prior to Anderer’s arrest “Officer Shoman informed the IAD investigators that JR was a known trouble-maker who had proven to be a con- stant problem in her patrol area.”
How later courts described this case
- prior to Anderer’s arrest “Officer Shoman informed the IAD investigators that JR was a known trouble-maker who had proven to be a con- stant problem in her patrol area.”
- holding that the Fifth Amendment protection against self-incrimination “must have a broad construction in favor of the right which it was intended to secure”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3669
JOSEPH R. ANDERER, JR.,
Plaintiff-Appellant,
v.
POLICE CHIEF ARTHUR JONES, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01-C-668—J.P. Stadtmueller, Judge.
____________
JUNE 21, 2005
____________
Before FLAUM, Chief Judge, and POSNER, COFFEY,
EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, WOOD,
EVANS, WILLIAMS, and SYKES, Circuit Judges. Plaintiff-
Appellant filed a petition for rehearing and rehearing en
banc on October 18, 2004. In response to this petition, the
panel amends its opinion as follows.
The first full sentence on page 10 of the slip opinion dated
October 6, 2004 is deleted and replaced with:
“Given these circumstances—a 12-year-old’s bloody
appearance and injuries consistent with being hit in the
mouth, his consistency in reporting how he had been
2 No. 02-3669
injured, and that no other officer observed JR in that
condition prior to turning him over to Anderer’s sole
custody8—we believe the Milwaukee police officers had
probable cause to believe that Anderer had intention-
ally or recklessly caused JR’s bodily injury. See Wis.
Stat. § 948.03.”
A majority of the judges on the panel voted to deny
rehearing. Thereafter, Judge Coffey called for a vote on
Anderer’s petition for rehearing en banc and Chief Judge
Flaum, with Circuit Judges Manion and Kanne, voted to
grant rehearing en banc, but a majority of the active judges
did not favor rehearing en banc. Accordingly, the petition is
denied.
COFFEY, Circuit Judge, dissenting. This court has con-
sistently held that police officers “are not relegated to a
watered-down version of constitutional rights.” Anderer v.
Jones, 385 F.3d 1043, 1076 (7th Cir. 2004) (Coffey, J.,
dissenting) (quoting Driebel v. City of Milwaukee, 298 F.3d
622, 637 (7th Cir. 2002)). Nevertheless, the majority’s rea-
soning and holding in Anderer v. Jones does just that. As
recorded, the majority’s opinion not only creates bad law,
but more importantly violates the parameters of the Fourth
and Fifth Amendments to the United States Constitution.
385 F.3d at 1043-53. Most striking is the majority’s ap-
proval of the Milwaukee Police Department’s (“MPD”)
attempt to force Anderer to give a statement while he was
a suspect in a criminal investigation. Also, the utilization of
Anderer’s failure to respond to such questioning as a factor
establishing probable cause constitutes a clear violation of
his Fifth Amendment right to remain silent as well as his
No. 02-3669 3
contractual employment right not to give a statement with-
out a representative present. Because I feel that this court
has failed to fulfill its obligation under the Federal Rules of
Appellate Procedure in denying Anderer a rehearing en
banc, and has perpetuated a flawed decision recently
handed down as precedent, I dissent from the denial of the
petition for rehearing en banc. See FED. R. APP. P. 35
(stating that an en banc rehearing is favored in order to
“secure or maintain uniformity of the court’s decisions,” or
where “the proceeding involves a question of exceptional
importance”).
The Fifth Amendment to the Constitution states that
“[n]o person . . . shall be compelled in any criminal case to
be a witness against himself.” U.S. CONST. amend. V. Like
every other private citizen or criminal, law enforcement
officers are likewise protected under the Fifth Amendment
privilege against self-incrimination, which prevents the
“government [from] forc[ing] a person to make a statement,
even out of court, that might be used as evidence that he
had committed a crime.” Atwell v. Lisle Park Dist., 286 F.3d
987, 990 (7th Cir. 2002). The right to remain silent under
the Fifth Amendment is one that our founding fathers
viewed, and to date we still view, as vitally important. As
such, the parameters of this plenary right have remained
intact over the last 226 years. See, e.g., Hoffman v. United
States, 341 U.S. 479, 486 (1951); accord Counselman v.
