Purvis v. Oest

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 09-1098 & 09-1101

G INA P URVIS,

Plaintiff-Appellee,

v.

D ANIEL O EST; P ATRICIA L UNN;

G ARY V ICINI; and D OUGLAS B ERNABEI,

Defendants-Appellants.

Appeals from the United States District Court

for the Central District of Illinois.

No. 05-1348—Michael M. Mihm, Judge.

A RGUED N OVEMBER 12, 2009—D ECIDED A UGUST 2, 2010

Before C UDAHY, M ANION, and W ILLIAMS, Circuit Judges.

C UDAHY, Circuit Judge. Gina Purvis was a high-school

teacher, who was suspected of having a sexual relation-

ship with her then-15-year-old biology student, “M.R.”.

The school conducted an investigation in which Gary

Vicini, the dean of students, played a leading role. This

created a potential conflict of interest, since Vicini had

2 Nos. 09-1098 & 09-1101

himself been accused by Purvis of sexually harassing a

student a year previously. After Vicini threatened M.R.

with expulsion and possible jail time should he continue

to deny his having had an affair with Purvis, the student

capitulated and admitted the existence of such a relation-

ship. The school district’s superintendent, Daniel Oest,

then reported the allegations to the police. The chief of

the Spring Valley Police Department, Douglas Bernabei,

notified the Department of Child and Family Services

(DCFS). Both began investigating. The DCFS investigator,

Judith O’Brien, ultimately recommended that Purvis be

indicated as a sexual perpetrator. Purvis was indicted by

a grand jury and arrested on December 15, 2004.

After being acquitted following a bench trial, Purvis

brought suit against Vicini, Oest, the school principal,

Patricia Lunn and Bernabei, among others. In relevant

part for the present appeal, she alleged deprivation of

due process and false arrest. The district court declined

to grant summary judgment in favor of the defendants.

It found that the school defendants lacked qualified

immunity and that a reasonable jury could find facts

sufficient to amount to a deprivation of due process.

With respect to the alleged false arrest, the district court

determined that, “by the slimmest of margins,” Purvis had

demonstrated a genuine issue of material fact as to

whether Bernabei had probable cause. It also found that

qualified immunity did not protect Bernabei in the cir-

cumstances.

For the reasons that follow, we reverse the district

court’s holding as to Bernabei, finding that sufficient

Nos. 09-1098 & 09-1101 3

evidence to establish probable cause existed as a matter

of law. We also conclude that the district court erred in

finding that Oest, Vicini and Lunn are not protected by

qualified immunity.

I. BACKGROUND

Whispers of an illicit, sexual relationship between a

teacher, Gina Purvis, and her then-15-year-old student,

M.R., began circulating in the spring of 2004 at Hall High

School District 502 in Spring Valley, Illinois. They were

questioned by Patricia Lunn, the principal, but both M.R.

and his teacher denied the veracity of the rumors. The

gossip returned anew the following semester, which

prompted school officials to act. The superintendent,

Daniel Oest, and the principal decided that an investiga-

tion was in order, which would be carried out by Oest

and Gary Vicini, the dean of students.

The rumors obviously concerned a matter of the

utmost importance. Schools are mandatory reporters

under Illinois law, such that they must report suspected

child abuse immediately to the DCFS if they have “rea-

sonable cause to believe” that such abuse took place. 325

ILL . C OMP. S TAT. 5/4. Given the circumstances, some

inquiry to determine whether there was any semblance

of truth to the rumors was surely advisable.

The investigation was stymied by an extraordinary

defect, however, for one of the investigators, Vicini, had

himself been accused by Purvis of sexually harassing a

female student the year before. Moreover, Vicini had

4 Nos. 09-1098 & 09-1101

been informed that Purvis was the person who had re-

ported him. Obviously, it would be unsurprising if Vicini

harbored some form of resentment toward Purvis. The

school principal, Lunn, was aware of this conflict of

interest, yet said nothing. Throughout the ensuing in-

vestigation, Oest, the superintendent, remained unaware

of the potential bias on Vicini’s part.

On November 10, 2004, Oest and Vicini interviewed

M.R., who twice denied having had any sexual relation-

ship with Purvis. The following fact is of considerable

importance to the present appeal: there is evidence that

Vicini, biased as he may have been against Purvis, threat-

ened M.R. with expulsion and even imprisonment should

he continue to deny the existence of the relationship.

The student asked whether the matter would be kept

confidential, which Oest assured him would be the

case. The school’s official policy, however, was only to

keep such statements confidential “to the extent

possible given the need to investigate.”

