The opinion
In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-3158
HENRY S. KIJONKA,
Plaintiff-Appellant,
v.
MICHAEL SEITZINGER, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Illinois.
No. 01-CV-4219—J. Phil Gilbert, Judge.
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ARGUED MARCH 3, 2004—DECIDED APRIL 14, 2004
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Before POSNER, ROVNER, and EVANS, Circuit Judges.
POSNER, Circuit Judge. Henry Kijonka brought suit for
damages under 42 U.S.C. § 1983, claiming to have been
arrested without probable cause and thus in violation of his
Fourth Amendment rights. The defendants are the arresting
officer—a policeman in Lawrenceville, Illinois named
Michael Seitzinger—and the county prosecutor, Todd Rietz.
The district judge granted summary judgment for the
defendants on the ground of qualified immunity and relin-
quished jurisdiction over the plaintiff’s supplemental state-
law claims, some of which had named Lawrenceville as an
additional defendant.
2 No. 03-3158
Fact is often stranger than fiction because most writers of
fiction try to make their stories plausible. The events out of
which Kijonka’s suit arises, though fact, are implausible.
About a decade ago, Kijonka, then a state trooper, first
became acquainted with Berle “Peanut” Shoulders, Jr.—
an ex-con and bad boy of tiny Lawrenceville (population
5,000)—when Kijonka arrested him for a traffic violation.
Despite this inauspicious beginning, their relationship blos-
somed. Shoulders drummed up votes for Kijonka when
the latter ran successfully for mayor in 1997, and Kijonka
rewarded him by making him the city dog catcher.
Shoulders’ city employment, however, proved to be turbu-
lent. Allegations that he used a weapon unlawfully, was
involved in drug deals, threatened Kijonka and others, and,
worst of all, obtained payment for dogs that he didn’t catch
(the city dog catcher is paid on a per-dog-caught basis)
caused Shoulders to be fired. In revenge he took to stalking
Kijonka—driving slowly by his house and shouting threats
and obscenities.
Kijonka was defeated for reelection and moved to a
different town, but on a visit to Lawrenceville happened
to drive down the street on which Shoulders lives. This
was not reverse stalking; Lawrenceville is minute and
Shoulders’ street happened to be part of the route to
Kijonka’s destination. As it happened, officer Seitzinger’s
car was blocking the street right in front of Shoulders’
house. Shoulders and Seitzinger were standing nearby;
Seitzinger was helping Shoulders retrieve keys locked in his
daughter’s car. Noticing that he was blocking Kijonka’s car,
Seitzinger got into his own car to pull it out of Kijonka’s
way. As he did so, according to Shoulders, Kijonka rolled
down his car window, gave Shoulders a “dirty look,” and
said: “You have a nice day and your ass is mine you son of
a bitch and I will get you.” Seitzinger did not hear this,
though he heard Shoulders yell to Kijonka, as the latter
drove away, “Don’t you fuckin’ threaten me!”
No. 03-3158 3
Shoulders told Seitzinger that he wanted to press charges,
and Seitzinger took him to the police station to fill out a
complaint, which he did. After recording the time and place
of the incident and the reason for Seitzinger’s presence, the
complaint states only that “Henry Kijonka drove by my
house and stopped and roled [sic] his window down and
gave me a dirty look and said you have a nice day and your
ass is mine you son of a bitch and I will get you.” Dubious
about whether the complaint charged a crime, Seitzinger
called prosecutor Rietz, who came down to the station, read
the complaint, spoke to Shoulders— who did not, however,
so far as appears, elaborate on the circumstances stated in
the complaint—and told Seitzinger to arrest Kijonka.
Accompanied by other police officers, Seitzinger tracked
down Kijonka to a nearby Dairy Queen and arrested him.
Rietz recused himself from prosecuting Kijonka, apparently
because Shoulders had supported Rietz in his electoral
campaign for prosecutor (hardly a plus in the eyes of the
law-abiding population, one might have thought). An
independent prosecutor was appointed and decided not to
bring charges against Kijonka.
The only crime that Kijonka could have been charged
with, the parties agree, is assault, which in Illinois is “con-
duct which places another in reasonable apprehension of
receiving a battery.” 720 ILCS 5/12-1(a). Ever since the
fourteenth century, assault whether civil or criminal has
involved (1) a threatening gesture, or an otherwise innocent
gesture made threatening by the accompanying words, that
(2) creates a reasonable apprehension of an imminent bat-
tery. E.g., Merheb v. Illinois State Toll Highway Authority, 267
F.3d 710, 714 (7th Cir. 2001), citing I. de S. & Wife v. W. de S.,
Y.B. Liber Assisarum, 22 Edw. 3, f. 99, pl. 60 (1348 or 1349);
Restatement (Second) of Torts § 29 (1979); Wayne R. LaFave,
Substantive Criminal Law § 16.3(b) (2d ed. 2003). A merely
verbal threat of indefinite action in the indefinite future is
4 No. 03-3158
not an assault. People v. Floyd, 663 N.E.2d 74, 76 (Ill. App.
1996); People v. Kettler, 459 N.E.2d 7, 10-11 (Ill. App. 1984).
It is missing two elements: gesture and imminence. “Mere”
threats are, it is true, criminalized in special situations, see
720 ILCS 5/12-6 (“intimidation,” i.e., extortion), -9 (threat-
ening a public official), 5/29D-20 (making a terrorist threat),
but none that is relevant to this case.
