NATHAN D. ALEXANDER, II, and AMY GEPFERT, Plaintiffs-Appellants, v. JOSEPH DEANGELO, et al., Defendants-Appellees.
No. 02-3124
United States Court of Appeals For the Seventh Circuit
ARGUED JANUARY 13, 2003—DECIDED MAY 22, 2003
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:01-CV-137—William C. Lee, Judge.
POSNER, Circuit Judge. The plaintiffs appeal from the grant of summary judgment to the defendants in a damages suit against two Fort Wayne police officers, Joseph DeAngelo and Dan Hannaford, and the City itself. The plaintiffs have not appealed from the dismissal of their claim against the City, however; nor, it appears, are they pursuing their claim against Hannaford, whom the briefs ignore completely.
The suit was brought under
The plaintiffs are a former Fort Wayne police officer, Nathan Alexander, and a woman, Amy Gepfert, whom DeAngelo and several fellow officers enlisted in a sting against Alexander. We construe thе facts as favorably to the plaintiffs as the record permits, because of its procedural posture. Alexander was suspected of a variety of frauds. Gepfert was under investigation for participation in a cocaine offense. The officers asked Gepfert whether she knew Alexander. She did; in fact, she had had a sexual relationship with him, though it had ended a month previously. They told her she was facing 40 years in prison on the cocaine charge unless she agreed to help them nail him. She asked to consult a lawyer, and although they did not forbid her to do so they discouraged her, telling her that they were “thе attorneys.” In a second meeting with her, three days later, they asked her whether she had ever received money from Alexander after having sex with him, and she said she had, once, to get her nails done. They asked her whether she‘d be willing to have oral sex with him for money, so that they could charge him with soliciting a prostitutе. She agreed. They wired her for the encounter and also gave her a napkin and instructed her to spit Alexander‘s semen into it to provide physical evidence of the sex act. She duly performed oral sex on him in his patrol car and asked for and received $17 to do her nails, and she preserved thе semen in the napkin and gave it to the
We can deal quickly with Alexander‘s appeal. Stings are not illegal or even disreputable, see United States v. Murphy, 768 F.2d 1518, 1528-29 (7th Cir. 1985); there was reason to believe that Alexander had paid Gepfert for sex in the past; and there was probable cause to arrest him on the basis of the recording of his encounter with her in the patrol car, the semen in the napkin being a gratuitous addition to the evidence. The fact that Gepfert asked him for money for her nails is irrelevant. Prostitutes, like other people, seek income in order to purchase goods and services. It is not a defense to рrostitution for the prostitute to say, “My fee is $100 and I plan to use it to buy milk for my children.” Although there is some evidence of hostility to Alexander on the part of other Fort Wayne police officers because he is black but has had white girlfriends, the evidence is clear that the reason the department was out tо get him was a well-founded suspicion that he had engaged in a variety of illegal acts, most of them more serious than paying for oral sex. He would not have had sex with Gepfert had he known she was trying to set him up for an arrest, but the fact that he was tricked into having sex is not a defense. United States v. Simpson, 813 F.2d 1462, 1466-68 and n. 4 (9th Cir. 1987). Nothing is more common in the investigаtion of victimless crimes
Coercing Gepfert to have sex with Alexander, if that is the proper characterization of what happened here, is a more serious matter. But even if that violated her rights, it would not help him; he cannot complain about an infringement of the constitutional rights of another person. United States v. Payner, 447 U.S. 727, 737 n. 9 (1980); United States v. Noriega, 117 F.3d 1206, 1213-15 (11th Cir. 1997); United States v. Santana, 6 F.3d 1, 8-9 (1st Cir. 1993). Since, however, she is also a plaintiff, we must consider whether her rights were violated.