M.R. then changed his story, recounting myriad details

about his alleged relationship with Purvis. He wrote a

statement in which he indicated that he and Purvis had

gotten closer to one another in January 2004, that, in

February, the two had kissed at school and had engaged

in sexual activity in her house, her car and his house,

that some similar activity took place in May, but that

later that month she told him that they needed to slow

down. He contended, however, that on September 2 she

kissed him again.

After obtaining this statement, Oest attempted, but was

unable, to contact Purvis, since she didn’t answer her cell

Nos. 09-1098 & 09-1101 5

phone. He then contacted local law enforcement and

informed Douglas Bernabei of the Spring Valley Police

Department of what had transpired. Bernabei then con-

tacted DCFS, which appointed Judith O’Brien to con-

duct an inquiry on its behalf. No one informed either

Bernabei or O’Brien of Vicini’s potential conflict of inter-

est. Nor were they informed of the pressure that Vicini

had exerted on M.R., or that he had purportedly induced

the student to change his story.

Bernabei met with Oest the very same day, where

Bernabei was informed of the rumors and read M.R.’s

written statement. Bernabei then met with M.R.’s mother,

who told him that she had suspected something was

going on between Purvis and her son. She also told

Bernabei that her son had informed her of his sexual

encounters with Purvis earlier that day. M.R.’s mother

also explained that Purvis had previously mentioned

rumors of a fling, which the teacher denied, saying that

she was merely mentoring the boy.

Bernabei then interviewed M.R., who explained that

Purvis initiated what ultimately became a mutual

French kiss in a lab-storage area of the classroom on

February 9, 2004. M.R. told Bernabei that this encounter

preceded his first sexual one with Purvis a few days later

and that he and his teacher had sex two to three times

per week during February, March and April of 2004. He

recounted myriad, specific details of the sexual acts in

which the two engaged. On one of these occasions, he

purported to have had “intercourse nine different times.”

M.R. also said that Purvis had shown him a vibrator

6 Nos. 09-1098 & 09-1101

that she kept in her dresser drawer. M.R. also told

Bernabei that his cousin, Rick Andes, while on leave from

the Navy, picked him up from Purvis’s house. M.R. said

that, while there, Andes had seen M.R. and Purvis kissing.

In addition, M.R. described a variety of gifts that Purvis

had given him, which included a baseball necklace, num-

erous photos and an Old Navy shirt.

M.R. explained that the sexual relationship had ended

by late April or early May, but that he and Purvis stayed

in contact by phone and internet over the summer. At

the start of the fall semester, he and Purvis exchanged

a couple of kisses. Finally, he informed Bernabei that he

had told some of his fellow students at school that the

rumors were true.

Bernabei proceeded further into this investigation,

which involved listening in on a phone call between

M.R.’s mother and Purvis, obtaining telephone records,

interviewing some of M.R.’s fellow students and meeting

M.R.’s cousin to corroborate the former’s statements.

These facts are developed below, as necessary to our

analysis. Through his investigation, Bernabei also un-

earthed some exculpatory evidence. This, too, is explored

below.

Purvis was indicted by a grand jury and arrested on

December 15, 2004. On October 20, 2005, Purvis and the

school district entered into an agreement pursuant to

which she voluntarily resigned her employment in ex-

change for $43,000. On October 31, 2005, Purvis was

acquitted of all charges after a bench trial. She then

brought the present lawsuit, alleging in relevant part

Nos. 09-1098 & 09-1101 7

deprivation of due process and false arrest. Oest, Lunn,

Vicini and Bernabei all moved for summary judgment,

which the district court denied in part relevant for this

appeal. The court found that none of the defendants

was entitled to qualified immunity. It also determined

that there were genuine issues of material fact as to

whether Oest, Lunn and Vicini deprived Purvis of due

process by giving Vicini a leading role in the school

investigation and as to whether Bernabei had probable

cause to arrest the plaintiff.

For the reasons that follow, we reverse the district

court and find that Oest, Lunn, Vicini and Bernabei are

entitled to summary judgment.

II. DISCUSSION

We review a district court’s denial of summary judg-

ment de novo. See Sullivan v. Ramirez, 360 F.3d 692, 696

(7th Cir. 2004). We similarly review a trial court’s denial

of a defendant’s claim of qualified immunity de novo. See

Finsel v. Cruppenink, 326 F.3d 903, 906 (7th Cir. 2003).

Although qualified immunity is an affirmative defense,

once raised, it becomes the plaintiff’s burden to defeat

it. See Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir. 2008).

