Lawson v. Veruchi

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1318

JEFFERY A. L AWSON,

Plaintiff-Appellant,

v.

R OBERT V ERUCHI, D ETECTIVE, B ADGE N O . 167,

named in his individual capacity, and

C ITY OF R OCKFORD , an Illinois municipal corporation,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 08 C 50079—Frederick J. Kapala, Judge.

A RGUED S EPTEMBER 8, 2010—D ECIDED JANUARY 28, 2011

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

M ANION, Circuit Judge. Jeffery A. Lawson (“Jeffery A.”)

was arrested for assaulting Kimberly Colvin and held

in jail for more than one month before he was re-

leased when police learned the alleged culprit was

really Jeffrey W. Lawson (“Jeffrey W.”). Following his

release, Jeffery A. sued the officer who swore out his

2 No. 10-1318

arrest warrant, Rockford Police Detective Robert Veruchi,

as well as the City of Rockford (“Rockford”), under 42

U.S.C. § 1983. Jeffery A. alleged that Veruchi arrested

him without probable cause in violation of the Fourth

Amendment, and Rockford violated his constitutional

rights by not having policies in place to prevent such

wrongful arrests. Jeffery A. also alleged pendent state

law claims. The district court granted Veruchi and

Rockford summary judgment on the § 1983 claims and

then declined to exercise jurisdiction on the state law

claims. Jeffery A. appeals. We reverse.

I.

On June 9, 2007, Kimberly Colvin was in a Target store

in Rockford, Illinois, with her friend Genesis Matthiesen,

and Genesis’s younger siblings Arcadia Matthiesen and

Tony Franco. Inside the store, there was a verbal con-

frontation between Colvin and an unknown man and

woman. Colvin decided it was best to leave the store,

but as she and her friends got into her car in the Target

parking lot, they discovered that the couple had followed

them out. Colvin drove off, but at a stoplight she

exited her vehicle, apparently in order to write down

the couple’s license plate number. After seeing the un-

known man approaching her, Colvin tried to reenter

her car, but as she did so, he slammed the car door on

her head; Colvin suffered a long cut on one side of her

face requiring 40 to 50 stitches.

The next day, Colvin reported the incident to a patrol

officer in Rockford, describing the perpetrator as a

white male in his 40s, about six feet tall and approxi-

No. 10-1318 3

mately 190 pounds. Colvin also informed the officer that

her attacker drove a green vehicle and provided him

with the license plate number which Arcadia had typed

into her cell phone. The license plate was for a 2006

Saturn registered to a Donny Lawson in Rockford.

Detective Veruchi of the Rockford Police Department

was assigned to follow up on Colvin’s complaint. Veruchi

called the Donny Lawson residence and Patsy Lawson,

Donny’s wife, informed Veruchi that the Saturn be-

longed to her son Jeffrey W. and that she would have

him call Veruchi. Donny and Patsy Lawson’s son “Jeffrey

W.” is not the innocent “Jeffery A.” who is the plaintiff

in this case—notice the different spellings of the name

and different middle initials. We will use the different

spellings and middle initials throughout the opinion to

correctly identify the “Jeff” of whom we are speaking,

but obviously when the actors in this case spoke of

Jeffrey (or Jeffery) they did not specify the spelling of

the name or the middle initial.

After speaking with Patsy, but before hearing from

Jeffrey W., Veruchi received a telephone call from

Frank Montalbano who was a courtroom bailiff in

Rockford. Montalbano informed Veruchi that his

daughter Stephanie was Jeffrey W.’s girlfriend and that

Stephanie had told him that Jeffrey W. got into an alter-

cation with someone around the Target store over

the weekend. Montalbano stated that he would have

his daughter and Jeffrey W. call him. About thirty

minutes later, Jeffrey W. contacted Veruchi. After Veruchi

asked Jeffrey W. whether he was willing to come to

the police station to discuss the case, Jeffrey W. asked

4 No. 10-1318

how much trouble he was in. Veruchi told Jeffrey W.

they could discuss that when they met and Jeffrey W.

agreed to come in the following morning at 9:00 a.m.

However, the next day Jeffrey W. left a message

for Veruchi that he would not meet with him and that

Veruchi should contact his attorney Jeff Heckinger if

he had any questions.1

By this time, though, Veruchi had already arranged

to conduct a photo array with Colvin and Arcadia. (It

is unclear from the record why Veruchi did not

arrange to show the photo array to Tony Franco or

Genesis Matthieson.) To obtain a photograph of

Jeffrey W., Veruchi searched the Winnebago County Jail

system. The transcript of Veruchi’s depositions and the

defendants’ statement of undisputed facts state that

Veruchi looked up “Jeffrey Lawson” in the jail system.