There is much debate in the briefs оver whether “outrageous” police conduct, as Gepfert characterizes her treatment by the police, can ever in and of itself, that is, by virtue of its sheer outrageousness, be deemed a violation of a person‘s rights under the due process clause of the Fifth or Fourteenth Amendments. The debate echoes cases in which outrageous police behavior is interposed as a defense to a criminal prosecution. Some circuits continue to recognize the existence of such a defense, at least as a theoretical possibility. United States v. Nolan-Cooper, 155 F.3d 221, 224, 230 (3d Cir. 1998); United States v. Gaviria, 116 F.3d 1498, 1533-34 (D.C. Cir. 1997) (per curiam); United States v. Santana, supra, 6 F.3d at 3-8. Yet as the last of these opinions points out, “the doctrine is moribund; in practice, courts have rejected its application with almost monotonous regularity.” Id. at 4. We flatly rejected the doctrine in United States v. Boyd, 55 F.3d 239, 241-42 (7th Cir. 1995); see also United States v. Tucker, 28 F.3d 1420, 1426-28 (6th Cir. 1994), because the concept of outrageous police conduct is hopelessly nebulous and subjective and because
Gepfert‘s claim, however, can be cut loose from the “outrageous” police conduct cases and reconceptualized as a charge of battery committed under color of state law and therefore actionable under the due process clause of the Fourteenth Amendment after all. The liberty protected by that clause includes bodily integrity, see Cruzan v. Director, Missouri Dep‘t of Health, 497 U.S. 261, 278-79 (1990), and cases cited there; United States v. Husband, 226 F.3d 626, 632 (7th Cir. 2000), and is infringed by a serious, as distinct from a nominal or trivial, battery. Wudtke v. Davel, 128 F.3d 1057, 1062-63 (7th Cir. 1997); Bennett v. Pippin, 74 F.3d 578, 583-84, 589 (5th Cir. 1996); Stoneking v. Bradford Area School District, 882 F.2d 720, 722, 726 (3d Cir. 1989). The qualification is important. Because any offensive touching (unless consented to, which removes the offense) is a battery, Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (Friendly, J.), mоst batteries are too trivial to amount to deprivations of liberty. Cameron v. IRS, 773 F.2d 126, 129 (7th Cir. 1985); Askew v. Millerd, 191 F.3d 953, 958 (8th Cir. 1999); Luciano v. Galindo, 944 F.2d 261, 264 (5th Cir. 1991); Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 948-49 (D.C. Cir. 1988); Hernandez v. Lattimore, 612 F.2d 61, 67 (2d Cir. 1979); Johnson v. Glick, supra, 481 F.2d at 1033; cf. County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998). Rape, however, is not only a battery, Paul v. Montesino, 535 So. 2d 6, 7 (La. App. 1988); United National Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d 105, 108 (2d Cir. 1993), but a very serious battery, and a rape committed under color of state law is therefore actionable under
It thus appears (always construing the facts as we must at this stage of the litigation as favorably to the plaintiff as the record will permit) that the police may have obtained Gepfert‘s consent to sex by fraud, and if so that was a battery. Granted, not all fraudulent solicitations of sex, even if successful in inducing sex, are actionable as battery or punishable as rape. For example, it is not a battery, or rape, to induce consent to sexual intercourse by a false promise of marriage, Oberlin v. Upson, 95 N.E. 511, 512 (Ohio 1911); Freedman v. Superior Court, 263 Cal. Rptr. 1, 3 (App. 1989); see also Restatement (Second) of Torts § 892B, comment g and illustration 9 (1979), though in some states it is the tort of breach of promise. But a false threat of lengthy imprisonment is a form of coercion that can vitiate consent to sex and turn the sex into battery.
We want to emphasize, however, a point that we made earlier in discussing Alexander‘s claim—that the use of trickery is an accepted tool of criminal law enforcement and does not in itself give rise to liability under sec-
We also emphasize, as further marking the limits of this opinion, that inducing a confidential informant to engage in sex as part of a sting operation does not always give rise to a claim under section 1983. This is so even though it differs from the usual situation in which a confidential informant or government undercover agent commits a crime, such as buying or selling illegal drugs, as part of a sting; for in such a case the crime is nominal; the stinger is neither benefited nor harmed by his participation in it. Gepfert engaged in a sexual act, and not for pleasure. But confidential informants often agree to
The qualification in “intentionally and indeed grossly deceived” deserves emphasis, however: we do not expect law enforcement personnel to be experts in the intricacies of the nearly unfathomable federal sentencing guidelines or comparable intricacies in state sentencing regimes; nor do we expect that misstatements about a specific sentence that an accused potentially faces will routinely rise to the level of an actiоnable fraud.
But we have yet to consider the defense of qualified immunity. Although the principle that battery under color of law is actionable under section 1983 is well established, Rogers v. City of Little Rock, supra, 152 F.3d at 798; Jones v. Wellham, supra, 104 F.3d at 628, a plaintiff does not defeat the immunity defense “simply by alleging violation of extremely abstract rights. . . . The contours of the right must be sufficiently cleаr that a reasonable official would understand that what he is doing violates that right. . . . [I]n the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). The police did not rape Gepfert in the ordinary sense of the term “rape,” or for that matter cause Alexander to rape her in the ordinary sense in which one would speak of A having
Granted, the absence of a previous decision establishing liability on the same facts is not critical; “the easiest cases [for liability] don‘t even arise.” United States v. Lanier, 520 U.S. 259, 271 (1997); K.H. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990). We said in McDonald by McDonald v. Haskins, 966 F.2d 292, 295 (7th Cir. 1992), that “it should have been obvious to Haskins that his threat of deadly force—holding a gun to the head of a 9-year-old and threatening to pull the trigger—was objectively unreasonable given the alleged absence of any danger to Haskins or other officers at the scene and the fact that the victim, a child, was neither a suspect nor attempting to evаde the officers or posing any other threat.” This case is just over the line from that one; for we cannot say that it would have been obvious to the average officer that the deceit employed in this case rose to the level of a constitutional violation. Hence DeAngelo (and Hannaford, if as we doubt he is still in the case) is protected from liability.
AFFIRMED.
A true Copy:
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—5-22-03