Rafael Garcia v. City of Chicago, Illinois, Anna Gall, County of Cook

Regulations Application Permit for Storm Discharges, Fed.Reg.

Water GARCIA, Plaintiff-Appellant, Rafael (Nov. 1990) (“[T]his rule-making only ad- discharges dresses waters the United States, consequently discharges ground CHICAGO, ILLINOIS, CITY OF Anna rulemaking waters are not covered this Gall, County Cook, al., et (unless hydrological there is a connection Defendants-Appellees. ground nearby between the water sur- No. 92-4090. body.”)) face water Collateral reference to a problem satisfactory is not a substitute for United Appeals, States Court of rule-making adjudica- focused attention in or Seventh Circuit. By tion. amending regulations, its the EPA pose question. could a harder As the statute Argued Nov. 1993. stand, however, regulations the federal May Decided government has not asserted a claim of au- Rehearing Suggestion thority Rehearing ponds artificial over that drain into ground En Aug. waters. Banc Denied

AFFIRMED.

MANION, Judge, concurring. agree

I with the holding court’s

plaintiffs invoking claims the Clean Air Act

and the Clean Water Act should fail. For Village

whatever reason the of Oconomowoc

Lake disappear wishes the warehouse would (be political, environmental, it simple or re-

sentment get because it doesn’t a bite at the base),

tax regulations under the Clean

Air and Clean Water Acts do not facilitate addition,

the attack. In I specu- would not

late how to characterize a citizen’s suit under 7604(a)(1).

§ begin Before federal courts de-

ciding under the Clean Air Act whether or things

not such shopping per- malls are effects,

missible because of their side we

should Congress ensure that specifically has regulate

authorized EPA at that level. suggest

Nor I would EPA figu- can

ratively ground “wade in” to part water as

the waters of the United States without first

having specific Congress direction from to do

so. This simple would take more than a regulations by

amendment of the administra- Regulations

tors at the EPA. promul- are

gated at Congress, the direction of and at juncture, Congress permitted has not lots, parking

collateral attacks septic

tanks, sprinkler systems natural —the consequence approve if we were to the inter-

pretation espoused by plaintiffs. Cashion, (argued), IL for Chicago, B.

John Rafael Garcia. Barber, Asst. Larsen, W.

Diane Robert Counsel, Corp. (argued), Office Corp. Rosenthal, Deputy Cor- Counsel, Lawrence Rhine, Asst. Counsel, S. porate Frederick Welsh, Kelly R. (argued), Corp. Counsel Yanow, Counsel, Benna L. Geri Corp. Asst. Counsel, Appeals Solomon, Corp. Office R. Chicago, IL and IL, Div., for Chicago, Anna Gall. Butzen, Barba, Terry Chicago

David R. Connie R. Department laboratory Police tested McDonald, Atty., L. Asst. State powder Office of negative and found it to be Atty., County, State’s Federal Liti- Cook laboratory controlled substances. The Div., IL, gation Cook, Chicago, communicated that information to the State’s English, O’Malley C. Richard Jack and Mi- office, Attorney’s preliminary ^and at the chael F. Sheahan. hearing April Judge on Mary Maxwell granted prosecutor’s request Thomas for WOOD, Jr., CUDAHY, Before and prosequi. April nolle On the court MANION, Judges. Circuit reinstated Garcia’s status. Cook County April Jail released Garcia on 15. WOOD, JR., HARLINGTON Judge. money Garcia then filed this lawsuit for 15, 1991, damages in Chicago