In a qualified-immunity setting, the plaintiff bears

the burden of showing that the constitutional right alleg-

edly violated was clearly established at the time of

the challenged conduct. See Landstrom v. Ill. Dep’t of

Children & Family Servs., 892 F.2d 670, 675 (7th Cir. 1990).

Such a plaintiff can also prevail by showing that “the

conduct [at issue] is so egregious that no reasonable

8 Nos. 09-1098 & 09-1101

person could have believed that it would not violate

clearly established rights.” Wheeler, 539 F.3d at 639 (quoting

Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001)).

A. A Genuine Issue of Material Fact Exists as to Whether

the School’s Investigation Was Biased and Deprived

Purvis of Due Process

Purvis contends that her due-process rights were vio-

lated by Vicini’s pressuring M.R. into changing his

story and admitting the existence of a sexual relation-

ship. Purvis submits that Vicini exerted such pressure

because he held a fundamental animus against her, due

to her having previously reported him for sexual harass-

ment. She argues that his bias against her resulted in a

constitutional deprivation.

The first question is whether the record, viewed in the

light most favorable to Purvis, reveals a genuine issue

of material fact as to whether Vicini was biased against

her. We have no difficulty finding that it does. It is axiom-

atic that an individual accused of sexual harassment by

a fellow teacher, and who was informed of the identity

of the accuser, might harbor some resentment against

that accuser. Although Vicini denies holding a grudge

against Purvis, this raises a question of fact for the jury.

Thus, given the summary-judgment posture, we find

that the evidence supports a finding that Vicini was

biased against Purvis. In light of this determination, it is

troubling indeed that the principal, Lunn, would place

Vicini in a position in which he exercised at least some

Nos. 09-1098 & 09-1101 9

influence over the course of the school investigation.

Again viewing the record in the light most favorable to

the non-moving party, the evidence amply supports a

jury finding that Vicini exerted great pressure over M.R.

to admit the existence of a sexual relationship with

Purvis. It is a legitimate inference that Vicini may have

been spurred to exercise this pressure in some part by

his dislike of Purvis.

We have previously recognized that “fundamentally

biased process is not due process.” Levenstein v. Salafsky,

164 F.3d 345, 352 (7th Cir. 1998) (emphasis original).

In light of our preceding determination as to Vicini’s

potential bias and influence over the school investigation,

it is fair at the summary-judgment juncture to charac-

terize the school’s investigation of Purvis as funda-

mentally biased.

However, a lack of process does not necessarily translate

into a constitutional violation; rather, it must be tied to a

protected interest. It is well established, however, that a

person has a liberty interest to pursue employment in

her chosen field and that this interest is violated when a

state actor casts doubt on that individual’s good name

or reputation such that it becomes virtually impossible

for her to find new employment in that field. See

Townsend v. Vallas, 256 F.3d 661, 669-70 (7th Cir. 2001);

Strasburger v. Board of Education, 143 F.3d 351, 356 (7th Cir.

1998). It is also the case that a tenured employee has a

property interest in his job. Levenstein, 164 F.3d at 351.

Oest, Lunn and Vicini go to some length to emphasize

that they did not owe Purvis due process before alerting

10 Nos. 09-1098 & 09-1101

the DCFS of her suspected child abuse. They observe

that such reporting does not deprive the suspected abuser

of an interest in pursuing her chosen profession. Instead,

they point out, it is the DCFS’s decision to indicate a

person as a sexual abuser that effects a deprivation.

This is a potentially important point, and we therefore

address it in some detail.

First, and as an observational matter, Oest did not in

fact report Purvis to the DCFS; instead, he informed the

police department, which in turn notified the DCFS. If

we nevertheless treated his reporting Purvis to the police

as equivalent to notifying the DCFS, we agree that such

action would not in itself amount to a constitutional

deprivation. This holds true despite the current wording

of Illinois’s Abused and Neglected Child Reporting Act

(ANCRA), which provides that:

if an employee of a school district has made a report

or caused a report to be made to the Department

under this Act involving the conduct of a current or

former employee of the school district and a request

is made by another school district for the provision

of information concerning the job performance or

qualifications of the current or former employee

because he or she is an applicant for employment

with the requesting school district, the general super-

intendent of the school district to which the request

is being made must disclose to the requesting school

district the fact that an employee of the school

district has made a report involving the conduct of

the applicant . . . .

