The opinion
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 01-2722 & 01-2793
JEFFREY O’NEAL MARSHALL,
a minor by his guardian ad litem Paul J.
Gossens,
Plaintiff-Appellee,
v.
DANIEL TESKE, ALFONZO MORALES,
and DAVID KOLATSKI,
Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Wisconsin
No. 98-C-0306--Thomas J. Curran, Judge.
Argued January 7, 2002--Decided March 27, 2002
Before MANION, ROVNER, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. In this civil
rights action under 42 U.S.C. sec. 1983,
three Milwaukee police officers appeal a
jury verdict finding that they violated
the constitutional rights of a 14-year-
old boy by arresting and holding him in
custody for 10 hours, all without
probable cause. Ironically, the case
against the three officers got a major
boost from two other Milwaukee police
officers who happened, fortunately for
the boy and his lawsuit, to be in the
right place at the right time.
The jury heard conflicting facts and we
will recount both sides, although in an
appeal like this we accept as true the
winner’s version of the events.
Jeffrey Marshall is African-American. He
was 14 years old on September 11, 1997.
September 11, back in 1997, was an
uneventful day--it was warm, and kids
were playing around Milwaukee’s 92nd and
Birch Streets, a neighborhood full of
small, four-unit apartment houses.
Shortly after 6 p.m. Marshall left his
house, about four blocks away, and went
to the 92nd and Birch area to find his
younger brother, who was supposed to be
there. At that very moment, about a dozen
Milwaukee police officers were covertly
converging on the area intent on
executing a search warrant at one of the
four-family apartments on Birch Street.
Three undercover officers--Daniel Teske,
Alfonzo Morales, and David Kolatski--were
part of the search warrant team, and
their role was to act as "containment"
during the search--they were to make sure
that no persons fled from the apartment.
The officers claim that this area was
known for illegal drug-dealing activity.
Marshall testified that he had never
heard that the neighborhood was known for
drug activity and that he often played
there with other kids. Marshall added
that he didn’t use drugs, had never seen
drug dealing, and had never seen a police
raid (or arrest) in the neighborhood.
The officers said they had information
that the drug dealer whose apartment was
to be searched often used lookouts and
that they had seen a young black male
standing as a lookout on the drug
dealer’s front porch on a previous
occasion. They also testified that they
had seen young black males in front of
the building earlier that same day. This,
of course, should not have been all that
unusual since the area was a densely
populated neighborhood loaded with young
African-Americans.
When Officers Teske, Morales, and
Kolatski arrived to execute the search
warrant, they parked behind the apartment
building. They then split up and moved
from the rear to the front of the
building around its west and east sides.
The three officers wore police-issue
maroon windbreakers. Each windbreaker had
the words "POLICE NARCOTICS" printed on
its back and a velcro flap that could be
used to cover the lettering. The front of
the jacket contained the word "POLICE"
and a Milwaukee police badge emblem, and
another velcro flap for hiding the word
and emblem. The officers claim that the
velcro flaps on the front and back of
their jackets were down, revealing their
police insignias, when they moved into
position.
Marshall claims that he did not see
anything identifying the men as police.
They were just wearing maroon jackets,
and at least two of the officers were
wearing masks which covered their faces.
One of the officers, Morales, wore a ski
mask because he did not want to
jeopardize his undercover identity. At
the time of this incident, the Milwaukee
police department had a policy permitting
containment team officers to wear masks
during the execution of search warrants.
It has since changed that policy. Even
without masks, the officers didn’t look
much like your stereotypical police.
Kolatski, an undercover vice squad
officer, was wearing blue jeans and
tennis shoes. He had long hair and a
goatee. All of the officers were carrying
guns.
The parties disagree about where
Marshall was when the officers arrived on
the scene. Kolatski claims that he saw
Marshall sitting on the front porch of
the apartment building. Marshall
testified that he was standing on the
public sidewalk talking to his friend
Nate, whom he bumped into while looking
for his younger brother. The distance
between the front porch and the public
sidewalk is only a few feet.