On March the District Court for the Police Officer North- Garcia, Anna ern Gall arrested Rafael who at District of Illinois. Garcia’s first amend- complaint time was on for two ed felonies and named as defendants Officer warrant, Gall, outstanding had an Chicago, bond forfeiture County of the Cook possession Corrections, for of a controlled Department substance. Of- Director ficer Gall had discovered County Garcia’s feet a Department Cook of Corrections C. white, plastic bag containing powdery English, County sub- Richard Cook State’s Attor- stance, but did not test the ney O’Malley, substance before County Jack and Cook Sheriff making In arrest. of arrest- Michael F. Sheahan. Garcia claimed that: Garcia, (1) Gall struck him in the with hearing head inadequate Gerstein was be- flashlight,1 police her and the took Garcia cause he judge, was not before the Mary Hospital (2) St. of Nazareth for hospitalization; treatment due to his Gall used ex- injuries. day hearing of his The next took against cessive force him and did not have place County (3) in the probable him; Circuit Court Cook cause to O’Malley, arrest (the hearing)2 Sheahan, Gerstein to determine wheth- English and responsible probable er cause existed to detain Garcia. detaining cause; him probable without and City Chicago’s procedures for test- time, At hospitalized Garcia remained ing substances seized as narcotics were con- twenty-four guard under hour and therefore stitutionally inadequate. All defendants filed was unable to attend the hearing.3 dispositive response motions in to Garcia’s Instead, represented a Public Defender Gar- complaint. cia at the and asked for reasonable prosecutor bond on his behalf. peti- The The district court dismissed State’s Attor- tioned the court to issue a warrant and set ney O’Malley County and the Depart- Cook bail for probation. Garcia’s violation of The ment of Corrections based on Eleventh probable Garcia, court found cause to detain immunity liability, Amendment from civil and and violating probation set his bond for and claims; dismissed all of Garcia’s Gerstein possessing a controlled substance. court did not dismiss Sheriff Sheahan and On March hospi- while Garcia remained English Director because that issue was not talized, preliminary the court set a before the court. Garcia then filed a motion April Mary reconsider, Hospital St. of Nazareth well as a motion to file a released personnel Garcia March complaint second amended essence from immediately placed the Sheriff’s office repeated the Gerstein claims from the first Garcia, bond, custody who did not make complaint. amended English Sheahan and County the Cook Jail. On March summary judgment. filed a motion for $25,000 against probable Garcia settled for a claim hearings Gall that take force, based on her use of excessive and that place after arrests made without warrants com- appeal. claim is not at issue in this monly hearings. are referred to as Gerstein Pugh 2. Gerstein v. held that "the Fourth Amend- spent approximately 3.Garcia five in the requires timely judicial ment determination of hospital. detention," prerequisite cause as a 103, 126, 854, 869, 43 L.Ed.2d motions, liability); of Garcia’s Santiago, district court denied both constitutional English. and dismissed Sheahan and at 845-46. O’Malley Because acting in capacity his official as Cook then filed a motion to file a third Attorney, State’s Garcia cannot recover mon- complaint, included new amended which ey damages from him. against City Chicago claims Offi- Gall, cer but included none the other de- argue Garcia does that he is entitled granted fendants. The district court the mo- injunctive O’Malley, relief from and the tion, City Chicago and the Gall moved Eleventh provides Amendment no shield through to dismiss counts three six of the Will, requests. such 491 U.S. at complaint, granted. which the district 109 S.Ct. at 2312. requested When Garcia II, I Counts and for excessive force and false injunctive relief in his second amended com arrest, only defendánt. named Gall as the plaint, however, County jail Cook had al $25,- and Garcia settled those claims for Gall ready custody, released him from their and 000, right appeal and Garcia reserved the alleged Garcia no facts to show that he was rulings earlier of the district court. Garcia danger in being of in arrested the future and appeals O’Malley, now from the dismissals of in City detained a similar manner. See of Sheahan, English, denial of leave to Angeles 95, Lyons, 101-02, Los v. 461 U.S. complaint, file second amended and the 1660, 1664-65, 103 S.Ct. 75 L.Ed.2d 675 dismissals of the fifth and sixth counts of his (no injunction standing to if seek not complaint, alleged third amended which that danger in being subjected of arrested and City’s procedures testing for substances mistreatment). Thus, future the district they to determine if are controlled con- correctly court O’Malley. dismissed stitutionally deficient.

