Atkins v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2998

B RANDIE A TKINS, as administrator of the estate of

William O. Atkins, deceased,

Plaintiff-Appellant,

v.

C ITY OF C HICAGO, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 6109—Milton I. Shadur, Judge.

A RGUED S EPTEMBER 8, 2010—D ECIDED JANUARY 25, 2011

Before P OSNER, M ANION, and H AMILTON, Circuit Judges.

P OSNER, Circuit Judge. This is the second appeal from

the dismissal of a federal civil rights suit. 42 U.S.C. § 1983.

The district court initially dismissed it under Rule 25(a)(1)

of the Federal Rules of Civil Procedure, on the ground

that the motion to substitute the plaintiff’s widow

for the (original) plaintiff, who died while the suit was

pending, was untimely. We reversed, 547 F.3d 869 (7th

2 No. 09-2998

Cir. 2008), instructing the district judge to allow the

substitution. That kept the case alive, but the judge has

again dismissed it, this time on the merits—he ruled

that the complaint failed to state a claim. Hence this

second appeal.

In October 2003 Chicago police stopped a car in which

William O. Atkins, the plaintiff’s decedent, was a pas-

senger, and arrested him on the strength of a parole-

violation warrant bearing the name “William Atkins.”

He was held at the police station overnight and then

transferred to the custody of the Illinois Department of

Corrections, which placed him in Stateville prison. From

the moment of his arrest he steadfastly denied that he

was the William Atkins named in the warrant, but alter-

natively and inconsistently claimed that he was indeed

the same Atkins but that his parole had expired, so that

he could not have violated it—which seems in fact to be

the case.

Released from the Department’s custody after 37 days

when the parole board acknowledged that he was being

detained in error, Atkins sued the arresting offi-

cers, who are employees of the City of Chicago, plus

the City itself, prison guards at Stateville, and other

employees of the Department of Corrections. The

state defendants are accused of having unjustifiably

protracted a mistaken detention and imposed impermis-

sible hardships during the detention, all in violation of

rights conferred by the due process clause of the Four-

teenth Amendment. The charge against the City de-

fendants is that the arrest was unconstitutional be-

No. 09-2998 3

cause it was not based on probable cause; and we’ll start

there.

When arrested, Atkins denied that he was the William

Atkins named in the warrant and noted discrepancies

between his identifying characteristics and the descrip-

tion in the warrant. Although both Atkinses were of

the same race and sex and had the same first and last

names, our William Atkins was slightly taller and some-

what heavier than the person described in the warrant

and had a middle initial, which the name on the warrant

lacked. But oddly—if they were different people—the

month and day of their birth (though not the year) were

the same and the first three digits of their social

security numbers were also the same.

The police did not have probable cause to stop the

vehicle in which our William Atkins was riding, but clearly

if he was the William Atkins named in the warrant the

illegality of the stop did not invalidate the arrest. United

States v. Johnson, 383 F.3d 538, 544-45 (7th Cir. 2004); United

States v. Green, 111 F.3d 515, 521 (7th Cir. 1997); contra,

United States v. Lopez, 443 F.3d 1280, 1285-86 (10th Cir.

2006). In Green we said the question was whether “the

causal chain has been sufficiently attenuated to dissipate

the taint of the illegal conduct,” 111 F.3d at 521, and in

like vein in Johnson we considered whether “a lawful

arrest based on any outstanding warrant for a passenger

in the vehicle constituted an intervening circumstance

that dissipated any taint caused by an initial traffic stop

that had lacked reasonable suspicion,” 383 F.3d at 544,

and concluded that it did. But a simpler way to justify

4 No. 09-2998

the result in those cases (and this one), without talking

about “taints” and “dissipation” and “intervening cir-

cumstances” (and what do those terms mean, really?), is

to note simply that the arrest was based on a valid

warrant rather than on anything turned up in the

illegal search. If police stopped cars randomly, looking

for persons against whom there were outstanding war-

rants, the drivers and passengers not named in warrants

would have good Fourth Amendment claims. But a

person named in a valid warrant has no right to be at

large, and so suffers no infringement of his rights when

he is apprehended unless some other right of his is in-

fringed, as would be the case had the police roughed up

Atkins gratuitously in the course of trying to determine

whether he was the person named in the warrant. Graham

v. Connor, 490 U.S. 386, 396-97 (1989); Catlin v. City of

Wheaton, 574 F.3d 361, 366 (7th Cir. 2009); Cortez v.

McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007) (en banc).

But that is not the plaintiff’s complaint.

Yet in the course of making an arrest on the basis of an

outstanding warrant the police may learn something

that shows that the warrant does not actually create

probable cause to arrest the person they’re arresting—

suppose the warrant in this case had identified the

person to be arrested as a woman, named Wanda

Atkinson. The police would know at a glance that the

William Atkins they were about to arrest was not the

person named in the warrant and if they arrested him

anyway it would be an illegal arrest because the

mistake would not be “understandable” or “the arrest a

reasonable response to the situation facing them at the

No. 09-2998 5

time.” Hill v. California, 401 U.S. 797, 804 (1971). As

nearly as we can determine, the police who made the

arrest made no mistake, as distinct from whoever failed

to notice that Atkins’s parole had expired before his

alleged violation of it. And if the police did make a

mistake, it was a reasonable one.