Hitchcock, 142 U.S. 547, 562 (1892) (holding that the Fifth
Amendment protection against self-incrimination “must
have a broad construction in favor of the right which it was
intended to secure”). The United States Supreme Court has
recognized the breadth of this privilege in many, many
decisions, the most recent being Hiibel, where the Court
reiterated the principle that as long as a suspect has an
“articulated real and appreciable fear that [the information
sought might] be used to incriminate him, or ‘would furnish
a link in the chain of evidence needed to prosecute’ him,”
4 No. 02-3669
the privilege attaches and must be honored. See Hiibel v.
Sixth Judicial Dist. Court, 542 U.S. 177, 124 S.Ct. 2451,
2461 (2004) (citing Hoffman, 341 U.S. at 486). No Supreme
Court decision, nor any case law presented to this panel has
ever held that a suspect in a criminal investigation’s refusal
to respond to a potentially incriminating, testimonial and
compelled inquiry may be used to elevate mere reasonable
suspicion to probable cause. See id. at 2460; Tom v. Voida,
963 F.2d 952, 959 n.8 (7th Cir. 1992).
Despite this clear and unambiguous mandate forbidding
the use of a criminal suspect’s silence against him, the dis-
trict court, Judge J.P. Stadtmueller, presiding, proceeded to
use Anderer’s repeated refusals to answer any questions (as
well as Anderer’s refusal to speculate as to what caused JR’s
nosebleed) against him. The trial judge began by finding
“THAT J.R.’S STATEMENT, BY ITSELF MAY NOT HAVE BEEN
SUFFICIENTLY RELIABLE OR TRUSTWORTHY TO PROVIDE A BASIS
FOR PROBABLE CAUSE.” Anderer v. Jones, 342 F. Supp. 2d
799, 803 (E.D. Wis. 2002) (emphasis added). However, in a
curious about-face, the trial judge then went on to
impermissibly allow Anderer’s refusal and “inability to
explain J.R.’s nose bleed” (which in reality was a refusal to
answer) to be used against him. Id. In concluding that the
MPD had probable cause to arrest Anderer, the trial judge
somehow found that “J.R.’s bloody nose, the time Anderer
spent alone with J.R. [in the squad car (122 seconds)], and
Anderer’s inability to explain the cause of J.R.’s bloody nose
[were] factors sufficient to supplement any possible lack of
credibility in J.R.’s statement.” Id. at 804 (emphasis added).
This error in reasoning was damaging enough, but the
mistake was compounded when the majority (without any
citation of legal authority) approved of this flawed reasoning
and once again incorporated Anderer’s REFUSAL TO ANSWER
against him as a factor when establishing probable cause.
The majority opinion, as originally written, states:
No. 02-3669 5
Anderer offered no explanation to the investigating
officers for how JR’s injuries might otherwise have
occurred, and appears only to have inquired about
what JR claimed Anderer had hit him with. Given
these circumstances—a 12-year-old’s injuries and
bloody appearance, his consistency in reporting how
he had been injured, and Anderer’s total failure to
provide any explanation for the injuries when no
other officer observed JR in that condition prior to
turning him over to Anderer’s sole custody—we
believe the Milwaukee police officers had probable
cause to believe that Anderer had intentionally or
recklessly caused JR’s bodily injury.
Anderer, 385 F.3d at 1050 (emphasis added). Not only does
this passage incorrectly characterize the information in the
record, as thoroughly discussed and documented in my
dissent, see Anderer, 385 F.3d at 1075-76 (Coffey, J., dis-
senting), this holding is in strict contradiction of more than
200 years and volumes of case law which support Anderer’s
right to be protected from self incrimination. See id.; see
also Hoffman, 341 U.S. at 486. After all, a person “may not
be detained . . . without reasonable, objective grounds for
doing so; and his refusal . . . to answer does not, without
more, furnish those grounds.” Florida v. Royer, 460 U.S.