Kijonka’s rolling down his car window was not a threat-
ening gesture; the obvious reason for his doing so, as a
reasonable person would have understood (and, unless the
defendant is trying to take advantage of a known vulner-
ability in his victim, Restatement, supra, § 27, the victim’s
apprehension must be reasonable for the defendant to be
guilty of assault, People v. Floyd, supra, 663 N.E.2d at 76),
was to enable him to speak to Shoulders. There was no
threatening gesture, nor even a present threat. It’s not as if
Kijonka had said, “I have a gun in my glove compartment
and I’m going to reach in and get it and shoot you, you son
of a bitch.” Even that would have been a threat rather than
an assault until he actually reached toward the glove
compartment. We did remark in Soldal v. County of Cook, 923
F.2d 1241, 1250 (7th Cir. 1991), rev’d on unrelated grounds,
506 U.S. 56 (1992), what seemed at least a slight tendency in
the Illinois case law to dispense with the requirement that
a gesture accompany the threat if the circumstances indi-
cated that the threat was quite likely to be carried out—im-
mediately. See People v. Ferguson, 537 N.E.2d 880 (Ill. App.
1989); S & F Corp. v. Daley, 376 N.E.2d 699, 703 (Ill. App.
1978). (No case suggests that the imminence requirement
can be waived.) Hence the statement in People v. Floyd, supra,
663 N.E.2d at 76, that “words alone are not usually enough
to constitute an assault” (emphasis added). But probably the
insertion of “usually” was just an unnecessary hedge (there
is such a thing as misstating the law by adding, out of an
overabundance of caution, unnecessary qualifications). In
No. 03-3158 5
Ferguson the defendant, just before delivering the verbal
threat, had run to the trunk of his car “telling Norwood [the
victim] that if he would not move, defendant had something
to move him,” and had opened the trunk. 537 N.E.2d at 881.
So there was a gesture, albeit it preceded rather than
accompanied the threat. And in S & F Corp., a license-
revocation case, although the stated basis for the revocation
was assault, actually the incident was extortion. See 376
N.E.2d at 702-03.
Shoulders, given his history of stalking Kijonka, may have
feared that the day of retribution had arrived (though this
is doubtful, given the presence at the scene of a policeman).
But a victim’s fear, especially when provoked by the vic-
tim’s own misconduct, cannot transform a remote threat
into an assault. The cases that flirt with a gesture-free
concept of assault make clear that the threat must be
immediate. Kijonka gave no indication that he was about to
attack Shoulders. Kijonka was sitting in his car, and, to
repeat, a policeman was standing nearby.
So there was no probable cause to arrest Kijonka for
assault. The question for us is whether there was any rea-
sonable basis to suppose there was probable cause, as that
is the test for qualified immunity. Thompson v. Wagner,
319 F.3d 931, 935 (7th Cir. 2003); Humphrey v. Staszak, 148
F.3d 719, 725 (7th Cir. 1998); Escalera v. Lunn, No. 03-7121,
2004 WL 534476, at *4 (2d Cir. Mar. 18, 2004). We cannot
find a reported Illinois case that found the elements of as-
sault satisfied in any case remotely like this one, and this
dooms Rietz’s defense of qualified immunity. (The absolute
immunity of a prosecutor does not extend to his giving legal
advice to the police when they are investigating whether a
crime has occurred. E.g., Burns v. Reed, 500 U.S. 478, 492-96
(1991); Davis v. Zirkelbach, 149 F.3d 614, 617 (7th Cir. 1998);
Carter v. City of Philadelphia, 181 F.3d 339, 356 n. 58 (3d Cir.
6 No. 03-3158
1999).) No Illinois prosecutor—a law-trained specialist in
the enforcement of the criminal law of Illinois—could
reasonably believe that Kijonka had committed a crime. Cf.
Burns v. Reed, supra, 500 U.S. at 495; Johnson v. Hondo, Inc.,
125 F.3d 408, 416 (7th Cir. 1997).
The situation with regard to officer Seitzinger is different.
As numerous cases, most recently United States v. Merritt,
No. 02-4211, 2004 WL 549475, at *6-7 (7th Cir. Mar. 22, 2004),
recommend, the officer consulted the prosecutor before
making the arrest. Having received a formal complaint,
Seitzinger was reluctant to drop the matter without such a
consultation and having consulted and been instructed to
arrest Kijonka he had a reasonable basis for believing that
he had probable cause to make the arrest. Id. at *7; Wollin v.
Gondert, 192 F.3d 616, 624 (7th Cir. 1999); Arnsberg v. United
States, 757 F.2d 971, 981 (9th Cir. 1985). Consulting a
prosecutor may not give an officer absolute immunity from
being sued for false arrest, Womack v. City of Bellefontaine
Neighbors, 193 F.3d 1028, 1031 (8th Cir. 1999); E-Z Mart
Stores, Inc. v. Kirksey, 885 F.2d 476, 478 (8th Cir. 1989), but it
goes far to establish qualified immunity. Otherwise the
incentive for officers to consult prosecutors—a valuable
screen against false arrest—would be greatly diminished.
For these reasons, we affirm the dismissal of the suit
against Seitzinger, but reverse the dismissal of the suit
against Rietz and the order relinquishing jurisdiction over
the supplemental state-law claims, and remand the case for
further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
No. 03-3158 7
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-14-04