Anyway the plaintiff’s real complaint is not about the

initial error but about the time it took to correct it—the

state defendants are thus the main target. Atkins was

transferred from the Cook County jail to Stateville

within a day of his arrest, but it was another 36 days

before the prison released him, having finally satisfied

itself that he was not a parole violator. The complaint

alleges that he protested continuously against his deten-

tion.

Due process requires government to follow reasonable

procedures for minimizing mistaken deprivations of

liberty. In determining what is reasonable “the court

must consider the weight of the interest at stake, the risk

of error, and the costs of additional process.” Hernandez

v. Sheahan, 455 F.3d 772, 777 (7th Cir. 2006); see Mathews

v. Eldridge, 424 U.S. 319, 334-35 (1976); cf. Sutton v. City

of Milwaukee, 672 F.2d 644, 645-47 (7th Cir. 1982). The

interest in liberty increases in weight the longer a

person is detained, and the accuracy of the procedures

for avoiding mistaken detentions that is constitutionally

required increases concomitantly. In the case of persons

arrested for violating parole, a preliminary hearing to

determine probable cause must be conducted “as

promptly as convenient after arrest while information is

6 No. 09-2998

fresh and sources are available,” and a plenary hearing

must be held within a “reasonable time after the parolee

is taken into custody”—normally two months. Morrisey

v. Brewer, 408 U.S. 471, 484-88 (1972). Parole proceedings

are traditionally administrative rather than judicial, so

the hearing need not be held before a judicial officer. Id.

at 486. Illinois’s procedures, codified at 20 Ill. Admin.

Code § 1610.140, comply with the standard set forth in

the Morrisey case. Faheem-El v. Klincar, 841 F.2d 712, 722-

23 (7th Cir. 1988) (en banc).

Atkins had a preliminary hearing on the seventh day

after his arrest but failed to persuade the hearing officer

that it was a case of misidentification. He muddied the

waters by arguing that he should be released because

his parole had expired. Probably it had expired, but to

offer contradictory grounds was bound to arouse

the hearing officer’s suspicion. Alternative pleading is

permissible but a person who says both that I am not the X

named in the parole-violation warrant and I am that X

but my parole expired is calling himself a liar. The

hearing officer’s failure to find misidentification thus

was reasonable.

The full hearing took place 29 days later, and Atkins

was released on that day. The delay was well within the

two-month deadline set by the Brewer case. The plaintiff

contends that guards and miscellaneous prison staff

have a continuing constitutional duty, even when there

are constitutionally adequate formal administrative

remedies against unjustified imprisonment, to con-

duct an exhaustive investigation of a prisoner’s claim

No. 09-2998 7

of misidentification. Prisons would be unmanageable if

the contention were accepted. “Given the requirements

that arrest be made only on probable cause and that one

detained be accorded a speedy trial, we do not think a

sheriff executing an arrest warrant is required by the

Constitution to investigate independently every claim

of innocence, whether the claim is based on mistaken

identity or a defense such as lack of requisite intent. Nor

is the official charged with maintaining custody of the

accused named in the warrant required by the Constitu-

tion to perform an error-free investigation of such a

claim. The ultimate determination of such claims of

innocence is placed in the hands of the judge and the jury.”

Baker v. McCollan, 443 U.S. 137, 145-46 (1979). We have

rejected a rule “under which every deputy [sheriff] must

be open to persuasion for as long as a person is in cus-

tody.” Hernandez v. Sheahan, supra, 455 F.3d at 777. Such

a rule “would create a substantial possibility that by

presenting his contention over and over even a guilty

suspect would eventually find a deputy who did not

understand the weight of the evidence and let him go.

That would frustrate the public interest in carrying out

the criminal law.” Id.; see also Askew v. City of Chicago,

440 F.3d 894, 895 (7th Cir. 2006); Pasiewicz v. Lake County

Forest Preserve District, 270 F.3d 520, 524 (7th Cir. 2001).

One could argue for drawing a distinction between a

person arrested for a parole violation who denies he

violated his parole and a person arrested for a parole

violation who denies that he is the person named in the

arrest warrant. The fact that parole violations are adjudi-

8 No. 09-2998

cated administratively is one of the terms of parole, and

by accepting parole a prisoner accepts the procedures,

held constitutional by the Supreme Court, for adjudicating

parole violations. “Revocation deprives an individual, not

of the absolute liberty to which every citizen is entitled, but

only of the conditional liberty properly dependent on

observance of special parole restrictions.” Morrissey v.

Brewer, supra, 408 U.S. at 480. But a person arrested for a

parole violation who had not actually been named in the

arrest warrant—who might never have been convicted of

a crime, and therefore never have been paroled, in his

life—is not someone who accepted administrative adjudi-

cation as the price of parole. He could therefore argue

for the same right as a person arrested on other grounds—

the right to a judicial (not administrative) determination

of probable cause to hold him, conducted within two days

(not seven days) of the arrest, as required by County of

Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991), and

Gerstein v. Pugh, 420 U.S. 103, 125 (1975); cf. Hernandez v.

Sheahan, supra, 455 F.3d at 777; Patton v. Przybylski, 822

F.2d 697, 700-01 (7th Cir. 1987); Brown v. Patterson, 823 F.2d

167, 169 (7th Cir. 1987); Fed. R. Crim. P. 32.1(a)(1). The

argument could be bolstered by noting that Illinois law

allows parole-violation warrants to be issued by parole

officials, without any involvement of a judicial officer.

