Marks, Alvin v. Carmody, Larry

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2037

ALVIN MARKS,

Plaintiff-Appellant,

v.

LARRY CARMODY and ANTHONY CINQUEGRANI,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern

Division.

No. 97 C 5013--Matthew F. Kennelly, Judge.

Argued November 8, 2000--Decided December 12,

2000

Before Bauer, Rovner, and Diane P. Wood,

Circuit Judges.

Diane P. Wood, Circuit Judge. On August

1, 1996, Detective Larry Carmody and

Sergeant Anthony Cinquegrani, both of the

Wheeling, Illinois, Police Department,

arrested Alvin Marks for issuing a bad

check with intent to defraud, in

violation of the Illinois Deceptive

Practices Act, 720 ILCS sec. 5/17-1.

Although the state court immediately

dismissed the criminal charges against

him at the first preliminary hearing,

upon the state’s attorney’s nolle

prosequi motion, Marks was not satisfied.

Following up on a threat he had made, he

sued both arresting officers under 42

U.S.C. sec. 1983 for false arrest. The

district court concluded that the

defendant officers were protected by

qualified immunity from suit, and on that

basis granted their motion for summary

judgment. We agree that this was the

proper disposition of the case, and we

therefore affirm.

I

Marks was the owner of LTD Travel

Agency, Inc., located in Wheeling, and

Judith Bechar owned a competing agency,

Bravo Travel Services. In late 1995,

Marks and Bechar decided to merge their

operations. As a first step in that

process, Marks incorporated a new entity,

Bravo/LTD Travel. Bechar moved her

operations into LTD’s premises. At the

same time, Marks gave up LTD’s Airline

Reporting Corporation (ARC) number

(something a travel agency must have in

order to issue tickets), and both LTD and

Bravo used Bravo’s ARC number.

In December of 1995, Marks purchased

some personal airline tickets through

Bravo/LTD, but because the formal merger

had not yet taken effect, they were

charged to Bechar’s account for Bravo as

a "house credit" transaction. Marks and

his family used the tickets for a family

vacation, and returned in early January

1996. On Friday, January 5, 1996, Nessim

Bechar (Judith’s husband), confronted

Marks and demanded an immediate payment

of some $1,800 for the tickets. Marks

pointed out to Nessim that Bravo owed him

approximately $3,000 in commissions, and

he suggested an offset. Nessim refused,

but (according to Marks, whose account we

accept for purposes of summary judgment

review) the two agreed that Marks would

issue a check for the $1,800, and the

next day Judith (who was unavailable, and

who was the only one authorized to write

checks for Bravo) would issue a check to

Marks for the $3,000 in commissions. As

Marks understood it, this would be

accomplished mechanically by having Marks

write his check to Bravo/LTD, having

Judith do the same, and then having

Bravo/LTD issue an $1,800 check to Judith

for Bravo and a $3,000 check to Marks.

Marks accordingly gave Nessim a check

for $1,800, which showed Bravo/LTD as the

payee and was post-dated one day forward,

to January 6, 1996. The very next day

Judith pulled out of the merger and

refused to issue the $3,000 commission

check. In the meantime, however, the

Bechars had promptly attempted to cash

the $1,800 check on January 5. Either

because Marks’s account, without the

$3,000 deposit, did not have sufficient

funds to cover the $1,800 check, or

because Marks was upset about the

termination of the merger, Marks stopped

payment on the check. When Judith

received the returned check, she brought

civil charges against Marks seeking the

$1,800 and other damages resulting from

the collapse of the merger. Her civil

suit was eventually dismissed without any

money changing hands.

The feud between the would-be business

partners did not end with civil

litigation, unfortunately. In mid-

February 1996, the Bechars lodged a

criminal complaint with the Wheeling,

Illinois, Police Department and, in

support of their complaint, gave

Detective Carmody the following

information. The Bechars (or Bravo, which

amounted to the same thing) were charged

for airplane tickets that Marks bought

for personal use. Marks purported to pay

them for the tickets, but the check that

he issued was returned for insufficient

funds. (The bank later admitted that it

actually meant to return the check under

the stop payment order, rather than for

insufficient funds. This detail is

unimportant to our case, because as

Detective Carmody discovered, the bank

records showed that if the stop payment

order had not been issued, the check

would still have been returned for non-

sufficient funds.) Carmody investigated

the Bechars’ complaint for several

months. During that time, he discovered

that at the time Marks wrote the check

and for three days afterward, the account

did not have enough funds to cover the

check. Additionally, subpoenaed bank

records revealed that four other checks

drawn on Marks’s account had been

returned within the same 30-day time

period. He also interviewed Marks by

telephone and learned about the failed

merger and the stop payment order.

On August 1, 1996, Detective Carmody

contacted Marks and asked him to come to

the police station for a personal

interview. Marks agreed, and showed up

with his lawyer. Marks and the lawyer

pointed out to the detective the fact

that the $1,800 check had been made

payable to Bravo/ LTD, not to Judith

Bechar or to Bravo. The lawyer showed the

detective the articles of incorporation

of Bravo/LTD, which revealed that Marks

alone was an incorporator of the company

and Judith was not. This fact, Marks

argued, made it logically impossible for

him to have committed a fraud, because

the only entity he would have been

defrauding was one that he owned himself.

The lawyer also showed Detective Carmody

a 23-year-old case from the Illinois

appellate court that appeared to hold

that the issuance of a worthless check

for a preexisting debt did not violate

the statute under which Detective Carmody

was proceeding, 720 ILCS sec. 5/17-1. See

People v. Cundiff, 305 N.E.2d 735, 737-38

(Ill. App. Ct. 1973). Marks also gave

Carmody documents related to the civil

suit between himself and the Bechars

(which included a claim for the disputed

$1,800) and a copy of the airline tickets

showing that they had been used before

the check was issued. All of this meant,

in the view of Marks’s lawyer, that Marks

did not have the intent to defraud

required by the criminal statute.