As soon as Marshall saw the officers--
running with guns and with masks covering
their faces--he fled. Marshall said he
ran for fear of being robbed or shot.
Kolatski claims that he verbally
identified himself as a police officer
and ordered Marshall to stop. He and
Morales chased Marshall, and Teske joined
the chase, running on a parallel route
down an alley. Teske says that he yelled
words to the effect of "Stop! Police!"
and that he heard Kolatski do the same.
Marshall claims that he never heard the
officers verbally identify themselves as
police.
Coincidentally, Milwaukee police
officers Steven Hoyt and Richard Jacobs,
who did not know a search warrant event
was taking place, were a short distance
away. Hoyt and Richards were in full
police uniform and sitting in a marked
squad car. Marshall ran straight to them
for protection. He told Hoyt and Jacobs
that robbers were chasing him.
Hoyt and Jacobs then saw Teske running
down the alley. They did not realize that
Teske was a police officer, so they aimed
their guns at him. Hoyt and Jacobs
repeatedly yelled at Teske to drop his
gun. They testified that Teske’s actions
caused them to fear great bodily harm to
themselves and others, and therefore that
they were prepared to shoot him. Jacobs
testified that when he first saw Teske,
the velcro flap on his windbreaker was
up, concealing his police insignia. He
also testified that when Teske got close
to the squad car, Teske pulled down the
flap to reveal his identity.
Once Teske was within earshot, Hoyt and
Jacobs were able to hear him verbally
identify himself as a police officer.
Teske also yelled to them to "get the guy
in blue," referring to Marshall.
After realizing that Teske was a police
officer, Hoyt and Jacobs handcuffed
Marshall, who did not resist in any way.
Marshall was searched from head to toe
and the route he ran was traced, and no
evidence linking him to drugs or any
other crime was discovered. Marshall
testified that Teske even pulled down his
(Marshall’s) pants and underwear,
exposing his genitals. The officers never
told Marshall why he had been arrested
and did not respond when he asked what he
had done wrong. Marshall testified that
he told the officers that he fled because
he thought that they were robbers.
Marshall was placed in a squad car and
driven back to the apartment building
where the search was taking place. He
remained in the squad car for about 30
minutes to an hour. Meanwhile, Marshall’s
brother brought their parents to the
scene. Marshall’s mother told the
officers that Marshall had been home sick
all day and had only just left the house
to find his brother. Marshall’s mother
and stepfather also asked the officers to
release Marshall into their custody
because he was a minor. Morales told them
that Marshall had been arrested for
obstructing an officer and could not be
released because the officers were still
investigating. When Marshall’s parents
persisted in their request that Marshall
be released, Teske shouted at Marshall’s
stepfather, "Don’t you understand, don’t
you fucking understand!"
Marshall was taken downtown to the
police station and booked. After being
locked in a cell for about 4 hours, at
around midnight, Marshall received a
municipal citation for obstructing an
officer. Marshall then remained locked in
his cell for another 5 hours. At no time
was he allowed to contact his parents or
an attorney. Finally, at around 5 a.m.,
officers drove Marshall home in a squad
car. The municipal citation was later
dismissed for failure to prove the
elements of the charged offense.
Marshall sued the officers under 42
U.S.C. sec.1983 for false arrest and
excessive force. The jury returned a
verdict in favor of the police officers
on the excessive force claim, but for
Marshall on the false arrest claim. They
awarded Marshall $25,000 in compensatory
and $100,000 in punitive damages./1 The
officers moved for judgment notwithstand-
ing the verdict or, in the alternative,
dismissal or reduction of the damages
award. The district court denied their
motion and entered a judgment for
Marshall which included $86,375 in
attorneys fees for his counsel, Paul J.
Gossens.
In reviewing the district court’s
decision whether to enter judgment as a
matter of law, we review the record as a
whole to determine whether there was
sufficient evidence from which a
reasonable jury could have returned the
verdict. See Shank v. Kelly-Springfield
Tire Co., 128 F.3d 474, 478 (7th Cir.