730 ILCS 5/3-14-2(c), -2(c-1); People ex rel. Johnson v. Pate,

265 N.E.2d 144, 146 (Ill. 1970); People ex rel. Jefferson v.

Brantley, 253 N.E.2d 378, 379 (Ill. 1969).

Against this it can be argued that to entitle a person

who is arrested for violating parole and claims mis-

No. 09-2998 9

taken identity to a judicial hearing would give every

such arrestee a right to two hearings: a judicial hearing

to verify his identity (for he could always deny that he

was the person named in the warrant, though he would

risk punishment for perjury if were lying) and, if his

claim of mistaken identity was rejected, an administra-

tive hearing to determine whether he had in fact

violated his parole. Before a new constitutional right is

declared, it would be prudent to inquire into the

relative merits of judicial and administrative determina-

tions of identities of alleged parole violators. We

shouldn’t disparage factfinding by nonjudicial hearing

officers; much factfinding is delegated to them, on the

theory that specialization in adjudicating a particular

type of legal dispute may offset any disadvantages

flowing from the lesser independence of such officers.

And it is not always lesser: Illinois judges, unlike the

parole board’s hearing officers, are elected. Nor are

issues of mistaken identity fraught with legal subtleties

that only judges can plumb. It is far from clear, therefore,

that there would be a gain in accuracy from requiring

a judicial hearing on top of the administrative hearing

that is already required, let alone a gain great enough

to outweigh the administrative burden that such a re-

quirement would place on the state—a state that happens

to be on the brink of bankruptcy, if not over the brink.

In any event, there is no need to decide in this case

whether there might be a constitutional entitlement to a

judicial hearing in cases of alleged mistaken identity

of parole violators. For even if the question were

answered in the plaintiff’s favor, it would not warrant

10 No. 09-2998

any relief. The question is novel, and the defendants

therefore protected from liability for damages for

possibly answering it incorrectly by the doctrine of quali-

fied immunity. Narducci v. Moore, 572 F.3d 313, 318 (7th

Cir. 2009); see Pearson v. Callahan, 129 S. Ct. 808, 818-22

(2009).

We are left with the claim that Atkins was so badly

mistreated at Stateville that he was deprived of liberty

without due process of law.

The complaint alleges that when he arrived at Stateville

he was wearing a diamond stud in one of his ears. He

swallowed it “to prevent the defendants from stealing

his property.” He was then “placed in a cell naked with-

out a mattress, sheets, blankets, or water until [he] defe-

cated his earring.” We haven’t been told why the prison

wanted the earring, but probably prisoners are for-

bidden to wear jewelry, as it would invite theft and

brawls, and jewelry often has sharp edges or a sharp pin

and so can be used as a weapon. Rowland v. Jones, 452

F.2d 1005, 1006 (8th Cir. 1971) (per curiam). The com-

plaint does not question the propriety of the defendants’

insistence on recovering the earring, only the indignities

allegedly inflicted on Atkins in the four days that he

spent in a “dry cell” before the earring emerged.

The most serious indignities alleged—the only ones that

might state a claim of constitutional magnitude—are that

he was “denied drinking water and/or food for several

days.” Depriving a person of food for four days would

impose a constitutionally significant hardship, Reed v.

McBride, 178 F.3d 849, 853-54 (7th Cir. 1999); Foster v.

No. 09-2998 11

Runnels, 554 F.3d 807, 814-15 and n. 5 (9th Cir. 2009);

Simmons v. Cook, 154 F.3d 805, 808 (8th Cir. 1998); de-

priving him of all liquids for four days would be far

worse. “A human can be expected to survive for weeks

without food, but a thirsty person deprived of water

would last [only] a matter of days.” Jessica Hamzelou, “Nil

By Mouth,” New Scientist, Apr. 16, 2010, p. 37; see also

Survival Topics, “How Long Can You Survive Without

Water?” www.survivaltopics.com/survival/how-long-can-

you-survive-without-water/ (visited Jan. 19, 2011).

Although “several days” could as a semantic matter

be more than four, the allegation that Atkins was “placed

in a cell naked without a mattress, sheets, blankets, or

water until [he] defecated his earring” (emphasis added)

implies that these deprivations would end when the

earring finally emerged, and that, the complaint alleges,

was on the fourth day. The complaint also alleges that

Atkins “agreed to drink milk to cause the defecation,

though he was lactose intolerant,” so he was not

denied liquids for four days; his complaint contains an

internal contradiction. If he defecated on the fourth day,

he must have drunk milk earlier that day, or on a

previous day.

The allegation that he was deprived of food and water

for several days is not inconceivable, which is the tradi-

tional standard for rejecting factual allegations in a com-

plaint out of hand and dismissing the suit, as illustrated

by Best v. Kelly, 39 F.3d 328, 330 n. 3 (D.C. Cir. 1994),

which approved the dismissal of a claim that a “Branch

of the Government, took my Face off of my Head, went

12 No. 09-2998

into my Scull & Put a Computer Chip of some kind & a

Camera System which makes me Project Images or Pitch-

ers, many Feet in Front of me.” A nd in Lee v. Clinton, 209

F.3d 1025, 1025 (7th Cir. 2000), we upheld the dismissal

of “two insane complaints charging the United States

and China with a conspiracy to ‘bio-chemically and bio-

technologically infect and invade’ various people in-

cluding Lee with a mind reading and mental torture

device that Lee calls ‘Mind Accessing and Torturing via

Remote Energy Transferring (MATRET).’ To elude

MATRET, Lee claims to have developed a variety of

space technologies, oddly including an email system and

nanny services, that will enable the victims of MATRET

to relocate to MATRET-free planets.” The claims de-

scribed in Best and Lee fall into the category of the “essen-

tially fictitious,” a category of claims that does not

engage the jurisdiction of the federal courts. Bailey v.