Nos. 09-1098 & 09-1101 11

325 ILL. C OMP. S TAT. 5/4. Under this provision, it is con-

ceivable that a school’s reporting a teacher to the DCFS

could constitute a deprivation insofar as it wreaked

havoc on a person’s ability to find new employment in

his chosen field. One can only imagine that a person

who had been accused of such abuse would not wish

to remain a part of her current school in the future. Yet,

any attempt to apply for a job with a different district

would likely be frustrated when the other school sought

information concerning the applicant.1

Ultimately, however, we do not address this issue, in

light of the fact that the above-quoted language was

added to the statute after the events in the present case

took place. Moreover, there is no evidence in the record

that the act of reporting under ANCRA to the DCFS

alone has such a negative, de facto effect on a teacher’s

reputation that she is thereby rendered incapable of

pursuing her chosen career. Absent such evidence, and

because the quoted language in Section 4 was not opera-

tive at the time of the acts giving rise to the present

case, Oest, Lunn and Vicini’s act in causing Purvis to be

1

Even if we had to reach this question, however, it would be far

from clear that reporting would give rise to a deprivation. This

is because Section 4 provides that the fact that a report had been

made “may be disclosed only in cases where the employee

and the general superintendent have not been informed by the

Department that the allegations were unfounded.” 325 I LL .

C OMP . S TAT. 5/4. The negative impact of a report under ANCRA

is therefore ephemeral if the DCFS determines that the allega-

tions were unfounded.

12 Nos. 09-1098 & 09-1101

reported to the police, and indirectly to the DCFS, did not

in itself effect a deprivation.

This is not the end of the matter, however. Instead, we

must grapple with the possibility that the potentially

biased nature of the school’s investigation corrupted

the integrity of the subsequent investigations by the

DCFS and Chief Bernabei, essentially as found by the

district court.

Oest, Lunn and Vicini contend that the ensuing investi-

gations by O’Brien and Bernabei were sufficiently inde-

pendent as to afford Purvis the requisite due process

before any deprivation occurred. They appeal to our

prior decision in Trejo v. Shoben, where we held that

even if the initial investigator in that case were

“brimming over with animosity . . . [his] reasoning and

recommendation to terminate probationary employee

Trejo was reviewed by two separate, independent

faculty committees which conducted their own inves-

tigations of the charges and likewise came to the con-

clusion that Trejo’s misconduct warranted his removal

from the faculty.” 319 F.3d 878, 888 (7th Cir. 2003). In

the same way, Oest, Lunn and Vicini argue, the inves-

tigations by Bernabei and O’Brien were wholly indep-

endent. None of the school officials assisted with the

police and DCFS investigations.

It is a factual question whether the DCFS and the

police investigations were sufficiently independent as to

cure any due-process deficiency in the earlier inquiries

conducted by the school. There is certainly sufficient

evidence for a jury to answer this question in the affirma-

tive, given the considerable inculpatory evidence uncov-

Nos. 09-1098 & 09-1101 13

ered by Bernabei, which is detailed above, and the fact

that O’Brien participated in a second interview of M.R.

Nevertheless, viewing the facts in the light most favor-

able to Purvis, we find that a reasonable jury could

find that the investigations conducted by O’Brien and

Bernabei were not sufficiently independent to cure any

constitutional infirmity inherent in the school’s original

investigation. Unlike in Trejo, where the independent

faculty committees were apprised of all relevant facts,

there is no evidence in the record that either O’Brien or

Bernabei was made aware of Vicini’s potential bias and

his role in pressuring (arguably intimidating) M.R. into

providing the inculpatory statement that started the

ball rolling. We believe that a jury is best placed to

resolve the factual questions presented here.

We therefore conclude that the record, when viewed

in the light most favorable to the plaintiff, reveals a

genuine issue of material fact as to whether the school’s

investigation (1) was fundamentally biased and (2) de-

prived Purvis of her protected liberty interest in her

employment by corrupting the DCFS and police inves-

tigations, which ultimately resulted in her losing her

job and ongoing ability to work as a teacher. In this

regard, the district court is sustained. The remaining

question concerns Oest, Vicini and Lunn’s right to quali-

fied immunity.

B. Oest, Vicini and Lunn Are Entitled to Qualified

Immunity

Oest, Vicini and Lunn contend that they are entitled to

qualified immunity, which protects government officials

14 Nos. 09-1098 & 09-1101

from liability “insofar as their conduct does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). We apply a two-

part test to determine whether the doctrine attaches:

(1) whether the facts, taken in the light most favorable

to the plaintiff, show that the defendant violated a con-

stitutional right; and (2) whether that constitutional

right was clearly established at the time of the alleged

violation. Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir.

2008) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The

Supreme Court has made clear that the doctrine of quali-

fied immunity provides “ample room for mistaken judg-

ments” and protects all those but the “plainly incom-

petent and those who knowingly violate the law.” Hunter

v. Bryant, 502 U.S. 224, 227 (1991) (quoting Malley v.