1997). We view the evidence in the light
most favorable to the party winning the
verdict. See id.
The first issue we address is whether
the officers lacked probable cause to
arrest Marshall. An officer has probable
cause to arrest when the totality of the
facts and circumstances within his
knowledge and of which he has reasonably
trustworthy information is sufficient
that a prudent person would believe that
the suspect committed or was committing
an offense. See United States v. Sawyer,
224 F.3d 675, 678-79 (7th Cir. 2000). We
evaluate probable cause not from the
perspective of an omniscient observer,
but on the facts as they would have
appeared to a reasonable person in the
position of the arresting officer.
Mahoney v. Kesery, 976 F.2d 1054, 1057
(7th Cir. 1992).
The officers argue that they had
probable cause to arrest Marshall because
he fit the description of the drug
dealer’s lookout. This argument is
weakened by the fact that the search
warrant did not contain a physical
description of the lookout. It is also
weakened by the conflicting testimony
about where Marshall was standing when
the officers arrived on the scene. The
officers claim that he was sitting on the
front porch, but Marshall claims that he
was standing on the public sidewalk
talking to his friend Nate.
The officers attempt to bolster their
probable cause argument by drawing
parallels to Illinois v. Wardlow, 528
U.S. 119 (2000). There, the Supreme Court
found that reasonable suspicion existed
to stop and frisk a suspect where the
suspect fled upon seeing police officers
patrolling in an area known for heavy
narcotics trafficking. See id. at 121-24.
While patting down the suspect, officers
discovered a gun. They then arrested the
suspect, who was later convicted of
possession of a firearm by a felon. See
id. at 122. In upholding the stop and
frisk, the Supreme Court held that the
combination of the suspect’s presence in
a high-crime area and his "unprovoked
flight upon noticing the police" was
sufficient to give the officers
reasonable suspicion that he was engaged
in criminal activity. See id. at 124.
The officers’ reliance on Wardlow is
misplaced. Although the suspect in
Wardlow was eventually arrested, tried,
and convicted, the Supreme Court focused
on whether the police officers initially
had reasonable suspicion to stop and
frisk him. Reasonable suspicion is a less
demanding standard than probable cause,
requiring only that the officer have a
reasonable, articulable suspicion that
criminal activity may be afoot. See id.
at 123 (citing Terry v. Ohio, 392 U.S. 1
(1968)). Upon reasonable suspicion,
police may conduct only a brief
investigatory stop. See id. In Wardlow,
probable cause to arrest arose only after
the officers discovered that the suspect
was carrying a gun. Here, if a search of
Marshall had turned up a gun or drugs, he
would not only not have a viable sec.
1983 civil claim, he would have had a
date to appear in juvenile court on a
delinquency charge.
So the officers may not rely on Wardlow
to show that they had probable cause to
arrest Marshall for being a drug lookout.
Even had reasonable suspicion existed to
stop and frisk Marshall, the search of
his person and the surrounding area
turned up no evidence linking him to the
drug activity under investigation nor to
any other crime. But it’s doubtful that
the officers had even reasonable
suspicion to stop Marshall, given that
his flight was not "unprovoked." Marshall
did what any sane person would do if he
saw masked men with guns running toward
him: he ran like hell. And he ran right
to uniformed police officers for
protection! He wasn’t trying to get away
from the "police"-- he was trying to get
to the "police" as fast as he could.
But probable cause need not have existed
for the charge for which the suspect was
initially arrested so long as it existed
for a closely related charge. See Biddle
v. Martin, 992 F.2d 673, 676 (7th Cir.
1993). The officers contend that they had
probable cause to arrest Marshall for
resisting them and obstructing their
investigation. Wisconsin law makes it a
misdemeanor to knowingly resist or
obstruct an officer while he is
performing any act in his official
capacity and with lawful authority. See
Wis. Stat. Ann. sec. 946.41. The City of
Milwaukee has a parallel ordinance. See
Milwaukee Code of Ordinances sec. 105-
138. The Fourth Amendment allows police
officers to make warrantless arrests for
minor criminal offenses even if they are
punishable only by a fine. See Atwater v.