Patterson, 369 U.S. 31, 33 (1962); see Hagans v. Levine, 415

U.S. 528, 536-37 (1974). It would be strange to think that

such cases could not be dismissed without putting the

parties to the burden of further pleading, of discovery, and

perhaps even of trial (though such trials would be fun).

The allegation about Atkins’s being deprived of food

and water for four days is not in that class. It is not impos-

sible; it is merely implausible. But it is highly implausible.

Remember that the indignities to which the prison

guards allegedly subjected Atkins are said to have been

incidental to their desire to recover his earring. Depriva-

tion of food and liquids would retard rather than ac-

celerate the fulfillment of that desire. And we know that

he was not denied all liquids, which is the pertinent

No. 09-2998 13

category (not water), because the complaint alleges that

he drank milk. In addition there is no allegation that he

incurred any physical injury from the alleged deprivations.

All three amended complaints imply, fantastically, that

Atkins was forced to remain naked for the entire 37 days

of his incarceration, for they state that the defendants

violated his civil rights by “forcing him to remain naked

in a cell” (emphasis added). But even if all that is meant

is that he was intermittently forced to remain naked,

this is hard to believe. Nor is the nakedness alleged

merely incidental to the conducting of frequent strip

searches, for that is a separate allegation, and the allega-

tion that he was forced to remain naked is bracketed

with an allegation that the defendants “den[ied] him

clothes.”

There is also a curious evolution of allegations in suc-

cessive iterations of the complaint. The initial complaint,

though it alleged that Atkins had been denied drinking

water until he defecated his earring, did not mention

any deprivation of food but instead alleged that “for the

first couple of days at Statesville [sic], [he] did not eat

because the defendants wrongfully desired to obtain

[his] earring.” This suggests that any deprivation of food

was short-lived and self-inflicted.

The four successive complaints are riddled with contra-

dictions. And they are not pro se complaints. They

were drafted by the plaintiff’s lawyer. We have noted

that the original complaint didn’t mention deprivation

of food by the prison as distinct from Atkins’s refusing

to eat for two days. The first amended complaint dropped

14 No. 09-2998

all reference to deprivation of food or drink, while the

second amended complaint restored the claim that Atkins

had been “denied drinking water” but said nothing

about food. Not until the third amended complaint do

we read that Atkins was denied “food and/or water,”

which still leaves unclear whether it was one or both.

And the response to the defendants’ motion to dismiss

that complaint muddied the waters further by stating

that the defendants had “deprived him of water and/or

food for several days and [made] him drink milk.” Milk

is not water, but it is a substitute for water. The plain-

tiff’s final submission to the district court listed all the

ways in which the “defendants forced [Atkins] to

endure unconstitutional mistreatment” but did not in-

clude in the list deprivation of food or water.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), require that a

complaint be dismissed if the allegations do not state a

plausible claim. The Court explained in Iqbal that “the

plausibility standard is not akin to a ‘probability require-

ment,’ but it asks for more than a sheer possibility that

a defendant has acted unlawfully.” Id. at 1949. This is a

little unclear because plausibility, probability, and pos-

sibility overlap. Probability runs the gamut from a zero

likelihood to a certainty. What is impossible has a zero

likelihood of occurring and what is plausible has a moder-

ately high likelihood of occurring. But one sees more or

less what the Court was driving at: the fact that the allega-

tions undergirding a plaintiff’s claim could be true is no

longer enough to save it. Twombly and Iqbal do not

reject the principle that when a complaint is dismissed

No. 09-2998 15

for failure to state a claim the reviewing court is to

assume that the factual allegations made in the com-

plaint (unless fantastic, or contradicted in the complaint

itself or in documents attached to it) are true. But

the complaint taken as a whole must establish a

nonnegligible probability that the claim is valid, though

it need not be so great a probability as such terms as

“preponderance of the evidence” connote. Iqbal like this

was a case in which the defendants were public officers

entitled to immunity from damages liability if they were

acting in good faith. The earlier a case is dismissed, the

more meaningful the immunity.

When the Court said in Iqbal “we do not reject these

bald allegations on the ground that they are unrealistic

or nonsensical,” id. at 1951, it didn’t mean that nonsensical

allegations can survive a motion to dismiss; that wasn’t

the rule even before Twombly and Iqbal. The point was

rather that the allegations in Iqbal, though somewhat

paranoid, were not nonsensical; nevertheless the Court

ordered dismissal.

After Twombly and Iqbal a plaintiff to survive dis-

missal “must plead some facts that suggest a right to

relief that is beyond the ‘speculative level.’ ” In re

marchFIRST Inc., 589 F.3d 901, 905 (7th Cir. 2009). And

(another rule that antedates Twombly and Iqbal) he can

plead himself out of court by pleading facts that show

that he has no legal claim. Hecker v. Deere & Co., 556

F.3d 575, 588 (7th Cir. 2009); Tamayo v. Blagojevich, 526

F.3d 1074, 1086 (7th Cir. 2008); EEOC v. Concentra Health

Services, Inc., 496 F.3d 773, 777 (7th Cir. 2007); Orthmann

16 No. 09-2998

v. Apple River Campground, 757 F.2d 909, 915 (7th Cir. 1985);

Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006). So

suppose some of the plaintiff’s factual allegations are

unrealistic or nonsensical and others not, some contra-

dict others, and some are “speculative” in the sense of

implausible and ungrounded. The district court has to

consider all these features of a complaint en route to

deciding whether it has enough substance to warrant

putting the defendant to the expense of discovery, Bell

Atlantic Corp. v. Twombly, supra, 550 U.S. at 558-59;

Francis v. Giacomelli, 588 F.3d 186, 193 and n. 2 (4th Cir.

