Mustafa, Anna v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

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No. 05-2101

ANNA MUSTAFA,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, et al.,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03-C-6799—Robert W. Gettleman, Judge.

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ARGUED JANUARY 4, 2006—DECIDED MARCH 23, 2006

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Before POSNER, EVANS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Anna Mustafa sued the

defendant police officers for false arrest and violation of her

civil rights following an incident at Chicago’s O’Hare

Airport. The district court granted summary judgment in

favor of the defendants because it found that there was

probable cause to arrest Mustafa, and even in the absence

of probable cause, the defendants were protected by quali-

fied immunity. Because we agree with the district court

that the defendant officers acted upon probable cause and,

in any event, acted within the scope of their immunity, we

reject Mustafa’s argument that summary judgment was

improperly granted and affirm the ruling of the district

court.

2 No. 05-2101

I. BACKGROUND

Anna Mustafa is a 56-year-old American citizen of

Palestinian descent and Muslim faith. On December 28,

2001, just three months after the attacks of September 11,

Mustafa received word that her father had died in Israel.

That afternoon, Mustafa arrived at the Swissair ticket

counter at O’Hare, intending to fly to Tel Aviv by way

of Zurich, Switzerland to attend her father’s funeral.

Mustafa was accompanied to the counter by nineteen

members of her immediate family. Mustafa ordered a

“Muslim” meal for the flight. Moments later, the Swissair

clerk took Mustafa to a bomb-detection machine to have her

two pieces of luggage inspected for weapons. Mustafa

suspected that this was an instance of discriminatory

religious or ethnic profiling. Following the inspection,

Mustafa complained about her treatment to a Swissair

manager, Muhammad Qadeer, who offered to escort her to

the gate because the screening was complete. During this

exchange, Mustafa was screaming and the area was

crowded. Mustafa realized that security personnel had

failed to inspect her purse. She did not realize that carry-on

bags would be screened at another checkpoint, and she was

concerned that if Swissair later realized it had not checked

the purse, she would be delayed and miss her flight.

Mustafa tried to point out that her purse had not been

inspected, saying, “You already checked my luggage. Maybe

I have a bomb in my purse. Nobody has checked that.” In

response to the word “bomb,” an employee working at a

nearby United Airlines counter began to yell that she had

heard the “B-word” and that security should be called.

Another manager, Mauricio Penaranda, called the police to

report an “unruly” passenger saying the word “bomb.”

Within two to three minutes, defendant Officer Susan

Schober arrived and observed what she later described as

a “commotion.” Qadeer informed her that Mustafa had

No. 05-2101 3

made a statement like “Maybe I have a bomb in my purse.”

Officer Schober, Qadeer, Mustafa, and one of Mustafa’s

sons, Murad Mustafa, spent 20 to 30 minutes in conversa-

tion that focused on calming Mustafa down so that she

could get on the flight to Zurich. Following this conversa-

tion, defendants Sergeant Gawlik and Officer Burke arrived

and asked Officer Schober if she had checked Mustafa’s

purse. Since the answer was no, the two new officers

checked the purse, shouting abusively at Mustafa. Sergeant

Gawlik placed Mustafa under arrest. Mustafa, her son

Murad, and Sergeant Gawlik engaged in a screaming

argument during which Sergeant Gawlik insulted Mustafa’s

family and made a racist reference to the September 11

terrorist attacks three months earlier. Mustafa spent two

days in jail before being released on $50,000 bond; she

missed her father’s funeral. Mustafa was indicted on a

charge of Felony Disorderly Conduct—Bomb Threat pursu-

ant to 720 ILL. COMP. STAT. 5/26-1(a)(3), but acquitted

following a bench trial.1

After Mustafa was acquitted, she filed the instant suit

against the City of Chicago and four police officers, which

originally contained seven counts. A number of claims,

including all those stated against the city, were dismissed.

The defendant police officers moved for summary judg-

ment on the surviving counts, false arrest and violation

of Mustafa’s right to equal protection under the law pursu-

ant to 18 U.S.C. § 1983. The district court granted summary

1

The statute under which Mustafa was charged applies to any

person who “Transmits or causes to be transmitted in any man-

ner to another a false alarm to the effect that a bomb . . . is

concealed in such place that its explosion or release would

endanger human life, knowing at the time of such transmis-

sion that there is no reasonable ground for believing that such

bomb . . . is concealed in such place.” 720 ILL. COMP. STAT. 5/26-

1(a)(3).

4 No. 05-2101

judgment for the defendants on both counts. This appeal

followed.