City of Lago Vista, 121 S. Ct. 1536, 1541
(2001).
Here, the argument that the defendant
police officers had probable cause to
arrest Marshall for knowingly resisting
or obstructing them is absurd. Because we
are required to construe the facts in the
light most favorable to Marshall, we
assume that the officers did not identify
themselves sufficiently to notify
Marshall that they were police. This
assumption is supported by the testimony
of Hoyt and Jacobs, who did not initially
realize that Teske was a police officer.
Only after Teske pulled down the velcro
flap covering his police insignia did
Hoyt and Jacobs realize that Teske was an
officer. Construing the facts in the
light most favorable to Marshall, we
assume that the flap was covering Teske’s
police insignia at the time that Marshall
first saw Teske and that Teske knew that
this was the case. Based on Marshall’s
testimony that he did not see nor hear
anything identifying the officers as
police, we assume that all of the
containment officers were insufficiently
identifiable as police. Therefore,
because the defendant officers were not
identifiable as police, a reasonable
officer in their position would not have
assumed that Marshall was knowingly
running away from them and thus resisting
or obstructing their actions as "police
officers." A reasonable officer would
have realized that someone who runs
toward a marked police car is not
knowingly resisting or obstructing
police.
The officers also argue that they were
entitled to qualified immunity. At the
time that Marshall’s civil rights suit
went to trial, the law in our circuit was
that a jury’s determination that an
officer’s conduct was objectively
unreasonable under the Fourth Amendment
determined for qualified immunity
purposes whether a reasonable officer
could have believed that his conduct was
lawful. See McNair v. Coffey, 234 F.3d
352, 355 (7th Cir. 2000). The Supreme
Court, however, vacated our holding in
McNair and remanded for further
consideration in light of its holding in
Saucier v. Katz, 121 S. Ct. 2151 (2001).
See Coffey v. McNair, 121 S. Ct. 2545,
2545 (2001)./2
Saucier held that even in cases in which
the question of qualified immunity is
factually intertwined with the question
of whether officers violated the Fourth
Amendment (in that case, by using
excessive force), judges must still make
an immunity determination separate from
the jury’s finding on whether the
officers violated the plaintiff’s
constitutional rights. See Saucier, 121
S. Ct. at 2154. Saucier established a
two-part qualified immunity inquiry.
First, the court must ask whether, taken
in the light most favorable to the
plaintiff, the facts alleged show that
the officers’ conduct violated a
constitutional right. See id. If the
facts alleged make out a constitutional
violation, the court must then ask
whether the right was clearly
established.
As we have discussed, viewing the facts
in the light most favorable to Marshall,
the officers violated his right not to be
arrested without probable cause. The next
step is determining whether Marshall’s
right not to be arrested under these
circumstances was clearly established.
The probable cause standard--requiring
that an officer’s knowledge of the facts
be sufficient to warrant a prudent person
in believing that the suspect had
committed or was committing a crime--was
clearly established at the time of this
incident. See United States v. Gilbert,
45 F.3d 1163, 1166 (7th Cir. 1995);
Simkunas v. Tardi, 930 F.2d 1287, 1291
(7th Cir. 1991).
Here, the facts and circumstances within
the officers’ knowledge were not
sufficient to warrant a prudent officer
to believe that Marshall had committed or
was committing a crime. With regard to
the drug lookout theory, the officers
found no evidence on Marshall’s person
that identified him as a drug lookout.
Nor did Teske find any weapons, drugs, or
other evidence of a crime when he
retraced Marshall’s steps back to the
point at which the chase began.