2009), or, in a case such as this (like Iqbal itself), burdening

a defense of immunity. Ashcroft v. Iqbal, supra, 129 S. Ct. at

1953-54; Smith v. Duffey, 576 F.3d 336, 339-40 (7th Cir.

2009); Amore v. Novarro, 624 F.3d 522, 529-30 (2d Cir.

2010); Fletcher v. Burkhalter, 605 F.3d 1091, 1095-96 (10th

Cir. 2010).

We are left in darkness as to whether the plaintiff is

actually alleging that Atkins was denied food or water

for four days, or for a lesser, but still constitutionally

significant, length of time. The plaintiff’s lawyer has had

four bites at the apple. Enough is enough. United States

ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378-

79 (7th Cir. 2003).

All this is apart from the futility of the suit. Atkins is the

only witness for the plaintiff, and Atkins is dead. His

widow would be happy to testify to what he told her

had happened to him, but her testimony would be inad-

missible hearsay. There is no other evidence to support

the charge of unconstitutional conditions of confinement,

No. 09-2998 17

and no suggestion that any defendants, or other members

of the prison staff, are prepared to support the plaintiff’s

version of the facts—or, should we say, any one of the

plaintiff’s versions.

The district court was correct to dismiss the suit.

A FFIRMED.

H AMILTON, Circuit Judge, concurring in part and con-

curring in the judgment. I join the majority opinion in

affirming the dismissal of Atkins’ claims regarding his

arrest and the conditions of his detention. I would

resolve differently, however, Atkins’ due process claim

against the individual state officials. In my view, Atkins

alleged sufficiently that he was deprived of liberty with-

out due process of law when he was held by the state

for more than 48 hours without a hearing before a

judge. He was entitled to a hearing in which he could

have shown that he was not the same William Atkins

sought on the parole violation warrant or, if perhaps

he was indeed the William Atkins sought (we cannot tell

from the sparse record), that he was no longer on parole

at the time of the alleged violation. I agree with my col-

leagues, however, that the individual defendants are

entitled to qualified immunity on that claim because

18 No. 09-2998

the law was not and still is not sufficiently clear to

impose individual liability under 42 U.S.C. § 1983.

I therefore concur in the judgment to affirm dismissal

of the claim.

This case has been unnecessarily challenging because,

as my colleagues point out, the attorney for the late

Mr. Atkins has buried one solid claim in a crowd of

hopeless claims against virtually every potential defen-

dant in sight. The suggestion, for example, that every

prison or jail employee risks personal liability if he does

not investigate an inmate’s claim of innocence is beyond

frivolous. Despite these distractions, there is a real and

serious due process problem in the possibility for mis-

taken identifications under parole violation warrants.

The problem is this. Law-abiding persons often have

encounters with police officers during which they

provide basic identifying information. The police are

free to check this information against any outstanding

warrants, including those for parole violations. Suppose

that, during that check, the police come across a war-

rant bearing the same name and some other identifying

information. Even if the identifying information does

not match perfectly, as it did not in Atkins’ case, the

police officers on the scene may reasonably arrest the

person over his protests that he is a different person.

So far, none of this is controversial, but we know that

mistakes are made in such arrests. What process is due

to the person who claims he has been wrongly identified?

Typically, a person arrested without a warrant from a

magistrate is entitled to (1) a hearing (2) before a judicial

No. 09-2998 19

officer where a wrong identification could be addressed

(3) “promptly after arrest.” See Gerstein v. Pugh, 420

U.S. 103, 125 (1975). Under this promptness standard,

“judicial determinations of probable cause within 48

hours of arrest will, as a general matter,” suffice unless

the prisoner can prove unreasonable delay. County of

Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991); but see

id. at 71 (Scalia, J., dissenting) (“Hereafter a law-abiding

citizen wrongfully arrested may be compelled to await

the grace of a Dickensian bureaucratic machine, as it

churns its cycle for up to two days—never once given

the opportunity to show a judge that there is absolutely

no reason to hold him, that a mistake has been made.”).

This 48-hour standard is well-established. State courts

and local police and jail officers comply with it routinely.

A law-abiding citizen who has been misidentified is

therefore vulnerable to only a relatively brief detention

before he may insist on having a judge take a close look

at a claimed misidentification.

The process due to a parolee arrested on a charge of

parole violation is quite different. In such cases, a prelimi-

nary hearing “to determine whether there is probable

cause” to detain the arrestee need be held only “as

promptly as convenient after arrest while information

is fresh and sources are available.” Morrissey v. Brewer,

408 U.S. 471, 485 (1972). In Atkins’ case, it was a full

seven days before he had even that preliminary hearing.

Delays as long as 24 days between the arrest and even

the preliminary hearing are constitutionally permissible,

even without any showing of emergency or extraordinary

circumstance. See Faheem-El v. Klincar, 841 F.2d 712, 714-

20 No. 09-2998

15, 723 (7th Cir. 1988) (en banc). While the probable

cause determination “should be made by someone not

directly involved in the case,” the hearing officer “need

not be a [neutral and detached] judicial officer” and may

be an administrative official such as a parole officer.

