthieson, again laying
all six photographs out on the table. Veruchi stated that
at first Arcadia said she wasn’t sure if she could identify the subject but that then she pointed to Jeffery A.’s
photograph and said she was about 75 percent sure that
he was the attacker. Veruchi claims that it was only
about twenty seconds between the time Arcadia first
looked at the photographs and her stating she was 75
percent sure that Jeffery A. was the attacker, and that
during that time he did not say anything to Arcadia.
On the other hand, Colvin stated in her deposition that
Veruchi presented her with a photo array of several
individuals—more than six, she believed—and that she
identified one of the individuals as the person who
had attacked her, but that the individual she had
identified was not Jeffery A. Colvin explained:
[Veruchi] laid out the photos in front of me. Asked me
to look over them carefully, seeing if any one of
them caught my eye as the man that attacked me.
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I looked them over. I identified the one picture
that looked exactly like the guy that attacked me that
night. He asked me if I was sure if that was him, if
I wanted to take more time and look over the rest of
the photos again. Basically he laid them out one at a
time again in front of me and kept saying, “Are
you sure this is the guy?” We went through them
maybe three of four times, and I told him that was the
guy; and he said, “Maybe this will help you.” He
showed me another photograph of a woman who
I immediately recognized and identified as the
woman that was with him that night. He said that
was the girlfriend of the man that attacked me. He
flipped over one of the photos, and he said that was
the boyfriend of her and asked me to go ahead and
sign it; and I signed the photograph, assuming that
that was the man that I had already picked out of the
photos, not even thinking that it was a different, you
know, photo. I guess I wouldn’t understand why
there would be a different photo chosen.
Upon further questioning, Colvin explained that while
she had signed the back of Jeffery A.’s photograph, she
had not seen the photograph she signed off on, as Veruchi
“had already flipped it over and laid it out next to the
girlfriend.” And that at this point, Colvin added, Veruchi
had the girlfriend’s picture in front of me. Then he had
all the photos flipped over. He had the one photo
kind of lower than the others; and when I identified
her, he pulled that photo over upside down and
said that was the boyfriend of the girl and asked me
to sign the back of it.
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In her deposition, Colvin was then asked: “Looking
through those photos in that exhibit, do you see there
the photo you initially identified as the person who
had done this to you?” And Colvin responded: “No.”
Arcadia’s mother also provided a signed declaration
contradicting Veruchi’s deposition testimony. Because
Arcadia was a minor, her mother accompanied her to
the police station and was present when Veruchi showed
her the photo array. According to Arcadia’s mother,
Arcadia looked at the photographs and told Veruchi
that she did not recognize the attacker in the photo
array, and that for a period of five to ten minutes, Veruchi
kept saying things like, “Are you sure you don’t see
him?” Again and again, Arcadia said that she could not
identify the man from the photos. Finally, after Veruchi
kept pushing, Arcadia selected one of the photos, although indicating she was only about 75 percent sure
it was the attacker.
Veruchi’s version of events was the one that he
included in the affidavit he submitted in support of his
application for an arrest warrant for Jeffery A. Lawson.
Based on Veruchi’s affidavit, a state judge issued a warrant for Jeffery A.’s arrest. On June 15, while driving to
work, Jeffery A. was arrested. He remained in jail for
34 days until he was released on July 19 and all charges
were dropped. (While being held in jail, Jeffery A. developed a staph infection, causing his leg to swell to twice its
normal size.) It is unclear exactly how Jeffery A.’s misidentification was discovered, but it appears that an
employee in the public defender’s office knew Stephanie
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and the Jeffrey W. she was dating and realized from
the photograph of Jeffery A. that the wrong person had
been arrested. The state’s attorney’s office informed
Veruchi that there had been a misidentification and
instructed him to continue investigating the crime.
After Jeffery A.’s release, Arcadia’s brother identified
Jeffrey W. as the attacker. As of June 2008, Jeffrey W.
has not been charged with the assault.