Briggs, 475 U.S. 335, 343 (1986)).

We have already concluded that there exists a genu-

ine issue of material fact as to whether Vicini harbored

a bias against Purvis that led to corruption of the

integrity of the school’s initial inquiry and the DCFS and

the police department’s follow-up investigations. Thus,

the facts taken in the light most favorable to the plain-

tiff demonstrate that Oest, Vicini and Lunn violated a

constitutional right. This raises the question whether a

reasonable person in Oest, Vicini or Lunn’s position

would have known he was violating Purvis’s clearly

established federal rights in (a) knowingly allowing a

biased person to play a leading role in the initial inves-

tigation, which ultimately resulted in the biased individ-

ual’s threatening the suspected victim into admitting the

Nos. 09-1098 & 09-1101 15

existence of a relationship, (b) reporting the suspected

crime to the police, (c) providing the police with the

supposed victim’s written statement, which detailed the

specifics of the boy’s alleged affair with the teacher, but

(d) not informing the police or DCFS of the conflict of

interest and that the student’s statement had been pro-

vided only after the potentially biased person exerted

considerable pressure, which led the student to drop

his denials.

Oest was not aware of the potential conflict of interest

involving Vicini. It is clear therefore that a reasonable

person in his situation would not have known that ap-

pointing Lunn and Vicini to investigate the veracity of

the rumors would have involved a fundamentally biased

process, thus violating a clearly established constitutional

right. Oest is therefore entitled to qualified immunity.

Despite being aware of the potential conflict of interest,

Lunn and Vicini are also entitled to qualified immunity.

The district court correctly observed that there was

clearly established federal law at the time of reporting

Purvis that fundamentally biased process is not due

process. See Levenstein, 164 F.3d at 351. It was also well

established that a person has a protected interest in

pursuing employment in her chosen field. See Dupuy v.

Samuels, 397 F.3d 493, 503-04 (7th Cir. 2005). But this high-

level observation is insufficiently precise for the specific

circumstances in which Lunn and Vicini found them-

selves. There is no case law of the U.S. Courts of Appeals

or Supreme Court of which we are aware that demon-

strates that Purvis’s constitutional rights would have

16 Nos. 09-1098 & 09-1101

been violated by reporting her to a body that would

perform an independent investigation before effecting

a deprivation. Although we have found that there is

a genuine issue of material fact whether the ensuing

investigation by the DCFS was sufficiently independent

to cure any due-process deficiency, Lunn and Vicini

would not have been plainly incompetent to suppose

in light of our decision in Trejo that the subsequent,

independent DCFS investigation would have foreclosed

any constitutional violation. For this reason, we find

that Lunn and Vicini are similarly entitled to qualified

immunity and, hence, summary judgment.

It was clearly established that due process was denied

by the introduction of a fundamental conflict of interest

into the investigative process. But it was not clearly

established that such a procedural defect violated the

Constitution if whatever conclusion eventuated was

subject to confirmation and validation by a subsequent

independent investigation. This distinction may be

subtle, but here it is decisive.

C. Bernabei Had Probable Cause to Arrest Purvis

The last question we address is whether Bernabei’s

arresting Purvis is protected by the doctrine of qualified

immunity. We apply the same two-part test already

discussed; namely to determine whether the doctrine

attaches, we ask: (1) whether the facts, taken in the light

most favorable to the plaintiff, show that the defendant

violated a constitutional right; and (2) whether that

constitutional right was clearly established at the time

Nos. 09-1098 & 09-1101 17

of the alleged violation. Wheeler, 539 F.3d at 639 (citing

Saucier, 533 U.S. at 201).

Studying the record, it is clear that Bernabei uncovered

sufficient evidence to justify his arresting Purvis. The

first question in addressing a qualified-immunity defense

concerns the merit of the underlying constitutional claim.

Norfleet v. Webster, 439 F.3d 392, 395 (7th Cir. 2006). Even

viewing the evidence in the light most favorable to

Purvis, Bernabei had probable cause to arrest her. There-

fore, her constitutional rights were not violated. Mustafa

v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006). Bernabei

is thus entitled to protection under the doctrine of

qualified immunity. Akande v. Grounds, 555 F.3d 586, 590

(7th Cir. 2009).