Morrissey, 408 U.S. at 485-86.

The reason we tolerate the slower and different proce-

dures for parolees is precisely because they are parolees.

They have already been convicted of a crime through

the full processes of the criminal law. Their interest in

liberty is much more limited than for the vast majority

of citizens who are not on parole. These limitations and

their importance to the due process calculus are woven

throughout the Supreme Court’s opinion in Morrissey,

which balanced competing interests and found the

slower, more limited procedures permissible for parole

revocation proceedings. “Revocation deprives an indi-

vidual, not of the absolute liberty to which every citizen

is entitled, but only of the conditional liberty properly

dependent on observance of special parole restrictions.”

408 U.S. at 480.

When Atkins was arrested, though, the pivotal issue

was whether he was actually an individual on parole.

Morrissey and its progeny dealing with parolees never

address this narrow issue. Those cases all operate on the

justifiable assumption that the right person has been

arrested—someone actually on parole, subject to restric-

tions on liberty. That’s precisely why those decisions

tolerate the slower review processes. That reasoning

simply does not extend to the issue of what processes are

No. 09-2998 21

necessary to determine whether an arrested person is

actually on parole. If that question of identity—is the

arrested person actually the parolee sought by the

warrant?—is subject to only the much slower Morrissey

procedures, then any law-abiding citizen faces not just

48 hours of detention, decried by Justice Scalia but

accepted by a majority of the Supreme Court in

McLaughlin, but perhaps weeks of unjustified detention

without any right to a hearing before a judge.

Because an arrestee’s identity—parolee or average

citizen—determines whether he is entitled to the 48-hour

Gerstein-McLaughlin processes or the much slower

Morrissey processes, I conclude on the merits of Atkins’

case that due process of law requires greater procedural

protection to guard against cases of mistaken identity

in the context of parole-violation warrants. Cf. Patton v.

Przybylski, 822 F.2d 697, 700-01 (7th Cir. 1987) (noting that

“to arrest a person over his vigorous protest that he is

the wrong man . . . and keep him in jail [for almost a

week] without either investigating the case or bringing

him before a magistrate raises serious constitutional

questions . . . under the due process clause”); Brown v.

Patterson, 823 F.2d 167, 169 (7th Cir. 1987) (“[A] prolonged

confinement of an arrested person without a hearing

to determine whether he is the person named in the

warrant would be a deprivation of liberty without due

process of law . . . .”).

To decide how much process is due, the familiar three-

part Mathews v. Eldridge analysis provides the framework.

424 U.S. 319, 334-35 (1976). We consider (1) the private

22 No. 09-2998

interest that will be affected by the government action;

(2) the risk of an erroneous deprivation with the proce-

dures in place and the probable value of different proce-

dures; and (3) the government’s interest, including the

costs of different procedures. See Hernandez v. Sheahan,

455 F.3d 772, 777 (7th Cir. 2006) (applying Mathews to

analysis of detainee’s claim of mistaken identity after he

had appeared before judge).

First, the private interest at stake here is significant:

basic liberty, for a period that can be measured in weeks.

While an innocent person is being held in prison for

weeks, his entire life can be disrupted—by loss of a job,

inability to support and care for loved ones, inability to

tend to financial affairs, and on and on. That is why

Gerstein and McLaughlin tolerate no more than 48 hours

delay before an arrestee must be brought before a judge.

But an arrestee mistakenly identified as a parole violator

may be wrongfully incarcerated without a hearing for

much longer than the 48 hours tolerated for ordinary

arrests.1

1

The difference between the permissible initial detention

times before a preliminary hearing for average citizens

(two days) and parolees (the 24 days we found acceptable in

Faheem-El) is enough to distinguish those cases rejecting

requests for stricter jailhouse procedures to prevent

misidentifications in the context of the typical warrantless

arrest. See, e.g., Hernandez, 455 F.3d at 775 (“a police depart-

ment is not required to be credulous but may limit its atten-

tion to information it deems reliable—especially because

(continued...)

No. 09-2998 23

Second, while the risks of an error are difficult to quan-

tify on this record, where the claim was resolved without

a trial, they are likely to be significant. Justice Stevens

suggested in a similar case that the risk of misidentifica-

tions based on coincidental similarity of names, birthdays,

and descriptions is “unquestionably substantial.” Baker

v. McCollan, 443 U.S. 137, 155-56 (1979) (Stevens, J. dis-

senting).2 In this case, the coincidence of the similar

birth dates and Social Security numbers may help to

explain plaintiff Atkins’ unfortunate experience.3 As my

colleagues point out, police officers on the street are

entitled to reasonable latitude in executing arrest war-

rants. See Patton, 822 F.2d at 699-700 (affirming dismissal

1

(...continued)

detention on the police department’s resolution cannot

exceed 48 hours”).

2

The man arrested in Baker v. McCollan was in fact the

person identified in an arrest warrant that had been issued by

a judicial officer. 443 U.S. at 140-41. The man’s brother had

stolen his identification and had given law enforcement

officials the wrong identity when he had been arrested. In

Atkins’ case, the parole violation warrant was issued not by a

judicial officer, but by parole officials.

3

The fact that the two William Atkinses shared the first three

digits in their Social Security numbers does not help with

identification. It means only that both were assigned their

numbers in the same geographic region. See Social Security

Administration, Frequently Asked Questions, Answer #18,

www.ssa.gov/history/hfaq.html (last visited Jan. 19, 2011).

