The opinion
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 13, 2011*
Decided April 13, 2011
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10‐2783
KELLY S. MAHNKE, Appeal from the United States District
Plaintiff‐Appellant, Court for the Western District of Wisconsin.
v. No. 09‐cv‐408‐wmc
DANIEL GARRIGAN, William M. Conley,
Defendant‐Appellee. Chief Judge.
O R D E R
A deputy sheriff seized five horses from a farm in Columbia County, Wisconsin, on
suspicion of animal neglect. One of the horses, a 32‐year‐old mare named April, had been
left in the care of the horse farm by its owner, Kelly Mahnke. The county eventually
returned the mare, and Mahnke’s objection to reimbursing the county’s boarding expenses
ultimately was resolved in her favor by a state appellate court, which held that the seizure
was unlawful. Mahnke then sued the deputy sheriff in federal court, contending that the
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 10‐2783 Page 2
seizure violated her constitutional rights. Without ruling on the propriety of the seizure, the
district court granted the deputy summary judgment on the basis of qualified immunity.
We affirm the judgment, but on the ground that the deputy’s conduct was lawful.
The material facts are not in dispute. The Columbia County Sheriff’s Department
dispatched Detective Sergeant Daniel Garrigan to a local farm to investigate repeated
complaints that several horses were being confined without proper care. When he arrived
Garrigan saw five horses in a narrow enclosure, penned off from a larger group of horses in
an adjacent pasture. The horses in the enclosure, Garrigan thought, appeared to be starving.
They looked haggard and sluggish and disturbingly thin, and he could see in several of
their frames the outlines of ribs and backbone. Open sores, seemingly untreated, were
visible on the legs of two horses.
Compounding his concerns were the run‐down conditions in the enclosure. The
grass inside the fencing had been reduced to stubble, and although some feed had been
stowed away nearby, it was inaccessible to the horses, and Garrigan could not locate an
alternative source of food. Water, too, appeared limited. Garrigan saw only one viable
source, a five‐gallon rubber container filled three‐quarters of the way with muddy water. A
converted oil tank near the perimeter of the enclosure did hold a more plentiful supply, but
a wire connected to an electric fence obstructed access to the tank, and Garrigan doubted
that the horses had enough clearance to access the tank safely. He also observed that the
horses had little in the way of shelter. It was a sweltering 4th of July, with midday
temperatures exceeding 100 degrees, yet the horses’ only reprieve from the sun was a small
patch of shade at the far end of the enclosure.
Garrigan consulted several people with knowledge of horses before seizing the
animals. Shirly Hoel and Kathy Schroeder, whose complaints had prompted Garrigan’s
visit, were waiting at the farm when he arrived and opined, based on their own experiences
as horse owners, that the five in the enclosure were not being properly cared for. Garrigan
spoke by phone with an equine veterinarian who, although unwilling to give an
authoritative opinion without personally examining the horses, noted that on a hot day a
five‐gallon container of water would not suffice to support one horse, much less five.
Garrigan then learned from a dispatcher that the president of the local humane society had
been briefed on the details and agreed that protective custody was likely warranted.
Garrigan decided to take the horses into custody. Hoel volunteered to board them
temporarily while the county sorted out matters with their owners. While the horses were
being loaded, Duwayne Stork, the owner of the farm, arrived with a truckload of horse feed.
When Garrigan explained that he was seizing the horses on suspicion of animal neglect,
Stork insisted that Garrigan had it backwards—that the horses were confined because they
No. 10‐2783 Page 3
were in poor health, not the other way around. He explained that several of the horses
(Mahnke’s included) were old and unable compete for grass in the main pasture, and that
several others had recently been recovered from the wild, where they had nearly starved,
and needed special care. As for the absence of food, he said he typically let them graze small
patches of pasture until they depleted the grass and had to be relocated. He admitted,
though, that the grass in this particular space had been exhausted. Stork added that,
because some of the older horses were hand‐fed, their feed was stowed away, accessible
only to their caretakers. As for water, Stork insisted that the supply in the tank was ample,
and Jill Taylor, who boarded her horse on the farm, told Garrigan that she had fed and
watered the five horses that morning. Stork added that the two horses with sores on their
legs were receiving medical treatment. He said that a veterinarian would confirm his side of
the story and offered to bring one out at his own expense. Garrigan declined, and the horses
were taken away.