491, 498 (1983) (citing United States v. Mendenhall, 446
U.S. at 556).
In an effort to defray and bypass the unconstitutional
underpinnings of this approach the majority subsequently
amended its original opinion. However, the majority’s opin-
ion, even with the newly incorporated changes, can only be
interpreted as holding that a criminal suspect’s refusal to
answer in the face of questioning by law enforcement au-
thorities may be used as a factor establishing probable
cause. As changed, the paragraph, in pertinent part, reads:
Anderer offered no explanation to the investigating
officers for how JR’s injuries might otherwise have
6 No. 02-3669
occurred, and appears only to have inquired about
what JR claimed Anderer had hit him with. Given
these circumstances . . . we believe Milwaukee
police officers had probable cause to believe that
Anderer had intentionally or recklessly caused JR’s
bodily injury.
Majority Opinion (Revised 12/6/04) at *10. Thus, because
even this majority’s revised opinion, as written, continues
to construe Anderer’s silence against him as an element of
probable cause—casting aside more than 200 years of clear
and unambiguous case law—this court should not have
gone on record as adopting this misapplication of the law
and must somehow remedy this grievous error at the ear-
liest possible opportunity. Anderer’s repeated refusals to
speculate as to the cause of JR’s nosebleed were entirely
consistent with his clearly established Fifth Amendment
rights, and as such may not be used as a factor which would
increase the “probability or substantial chance” that
Anderer had committed a crime, thus elevating reasonable
suspicion to probable cause. Beauchamp v. City of
Noblesville, 320 F.3d 733, 743 (7th Cir. 2003).
Furthermore, not only did the majority’s misapplication
of Anderer’s invocation of his Fifth Amendment right not to
answer questions against him violate his constitutional
rights, but this illegal invasion also ran afoul of Anderer’s
clearly enumerated contractual rights under his employ-
ment agreement with the Milwaukee Police Department.
The MPD Rules and Regulations, Rule 3/450.05(D)(8)
clearly mandates that: “In an investigation that requires an
immediate interview, the [officer] will be allowed a reason-
able opportunity to obtain the presence of and to consult
with a representative of his/her choice before and during the
interview.” However, an officer may be forced to give a
statement by a supervising officer if, before being compelled
to speak, that officer is told that he will receive “immunity
No. 02-3669 7
from criminal prosecution on the basis of [the answers
given].” Driebel, 298 F.3d at 638, n.8 (quoting Atwell, 286
F.3d at 990).
Despite the fact that Anderer’s request to consult with a
representative of his choice was never granted, investi-
gating officers from the Internal Affairs Division (“IAD”) of
the MPD attempted to coerce a statement from him, in clear
violation of their own rules as well as Anderer’s contractual
rights. Indeed, at one point in the investigation IAD
officers, in another attempt to get a statement out of
Anderer, threatened that they were going to call a superior
officer to “PI-21” him.1 However, the IAD officers, in this
instance, violated their own rules and regulations by failing
to explain to Anderer that before being compelled to
respond to questioning he would have to be granted im-
munity from criminal prosecution on the basis of any ques-
tions asked or responses given. See Driebel, 298 F.3d at 638;
see also Anderer, 385 F.3d at 1074 (Coffey, J. dissenting)
(citing MPD Rule 3/450.05 et seq.). Instead, IAD officers
used the threat of initiating the “PI-21” procedure in an
attempt to coerce Anderer into answering their questions
before granting him immunity or furnishing him with a
representative; all the while knowing that if Anderer had
complied and given such a statement he would be waiving
his Fifth Amendment, as well as his contractual, rights.
Knowing and understanding his rights, Anderer stead-
fastly refused to respond to questioning much less speculate
as to what caused JR’s spontaneous nosebleed, thus exer-
cising a right reserved to him under the Fifth Amendment
as well as his contract with the MPD. On another occasion,
1
Meaning that they were going to get a sergeant to compel and
force Anderer to give a statement under threat of demotion,
disciplinary action or even discharge. See MPD Rule 3/450.05 et
seq.