Bernabei uncovered considerable evidence of Purvis’s

having had an illegal, sexual relationship with her stu-

dent. First, Bernabei read M.R.’s written report, which

recounted in considerable detail the substance of his

illicit relationship with his teacher. Second, the police

officer met with M.R.’s mother, who told him that she

had suspected something was going on between her

son and Purvis. Bernabei was also informed that M.R.

had told his grandmother that he and Purvis had kissed

and that Purvis had told him that she loved him. Fourth,

on November 16, 2004, Bernabei conducted an in-person

interview of M.R., whose ensuing account of his affair

with Purvis was consistent with his prior statement. Fifth,

the officer arranged with the U.S. Navy that Rick Andes,

a witness who was onboard a submarine, would be kept

ex communicado until Bernabei spoke with him. When

18 Nos. 09-1098 & 09-1101

Bernabei spoke with Andes by phone, the latter gave

an account that was largely consistent with M.R.’s as to

what had transpired one evening in late February/early

March 2004. Andes explained that he had driven to

Purvis’s home that evening to pick up M.R., that he

had seen Purvis and M.R. French kiss and that Purvis

had said that M.R. was a “good lay” or was “good in

bed.” Andes also accurately described Purvis’s home.

The preceding evidence consisted of a victim’s state-

ment, which the arresting officer perceived to be credible

and which was independently verified in material part

by an independent witness. Yet, this was not the only

evidence that Bernabei uncovered before making an

arrest. M.R.’s mother phoned Purvis on November 11,

2004, and allowed Bernabei to listen in without making

his presence known. Purvis adamantly denied having

had sexual intercourse with M.R., but admitted that she

loved him (in a platonic way), that M.R. had been at

her house on two occasions while her husband was away

and that she had told M.R. to lie to his parents about

his being there,2 that she had danced with M.R. at home-

coming and that she had inadvertently shared a kiss

with M.R., which he initiated and had caught her by

surprise and that she had “messed up” by getting too

close to him.

2

In deposition testimony in August, 2007, Purvis denied that

she had instructed M.R. to lie. However, this testimony occurred

after Bernabei arrested her on December 15, 2004, and so does

not go to whether the police officer had probable cause when

he arrested her.

Nos. 09-1098 & 09-1101 19

Bernabei uncovered yet more evidence when he sub-

poenaed M.R.’s and Purvis’s telephone records. They

revealed that the teacher and student had exchanged in

excess of 500 phone calls between January 18 and May 7,

2004. Some of these calls occurred in the early hours of

the morning. On Valentine’s Day, they exchanged 20

phone calls, which amounted to three hours’ speaking

time. In addition to this evidence, Bernabei also spoke

with a number of students, who gave varying accounts

of the truth of the rumors. He also corroborated the

purchase of gifts that M.R. and Purvis had supposedly

given each other.

Probable cause requires only that a probability or a

substantial chance of criminal activity exist. Beauchamp

v. City of Noblesville, Ind., 320 F.3d 733, 743 (7th Cir.

2003); Holmes v. Village of Hoffman Estate, 511 F.3d 673,

679 (7th Cir. 2007). The evidence need not show that the

officer’s belief is more likely true than false. Hughes v.

Mayer, 880 F.2d 967, 969 (7th Cir. 1989). In light of the

preceding, undisputed evidence, it seems inescapable to

us that this standard is satisfied. Bernabei had a written

and highly detailed statement from the alleged victim,

which the latter later echoed in a taped interview and

which was independently corroborated by a witness

who could not have been coached. This inculpatory

evidence was bolstered by considerable circumstantial

evidence. We find that it easily meets the standard of

probable cause.

The district court gave short shrift to the preceding,

undisputed evidence, focusing instead on evidence uncov-

20 Nos. 09-1098 & 09-1101

ered by Bernabei that potentially served to undermine

the inculpatory evidence. The court was, of course, cor-

rect to construe all contested evidence in the light most

favorable to the non-moving party and also to draw all

reasonable inferences from undisputed facts in the light

most favorable to the nonmoving party. Harney v.

Speedway SuperAmerica, L.L.C., 526 F.3d 1099, 1104 (7th

Cir. 2008). But even viewed in this light, the record

could not support a jury finding that Bernabei lacked

probable cause. Ultimately, the district court overstepped

in finding that Purvis had “by the barest of margins”

presented a genuine issue of material fact as to whether

Bernabei had probable cause.

In considering the factors that proved controlling to

the district court, it is worth emphasizing that there is a

difference between evidence of the kind that negates

proof beyond a reasonable doubt and that which is so

significant as to undo the existence of probable cause.

As noted above, the evidence required to establish proba-

ble cause is considerably less than that required to

sustain a criminal conviction. See Braun v. Baldwin, 346

F.3d 761, 766 (7th Cir. 2003) (“Probable cause is not

proof beyond a reasonable doubt, or even proof by a

preponderance of the evidence.”). Ultimately, of course,

the exculpatory evidence unearthed proved sufficient to

earn Purvis an acquittal following a bench trial. But as

we now explain, it did not result in Bernabei’s lacking

probable cause to arrest Purvis.