It appears that this is an inadvertent error on the defen-

dants’ part and that they meant to assert that Veruchi

looked up “Jeffery Lawson” because that’s whose photo-

graph Veruchi put in the photo array, along with several

other photographs of similar looking men.2

1

Veruchi claims that he left a message for attorney Heckinger,

but Jeffery A. claims that that is impossible because Veruchi’s

police report incorrectly identified Jeffrey W.’s attorney as

Heckerson, and there is no attorney Heckerson in Rockford.

Attorney Heckinger also denied receiving any message from

Veruchi. Whether Veruchi ever called Heckinger, however,

is irrelevant to the question on appeal.

2

Apparently, Jeffery A. had a record and thus his photograph

appeared in the Winnebago County Jail system.

No. 10-1318 5

At this point, what happened is disputed and because

of the significance of the dispute, we provide a detailed

description of the opposing versions of events, excerpting

the relevant deposition testimony where helpful. Ac-

cording to Veruchi, after explaining the photo array

procedures to Colvin, he placed six photos in front of

her all at once. Veruchi maintains that Colvin identified

Jeffery A. as the person who had assaulted her, signed

the back of Jeffery A.’s photograph and initialed the

photographs of the other individuals in the lineup. In

his deposition, Veruchi testified that he showed the

same photo lineup to Arcadia Matthieson, again laying

all six photographs out on the table. Veruchi stated that

at first Arcadia said she wasn’t sure if she could iden-

tify the subject but that then she pointed to Jeffery A.’s

photograph and said she was about 75 percent sure that

he was the attacker. Veruchi claims that it was only

about twenty seconds between the time Arcadia first

looked at the photographs and her stating she was 75

percent sure that Jeffery A. was the attacker, and that

during that time he did not say anything to Arcadia.

On the other hand, Colvin stated in her deposition that

Veruchi presented her with a photo array of several

individuals—more than six, she believed—and that she

identified one of the individuals as the person who

had attacked her, but that the individual she had

identified was not Jeffery A. Colvin explained:

[Veruchi] laid out the photos in front of me. Asked me

to look over them carefully, seeing if any one of

them caught my eye as the man that attacked me.

6 No. 10-1318

I looked them over. I identified the one picture

that looked exactly like the guy that attacked me that

night. He asked me if I was sure if that was him, if

I wanted to take more time and look over the rest of

the photos again. Basically he laid them out one at a

time again in front of me and kept saying, “Are

you sure this is the guy?” We went through them

maybe three of four times, and I told him that was the

guy; and he said, “Maybe this will help you.” He

showed me another photograph of a woman who

I immediately recognized and identified as the

woman that was with him that night. He said that

was the girlfriend of the man that attacked me. He

flipped over one of the photos, and he said that was

the boyfriend of her and asked me to go ahead and

sign it; and I signed the photograph, assuming that

that was the man that I had already picked out of the

photos, not even thinking that it was a different, you

know, photo. I guess I wouldn’t understand why

there would be a different photo chosen.

Upon further questioning, Colvin explained that while

she had signed the back of Jeffery A.’s photograph, she

had not seen the photograph she signed off on, as Veruchi

“had already flipped it over and laid it out next to the

girlfriend.” And that at this point, Colvin added, Veruchi

had the girlfriend’s picture in front of me. Then he had

all the photos flipped over. He had the one photo

kind of lower than the others; and when I identified

her, he pulled that photo over upside down and

said that was the boyfriend of the girl and asked me

to sign the back of it.

No. 10-1318 7

In her deposition, Colvin was then asked: “Looking

through those photos in that exhibit, do you see there

the photo you initially identified as the person who

had done this to you?” And Colvin responded: “No.”

Arcadia’s mother also provided a signed declaration

contradicting Veruchi’s deposition testimony. Because

Arcadia was a minor, her mother accompanied her to

the police station and was present when Veruchi showed

her the photo array. According to Arcadia’s mother,

Arcadia looked at the photographs and told Veruchi

that she did not recognize the attacker in the photo

array, and that for a period of five to ten minutes, Veruchi

kept saying things like, “Are you sure you don’t see

him?” Again and again, Arcadia said that she could not

identify the man from the photos. Finally, after Veruchi

kept pushing, Arcadia selected one of the photos, al-

though indicating she was only about 75 percent sure

it was the attacker.