8 No. 02-3669
when asked if he was willing to give a statement, Anderer
patently and emphatically refused stating that he “ab-
solutely [would] not, not without union representation.”
However, the IAD, the district court as well as the majority
all saw fit to ignore Anderer’s guaranteed rights under the
Constitution, not to mention his contractual rights, and
went so far as to use his repeated refusals to answer as a
factor to elevate reasonable suspicion to the level of prob-
able cause to arrest. This court’s approval of such a double
standard for a police officer undermines age-old precedent
holding that police officers (even those accused of not
abiding by the law) are not to be treated as second-class
citizens and are likewise “not relegated to a watered-down”
set of legal and constitutional rights. Driebel, 298 F.3d at
637. A holding, such as the majority’s, is unacceptable and
constituted a grave injustice that this court could and
should have remedied in an en banc proceeding in order to
“secure and maintain uniformity of the court’s decisions” as
proscribed by FED. R. APP. P. 35.
As mentioned above, the only legally cognizable grounds
that the IAD had for arresting Anderer was their reli-
ance on a fabricated statement as true from an unreliable,
profane, disturbed and psychotic juvenile witness. See,
e.g., Anderer, 385 F.3d at 1058 (prior to Anderer’s arrest
“Officer Shoman informed the IAD investigators that JR
was a known trouble-maker who had proven to be a con-
stant problem in her patrol area.”) (Coffey, J. dissenting).
However, based on JR’s statement alone, the MPD was
without sufficient reason to believe that Anderer had com-
mitted a crime and lacked probable cause to arrest him,
thus constituting a clear violation of the Fourth Amendment
to the United States Constitution.
The Fourth Amendment protects every United States
citizen’s right “to be secure in their houses, persons, papers,
and effects, against unreasonable searches and seizures.”
U.S. CONST. amend IV. It is true that probable cause “is a
No. 02-3669 9
fluid concept—turning on the assessment of probabilities in
particular factual contexts—not readily, or even usefully,
reduced to a neat set of legal rules.” Illinois v. Gates, 462
U.S. 213, 231 (1983). Although probable cause is “incapable
of precise definition or quantification into percentages,”
Maryland v. Pringle, 540 U.S. 366, 371 (2003), the Supreme
Court has concluded that, sin qua non, “probable cause is a
reasonable ground or belief of guilt.” Brinegar v. United
States, 338 U.S. 160, 175 (1949), accord Carroll v. United
States, 267 U.S. 132, 161 (1925). This requires that we
determine “whether [the] historical facts, viewed from the
standpoint of an objectively reasonable police officer
amount to . . . probable cause.” Ornelas v. United States,
517 U.S. 690, 696 (1996).
The question of whether the investigating police officers,
when confronted with a completely unreliable witness, had
a duty to investigate further is one of utmost importance.
See, e.g., Driebel, 298 F.3d at 628; see also FED. R. APP. P. 35
(stating that an en banc rehearing is warranted where “the
proceeding involves one or more questions of exceptional
importance”). Indeed, the juvenile complainant’s credibility
was thoroughly undermined by a plethora of contradictory
evidence as well as his display of uncontrolled, profane and
psychotic behavior. See, e.g., Driebel, 298 F.3d at 628-32
(7th Cir. 2002); see also Anderer, 385 F.3d at 1082 (Coffey,
J., dissenting) (quoting O’Grady Psychiatrist Report,
Anderer Aff., Ex. 29 at 1) (Dr. O’Grady, a psychiatrist who
had examined JR just a week before the incident stated in
his report that the juvenile had been prescribed various
medications for his present and documented psychiatric
disorders (schizophrenia, depression and anxiety disorder)
and had also been diagnosed as suffering from “paranoia
and auditory hallucinations [in which] voices were telling
him to harm himself, [and] others”). As the presiding trial
court judge stated: “J.R.’s statement alone [was] an insuffi-
cient basis for probable cause . . . . After all, if J.R. could
10 No. 02-3669
manufacture one obvious lie (rape allegation) against an
officer, he might also manufacturer a more plausible lie
against a different officer.” Anderer, 342 F. Supp. 2d at 802-
03. However, instead of continuing their investigation after
being made aware of JR’s unreliability—as officers are
required by law to do—the IAD investigators proceeded to
ignore the exculpatory statements of witness Officer
Shoman and systematically failed to timely interview a
number of others2 prior to arresting Anderer. See Spiegel v.