B. The Gerstein Claims O’Malley A. Defendant only Garcia’s claims for relief prohib against The Eleventh Amendment English defendants Sheahan and re deciding its courts inability present federal from suits late to his to be at the by private litigants against probable states or day their cause held the agencies, prohibition and that extends to Officer Gall arrested him. Garcia also acting capaci City state officials in their official Chicago named the of and Cook Police, Michigan Dept. Amendment, ties. v. Will State those claims.4 The Fourth of 58, 71, 2304, 2312, however, require U.S. 109 S.Ct. does probable not that (1989). particular nature, L.Ed.2d 45 hearings Whether a be adversarial Ger legal equivalent 103, 121-22, official is the Pugh, of the State stein v. 420 U.S. 95 S.Ct. law, 854, question 866-67, (1975); itself ais of that State’s Santia 845, go Daley, 845 & n. Fourth Amendment allows the issuance of (N.D.Ill.1990), Supreme arrestees, and the Illinois warrants in the absence of the Attorneys scope Court decided in 1990 that expand probable State’s its does not causé Ingemunson Hedges, are state officials. place determinations that take after arrests. 364, 397, 400, 866; 133 Ill.2d 140 Ill.Dec. 549 Id. at 95 S.Ct. at see also (1990) (State’s Attorneys Riverside, N.E.2d McLaughlin County 888 F.2d state, officials); Cir.1989) (“Those county, are not see also Scott arrested with a (7th Cir.1992) O’Grady, probable warrant have not attended the (those prosecute pursuant who cases to state cause determination made before issuance of purposes statute are state officials for perceive the warrant. no basis for hold- We specify appeal applied City Chicago. Additionally, 4. Garcia failed to in his notice of to the appealing expressly any that he was the dismissal of the Ger- Garcia waived his to raise against City Chicago City stein claims as Feder- Gerstein claims in his settlement 3(c) Appellate requires. agreement City. al Rule of Procedure with Officer Gall and the however, jurisdictional, importance points, That failure is see Torres v. Oak- of these mini- is Co., that, Scavenger land mized the fact as the district ex- plained, and we cannot therefore Garcia’s Gerstein claims lacked mer- appeal consider the of the Gerstein claims as it. grants fourth amendment war- D. The Fourth and Fourteenth Amendment Claims right.”)(cid:127) arrestees such a The rec- rantless Garcia, case demonstrates that ord argues Garcia the Fourth physically that he was who never contended requires police per Amendment officers capable leaving hospital, received a form tests substances believed to be ille constitutionally timely proba- sufficient gal station, drugs immediately police at a attorney repre- twenty days in which an than ble cause rather ten to after arrests lab, City Chicago at a crime as the objection by did sented without Garcia. Garcia Nevertheless, after Garcia’s arrest. correctly The district court therefore dis- finding powder concedes that white Chicago, County, missed the Cook person’s possession provides probable cause Sheahan, notwithstanding English Gar- possession to arrest of co inability hearing. cia’s to attend the Potter, caine. See United States v. Cir.), denied, 1234 & n. cert. Complaint C. The Second Amended held, consistently As we have “once We must ask whether the district police officers have discovered sufficient facts court abused its discretion when it denied cause, they to establish have no complaint. to amend his Garcia leave See obligation constitutional to conduct fur Jones, (7th 1004, Bower v. F.2d 978 1008 investigation hopes uncovering ther in the Cir.1992). A district court does not abuse its potentially exculpatory evidence.” Schertz v. denying in discretion leave to amend if the (7th Waupaca 578, County, 875 F.2d 583 futile, proposed repleading would be DeSalle Cir.1989). (7th 273, Cir.1992), Wright, v. 969 F.2d 278 suggested Garcia has that the cobalt thioc- repleadings restating and futile include the yanate spot superior, quicker test is a means using language, same facts different Wakeen determining whether a substance is co House, Inc., 1238, 724 F.2d 1244 Hoffman correct, Perhaps caine. he is what but is (7th Cir.1983), reasserting previously claims practice constitutionally wise and what is determined, id., failing theory to state a valid compulsory very are concepts. two different Lathe, liability, Verhein v. South Bend Cos., 432, See Gramenos v. Jewel 797 F.2d Inc., (7th 1061, Cir.1979), F.2d 598 1063 (7th Cir.1986), denied, 442 cert. dismiss, inability to survive a motion to 1028, (1987). 1952, 107 S.Ct. 95 L.Ed.2d 525 (7th 265, Koenig, Glick 766 F.2d Cir. City Chicago weigh The is entitled to 1985). testing options costs and benefits of available choice, its make and federal courts complaint Garcia’s second amended reiter- second-guess pol should be reluctant to such ated his excessive force and Fourth Amend- icy decisions. Garcia has no articulated rea City Chicago ment claims why twenty day period son of time for Gall, Officer and restated the Gerstein claims testing upon probable a substance believed previously. the district court had dismissed constitutionally cause to be cocaine is defi The district court reasoned that because the cient, why nor can we fathom it would be.5 complaint second amended stated no new claims, futile, it was and the district court City Garcia also contends that therefore denied Garcia leave to amend his custody held him