After his release, Jeffery A. sued Veruchi and Rockford
under § 1983. Jeffery A. alleged that Veruchi arrested
him without probable cause in violation of his Fourth
Amendment rights and Rockford violated his constitutional rights by not having policies in place to prevent
such wrongful arrests. Jeffery A. also included pendent
state law claims. The district court granted Veruchi
and Rockford summary judgment on the § 1983 claims
and then declined to exercise jurisdiction on the state
law claims. Jeffery A. appeals.
II.
On appeal, Jeffery A. argues that the district court erred
in granting the defendants summary judgment. We
review a grant of summary judgment de novo, viewing
the facts in the light most favorable to the non-moving
party, i.e., Jeffery A. Trentadue v. Redmon, 619 F.3d 648, 652
(7th Cir. 2010). As noted above, Jeffery A. sued Veruchi
for false arrest in violation of his Fourth Amendment
rights. “In order to prevail on a claim of an arrest in
violation of the Fourth Amendment, the plaintiff[] must
show that [he was] arrested without probable cause;
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probable cause is an absolute defense to such a claim.”
Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009).
Probable cause exists if, at the time of the arrest, the
facts and circumstances within the defendant’s knowledge “are sufficient to warrant a prudent person, or one
of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed . . . an offense.”
Chelios v. Heavener, 520 F.3d 678, 686 (7th Cir. 2008).
Moreover,
[w]hen a police officer, acting in good faith, obtains a
warrant and acts within its scope, he has engaged in
no official misconduct; it is the magistrate’s responsibility to determine whether the officer’s allegations
constitute probable cause and it is the magistrate’s
error if the arrest is later determined to have been
unlawful. In such a case, the magistrate’s issuance
of the warrant shields the officer from liability for
the illegal arrest.
Olson v. Tyler, 771 F.2d 277, 281 (7th Cir. 1985).
However, “a warrant does not erect an impenetrable
barrier to impeachment of a warrant affidavit.” Id. Rather,
[i]f an officer submitted an affidavit that contained
statements he knew to be false or would have
known were false had he not recklessly disregarded
the truth and no accurate information sufficient to
constitute probable cause attended the false statements, not only is his conduct the active cause of
the illegal arrest, but he cannot be said to have acted
in an objectively reasonable manner.
Id.
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In this case, Jeffery A. claims that he presented
sufficient evidence that Veruchi knowingly included
false statements in the arrest warrant affidavit and
that without those false statements, probable cause
was lacking to arrest him. We agree. While there was
probable cause to believe that a man named “Jeffrey”
(spelling unknown) Lawson had attacked Colvin,
viewing the facts in the light most favorable to
Jeffery A., there is absolutely no evidence that he was
the “Jeffrey” Lawson who had attacked Colvin. Rather,
if Colvin’s deposition testimony is true, she did not
identify Jeffery A. as the attacker, but had identified
another individual. In turn, that would mean that
Veruchi’s arrest warrant application falsely stated that
Colvin had identified Jeffery A. from the photo array.
Submitting a knowingly false statement precludes reliance on an arrest warrant. Id.
On appeal, Veruchi continues to maintain that Colvin
had in fact identified Jeffery A., pointing to Colvin’s
signature on the back of Jeffery A.’s photograph to
support his version of the events. However, as detailed
above, Colvin explained in detail how the photo array
was conducted and if her story is true, Veruchi tricked
Colvin into signing that photograph. Veruchi also points
to Arcadia’s identification of Jeffery A. as the attacker,
but even assuming Arcadia had identified Jeffery A. as
Veruchi claims (and not as her mother had claimed),
Arcadia’s identification merely indicated that she was
75 percent sure that Jeffery A. was the attacker. That
would not support probable cause where the actual
victim identified another individual as the attacker (as
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Colvin stated in her deposition), absent some other evidence connecting Jeffery A. to the offense.3
The district court discounted Colvin’s deposition testimony, concluding that she was probably upset that
she had caused the wrong individual to be arrested
and that she was thus trying to avoid any responsibility
for Jeffery A.’s arrest. That might make a convincing
closing argument, but that is a question for the jury, not
the judge. The district court also found Jeffery A.’s
theory incredible, positing that under Jeffery A.’s theory
Veruchi was waiting for a chance to frame him and
then jumped at it when another man with the same
name was accused of committing a crime. But Jeffery A.