Cortese, 196 F.3d 717, 723-24 (7th Cir. 1999).
It is uncontroverted that throughout his encounter with
the police on April 17, 2001, JR acted in an out-of-control
manner that suggested he was a very (psychologically
and emotionally) troubled individual. For example, prior
to levying his assault accusation against Anderer, JR had
repeatedly accused another officer, Officer Cook, of at-
tempting to “rape” him, which was a wild and completely
unsupported claim.3 The trial judge, Judge Stadtmueller,
recognized the import of this baseless accusation when he
stated: “Anderer raises serious issues concerning J.R.’s cre-
dibility by showing that J.R. made fanciful allegations
against another officer.” Anderer, 342 F. Supp. 2d at 803.
Also, JR, rather than continuing to assert his ridiculous
accusation against Cook that he had been “raped,” later
changed his tune when talking to IAD investigators and
admitted that he had only been “nudged” with a flashlight;
a turn of events that also helps serve to undermine JR’s
credibility, as well as the unsupported conclusion of the IAD
2
These witnesses include Officers Cook, Centeno, Logan and
Bohlen, and one lay witness, Mitchell; all of whom would have
exonerated Anderer.
3
The record shows that what in fact happened was that Cook
“nudged him on his buttock with a flashlight,” see Anderer, 385
F.3d at 1068 (Coffey, J., dissenting); a far cry from the “rape”
accusation which JR repeated to a number of officers.
No. 02-3669 11
and the majority that JR was “consistent in reporting how
he had been injured.” Anderer, 385 F.3d at 1050. In addi-
tion, JR, when initially interviewed, stated that he had been
struck in the face as he was entering Anderer’s police
vehicle at the marina, but subsequent to Anderer’s arrest
changed this part of the fabrication also and now stated
that, during the drive to the District 2 station, Anderer had
“stopped the car,” got out of the driver’s seat, “opened the
back door” and proceeded to strike him in the face. Id. at
1046. The reality of the situation is that the officers were
dealing with a rambling, psychotic and delusional child who
had recently been diagnosed as experiencing “PARANOIA
AND AUDITORY HALLUCINATIONS [IN WHICH]
VOICES WERE TELLING HIM TO HARM HIMSELF, OR
TO HARM OTHERS.” See Anderer, 385 F.3d at 1082
(Coffey, J. dissenting) (citing O’Grady Psychiatrist Report,
Anderer Aff., Ex. 29 at 1 (emphasis added)). With reference
to the doctor’s report, it makes sense that JR would harm
either himself or attempt to harm officers by making
spurious “rape” allegations against one officer, Cook, and
claiming that another officer, Anderer, had hit him.
In addition to making these ridiculous allegations against
Cook, as well as being inconsistent in his recitation of the
events of that night, the evidence in the record establishes
that JR was not a credible or trustworthy witness. JR
displayed no physical signs of injury whatsoever anywhere
on his face which fails to establish that he had been hit
or struck or assaulted in any manner by a 200 lb. police
officer. See id. at 1072 (Coffey, J., dissenting). In addition,
his aggravated, out-of-control conduct and suspicious de-
meanor that night should have rendered his recitation of
the alleged events of that evening completely unreliable,
thus requiring a reasonable officer to investigate further.