in in violation of the Fourth decision, complaint. being That far from an and Fourteenth Amendments after it discov discretion, legal abuse of stood on firm powder question ered that the in was not a ground. Garcia, however, controlled substance.6 was proceeding If Garcia believed too 6. Because the seizure of ends after the hearing, slowly, the Due he could have Process Clause of the tested substance him- only applicable Fourteenth Amendment is the by exercising investigate. self his See Const, provision. May, constitutional See Wilkins v. (Compulsory U.S. amend VI Process 190, (7th denied, Cir.1989), F.2d cert. Clause); 412(a)(v). IU.S.CtR. U.S. Supreme The recent Court decision of happens before his arrest Officer prosecutor What when the Gall, exculpatory subsequent discovers evidence proba was revoked after a ble cause determination at a Gerstein hear City legitimately held to the arrest. The ing? exculpatory Not all evidence irrefut custody April until when the ably proves the defendant’s innocence. The probation. court reinstated Garcia’s See decision to move for prosequi nolle is a mat Duke, (7th Thompson v. discretion, prosecutorial ter of prose and the Cir.1989) (“We note that dismissal of the proceed cutor can prosecutor to trial if the charges underlying parole violation warrant doing case, believes so is warranted. In this consequence has of no been found fact, prosecutor did dismiss the case violation.”) parole state’s determination of a trial, well before preliminary hear (citations omitted). Although delay undue ing just delay contends that —Garcia making regarding a decision reinstatement of April from March 26 until the date the probation might in some instances rise to the preliminary hearing, set for his was too deprivation constitutionally guar- level of a lengthy. Clause, however, Due Process Scott, rights, anteed United States v. compel prosecutors does not its dismiss Cir.1988),7 F.2d Garcia did not cases before trial exculpatory based on evi any arguments regarding make reinstate- possession, dence in its compel much less probation. ment of his them to do days. so within fifteen See Al - Oliver, -, bright -, Instead, Garcia cites BeVier v. Bu- 807, 813, (quot cal, 123,128 Cir.1986), Davis v. proposition Gerstein for the (N.D.Ill.1990), Kirby, judicial accused is not oversight “entitled to Quarles, People Ill.App.3d 43 or prosecute.”). review of the decision to (1980), Ill.Dec. 410 N.E.2d 497 for the course, prosecutor Of if the fails to deliver proposition constitutionally that the was exculpatory evidence to the defendant before obligated to him it release as soon as discov trial, may it run Brady Maryland, afoul of possession ered that Garcia was not in of a U.S. S.Ct. 10 L.Ed.2d 215 substance, controlled but none of those cases (1963). long coming, If the trial is too in a BeVier, Davis, hold as Garcia indicates. and speedy problem may Sixth Amendment trial Quarles dissipation proba all involved the - States, Doggett arise. See v. United U.S. judicial ble determination of before -,-, 2686, 2692-94, 112 S.Ct. (and Davis, probable cause in BeVier and (1992). Garcia, however, 120 L.Ed.2d 520 all). probable cause never existed at Once a Brady Speedy raises neither a nor a Trial judge makes cause determination (nor here). problems claim do either exist here, hearing, happened at a as prosecutor, strong confronted with ex bring determination is sufficient to the case evidence, culpatory properly decided to move Gerstein, 119-24, to trial. at U.S. prosequi preliminary for a nolle at the hear 865-68. rather than wait until trial. Garcia’s - Oliver, U.S.-, Albright reasonably prompt: 114 S.Ct. not “the reason for the de- lay, right, casts considerable doubt the defendant's assertion of his Scott, applicability process prejudice on the of substantive due as to the defendant.” 850 F.2d at at-, quoting Wingo, well. See id. -U.S. 114 S.Ct. at 814 Barker v. (Scalia, J., (“But 2182, 2191-92, concurring) (1972). here there was no 92 S.Ct. (the Here, prejudiced by delay, criminal sentence indictment was dis Garcia was not missed), life, only deprivation probation and so the liber was reinstated in less than three Scott, (13 ty property, any, petitioner's or if consisted of weeks. See 850 F.2d at 321 month pretrial unlikely proce delay prejudicial arrest. I think it that the not when no evidence of how "due,” constitutionally regard delay impaired hearing dures arrest, with to an defense at revocation ex- ists). anything Additionally, consist of more than what the Garcia never asserted his specifies.”). right reasonably prompt hearing. Fourth Amendment to a revocation holding properly Our that Garcia was held in Scott, adopted custody preliminary hearing In this court a three factor test until after the is to determine whether a revocation was well within Scott. proceed- probationer. Because the case has process of law was satisfied.8 to due lines, along I find it useful to exam- ed these reasons, judgment foregoing For ine first Garcia’s detention claim without ref- district court is AFFIRMED. probation erence to his status. CUDAHY, in Judge, concurring significant It is that the district did dissenting part. part and process claim for not dismiss Garcia’s due allege failure to a constitutional violation. majority’s analysis able agree I with the Instead, the court found that “conduct I disposition of all the issues save one. unreasonable, unnecessary and un results however, approach