24 No. 09-2998

of claim against police officer who arrested person with

same name, race, and year of birth as person in war-

rant, but with different date of birth and address); see

generally California v. Hill, 401 U.S. 797, 803-04 (1971)

(police acted reasonably and in good faith in arresting

the wrong person). This is because law enforce-

ment officers making arrests in the field will often have

little information at hand to be absolutely sure whether

they have arrested the proper individual.

The logical and practical consequence of giving police

officers room to make mistakes is that there will be more

mistakes. More innocent people will be arrested. And

when, as was the case here, one unit of government (the

City of Chicago) makes an arrest on behalf of another

unit of government (the State of Illinois), the risk of

miscommunications and mistaken identifications is en-

hanced.

Regarding the third Mathews factor, the government’s

interests do not weigh against a prompt judicial hearing

to determine whether a person arrested on a parole war-

rant is in fact the parolee sought. The government has a

powerful interest in speedy, accurate resolutions of

alleged misidentifications. If the wrong person has been

arrested on the warrant, it means that the right person

remains at large, possibly endangering others. Moreover,

it would not unreasonably burden government resources

to make a quick determination whether an individual

arrested on a parole violation warrant is the same person

whose parole is already being closely monitored by the

authorities. Parolees have already been convicted. All

No. 09-2998 25

of their pertinent identifying information should be

readily available from the original incarceration. Probable

cause to believe the person being held is the parolee

sought could often be established by as little as the testi-

mony of the supervising parole officer.4 This case il-

lustrates the ease with which a misidentification of a

parolee can be confirmed. According to the Prisoner

Review Board’s eventual order to release Atkins from

custody, “documents and a call to the records office”were

enough to confirm that Atkins was not in fact on parole.

Upon weighing the three Mathews factors, I believe that

due process requires some minimal judicial procedures

to ensure against mistaken misidentifications in the

context of parole violation warrants. This is not a radical

conclusion—the Federal Rules of Criminal Procedure

already provide this basic protection to persons arrested on

federal warrants for violation of supervised release (equiv-

alent to parole for these purposes) or probation. Rule

32.1(a)(1) requires that a person “held in custody for

violating probation or supervised release must be taken

without unnecessary delay before a magistrate judge.”

And when the person is in custody in a different federal

4

On our limited record, we are left to wonder where the

suspected Atkins’ parole officer was during the five weeks

that plaintiff Atkins was in custody. That officer presumably

could have straightened out this matter immediately. Ac-

cording to the hearing officer’s report of findings made

after Atkins’ preliminary parole violation hearing, however,

the only person who testified at that preliminary hearing

was plaintiff Atkins himself.

26 No. 09-2998

court district, the rule specifically requires the magistrate

judge to find whether “the person is the same person

named in the warrant.” Fed. R. Crim. P. 32.1(a)(5)(B)(ii).

I am not suggesting that every detail of Rule 32.1 is consti-

tutionally mandated, but a prompt appearance before

a judge is needed to provide the process due when there

is a claimed misidentification of the person in custody.5

My colleagues ultimately decline to decide the merits of

Atkins’ due process claims but rely on the defense of

qualified immunity to affirm the dismissal. I agree that

qualified immunity applies and therefore concur in that

portion of the opinion and in the judgment. But I believe

5

Baker v. McCollan, 443 U.S. 137 (1979), does not lend support

to the procedures used here. The Supreme Court held in

Baker that the person named in an arrest warrant issued by a

judicial officer did not have a viable § 1983 claim against the

sheriff who kept him in custody under the warrant without

bringing him before a court over a three-day holiday weekend.

Crucial to the Court’s analysis in Baker was the fact that the

arrest had been made based on a warrant issued by a judge.

Id. at 143-44. Baker also relied on the “reasonable division of

functions between law enforcement officers, committing

magistrates, and judicial officers” in the constitutional system,

id. at 145, but there is no such division of labor in the Illinois

parole system. Parole violation warrants may be issued in

Illinois without involving any judicial officers at all. 730 ILCS

5/3-14-2(c) & (c-1); see People ex rel. Johnson v. Pate, 265 N.E.2d

144, 146 (Ill. 1970). Baker also relied on the fact that “one de-

tained [must] be accorded a speedy trial.” 443 U.S. at 145.

A hearing before a parole officer or a parole board is not the

“trial” contemplated in Baker.

No. 09-2998 27

that we should address the merits, for both substantive

and procedural reasons.

The substantive reasons are those I have explained

above. My colleagues suggest, however, that we should

know more about the relative merits of judicial and ad-

ministrative decision-making before reaching the con-

clusion on the merits. After all, perhaps these identifica-

tion issues are straightforward and suitable for adminis-

trative decision-making. Both judges and parole officials

can make mistakes. The same argument could have

been made in Gerstein and McLaughlin, however. The

Supreme Court weighed the relevant constitutional in-

terests in Gerstein and McLaughlin, and it chose judicial

decision-making for good reasons. Gerstein and

McLaughlin tell us that persons in the United States

cannot be held in custody for more than 48 hours with-

out requiring executive branch officials—like police or

parole officers—to convince a judicial officer that there

is good reason to hold the person. That rule does not

disparage the abilities of executive decision-makers. The

rule simply insists that executive branch actions to

deprive a person of basic liberty must be subject to im-

mediate and independent review. The rule recognizes

human and institutional fallibility, as well as the value

of review and accountability. Cf. Johnson v. United States,

333 U.S. 10, 13-14 (1948) (enforcing search warrant re-

quirement of the Fourth Amendment: “The point of the

Fourth Amendment . . . is not that it denies law enforce-

ment the support of the usual inferences which reason-

able men draw from evidence. Its protection consists in

requiring that those inferences be drawn by a neutral and

detached magistrate. . . .”).

