Clаudine Boyce appeals from the dismissal, on summary judgment, of a damages suit for false arrest that she brought against Vera Fernandes, a Peoria police officer, and the City of Peoria. The suit against Fernandes is based exclusively on 42 U.S.C. § 1983 and was dismissed on the ground of public officers’ immunity. A supplemental state law claim naming both Fernandes and the City as defendants was also dismissed.
Where the only issue bearing on immunity is whether the defendant had probable cause to make the search or arrest that is challenged, merits and immunity mergе; the dispositive question is simply whether the defendant did have probable cause. So at least we held in
Mahoney v. Kesery,
Elder abuse is a growing problem in this country because of the growing number of elderly people. Like child abuse, elder abuse is a difficult crime to detect and prosecute. In both types of case the victim is often an unreliablе witness because of limited mental capacity — undeveloped in the case of the child, impaired by old age in the case of the elder. Claudine Boyce was employed by a woman of 75 named Auda Tunis who was afflicted by senile dementia caused either by alcoholism or by Parkinson’s disease. Detective Fernandes began her investigation of Boyce at the instance of Tunis’s granddaughter, who told the detective that she thought Boyce might be stealing from her grandmother. The granddaughter had discovered that all the furniture had been removed from Tunis’s home and that she had been placed in a nursing home. The granddaughter had visited her grandmother in the nursing home and found that she seemed confused at first but later recognized the granddaughter and the granddaughter’s husband. Tunis told them she did not know why she was there, that Boyce had badgered her into signing what she thought was a document that said merely that she would think about signing a power of attorney, and that she was ashamed of the situation she was in and had not wanted to complain to the granddaughter.
The nursing home had told the granddаughter that Tunis had granted Boyce (who had signed Tunis into the nursing home) both a general power of attorney and a healthcare power of attorney. Detective Fer-nandes therefore called the lawyer who had prepared the powers of аttorney. He expressed surprise that Tunis had a granddaughter — he had thought she had no living relatives. Fernandes interviewed employees of the nursing home. They told her that Tunis had been in a shocking condition when
Fernandes then spoke to Tunis herself, who in this interview and a subsequent one on December 26 told Fernandes that Boyce had threatened, slapped, and shoved her, had plied her with liquor, and might have (subsequent investigation revealеd that she had) deposited her social security checks, without her authorization, in a joint checking account in Boyce’s and her name; and that Boyce had taken Tunis’s furniture and other personal property without her authorization and Tunis did not know what she had done with it. Two days later, December 28, Fernandes learned that Tunis’s Cadillac was parked in Boyce’s driveway and that the car, formerly registered to Tunis’s deceased husband, was now registered to Boyce. A few days later Fernandes arrested Boyce, without a warrant, for the theft of the Cadillac, a felony. Boyce was held in the county jail for 42 hours before being released on bond. Subsequent investigation brought to light that Boyce had in all likelihood forged a bill of sale of the Cadillac to hei’self for $100. Nevertheless, she has not been prosecuted.
Accusations by demented persons must always be viewed with a certain skepticism, especially since paranoid suspicions are a common incident of dementia. It would have been imprudent for the detective to have reposed automatic, unquestioning credence in Tunis’s accusations against Boyce. She did not. Tunis’s accusations were corroborated by the granddaughter, by the staff of the nursing home, and by the lawyer, who was upset to learn that Tunis had granted a power of attorney to her housekeeper when (as Boyce well knew) she had an adult granddaughter. Further corroboration came from the fact that Boyce, though knowing of Tunis’s granddaughter, had never informed her that Boyce had a power of attorney, that she was managing Tunis’s affairs, and that she was preparing Tunis’s property for sale. There thus were grounds for suspicion that Boyce was trying to conceal what she was doing from Tunis’s only relative. •
Tunis’s accusations themselves, moreover, had a degree of particularity that reduced the likelihood that they were merely senile fantasies. It is a common mistake to exaggerate the degree to which senile dementia renders an individual mentally incompetent. There are different types and severities of dementia. The most serious — senile dementia of the Alzheimer’s type — is progressive. Some persons afflicted with it exhibit only short-term memory loss and occasional disorientation, while others are so far demented as to have forgotten their own name, to have lost the power of speech, and to be unable to recognize their spouse or their children. See generally Fred Plum, “Dementia,” in 1 Encyclopedia of Neuroscience 309 (George Adel-man ed. 1987). A further complication is that, until the terminal stage that we have just described is reached, the severity of the dementia varies from day to day, even from hour to hour. Mrs. Tunis apparently had good days and bad days. The second interview with Fernandes evidently took place on a good day, because she spoke coherently and precisely, exhibiting a good memory, and nothing she said wаs bizarre or seemed delusional. Contract law, property law, and criminal law alike have rejected a per se rule
that demented persons are legally incompetent. See, e.g.,
United States v. Rainone,
To all this Boyce replies that she had a power of attornеy and thus was authorized to take and sell Tunis’s personal property. She says that she had stored the furni
The lawyer also disparaged the evidence of physical abuse on the ground that his client had nоt been arrested for such abuse. But the evidence of abuse, like the evidence of the unexplained disappearance of the jewelry and Boyce’s failure to disclose to the lawyer that Mrs. Tunis had an adult granddaughter, cast light on Boyce’s probable intentions in registering the Cadillac in her own name. The facts turned up in the investigation that preceded her arrest, when they are taken as a whole, would have indicated to a reasonable police officer that Boyce was trying to despoil а vulnerable old woman. The protection of the vulnerable is a noble duty of government. Fernandes is rather to be commended for the speed and thoroughness of her investigation than condemned for having acted before she had assembled conclusive proof of criminal misconduct. The fact that in the end Boyce was not prosecuted does not establish the absence of probable cause, and not only because the legal standard and the evidentiary requirements for probable cause are more stringent at the preliminary hearing than at the arrest stage, the point emphasized in
Williams v. Kobel,
It is unfortunate that Boyce, herself a woman of 63 when arrested, was kept in jail fоr 42 hours. Fernandes cannot be criticized for this sequel to the arrest, however, for she was required to hand Boyce over to the sheriff, and he administers the county jail. Given the overcrowding of American jails, we venture to suggest that a practice of automаtic incarceration of all arrested persons, regardless of circumstances, is as wasteful as it is uncivilized. Which is not to say that it entitles the plaintiff to any relief — and certainly not against Detective Fernandes.
Affirmed.