Mahnke was charged with neglecting her mare, a misdemeanor, see WIS. STAT. § 951.
The district attorney eventually dismissed the case, but that did not end the matter, because
when Mahnke filed a petition in state court for the return of April, see WIS. STAT. § 173.21(4),
the district attorney counterclaimed for the “costs of care,” roughly $1,800. The county had
returned the horse by the time the suit proceeded to trial, so the only issue before the trial
court was the one presented by the counterclaim—whether Mahnke was liable for the costs
of care. Liability hinged on the propriety of the seizure: if Garrigan had “reasonable
grounds” (the equivalent of probable cause under the Fourth Amendment, Johnson v. State,
249 N.W.2d 593, 595‐96 (Wis. 1977)) to believe that the five horses were being kept in
violation of state law, the seizure was proper and Mahnke liable for the costs; but if the
seizure was not supported by probable cause, the county would be on the hook for any
attendant expenses. The trial court decided that Garrigan had probable cause to seize the
horse and ordered Mahnke to pay the costs of care. A state appellate court reversed,
concluding that Garrigan was too hasty in blaming the farm owner for the condition of the
horses. Mahnke v. Columbia County, No. 2006AP1771, 2007 WL 1300731, at *4 (Wis. Ct. App.
May 3, 2007) (nonprecedential disposition). The Wisconsin Supreme Court denied the
county’s petition for review.
One week before expiration of the six‐year statute of limitations governing civil‐
rights claims arising in Wisconsin, see Hemberger v. Bitzer, 574 N.W.2d 656, 657 (Wis. 1998),
Mahnke brought this suit in federal district court claiming that Garrigan had violated her
rights under the Fourth and Fourteenth Amendments when he took custody of April. For
relief, she seeks compensation for money spent, both in and out of court, trying to secure
April’s return.
No. 10‐2783 Page 4
Following discovery, the district court granted summary judgment for Garrigan.
Although Mahnke had never asserted that her victory in state court was preclusive on the
question of probable cause, the district court assumed that it was and thus passed over the
issue. Still, the district court concluded, Garrigan could not reasonably have known that he
was violating the Fourth Amendment by seizing April and thus was shielded from liability
by the defense of qualified immunity. And with respect to the Fourteenth Amendment
claim, the court continued, Mahnke had no claim because Wisconsin provides an adequate
postdeprivation remedy.
In this court the parties concentrate on the issue of qualified immunity, but the
district court’s analysis of that doctrine was unnecessary because Garrigan is not precluded
from litigating the issue of probable cause. Wisconsin law controls whether the Wisconsin
court’s assessment of probable cause has preclusive effect in this case. See 28 U.S.C. § 1738;
Burke v. Johnston, 452 F.3d 665, 669 (7th Cir. 2006). And where, as here, a party to prior
litigation asserts issue preclusion against a nonparty, Wisconsin law requires that there exist
privity or identity of interests between a litigant in the earlier suit and the party against
whom preclusion is being asserted. See Paige K.B. v. Steven G.B., 594 N.W.2d 370, 377 (Wis.
1999). This requirement is met when “a person is so identified in interest with a party to
former litigation that he or she represents precisely the same legal right with respect to the
subject matter involved.” Pasko v. City of Milwaukee, 643 N.W.2d 72, 78 (Wis. 2002).
The district judge did not rely on any Wisconsin decision suggesting that courts in
the state would conclude that Garrigan was in privity with the county during its fight over
$1,800 in boarding expenses. Nor have we found any authority supporting that outcome.