The first factor relied upon by the district court was that

Bernabei knew that M.R. had initially denied the rumors

Nos. 09-1098 & 09-1101 21

when questioned by school officials. This, of course, is

relevant evidence going to the question of Purvis’s

guilt, but this fact’s impact should not be exaggerated.

After all, a student’s initial hesitancy to reveal the story

of his illicit affair with a teacher should hardly be sur-

prising. While it is exculpatory, it hardly suffices to undo

the fact of probable cause when viewed in light of the

extensive inculpatory evidence discussed above. See

Spiegel v. Cortese, 196 F.3d 717, 724-25 (7th Cir. 1999).

Second, the district court noted evidence that Bernabei

knew that M.R. was working as a paid police informant.

This injects a further twist into an already bizarre case

and could certainly evidence possible bias. But standing

alone, and even viewed in the light most favorable to

Purvis, it does not negate the existence of probable cause,

which does not even require “proof [of guilt] by a prepon-

derance of the evidence.” Braun, 346 F.3d at 766. Even

if one discounts the reliability of M.R.’s statements, it

bears noting that certain, important details of those

statements were corroborated by a third party, Andes.

There is also the significant matter of the voluminous

circumstantial evidence of an improper relationship,

from the telephone records to Purvis’s own admissions

on the phone to M.R.’s mother.

Third, the district court put weight on the fact that M.R.

lied to Bernabei about not contacting Purvis after his

November 10, 2004 interview with the police officer.

Indeed, evidence suggests that M.R. contacted her the

very same day as his interview and then again on Novem-

ber 15 to warn her that he had told the police that they

22 Nos. 09-1098 & 09-1101

had had a sexual relationship. This clearly goes to M.R.’s

credibility, but it seems to us that this evidence might be

more accurately characterized as impeaching, rather than

exculpatory. In light of the strong, inculpatory evidence

discussed above, the victim’s impulse to protect the

teacher with whom he may have had an affair cannot

fairly be said to nullify probable cause.

Fourth, the district court found fault with Bernabei’s

reporting of the contents of the telephone conversation

between M.R.’s mother and Purvis. Specifically, the

court observed that Bernabei “reported the contents of

the conversation in a way that cast the conversation as

corroborative of a sexual relationship.” Yet, Bernabei’s

report began by noting that Purvis had repeatedly

denied having sexual intercourse with M.R. In any event,

many details unearthed during this particular phone

conversation suggest an inappropriate relationship be-

tween M.R. and Purvis, such as her admitting that they

had kissed, her inviting him to her house while her hus-

band was away and her telling him to lie to his parents

about it. The substance of the phone call, it would seem

to us, added to rather than detracted from the evidence

supporting probable cause to arrest Purvis.

Next, the court focused on M.R.’s somewhat implau-

sible claim that he “came” nine times in the course of a

few hours while having sex with Purvis. Evidence exists

that Bernabei told M.R. that this claim was incredible

a month or two before trial. The district court thought

that this conversation, viewed in the light most favorable

to Purvis, suggests that Bernabei did not find this claim

Nos. 09-1098 & 09-1101 23

to be reliable prior to his arresting the plaintiff. This

evidence could of course be used to impeach M.R., but

implausible boasts of sexual prowess by a teenage boy

would hardly be unprecedented. A reasonable police

officer could discount such an assertion as hyperbolic

grandstanding, while still finding credible the under-

lying claim of interest, namely that M.R. and Purvis

had had a sexual relationship.

Sixth, the district court was concerned with Bernabei’s

reporting of his interviews with various students at

Hall High School concerning their views on the accuracy

of the rumors that had circulated about M.R. and Purvis.

Specifically, Bernabei’s report omitted non-corrobora-

tive information, such as some students’ denials of a

sexual relationship between the two, one student’s state-

ment that M.R. had said that he was going to get Purvis

for what she had done to him and Oest’s note that

“[p]eople made up stuff.” While selective reporting is

certainly problematic, at least two factors lead us to

believe that the evidence obtained from the students

was not sufficiently exculpatory as to nullify probable

cause. First, one might reasonably question the reliability

of high-school-student testimony as to the validity of

circulating rumors. Second, the fact that some students

believed the rumors and some did not does not undo the

significant inculpatory evidence Bernabei unearthed

from other sources.