difficulty, with the have justified delays processing releasing testing egre- City’s delayed drug if arrestees violates the Constitution done negative giously application of the test slow intentionally or with indifference deliberate City’s policy alleges results. Garcia rights district to the of arrestees.” And the days for the 11 it caused him to be detained purposes court concluded that for of a motion drugs, powder to be tested for took the white dismiss, presumed it must be that 10 to 20 days after the tests came and for 15 more testing delay. is an unreasonable But negative. I think that such a back Because eventually claim for the court dismissed the policy may implicate Garcia’s Fourteenth allege liability failing municipal with rights, I not Amendment due would heightened specificity, approach in an since early stage claim at the of a dismiss this by validated Leatherman v. Tarrant 12(b)(6) City policy motion. Whether Intelligence Narcotics and Coordination actually detention and caused Garcia’s - Unit, -, requiring it reasonable are issues whether is however, believe, I proceedings. The waters are mud- further analysis the district court was correct its fact that was on died somewhat problem preliminary to its consider — probation for an auto theft offense at the pleading question. ation of the hearing, time of his arrest. At the Gerstein objection City’s policy attorney granted leave to file Garcia’s to the is the state’s report, although, essentially challenge pre-trial a violation of con- extended majority’s assumption, majority trary to the Garcia’s detention. The reasons that after actually speedy guarantee revoked.1 But Gerstein trial was never only pro- parties, subsequent the district court nor the is the limitation on neither majority through longed pre-trial detention. This is cold com- have scrutinized ease Significantly, City permits probation lens. fort —the Constitution a trial months See, years e.g., an contended that Garcia’s detention was or even arrest. never violation, 514, 536, alleged probation Wingo, Barker v. 407 92 based on his nor S.Ct. (1972) 2182, 2194-95, liberty (delay argue that his interest 33 L.Ed.2d 101 does it either constitutional). rights years process or his due are limited due to of over four is More- over, majori- skeptical majority’s Nor does the I am about the his status. ty’s analysis hinge implicit hearing a conclusion that a on Garcia’s status as why may only puzzled to after a 8. We are somewhat Probation be revoked full 15, 1991, given April hearing alleged was not released until that that includes notice of viola- April prosecutor prosequi tion, entered a nolle on opportunity appear present an to evi- 10, and that Garcia's was reinstated dence, a conditional to confront adverse April Perhaps part on this was due in to the report. Gagnon witnesses and a written v. Scar- 13-14, 1991, April or to weekend that fell on 786, 1756, 1761-62, 778, pelli, 411 U.S. 93 S.Ct. Obviously, holding administrative inefficiencies. (1973); ILCS 36 L.Ed.2d 656 see also 730 5/5-6- days person jail for several who does not (revocation hearing 4 must occur within rea- belong might the level of a constitu- there rise to time). There is no evidence that Garcia sonable Nevertheless, nothing tional violation. in the hearing. April received such a At the attorney suggests ever record that Garcia’s prossed charges prosecutors after the nolle brought confinement to the Garcia's continued Garcia, (as opposed the court restored court, any attention is there indication nor reinstated) noting probation, that never it had that Garcia himself ever made an effort to con- been terminated. court, attorney, tact the his or an administrator in the Cook Jail. blessing Baker, bestows a constitutional all sub- But admission, its own is not sequent prolonged Baker, detention. absolute. Since courts have found that prolonged pre-trial detention without McCollan, 137, In Baker v. any investigation can deprivation constitute a 2689, S.Ct. the Su- of liberty process. without due In Johnson preme suggested prolonged pre- Court that (N.D.Ill. Chicago, detention, pursuant trial to a valid warrant 1989), example, the court found that a 6- judicial and a determination of day detention violated process due when the cause, may process. violate due Id. at police did not take “even minimal steps” to 99 S.Ct. at 2694-95. Baker found no consti- evaluate the detainee’s claims of innocence. plaintiff tutional violation where the was ar- Id. at 1470. Significantly, Johnson was ar rested and days detained for three over a pursuant (unfortu rested to a valid warrant holiday before they authorities realized nately intended for Johnson, another an Atti wrong had arrested the Although man. escapee) ca judge before a for a speedy guarantee trial ensured that someone first appearance; nonetheless, the court could not indefinitely, be detained the court process found that due required more. Id. observed that continued detention “in the Similarly, in Patton v. Przybylski, 822 F.2d repeated face of protests of will innocence (7th Cir.1987), “an person innocent lapse after the of a certain amount of time languish jail allowed week; for almost a deprive ‘liberty accused ... without and to person arrest a vigorous over his process However, due of law.’” Id. protest he wrong is the man ... and “quite Court was sure that a detention keep jail period him for this without either three over a New Year’s