The county’s objective in the earlier litigation was to recover its minimal expenditures
flowing from the extended boarding of Mahnke’s horse, not to vindicate Garrigan. He had
no interest in that money and no hand in bringing the counterclaim. Garrigan did not
litigate the state‐court suit ‘“in the name of another to establish and protect his own right,’”
nor did he assist the county’s pursuit of its money “‘in the aid of some interest of his own.’”
See Paige K.B., 594 N.W.2d at 378 (quoting Montana v. United States, 440 U.S. 147, 154 (1979)).
He did testify as a witness for the county, but that did not place him in privity with the
county. Kruczek v. Wis. Dep’t. of Workforce Dev., 692 N.W.2d 286, 296 (Wis. Ct. App. 2004).
It is true that the county fully litigated the question whether Garrigan had probable
cause to believe that the horses were being mistreated, which is also the controlling issue in
this civil‐rights suit. But an identity of issues is not enough for earlier litigation to be
preclusive. There is a distinction, as the Wisconsin courts recognize, between having one’s
issues litigated in an earlier proceeding and having one’s interests litigated, Pasko, 643
N.W.2d at 78; Kruczek, 692 N.W.2d at 296, and it cannot be disputed that Garrigan’s interests
were unrepresented in the state‐court proceeding. Courts faced with similar circumstances
No. 10‐2783 Page 5
have consistently refused to apply issue preclusion, Jenkins v. City of New York, 478 F.3d 76,
92 (2d Cir. 2007); Bilida v. McCleod, 211 F.3d 166, 170‐71 (1st Cir. 2000); McCoy v. Hernandez,
203 F.3d 371, 375 (5th Cir. 2000); Kraushaar v. Flanigan, 45 F.3d 1040, 1050 (7th Cir. 1995), and
the Supreme Court recently rejected this understanding of the doctrine as inconsistent with
due process. Taylor v. Sturgell, 553 U.S. 880, 885 (2008).
We thus turn to the question of probable cause. Mahnke argues that a police officer
in Garrigan’s position could not have reasonably believed that there was probable cause to
seize her horse. Mahnke insists that, because Garrigan knew little about these five horses
and had been presented with a plausible explanation for their appearance, he lacked
reasonable grounds to conclude that the horses were being neglected. At the very least, she
argues, Garrigan was required to investigate further.
Probable cause exists if the information available would justify a reasonable belief
that a crime has been committed. Stokes v. Bd. of Educ., 599 F.3d 617, 622 (7th Cir. 2010);
Siebert v. Severino, 256 F.3d 648, 654 (7th Cir. 2001). Before taking action, an officer is not
required to engage in a technical legal inquiry to determine whether every element of a
particular statute is satisfied. Rather, what matters is the reasonableness of the officer’s
exercise of judgment at the time it was made, without the benefit of hindsight and
regardless whether the officer’s belief turned out to be correct. Siliven v. Indiana Dep’t. of
Child Servs., No. 10‐2701, 2011 WL 891529, at *4 (7th Cir. Mar. 16, 2011) Chelios v. Heavener,
520 F.3d 678, 686 (7th Cir. 2008).
Probable cause hinges on the elements of the relevant criminal statute. Stokes, 599
F.3d at 622. Under WIS. STAT. § 173.21, the police may seize an animal if reasonable grounds
exist to believe it is being kept in violation of WIS. STAT. § 951. Section 951, among other
things, prohibits treating animals in a cruel manner or depriving them of adequate food,
water, or shelter from the sun. Id. §§ 951.02, 951.13, 951.14.
We conclude that Garrigan had probable cause to believe that the horses were being
kept in violation of Wisconsin law. The determination of probable cause rests not only on
the information Garrigan had received from third parties, on which he was entitled to rely,
see Sow v. Fortville Police Dep’t., No. 10‐2188, 2011 WL 477050, at *6 (7th Cir. 2011); Pasiewicz
v. Lake Cnty. Forest Pres. Dist., 270 F.3d 520, 524 (7th Cir. Feb. 11, 2001), but also on the
appearance of the horses and his independent investigation of the enclosure, which only
heightened his suspicion of neglect. This was not a weak inference to draw: the sight of five
emaciated horses confined without ready access to food, water, and shade smacks of
maltreatment, not least to an officer investigating complaints of animal neglect.