II. ANALYSIS

A. There was probable cause to arrest Mustafa.

We review a district court’s grant of summary judgment

de novo, viewing the facts in the light most favorable to the

non-moving party. McCoy v. Gilbert, 270 F.3d 503, 508 (7th

Cir. 2001). Probable cause to arrest is an absolute defense

to any claim under Section 1983 against police officers for

wrongful arrest, false imprisonment, or malicious prosecu-

tion. Potts v. City of Lafayette, 121 F.3d 1106, 1113 (7th Cir.

1997). This is so even where the defendant officers allegedly

acted upon a malicious motive (such as the racism that

Mustafa suggests motivated the defendants here). Simmons

v. Pryor, 26 F.3d 650, 654 (7th Cir. 1993), citing Fernandez

v. Perez, 937 F.2d 368, 371 (7th Cir. 1991).

Police officers have probable cause to arrest an individual

when “the facts and circumstances within their knowledge

and of which they have reasonably trustworthy information

are sufficient to warrant a prudent person in believing that

the suspect had committed” an offense. Kelley v. Myler, 149

F.3d 641, 646 (7th Cir. 1998). The court evaluates probable

cause “not on the facts as an omniscient observer would

perceive them,” but rather “as they would have appeared to

a reasonable person in the position of the arresting officer.”

Id.; see also Woods v. City of Chicago, 234 F.3d 979, 987 (7th

Cir. 2000).

Here, there were at least two separate facts that could

have led a reasonable person to believe that a crime had

been committed. First, the earliest arriving officer, Officer

Schober, observed “commotion” and “agitation” in progress,

with Mustafa at its center, at a crowded ticket counter at an

international airport. See 720 ILL. COMP. STAT. 5/26-1(a)(1)

No. 05-2101 5

(“A person commits disorderly conduct when he knowingly

does any act in such an unreasonable manner as to alarm

or disturb another and to provoke a breach of the peace”).

Second, Qadeer, the Swissair manager, told the officers that

the plaintiff had said, “Maybe I have a bomb.” Once a

reasonably credible witness informs an officer that a

suspect has committed a crime, the police have probable

cause to arrest the suspect. Id.; Kelley, 149 F.3d at 647.

Qadeer’s apparent credibility as a manager of Swissair

at O’Hare has not been questioned here. Therefore, based

on the undisputed facts, a prudent person might have

believed that Mustafa committed the crime of making a

false bomb threat.

Mustafa makes much of the fact that Qadeer never

actually believed that Mustafa had a bomb in her purse.

This argument misapprehends the focus of our review of the

circumstances surrounding her arrest. The existence of

probable cause does not depend on the actual truth of the

complaint. Woods, 234 F.3d at 987. The officers were

entitled to take Qadeer at his word as to Mustafa’s actions.

Furthermore, the statute under which Mustafa was later

charged applies categorically to all false bomb threats;

it contains no element limiting its application to cred-

ible bomb threats or to those threats that convince the

listener. 720 ILL. COMP. STAT. 5/26-1(a)(3).

Likewise, the fact that Mustafa’s statement was

phrased conditionally, prefaced by the word “maybe,” is

irrelevant under the plain language of the statute, which

forbids any “false alarm to the effect that a bomb . . . is

concealed.” Id. Particularly in light of the time and place of

the event, which occurred in an international airport three

months after the September 11 attacks, and the under-

standable sensitivity of air travelers and airport security

personnel at that time, it was reasonable for the officers to

conclude that Mustafa had committed disorderly conduct by

stating that she might have a bomb in her purse.

6 No. 05-2101

Finally, Mustafa erroneously suggests that the defendant

officers were derelict in their duty to investigate

the circumstances surrounding the incident before arresting

her. But police officers have no duty to investi-

gate extenuating circumstances or search for exculpatory

evidence once probable cause has been established via

the accusation of a credible witness. Anderer v. Jones,

385 F.3d 1043, 1049 (7th Cir. 2004). They may simply

arrest the accused suspect.

B. The defendants were protected by qualified

immunity.

Even if we were to find that there was insufficient

probable cause to justify Mustafa’s arrest, the doctrine of

qualified immunity would nonetheless ensure a ruling in

favor of the defendants. Qualified immunity protects

officers performing discretionary functions from civil

liability so long as their conduct does not violate clearly

established statutory or constitutional rights that a reason-

able person would know about. See Saucier v. Katz, 533 U.S.