See Hebron v. Touhy, 18 F.3d 421, 422-23 (7th Cir. 1994)
(“Sometimes information from or about a person claiming
to be the victim of crime would lead a reasonable officer
12 No. 02-3669
to be suspicious, making further investigation prudent—
and because the ‘reasonableness’ standard of the fourth
amendment [sic] links the constitutional obligation to the
standard of prudent conduct, the officer must do more.”).
Indeed, MPD officers had ample information that night
that should have completely destroyed JR’s credibility, to
name just two: (a) that JR was supposed to be taking no
less than three psychotropic drugs at the time of his arrest;
and (b) that he had failed to take his medication that day,
making him a menace and possible danger to himself and
others. See Anderer, 385 F.3d at 1058 n.3 and accompany-
ing text (Coffey, J., dissenting). The record clearly estab-
lishes the fact that officers knew that JR had been pre-
scribed, and was supposed to have been ingesting, a variety
of psychotropic medications, and that he had failed to take
those medications that very day. Id. at 1046.4 Also, when
contacted, JR’s mother urged officers to “release[ ][him]
from custody as soon as possible in order that he might
ingest his medication immediately.” Id. at 1058 (Coffey, J.,
dissenting). The majority contends that “the fact that
investigating officers knew about JR’s [psychotropic]
medication does not ipso facto negate JR’s credibility or
require the officers to further investigate.” Id. at 1050.
However, the majority’s argument is a red herring. JR’s
failure to take his psychotropic medications that evening
certainly should have alerted the allegedly intelligent, well-
trained and seasoned investigating officers to the fact that
a more detailed and thorough investigation into JR’s
4
Subsequent to JR having made his spurious allegations against
Anderer, Cook called JR’s mother to inform her that her son was
in custody. Id. While talking with Cook, “JR’s mother admitted
that she was not surprised that JR had been arrested for burglary
and advised Officer Cook that JR was taking several prescription
medications, including two that Officer Cook recognized as pills to
‘help control a person’s mental state.’ ” Id.
No. 02-3669 13
allegations was necessary given the disturbed mental state
of the purported victim witness they were dealing with.
Also, when JR’s failure to take his psychotropic medicines
is viewed in light of all the wealth of other evidence un-
dermining his credibility—such as: (1) his spurious rape
allegations against Officer Cook; (2) the lack of any physical
evidence suggesting that he had been injured in any way;
(3) the lack of any evidence corroborating JR’s version of
events; and (4) his inconsistency in reporting the alleged
abuse—JR’s mental status, failure to take his medicine that
day and out-of-control behavior certainly establish that JR
was patently untrustworthy, unreliable and certainly not
credible as a witness or believable as a purported victim.
It is true that “as long as a reasonably credible witness or
victim informs the police that someone has committed, or is
committing, a crime, the officers have probable cause to
place the alleged culprit under arrest.” Spiegel, 196 F.3d at
723 (emphasis added). This most assuredly was not the case
here; JR was not a reasonably credible witness. The trial
court so found in holding that “J.R.’s statement, by itself,
may not have been sufficiently reliable or trustworthy to
provide a basis for probable cause.” Anderer, 342 F. Supp. 2d
at 803. Therefore, because JR was not a credible witness,
the IAD’s investigating officers were, by law, required to
conduct further investigation into JR’s allegations of abuse;
and if they had, the IAD would have discovered and been
convinced beyond a shadow of a doubt that Anderer had not
committed any crime. See Beauchamp, 320 F.3d at 743.