weekend does investigating the bringing case or him before not and could not depriva- amount to such a magistrate raises serious constitutional tion.” Id. questions, under the ... due clause.” hand, On the rejected other Baker also Id. at Frantz, 700-01. In Coleman v. requirement law enforcement officials (7th Cir.1985), F.2d 719 plaintiff where the diligence” exercise “due to determine wheth pursuant was detained to a valid warrant for person er the innocent, detained is in fact days despite protests innocence, we holding that “investigate officials need not held supports, that “Baker requires, if not independently every claim of innocence.” our plaintiffs conclusion 18-day. deten 2695; 443 U.S. at 99 S.Ct. at see also tion was a liberty violation of without due Duke, Thompson (7th 882 F.2d process of law.” Id. at 724. See also Brown Cir.1989), 929,110 cert. denied 495 U.S. Patterson, Cir.), (1990); Schertz cert. denied 484 U.S. Waupaca County, (“prolonged confinement Cir.1989). government here, course, person an arrested without a argues that Baker challenge forecloses determine whether he is the named City’s policy delayed the of drug testing or of the deprivation warrant would be a liberty delayed reaction to the results of drug the process without due of law and thus violate tests. Amendment”).2 the Fourteenth rely, degree, 2. These defendants, cases all to some on the fact But all whether that the magistrate brought detainees were not a before not, pursuant arrested to a or are warrant usual- present their claims of innocence. ly opportunity (e.g. afforded an under state law although hearing, But Garcia received a Gerstein 5/109-1) 5(a) 725 ILCS or under Fed.R.Crim.P. it is no means clear that this alone renders presented magistrate to be to a soon after arrest. inapplicable. these cases A Gerstein fol- Since the defendants in and Patton Coleman arrest, lows a essentially warrantless re- warrants, is, pursuant part, arrested it places probable the cause determination that appearance” absence of this "first that ren- precedes otherwise issuance of an arrest war- dered their detention Cole- unconstitutional. rant, Gerstein, 866; 420 U.S. at 95 S.Ct. at man, 723-24; Patton, F.2d at 754 822 F.2d at adversary safeguards, hence such as the skeptical I am But or whether Coleman present hearing, be McLaugh- at the are absent. Riverside, process Patton courts would have due lin v. considered 888 F.2d (9th Cir.1989), satisfied if the defendants in cases vacated remanded other those had not grounds, repre- themselves been to court nor been Hobson, F.Supp. not, then, Pennington v. preclude us from tional Baker does Pennington was found with constitutionality pre-trial at 770-72. finding that the questioned packet powder, if authori- which a field test may be white detention that A state court deter- deliberately ignore all indications indicated was cocaine. ties not, to detain innocent. We should mined there was detainee is therefore, Pennington of law that the field pending as a matter confirmation hold suspect took two months since City’s determine whether test. Confirmation failure to responsible transporting for any drugs police cannot officer carrying was only trip drugs took one each process. to the state lab implicate due just from that month and had returned obscures the exact whatever haziness But trip. powder The turned out month’s white investigate off duty to burns contours of a all, Pennington aspirin after but was to be they that have no know once the authorities jail month the test kept in for another only permitted Baker for detention. basis Id. at 763-64. Like Gar- results came back. pursu- pre-trial after valid arrest detention cia, Pennington brought alleg- §a claim “until it was discover- ant to a valid warrant testing policy that resulted in an not the detainee] [the ed court con- unlawful detention. The district Chicago, 664 F.2d sought.” City Powe police although were not cluded Cir.1981) origi- (emphasis 651-52 required positive confirm their field test nal). progeny not involve Baker and its did did, they detention sooner than the continued knowledge inno- of the defendant’s “actual proved negative after the tests violated cence, affirma- rather the failure to take but Amendment. Id. at 771. The Fourteenth Gay steps his innocence.” tive to determine police qual- claim of court denied the officers’ (4th Cir.1985); Wall, see 761 F.2d immunity, finding po- ified that “reasonable 1152, 1162 English, also Sanders lice officers on notice that the Consti- [were] Cir.1992). Here, after March deprivations proscribed tution intentional powder and knew had tested the white liberty clearly exculpatory in the face of evi- drugs. any oth- it contained no Absent dence.” Id. stage suspicion at this we er basis for —and pro- other than must assume there was none recently The Fifth also concluded violation concerns—Garcia’s extended bation investigation could be that detention without presumptively violates the detention at least English, 950 unconstitutional. Sanders v. Powe, process e.g. due clause. See (5th Cir.1992). F.2d 1152 Sanders was ar- Wall, 179; 651-52; Gay 761 F.2d at pursuant to a valid and de- rested warrant Hobson, Pennington v. days. police officer tained about 50 (S.D.Ind.1989). tell, As far as we can significant up did not follow on the leads incriminating evidence did not balance of suggesting Id. at that he was innocent. shift; merely simply there was no incrimina- 