Detective Carmody did not see things

that way, however; he indicated instead

that he was going to arrest Marks. The

lawyer then threatened Carmody with a

suit under 42 U.S.C. sec. 1983, at which

point Carmody brought Sergeant

Cinquegrani into the room. Marks’s

attorney then reviewed the entire matter

for the two officers. In the end, with

Sergeant Cinquegrani’s approval,

Detective Carmody placed Marks under

arrest.

As promised, Marks followed up with the

present lawsuit under sec. 1983. In it,

he claimed that his Fourth and Fourteenth

Amendment rights had been violated, his

reputation had been sullied, and he had

suffered pecuniary injuries. Upon the

defendants’ motion for summary judgment,

the district court concluded that even

though it was not prepared to hold that

there was probable cause for the arrest,

the two officers were entitled to

qualified immunity on this record.

II

The question now before us is thus not

whether the officers were ultimately

correct when they concluded that there

was probable cause to arrest Marks for a

violation of the Illinois Deceptive

Practices Act. It is instead the

objective question whether a reasonable

officer, knowing what these two knew,

would have known that the law as applied

to these circumstances clearly

established that an arrest would be

unlawful for lack of probable cause. As

the district court recognized, qualified

immunity protects arresting police

officers from suit if a reasonable

officer would have believed the arrest to

be lawful, in light of clearly

established law and the information that

the arresting officers possessed. Hunter

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

standard "gives ample room for mistaken

judgments" by protecting "all but the

plainly incompetent or those who

knowingly violate the law." Id. at 229,

quoting Malley v. Briggs, 475 U.S. 335,

343, 341 (1986). See also Anderson v.

Creighton, 483 U.S. 635, 640 (1987)

(emphasizing the need to assess qualified

immunity claims at the correct degree of

particularity).

Illinois’s Deceptive Practices Act makes

it a crime for an individual, with intent

to defraud, to issue a check, knowing

that it will not be paid by the

depository bank, either to pay for

property, labor or services or to make a

payment of an amount owed in a credit

transaction. 720 ILCS sec. 5/17-1(B)(d)

and (e). In making the decision to arrest

Marks for this crime, the officers had

the following information before them:

Bravo (i.e., Judith Bechar) had paid

approximately $1,800 for airline tickets

that Marks had ordered and used for his

own personal use; Nessim Bechar asked

Marks to pay for the tickets, and Marks

responded with a check that was returned

unpaid; bank records show that, at the

time that Marks issued the check, and for

the next three days, his checking account

did not contain sufficient funds to cover

the check. A reasonable police officer

would not have had any reason to believe

that these facts were not enough to bring

Marks’s actions within the language of

the deceptive practices statute.

The fact that Marks had alerted the

officers to possible defenses he might

have had to the crime does not change

this result. Thus, for instance, the

officers were not required to view the

fact that Marks made out the check to a

company that he himself had incorporated

as something definitively negating the

violation. Nor did they need to accept as

established the evidence Marks had

proffered that tended to show that he did

not act with the requisite intent to

defraud the Bechars. Issues of mental

state and credibility are for judges and

juries to decide. Spiegel v. Cortese, 196

F.3d 717, 725 (7th Cir. 1999); Hebron v.

Touhy, 18 F.3d 421, 423 (7th Cir. 1994).

And while we can grant for present

purposes that the evidence of intent on

which the officers relied would not have

been sufficient for a conviction, see

People v. Bormet, 491 N.E.2d 1281, 1284-

85 (Ill. App. Ct. 1986), probable cause

does not require such a high degree of

certainty. Humphrey v. Staszak, 148 F.3d

719, 727 (7th Cir. 1998).

Marks also argues that, because the

check was postdated by one day, Detective

Carmody should have realized that it was

in legal effect a promissory note at the

time it was tendered, rather than a

check. See People v. McLaughlin, 462

N.E.2d 875 (Ill. App. Ct. 1984). But the

defendant officers did not have before

them any evidence that the parties agreed

that the check could be postdated, or

even that Nessim Bechar noticed the one-

digit discrepancy. Without such evidence,

it would be impossible to say that

noreasonable officer could have concluded

that the instrument Marks proffered was

what it appeared to be--a check.

Finally, the defendants were not

required to accept the assertion of

Marks’s attorney that the 23-year-old

decision from the Third District of the

Illinois Appellate Court in People v.

Cundiff precluded a finding of probable

cause. We are aware of no rule that

requires police officers to accept the

legal arguments offered by a suspect’s

attorney. Even if the officers had both

read and fully understood Cundiff as well

as a trained lawyer might, for all anyone

at the police station knew, the case

could have been narrowed or even

overruled since it was first issued in

1973. Detective Carmody was not required

to run off and run a computer search on

the case’s subsequent history and later

interpretations of the statute from other

Illinois courts before making an arrest.

In short, the officers here acted within

reasonable bounds when they concluded

that probable cause existed for Marks’s

arrest, even if, with the benefit of more

time for reflection, the district court

was also correct to conclude that this

might have been an error. Marks wrote a

check to cover the cost of airline

tickets that had been charged to Bravo

without Judith Bechar’s consent, and that

check was not honored. It was probably

obvious to the officers that there was

some bad blood between the Bechars and

Marks, but the arresting officers were

not required to resolve those issues. The

district court’s judgment dismissing the

case against them on qualified immunity

grounds is therefore Affirmed.