The great weight of the evidence in this case, including
the sworn statements of six police officers and one lay
witness, establishes the fact that Anderer did not strike JR
at any time on the evening of April 17, 2001. Indeed, not
one living, breathing human being was ever found that
could corroborate JR’s fabricated claim that he had been
struck by Anderer. Had investigators done what is legally
(and ethically) required of them and investigated the matter
14 No. 02-3669
in a more thorough manner (instead of conducting what can
only be described as an orchestrated and preconceived
cursory inquiry), they would have uncovered a wealth of
evidence exonerating Anderer. At the marina, where JR
claimed he was struck by Anderer, lay witness James
Mitchell observed the totality of Anderer’s interaction with
JR, and stated that he: “Watched every step of the way
while Officer Anderer was taking [JR] to his squad car [and
as] Officer Anderer guide[d] [JR] into the back seat of the
squad, [he] saw Officer Anderer seatbelt JR, close the door
securing him in the back of the squad and . . . [a]t no time
did [he] see Officer Anderer strike [JR] or act in any
abusive manner toward him . . . [instead, Mitchell com-
mented that] at all times . . . Anderer acted in a very
professional manner [towards JR].” Anderer, 385 F.3d at
1084 (Coffey, J., dissenting). In addition, six police officers
testified that they did not observe Anderer abuse or even
yell at JR, much less punch him in the face as he was being
put into the police conveyance (as was claimed by the
abusive, foul-mouthed and out-of-control JR). For instance,
Officer Bohlen, who was on the scene and had “a direct
vantage point” failed to “notice anything out of the ordinary
when Officer Anderer placed JR in his squad.” Id. (Coffey,
J. dissenting). Also, Officer Cook testified that Anderer had
not “encountered any difficulty placing JR into his squad,”
adding that he “would have been in a position to have
noticed any such commotion.” Id. at 1086 (Coffey, J.
dissenting).
If the MPD had performed a legally sufficient and unbi-
ased investigation prior to Anderer’s arrest, they would
have learned from the officers on the scene that Anderer did
not, at any time, strike or even raise his voice at JR before
placing him in the squad car at the marina. Based on
nothing more than pure speculation and conjecture the
District Judge J. P. Stadtmueller stated (and the majority
joined in the speculation) that Anderer may have hit JR
No. 02-3669 15
sometime after leaving the marina by citing “the time in
which JR was alone with Anderer in Anderer’s car,” as one
of the circumstances which established probable cause.
Anderer, 342 F. Supp. 2d at 803. The majority, as stated
earlier, somehow perpetuated this grave error in judgment
by relying on the fact that “no other officer observed JR
[bleeding] prior to turning him over to Anderer’s sole cus-
tody” as a reason “to believe that Anderer had intentionally
or recklessly caused” JR to bleed. Anderer, 385 F.3d at
1049-50. However, the fact is that the record establishes, in
no uncertain terms, that Anderer arrived at the police sta-
tion, with JR secured in the back of his squad car, a mere
122 seconds after leaving the marina. Id. at 1081 (Coffey,
J., dissenting). This extremely limited period of time falls
far short of the amount of time necessary for Anderer to
stop the squad car, turn off the ignition switch, remove the
key from the ignition, unfasten his seatbelt, open the
driver’s side door, exit the vehicle, close the front door, open
the rear door, proceed to hit the juvenile, close the rear
door, reopen the front door, reenter the vehicle, re-fasten
his seatbelt, insert and turn the key, and start the engine
within 122 seconds, much less proceed to the station in
addition within that period of time as JR claimed was the
sequence of events after Anderer’s arrest. Therefore, it
is both inaccurate and disingenuous for the majority to
speculate, as the trial judge did, and state that Anderer
could have struck JR while conveying him to the District 2
police station when all recorded evidence, not to mention
the evidence available to the MPD at the time (recall that
JR did not say that he had been struck while in the car
until after Anderer’s arrest), suggests that this is impossi-
ble.
Probable cause to arrest Anderer was not established. To
make matters worse, if the IAD had performed an inde-
pendent and unbiased investigation, command officers and
16 No. 02-3669
the Chief of Police, Arthur Jones, would have realized not
only that there was insufficient grounds to arrest Anderer,
but that he (Anderer) was innocent. This conclusion is
bolstered by the decision of the Milwaukee County District
Attorney’s office not to press charges against Anderer. In a
memo dated June 7, 2001, Assistant District Attorney Jon
Reddin stated:
I have interviewed [JR], Anderer, officers Janice
Shoman, Jeff Cook and Jeff Logan, and civilian
James Mitchell. Based on those interviews I have
concluded that we cannot prove how and by whom
[JR]’s injuries were incurred, and consequently [I
conclude that] no criminal charges can be sus-
tained. . . . Whether Anderer struck him or he in-
flicted the injuries to himself by smashing his face
into something in the back of the car will probably
never be known to anyone but [JR] and Anderer. I
cannot say with any assurance what happened. I
believe it more probable, particularly in view of my
knowledge of prior complaints against Anderer,
that Anderer did strike [JR]. It is entirely con-
ceivable, however, given [JR]’s agitation, mental
problems and stated intentions to get money out
of this incident, that he inflicted the injuries to
himself.”