No. 10‐2783 Page 6
We recognize that Stork offered an explanation for the condition of the horses, but
that explanation did not, as Mahnke asserts, negate probable cause for the seizure.
Although a police officer cannot consciously disregard information that would bring clarity
to a confusing situation, Askew v. City of Chicago, 440 F.3d 894, 895‐96 , there is a meaningful
distinction between disregarding potentially exculpatory information and disbelieving it.
Compare Kuehl v. Burtis, 173 F.3d 646, 651 (8th Cir. 1999), and BeVier v. Hucal, 806 F.2d 123,
128 (7th Cir. 1986), with Sow, 2011 WL 477050, at *7, and Forest v. Pawtucket Police Dep’t., 377
F.3d 52, 57 (1st Cir. 2004). Here, it was with disbelief, not disregard, that Garrigan
discounted Stork’s explanation, acting instead on the equally plausible theory that the
horses appeared malnourished because they were being confined without life’s basic
necessities. And disbelief was not an unreasonable reaction; Stork conceded that no grass
remained for grazing in the area he had chosen to confine the emaciated horses, and his
assertion that food was available but stored elsewhere did nothing to enlighten Garrigan
about why the horses were emaciated. The officer had to account for Stork’s
explanation—and the record shows that he did—but he need not have credited it. See Askew,
440 F.3d at 895‐96 (explaining that the constitution permits police “to initiate the criminal
process and leave the sifting of competing claims and inferences to detectives, prosecutors,
judges, and juries in the criminal prosecution.”); see also Gramenos v. Jewel Cos., 797 F.2d 432,
439 (7th Cir. 1986).
Relatedly, Mahnke argues that Garrigan acted unreasonably by not extending the
investigation after speaking with Stork. Specifically, she says that he should have waited for
a veterinarian to examine the horses and provide an opinion as to the cause of their
conditions. But an officer need not continue his investigation when sufficient information is
available to support probable cause. Stokes, 599 F.3d at 624; McBride v. Grice, 576 F.3d 703,
707‐08 (7th Cir. 2009). Having reasonably concluded that the horses were not being properly
cared for, Garrigan had no duty under the Fourth Amendment to take further action.
Mahnke argues that a fact issue remains about whether Garrigan could have
reasonably given weight to Shirley Hoel’s opinion, since he knew Hoel had been insistent
about rescuing the horses, even offering to board them herself. But while it is true that
further investigation may be required where an officer knows that a complainant has
improper motives, Askew, 440 F.3d at 895, the portions of the record Mahnke cites establish
only that Hoel wanted the horses safe; there is no evidence that she wanted to keep the
animals. In any event, this factual dispute would not alter the outcome of the suit, for the
record supports a determination of probable cause with or without Hoel’s complaint.
Finally, our conclusion that the seizure satisfied the requirements of the Fourth
Amendment forecloses Mahnke’s argument that she was deprived of procedural due
process. The balance of individual and public interests embodied by the Fourth
No. 10‐2783 Page 7
Amendment “always has been thought to define the process that is due for seizures of
person or property in criminal cases.” Gerstein v. Pugh, 420 U.S. 103, 125 n.27 (1975); see also
United States v. James Daniel Good Real Prop., 510 U.S. 43, 67 (1993); Fuentes v. Shevin, 407 U.S.
67, 93 n.30 (1972); PPS, Inc. v. Faulkner Cnty., 630 F.3d 1098, 1107 (8th Cir. 2011); Becker v.
Kroll, 494 F.3d 904, 920 (10th Cir. 2007); Sanders v. City of San Diego, 93 F.3d 1423, 1429 (9th
Cir. 1996). A seizure arising from a criminal investigation does not threaten due process
where, as here, the state requires a fair and reliable determination of probable cause as a
condition to the seizure. See Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 19 (1978);
Reams v. Irvin, 561 F.3d 1258, 1264 (11th Cir. 2009).
AFFIRMED.