Seventh, evidence existed that M.R. had stolen the

plaintiff’s internet, instant-messaging password and had

used it to impersonate Purvis in conversations with

24 Nos. 09-1098 & 09-1101

Purvis’s mother to obtain personal information. There

was also evidence that Purvis had spoken in class about

the location and design of her tattoo, such that M.R.’s

knowledge of it did not necessarily show that he had

had intimate relations with her. Moreover, some evidence

suggests that M.R. had found out about Purvis’s vibrator

from a fellow student who had accidentally discovered

it while babysitting for Purvis’s daughter. In addition,

Purvis complained that some of her personal effects had

been stolen from her desk at school. Construing this

evidence in the light most favorable to Purvis, in conjunc-

tion with the undisputed facts in the record, it does not

follow that Bernabei lacked probable cause. It certainly

goes some way toward establishing a reasonable doubt

as to Purvis’s guilt, but M.R.’s specific testimony, cor-

roborated by an independent witness, and buttressed

by considerable circumstantial evidence in the form of

phone records and otherwise, establishes a substantial

chance that criminal activity had occurred. Beauchamp,

320 F.3d at 743.

The last factor relied upon by the district court involved

perceived shortcomings in Bernabei’s investigation. These

involved his failure immediately to investigate the class-

room storage area where M.R. and Purvis supposedly

first had sex, his delay in searching Purvis’s home and

computer and his failure to examine M.R.’s home com-

puter. With respect to the storage area, Bernabei aptly

points out that the sexual encounter was alleged to have

taken place more than half a year before. It is not clear

what kind of evidence one would expect to find after

Nos. 09-1098 & 09-1101 25

such an interval. With respect to the computers and

home search, it would seem that the district court may

have envisioned a flawless and fully comprehensive

investigation’s being a prerequisite to Bernabei’s having

probable cause to arrest Purvis. Such is clearly not the

case, for we have long recognized that “the law does not

require that a police officer conduct an incredibly

detailed investigation at the probable cause stage.” Gerald

M. v. Connelly, 858 F.2d 378, 381 (7th Cir. 1988).

Ultimately, no investigation is perfect, but given the

totality of the circumstances, the record makes clear that

Bernabei had probable cause to arrest Purvis, even when

it is viewed in the best possible light for her. To find

otherwise on the record before us would be to sub-

ject police officers to “potentially disabling threats of

liability.” Tangqwall v. Stuckey, 135 F.3d 510, 514 (7th Cir.

1998).

We note in closing that, even if we were wrong in this

regard and Bernabei in fact lacked probable cause to

arrest Purvis, a reasonable officer could have believed

that probable cause existed, even if that belief were ulti-

mately mistaken. See Wheeler, 539 F.3d at 639. A police

officer faced with the evidence unearthed by Bernabei

could not be characterized as “plainly incompetent” in

concluding that probable cause existed to arrest Purvis.

Id.; see also Malley v. Briggs, 475 U.S. 335, 349 (1986). Even

on this alternative ground, then, Bernabei is entitled to

qualified immunity.

26 Nos. 09-1098 & 09-1101

CONCLUSION

The present case involves a most unfortunate series

of events that raise a variety of challenging legal and

factual questions. We agree with the district court that

plaintiff has raised a genuine question of material fact

whether the school’s appointment of a potentially biased

individual to investigate the rumors involving Purvis and

M.R. so fundamentally corrupted the ensuing investiga-

tion as to amount to a due-process violation. Perhaps, if

given the occasion, a jury would determine that Vicini

did not in fact harbor resentment against Purvis and that

the school investigation was carried out in a neutral

fashion. It is also possible, and perhaps even likely, that

a jury would find the police and DCFS investigations to

be sufficiently independent that any conceivable bias in

the initial, school investigation was neutralized. But the

important point is that both issues require determina-

tions involving contested issues of fact and these are

within the exclusive province of the jury.

Nevertheless, the district court erred in concluding

that Oest, Vicini and Lunn are not entitled to qualified

immunity. It is clear that the superintendent, Oest, is so

entitled because he was not aware of any conflict of

interest. As for Vicini and Lunn, there was no federal

law clearly establishing that a biased person causing a

teacher to be reported to the police, DCFS or similar

entity would violate her constitutional rights when that

entity would conduct an independent investigation to

determine the validity of the accusation against her. Vicini

and Lunn are therefore entitled to qualified immunity

and, hence, summary judgment.

Nos. 09-1098 & 09-1101 27

Finally, the record in the present case, even viewed in

the light most reasonable to the plaintiff, establishes that

Bernabei had probable cause to arrest Purvis as a matter

of law and that there was no constitutional violation.

Thus, we reverse the district court’s decision not to

grant summary judgment in favor of Bernabei.

The judgment of the district court is therefore

R EVERSED.

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