Id. at 1062 (Coffey, J., dissenting). Not satisfied with this
independent and unbiased result, the MPD’s Chief Jones
personally requested that District Attorney E. Michael
McCann himself review the decision of his first assistant
and, upon subsequent review, the District Attorney ratified
Reddin’s decision without further comment. Id. (Coffey, J.,
dissenting) This reluctance on the part of the District
Attorney’s office to find any legally sufficient basis for
pressing charges in the complaint against Anderer is merely
further evidence: (a) that the IAD failed to perform a good-
faith investigation and instead conducted a result-driven,
No. 02-3669 17
pre-ordained sham investigation to disgrace Anderer; (b)
that given JR’s lack of credibility and trustworthiness the
IAD should have investigated further due to the unreliabil-
ity of the only witness, in which case, they would have
uncovered evidence exonerating Anderer; and (c) that the
information gained did not rise to the level of establishing
probable cause to arrest Anderer.
I fully understand that the law does not require that, in
every case, “a police officer conduct an incredibly detailed
investigation at the probable cause stage,” Spiegel, 196 F.3d
at 724-25. However, a more thorough investigation was
required here and, if accomplished in an independent and
unbiased manner, would have conclusively established that
probable cause to arrest Anderer did not exist. The IAD’s
failure to further investigate is a black mark on the MPD
and violated Anderer’s Fourth Amendment right to be
secure in his “person[], papers, and effects, [as well as]
against unreasonable searches and seizures.” U.S. CONST.
amend IV.
The majority’s opinion (385 F.3d 1043), as written, creates
bad law and violates Anderer’s Fourth and Fifth Amend-
ment rights as well as his contractual employment rights
and should not be allowed to stand as precedent. The
decision by this court to allow the majority’s opinion to
stand will undoubtedly cause concern and confusion on the
part of law enforcement officers and the bar throughout this
circuit. Police officers serve a vitally important function in
our society and are entitled to the same constitutional
protections as all United States citizens. The majority’s
endorsement of the denial of Anderer’s protections under
the Fourth and Fifth Amendments, as well as those guaran-
teed in his contract of employment, allows for the treatment
of officers as second-class citizens. Thus, following the
dissemination of this decision, law enforcement personnel
will undoubtedly be concerned that, simply by doing their
job and relying on the rights guaranteed them by the
18 No. 02-3669
Constitution and contract, they will be susceptible to arrest
and/or termination without good cause.
A situation of this nature is unacceptable, and it is for
these reasons that I am forced to object to the denial of a
rehearing en banc. As noted above, a rehearing is favored:
(a) in order to “secure or maintain uniformity of the court’s
decisions,” or (b) where “the proceeding involves a question
of exceptional importance.” FED. R. APP. P. 35. In this case,
both of these criteria—maintenance of uniformity and ex-
ceptional importance—should have warranted that the en-
tire court consider the record and thoughtfully evaluate
whether Anderer was entitled to his day in court in this
case. The majority’s decision supports an emasculation of
over 200 years of criminal and constitutional law and must
not be promulgated as precedent. Thus, an en banc hearing
would have served the purpose of allowing the entire court
to resolve the ambiguity which this decision has undoubt-
edly created for law enforcement officers and the bar
throughout this circuit.
I respectfully dissent from the court’s erroneous decision
to allow the majority’s decision in this case to stand as
written.
No. 02-3669 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-21-05