Veruchi’s version of events was the one that he

included in the affidavit he submitted in support of his

application for an arrest warrant for Jeffery A. Lawson.

Based on Veruchi’s affidavit, a state judge issued a war-

rant for Jeffery A.’s arrest. On June 15, while driving to

work, Jeffery A. was arrested. He remained in jail for

34 days until he was released on July 19 and all charges

were dropped. (While being held in jail, Jeffery A. devel-

oped a staph infection, causing his leg to swell to twice its

normal size.) It is unclear exactly how Jeffery A.’s mis-

identification was discovered, but it appears that an

employee in the public defender’s office knew Stephanie

8 No. 10-1318

and the Jeffrey W. she was dating and realized from

the photograph of Jeffery A. that the wrong person had

been arrested. The state’s attorney’s office informed

Veruchi that there had been a misidentification and

instructed him to continue investigating the crime.

After Jeffery A.’s release, Arcadia’s brother identified

Jeffrey W. as the attacker. As of June 2008, Jeffrey W.

has not been charged with the assault.

After his release, Jeffery A. sued Veruchi and Rockford

under § 1983. Jeffery A. alleged that Veruchi arrested

him without probable cause in violation of his Fourth

Amendment rights and Rockford violated his constitu-

tional rights by not having policies in place to prevent

such wrongful arrests. Jeffery A. also included pendent

state law claims. The district court granted Veruchi

and Rockford summary judgment on the § 1983 claims

and then declined to exercise jurisdiction on the state

law claims. Jeffery A. appeals.

II.

On appeal, Jeffery A. argues that the district court erred

in granting the defendants summary judgment. We

review a grant of summary judgment de novo, viewing

the facts in the light most favorable to the non-moving

party, i.e., Jeffery A. Trentadue v. Redmon, 619 F.3d 648, 652

(7th Cir. 2010). As noted above, Jeffery A. sued Veruchi

for false arrest in violation of his Fourth Amendment

rights. “In order to prevail on a claim of an arrest in

violation of the Fourth Amendment, the plaintiff[] must

show that [he was] arrested without probable cause;

No. 10-1318 9

probable cause is an absolute defense to such a claim.”

Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009).

Probable cause exists if, at the time of the arrest, the

facts and circumstances within the defendant’s knowl-

edge “are sufficient to warrant a prudent person, or one

of reasonable caution, in believing, in the circumstances

shown, that the suspect has committed . . . an offense.”

Chelios v. Heavener, 520 F.3d 678, 686 (7th Cir. 2008).

Moreover,

[w]hen a police officer, acting in good faith, obtains a

warrant and acts within its scope, he has engaged in

no official misconduct; it is the magistrate’s responsi-

bility to determine whether the officer’s allegations

constitute probable cause and it is the magistrate’s

error if the arrest is later determined to have been

unlawful. In such a case, the magistrate’s issuance

of the warrant shields the officer from liability for

the illegal arrest.

Olson v. Tyler, 771 F.2d 277, 281 (7th Cir. 1985).

However, “a warrant does not erect an impenetrable

barrier to impeachment of a warrant affidavit.” Id. Rather,

[i]f an officer submitted an affidavit that contained

statements he knew to be false or would have

known were false had he not recklessly disregarded

the truth and no accurate information sufficient to

constitute probable cause attended the false state-

ments, not only is his conduct the active cause of

the illegal arrest, but he cannot be said to have acted

in an objectively reasonable manner.

Id.

10 No. 10-1318

In this case, Jeffery A. claims that he presented

sufficient evidence that Veruchi knowingly included

false statements in the arrest warrant affidavit and

that without those false statements, probable cause

was lacking to arrest him. We agree. While there was

probable cause to believe that a man named “Jeffrey”

(spelling unknown) Lawson had attacked Colvin,

viewing the facts in the light most favorable to

Jeffery A., there is absolutely no evidence that he was

the “Jeffrey” Lawson who had attacked Colvin. Rather,

if Colvin’s deposition testimony is true, she did not

identify Jeffery A. as the attacker, but had identified

another individual. In turn, that would mean that

Veruchi’s arrest warrant application falsely stated that

Colvin had identified Jeffery A. from the photo array.

Submitting a knowingly false statement precludes reli-

ance on an arrest warrant. Id.