claims a much more straightforward theory—that Veruchi
thought that he was the attacker and was just trying
to help the case along when the victim was unable to
identify him. Jeffery A. also counters that Colvin’s version of the events is much more likely than Veruchi’s
because Veruchi’s version of the events would mean
that two witnesses identified an innocent man—someone who even Veruchi admits does not look like
Jeffrey W.—who amazingly had the same first and last
name as the alleged attacker. It is not for us (any more
3
Because Arcadia’s identification does not provide a basis
for probable cause in light of Colvin’s deposition testimony,
we need not decide whether the declaration submitted by
Arcadia’s mother was admissible. The defendants had moved
to strike Arcadia’s mother’s declaration, but the district court
denied the motion to strike as moot. On appeal, the defendants do not reassert their challenge to the declaration.
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than it was for the district court), though, to judge the
credibility of the competing versions—that is a question
for the jury. What is for us to decide is whether, reading
the evidence in the light most favorable to Jeffery A.,
Jeffery A. has presented sufficient evidence that Veruchi
knowingly included false information in the arrest
warrant application and that probable cause did not
support the arrest. Colvin’s deposition testimony, in
which she unequivocally states that she did not identify
Jeffery A. as her attacker, supports this conclusion. And
if Veruchi had knowingly included this false information, then he also would not be entitled to qualified
immunity because it was clearly established “that a
warrant request violates the Fourth Amendment if the
requesting officer knowingly, intentionally, or with
reckless disregard for the truth, makes false statements
in requesting the warrant and the false statements were
necessary to the determination that a warrant should
issue.” Knox v. Smith, 342 F.3d 651, 658 (7th Cir. 2003). See
Michael C. v. Gresbach, 526 F.3d 1008, 1013 (7th Cir. 2008)
(“If the right was ‘clearly established,’ the official is not
entitled to qualified immunity from suit.”). Accordingly,
the district court erred in granting Veruchi summary
judgment.
The district court also granted the City of Rockford
summary judgment because it concluded that Jeffery A.’s
underlying claim against Veruchi was without merit.
However, as explained above, Jeffery A. presented sufficient evidence that Veruchi had knowingly included
false information in the arrest warrant affidavit, thus
justifying a trial on his claim against Veruchi. The City
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of Rockford does not present any alternative argument
for affirmance and we leave it to the district court to
consider on remand whether Rockford is entitled to
summary judgment on another basis. The district court
also declined to exercise jurisdiction over Jeffery A.’s
pendent state law claims because it had granted the
defendants summary judgment on the federal claims.
Accordingly, those claims likewise should be reconsidered on remand. Rule 36 shall apply on remand.
III.
The deposition testimony in this case presents two
starkly different versions of events. Given the procedural
posture of this case, we must accept Colvin’s version
as true—which means that Colvin did not identify
Jeffery A. as her attacker and that Veruchi falsely stated
in the arrest warrant that she had. Accepting these facts
as true, Jeffery A. has sufficiently stated a claim for
false arrest under the Fourth Amendment and accordingly the district court erred in granting Veruchi
summary judgment on this claim. Therefore, we
R EVERSE the grant of summary judgment to Veruchi. We
likewise R EVERSE the district court’s grant of summary
judgment to the City of Rockford, as that decision was
premised on the failure of the claim against Veruchi. We
R EMAND pursuant to Rule 36 for further proceedings
consistent with this opinion, and the dismissed state
law claims should also be considered anew on remand.
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