1156-57. The Fifth Circuit held that Sand- exactly ting The situation was evidence. alleging § vio- ers’ 1983 claim due they if found that had the authorities had dismissal since “a fact-finder lation survived See, Patton, wrong person. e.g., arrested the reasonably McCoy Lt. could conclude that Powe, 700-01; F.2d at 651. F.2d at deliberately way other in the face looked the the law en- In those circumstances —when indicating that he of exonerative evidence know there is no hint of man_ forcement officers wrong Baker im- had arrested the pre-trial wrongdoing detention —continued impediment claim be- poses no to Sanders’ justified. cannot be not that cause the thrust of his contention is McCoy steps affirmative to Richmond, Lt. failed to take drug testing poli- a Indiana had innocence, rather, investigate but cy prolonged Sanders’ that resulted in a similar deten- McCoy him that Lt. failed to release even tion that district court found unconstitu- the comports process by Garcia received. While this sented who knew about their claim of counsel Gerstein, requirements might it is far from have been different if with the mistake. The results equivalent police of the we judge only clear that it is the had read the affidavits a prerequisite pre- required to extended deten- have as a ruled that the defendants could remain in is, essentially, process in Coleman or Patton. that trial detention tion. The latter (or known) any brought that such claim should have should be under alter he knew (although Fourth Amendment the court not Id. at had been misidentified.” Sanders Albright challenged that ed had not his treat procedural process grounds ment due ei context, if In Fourth Amendment ther). Ginsburg, joined Id. Justice who for a that forms evidence plurality, separately explain wrote to her rea dissipates before the ar- arrest warrantless considering sons for the case under judge, continued restee is before “Albright may Fourth Amendment: have v. Pu- detention is unconstitutional. Sivard narrowly feared that would courts define the (7th Cir.1992), County, laski 959 F.2d 662 key Fourth Amendment’s term ‘seizure’ so as grounds, on other remanded and affirmed deny scope particular, full to his claim. In (7th Cir.1994), plaintiff F.3d 185 held that may anticipated holding he have process had stated a due claim when ‘seizure’ of his ended when he was wrongful ... knew of his detention “sheriff custody released from on bond.... Such a spite him in that and continued to detain might concern have stemmed from Seventh knowledge.” principle Id. at 668. The same precedent set before Graham v. Con apply process in the due context when should nor, 490 U.S. evaporated. has the sole basis detention May, See Wilkins (substantive course, 190, 195 it be seen in the course Of remains to F.2d process due standard, extent the ‘shock the conscience’ not developing the facts what Amendment, applies ‘post- Fourth to brutal contin- City’s policy contributed to Garcia’s — pre-charge’ interrogation).” arrest Id. pre- his detention ued detention. But since 2, 114 U.S. at-& n. S.Ct. at 815 & n. 2. rights, I sumptively process violated his due Ginsburg opinion further observes that stage. the matter at this would not dismiss apply the Fourth Amendment continues to challenged City’s policy has also even after an initial bond and release objectively Fourth unreasonable under the custody, on “ since the defendant remains noted, majority Amendment. As the this trial, long ‘seized’ for so as he is bound to stating that circuit has a line of cases appear in court and answer the state’s hearing, the Fourth Amendment — at-, charges.” Id. U.S. S.Ct. at process apply ceases to and due furnishes only May, standard. Wilkins Since, however, the court’s statements denied, Cir.1989), cert. applicability about the of the Fourth Amend- (1990); S.Ct. essentially only in an ment are dicta other- Abrams, Villanova v. case, I wise narrow substantive due Cir.1992). Although agree I that these cases concluding they difficulty have revive Fourth preclude consideration Garcia’s In Garcia’s Fourth Amendment claim. claim, Supreme Amendment Court’s re event, probably it little difference makes - Oliver, in Albright cent decision U.S. here, prohibi- since the Fourth Amendment’s -, S.Ct. tion “unreasonable” seizures is co- bright potentially blurs the line we have extensive with the Fourteenth Amendment’s Albright selling arrested for drawn. liberty prohibition against deprivations of — drugs. look-alike He was bound over for at-, process. without due Id. U.S. n. preliminary hearing (although J., not (Blackmun, trial at a n. 24 S.Ct. imprisoned), charges against dissenting). and the him — eventually dismissed. Id. U.S. at party suggested that claim No has Garcia’s -, pre at 810. The court was S.Ct. respect pre-trial with detention has been question sented with the narrow whether probationer. affected his status as a Nor Albright §a could maintain 1983 claim germane did the district consider pro prosecution malicious on substantive due presented here. I therefore do the issues — at-, grounds. cess Id. properly not think the issue is before us. plurality were, at 812. A of the court held if I Even it do not think Garcia’s process right probation significantly there is no substantive due affect status would Rather, prosecution. analysis of this case. Once the essential be free from malicious probation revocation —a probation basis for jus was no disappeared, there