On appeal, Veruchi continues to maintain that Colvin

had in fact identified Jeffery A., pointing to Colvin’s

signature on the back of Jeffery A.’s photograph to

support his version of the events. However, as detailed

above, Colvin explained in detail how the photo array

was conducted and if her story is true, Veruchi tricked

Colvin into signing that photograph. Veruchi also points

to Arcadia’s identification of Jeffery A. as the attacker,

but even assuming Arcadia had identified Jeffery A. as

Veruchi claims (and not as her mother had claimed),

Arcadia’s identification merely indicated that she was

75 percent sure that Jeffery A. was the attacker. That

would not support probable cause where the actual

victim identified another individual as the attacker (as

No. 10-1318 11

Colvin stated in her deposition), absent some other evi-

dence connecting Jeffery A. to the offense.3

The district court discounted Colvin’s deposition testi-

mony, concluding that she was probably upset that

she had caused the wrong individual to be arrested

and that she was thus trying to avoid any responsibility

for Jeffery A.’s arrest. That might make a convincing

closing argument, but that is a question for the jury, not

the judge. The district court also found Jeffery A.’s

theory incredible, positing that under Jeffery A.’s theory

Veruchi was waiting for a chance to frame him and

then jumped at it when another man with the same

name was accused of committing a crime. But Jeffery A.

claims a much more straightforward theory—that Veruchi

thought that he was the attacker and was just trying

to help the case along when the victim was unable to

identify him. Jeffery A. also counters that Colvin’s ver-

sion of the events is much more likely than Veruchi’s

because Veruchi’s version of the events would mean

that two witnesses identified an innocent man—some-

one who even Veruchi admits does not look like

Jeffrey W.—who amazingly had the same first and last

name as the alleged attacker. It is not for us (any more

3

Because Arcadia’s identification does not provide a basis

for probable cause in light of Colvin’s deposition testimony,

we need not decide whether the declaration submitted by

Arcadia’s mother was admissible. The defendants had moved

to strike Arcadia’s mother’s declaration, but the district court

denied the motion to strike as moot. On appeal, the defen-

dants do not reassert their challenge to the declaration.

12 No. 10-1318

than it was for the district court), though, to judge the

credibility of the competing versions—that is a question

for the jury. What is for us to decide is whether, reading

the evidence in the light most favorable to Jeffery A.,

Jeffery A. has presented sufficient evidence that Veruchi

knowingly included false information in the arrest

warrant application and that probable cause did not

support the arrest. Colvin’s deposition testimony, in

which she unequivocally states that she did not identify

Jeffery A. as her attacker, supports this conclusion. And

if Veruchi had knowingly included this false informa-

tion, then he also would not be entitled to qualified

immunity because it was clearly established “that a

warrant request violates the Fourth Amendment if the

requesting officer knowingly, intentionally, or with

reckless disregard for the truth, makes false statements

in requesting the warrant and the false statements were

necessary to the determination that a warrant should

issue.” Knox v. Smith, 342 F.3d 651, 658 (7th Cir. 2003). See

Michael C. v. Gresbach, 526 F.3d 1008, 1013 (7th Cir. 2008)

(“If the right was ‘clearly established,’ the official is not

entitled to qualified immunity from suit.”). Accordingly,

the district court erred in granting Veruchi summary

judgment.

The district court also granted the City of Rockford

summary judgment because it concluded that Jeffery A.’s

underlying claim against Veruchi was without merit.

However, as explained above, Jeffery A. presented suffi-

cient evidence that Veruchi had knowingly included

false information in the arrest warrant affidavit, thus

justifying a trial on his claim against Veruchi. The City

No. 10-1318 13

of Rockford does not present any alternative argument

for affirmance and we leave it to the district court to

consider on remand whether Rockford is entitled to

summary judgment on another basis. The district court

also declined to exercise jurisdiction over Jeffery A.’s

pendent state law claims because it had granted the

defendants summary judgment on the federal claims.

Accordingly, those claims likewise should be recon-

sidered on remand. Rule 36 shall apply on remand.

III.

The deposition testimony in this case presents two

starkly different versions of events. Given the procedural

posture of this case, we must accept Colvin’s version

as true—which means that Colvin did not identify

Jeffery A. as her attacker and that Veruchi falsely stated

in the arrest warrant that she had. Accepting these facts

as true, Jeffery A. has sufficiently stated a claim for

false arrest under the Fourth Amendment and ac-

cordingly the district court erred in granting Veruchi

summary judgment on this claim. Therefore, we

R EVERSE the grant of summary judgment to Veruchi. We

likewise R EVERSE the district court’s grant of summary

judgment to the City of Rockford, as that decision was

premised on the failure of the claim against Veruchi. We

R EMAND pursuant to Rule 36 for further proceedings

consistent with this opinion, and the dismissed state

law claims should also be considered anew on remand.

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