Therefore, probable cause did not exist
to arrest Marshall for being a drug
lookout. Likewise, the officers lacked
probable cause to arrest Marshall for
knowingly resisting or obstructing their
activities. The plain language of both
the state statute and the city ordinance
covering resistance and obstruction
prohibit only knowing resistance or
obstruction. Because the officers did not
sufficiently identify themselves, a
prudent person in their position would
not have cause to believe that Marshall
was knowingly resisting or obstructing.
Finally, the officers argue that there
was no reasonable basis for the punitive
damages award. A jury may award punitive
damages in a sec.1983 case if it finds
that the defendants’ conduct was
motivated by evil intent or callous
indifference to the plaintiff’s federally
protected rights. See Coulter v. Vitale,
882 F.2d 1286, 1289 (7th Cir. 1989).
Without recounting all the evidence, we
think it was sufficient to support the
jury’s award of punitive damages.
Marshall was a young boy who fled from
armed (and masked) men not readily
identifiable as police officers. Seeking
protection, he ran toward a marked police
car containing uniformed officers. When
he was arrested, Teske pulled down
Marshall’s pants and underwear, exposing
his genitals. The officers detained
Marshall even after a search of his
person and the surrounding area produced
no evidence linking him to a crime.
What’s more, the officers never bothered
to explain to Marshall why he had
beenarrested, and they ignored his
explanation that he had run out of fear
of being robbed or shot. Instead, they
took him downtown, booked him, and locked
him up without allowing him to call his
parents or an attorney. The officers took
several hours to issue Marshall a flawed
municipal citation, which was later
dismissed. After receiving the citation,
Marshall remained locked up for another 5
hours until 5 a.m. Under these
circumstances, the jury had sufficient
evidence to find that the officers
demonstrated a callous disregard for
Marshall’s rights, especially considering
his age and the fact that his parents
were at the scene of the arrest pleading
for his return to their custody.
The judgment of the district court is
AFFIRMED.
FOOTNOTES
/1 Twenty-five thousand dollars as to Teske; $60,000
as to Kolatski; and $15,000 as to Morales.
/2 We announced in McNair v. Coffey, ___ F.3d ___,
2002 WL 111362 (7th Cir. Jan. 2002), that Saucier
necessitated a change in our analysis of quali-
fied immunity claims. We applied Saucier’s two-
part immunity inquiry, holding that although the
defendant police officer’s actions violated the
plaintiffs’ constitutional rights, the officer
was nevertheless entitled to qualified immunity
because a reasonable officer in his position
would not have understood that his actions vio-
lated the plaintiffs’ rights. See McNair, 2002 WL
111362 at *1, *4.
MANION, Circuit Judge, concurring. Given the
appearance and demeanor of the three defendants
as they attempted a surprise execution of a
search warrant on a suspected drug house, Mar-
shall had good reason to flee. He may not have
heard or at least not believed those chasing him
were police. However, when determining whether or
not a prudent officer in their position would
have believed that probable cause existed to
support an arrest, we look to the officers’
knowledge at the time of the arrest, not the
suspect’s. See United States v. Gilbert, 45 F.3d
1163, 1166 (7th Cir. 1995). The three officers
could have reasonably believed that Marshall’s
flight meant he was a "lookout" and wanted to
separate himself from the crime scene. They could
not have known that he did not hear their shouts
of "Stop! Police!" nor failed to recognize them
as police officers during the pursuit. Therefore,
when they caught up with Marshall, a brief deten-
tion and search would not have been out of line.
By the time everyone caught their breath it
should have been obvious Marshall was not acting
as a lookout. The uniformed officers were con-
cerned that Teske was possibly a robber with a
gun and Marshall ran to them for protection from
the apparent robbers. That determination should
have ended the episode because, regardless of the
identification issue, the undercover officers
should have realized that a person who runs to
the aid of uniformed police officers could not be
knowingly obstructing a police officer. Instead
the officers pressed on with a long detention and
a bogus charge of obstruction. As I see it, what
occurred after the opportunity to get an explana-
tion from the uniformed officers is where the
facts justify the jury’s finding of liability,
damages and even punitive damages, excessive as
they might have been.