violation—had probationer’s denying even a

tification See, e.g., Douglas liberty interest.3

minimal Buder, (1973) (“we 2200-01, conclude petitioner had violated finding that ... was so probation

the conditions evidentiary as to be support

totally devoid of the Due Process Clause under the

invalid Amendment”); Gagnon v. Scar

Fourteenth 781-82, 93 at 1759-60

pelli, revocation). (due applies probation note, majority observes final

On a five for an additional was detained charges against him were nolle

days after probation had

prossed, or three not Inexplicably, Garcia does

been restored. period detention. challenge this

appear to my only to this fact underscore

I mention arbitrary detention —when such

view that arrested, suspected,

person is neither wrong- any or crime

charged nor convicted clearly unconstitutional.

doing—is HAMMANN, Represen

Mary as Personal Bradley Ham for the Estate

tative Plaintiff-Appellant,

mann, STATES America

UNITED Wisconsin, County,

Barron

Defendants-Appellees.

No. 93-1361. Appeals, Court of States

United Circuit.

Seventh

Argued Oct. May

Decided case, drug testing course, there may whether after exist violation 3. Of See, e.g., been committed. no crime has basis on which conclude where remained (three Duke, day Thompson F.2d at probation. a condition of his Garcia had violated conducting parole delay revocation district We also not have benefit do when there reasons constitutional of the set forth factors court’s consideration violated). suspect parole know, We do not had been Scott, United States great part again because the Cir.1988). presented question has never been revocation

Case Details

Case Name: Rafael Garcia v. City of Chicago, Illinois, Anna Gall, County of Cook

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 15, 1994

Citation: 24 F.3d 966

Docket Number: 92-4090

Court Abbreviation: 7th Cir.