28 No. 09-2998

If my conclusion on the merits of Atkins’ claim is not

correct, then an innocent, law-abiding person could be

sent to prison without ever having a fact-finding hearing

before a judge, let alone a jury trial. Morrissey allows

administrative decision-makers to conduct both the

preliminary and plenary hearings to revoke parole. 408

U.S. at 485-88. Judicial review can be limited to deferential

review of the discretionary administrative decision. See

Black v. Romano, 471 U.S. 606, 611-12 (1985) (identifying

due process requirements that courts can enforce); Luther

v. Molina, 627 F.2d 71, 75-76 (7th Cir. 1980) (decision to

revoke parole was subject to deferential judicial review

under Administrative Procedures Act). We accept those

procedures for those who have already been convicted

of a crime and have then been granted parole (or super-

vised release, the modern federal parallel). But since

Gerstein, courts have never held such procedures as suf-

ficient to deprive an unconvicted person of his or her

liberty for more than 48 hours.

My colleagues’ doubts about the choice of decision-

maker also do not address the timing issue. Gerstein

and McLaughlin show us that the outer boundary for

executive-branch detention, in all but the most unusual

cases, is 48 hours. For persons actually on parole, we

have held that detention for as long as 24 days is permis-

sible without even a preliminary hearing before a parole

official. Faheem-El, 841 F.2d at 714-15, 723. I think that

result is clearly unconstitutional, under Gerstein and

McLaughlin, as applied to a person who is not actually

on parole.

No. 09-2998 29

There are also sound procedural reasons for deciding

the merits before deciding qualified immunity here. After

Pearson v. Callahan, 129 S. Ct. 808 (2009), we are not re-

quired to decide the merits before we decide qualified

immunity, but the choice is left to our sound discretion.

The two-step process set forth in Saucier v. Katz, 533 U.S.

194 (2001)—decide the merits and then qualified immu-

nity—is “often beneficial” in promoting the development

of constitutional precedent, especially with respect to

“questions that do not frequently arise in cases in which

a qualified immunity defense is unavailable.” Pearson,

129 S. Ct. at 818. This case fits that description.

Unless and until this view of the merits is accepted, law-

abiding citizens who are not on parole remain vulnerable

to lengthy deprivations of liberty without due process of

law and without effective remedy. Individual defendants

will be protected from damages liability by qualified

immunity, while state governments are protected from

damages liability by the limits of 42 U.S.C. § 1983 and the

Eleventh Amendment. See Will v. Michigan Dep’t of State

Police, 491 U.S. 58 (1989). It will also be difficult to find

an appropriate plaintiff in a case seeking injunctive or

declaratory relief. Surely few law-abiding citizens

would have in advance a well-founded fear of being

subjected to the treatment that Atkins alleged. To obtain

prospective relief, even someone who has experienced

such treatment by mistake might well need to show that

he has an objectively reasonable fear of being subjected

to it again, which I expect would be difficult. See, e.g.,

Los Angeles v. Lyons, 461 U.S. 95 (1983) (ordering dismissal

for lack of case or controversy; even if plaintiff was sub-

30 No. 09-2998

jected to illegal choke-hold by police in past, there was

no real and immediate threat that it would happen to

him again).

Returning to the specifics of this case, one of the mys-

teries here is why it took so long to straighten out Atkins’

identity and status. My colleagues suggest that Atkins

bears some responsibility for this because he gave incon-

sistent defenses at his preliminary hearing (before a

parole official, seven days after his arrest). The defenses

were, as far as I can tell, that the police had the wrong

man and that plaintiff Atkins’ earlier parole had expired.

I do not see those defenses as inconsistent. We have

some indication that plaintiff Atkins saw the com-

puterized information that the police relied on to arrest

him. If that is true, he could certainly have known

whether or not he was in fact the correct William Atkins.

Plaintiff Atkins also had in fact been on parole that

expired several years earlier. An honest person in his

predicament could quite reasonably volunteer that in-

formation to the hearing officer in the interest of full

disclosure.6

6

My colleagues also suggest that plaintiff Atkins was

probably the right William Atkins sought under the parole

arrest warrant. It is not clear how they reach that conclusion,

however. Perhaps the parole records had the wrong birth

date and the wrong Social Security number, making it only

appear that they described a William Atkins other than the

plaintiff. But it seems to me more likely, and at least equally

plausible, that with a name as relatively common as William

(continued...)

No. 09-2998 31

For these reasons, although the district court’s dis-

missal was correct based on qualified immunity, I would

also hold that Atkins alleged sufficiently that his right

not to be deprived of his liberty without due process of

law was violated when he was held for so long without

being brought before a judge to determine whether

there was probable cause to believe he was in fact on

parole and wanted under the parole violation warrant.

6

(...continued)

Atkins, there simply were two different people, the plaintiff

who had been on parole a few years earlier and another who

was on active parole in 2003. In light of the district court’s

dismissal, we should take that portion of the complaint at

face value and assume that the police arrested the wrong man.

1-25-11