194, 201 (2001). A plaintiff seeking to defeat this defense in

a Section 1983 action must show, first, that the plaintiff’s

rights were violated. Id. Second, the plaintiff must show

that the law concerning the plaintiff’s asserted right was

clearly established at the time the challenged conduct

occurred. Id. Finally, the court must determine whether a

reasonably competent official would know that the conduct

was unlawful in the situation he confronted. Id. Here,

Mustafa certainly had a right to be free from an arrest that

lacked probable cause, and that right is clearly established,

so the only remaining question is whether a reasonable

officer could believe that it was lawful to arrest Mustafa.

As discussed above, Mustafa argues that it was unreason-

able to believe she had committed a crime because

her statement about a bomb was phrased as a possibility

No. 05-2101 7

rather than a fact (“maybe I have a bomb in my purse”),

because any reasonable person would have realized that she

was not serious, and because she did not actually frighten

or convince anyone that she had a real bomb. However,

even if we accepted this argument, this would not disturb

the defendants’ qualified immunity defense. As discussed

above, the Illinois statute at issue applies to implausible

and unconvincing bomb threats. See People v. Barron, 808

N.E.2d 1051, 1055 (Ill. App. Ct. 2004) (upholding the felony

disorderly conduct conviction of an individual who joked

about having a bomb in his shoe at Midway Airport,

because the statute applies to false threats “regardless of

the intention of the speaker or the effect the words have

upon the person receiving them”). At the time of the arrest,

prior to Barron, the application of the bomb threat statute

to circumstances involving jokes, sarcasm, etc., was,

perhaps, arguable; a court might theoretically read a

limitation into the statute and apply it only to credible or

convincing bomb threats. But where the law is open to

interpretation, qualified immunity protects police officers

who reasonably interpret an unclear statute. Reviewing

courts must ask “whether X is a crime under the statute

that the police arrested the plaintiff for violating. If the

answer to that question was unclear when the arrest was

made, the police are entitled to their immunity.” Northen v.

City of Chicago, 126 F.3d 1024, 1027-28 (7th Cir. 1997).

Here, the most Mustafa can plausibly claim is that the

criminality of her conditional statement was unclear; no

case clearly established that implausible threats fall outside

of its reach.

Furthermore, even if no reasonable person could have

believed that Mustafa had made a genuine bomb threat, the

officers might reasonably have believed that Mustafa had

committed the closely related offense of nonspecific disor-

derly conduct under 720 ILL. COMP. STAT. 5/26-1(a)(1),

which covers any unreasonable activity which alarms

8 No. 05-2101

or disturbs another and provokes a breach of the peace. It is

undisputed that Mustafa disturbed employees at the airport

and that a noisy confrontation ensued. Officers may arrest

individuals suspected of any crime; the fact that Mustafa

was prosecuted under only the bomb threat section of the

disorderly conduct statute does not mean that she could

only properly be arrested under that section. Thus, the

officers are protected by qualified immunity, and the

district court’s ruling in their favor is affirmed.

C. The defendant-appellees are not entitled to attor-

neys’ fees.

The defendants have moved for attorneys’ fees pursuant

to Federal Rule of Appellate Procedure 38, 42 U.S.C.

§ 1988(b), and 28 U.S.C. § 1927. Those provisions permit

the discretionary award of attorneys’ fees to the vic-

torious party where a losing party has engaged in frivo-

lous appeals or vexatiously and unreasonably prolonged

litigation. See, e.g., Meredith v. Navistar Int’l Transp. Corp.,

935 F.2d 124, 129 (7th Cir. 1991) (award of attorneys’ fees

under Fed. R. App. P. 38 unjustified where brief is not

“entirely groundless” and does not contain “blatant misrep-

resentations”); Badillo v. Cent. Steel & Wire Co., 717 F.2d

1160 (7th Cir. 1983) (prevailing defendants in civil rights

cases only entitled to attorneys’ fees under § 1988 where

plaintiff’s goal was to harass or embarrass defendant);

Riddle & Assocs. v. Kelly, 414 F.3d 832, 835-36 (7th Cir.

2005) (attorneys’ fees sanction under § 1927 appropriate

where attorney conduct is “objectively unreasonable”).

While we agree with the defendants that Mustafa should

not prevail, we do not agree that her appeal was objectively

frivolous or vexatious in the sense contemplated by these

rules and statutes. Mustafa unintentionally provoked a

security alarm, and as a result, she suffered a very unpleas-

ant interaction with the defendants that she believed was

No. 05-2101 9

unjustified and based on prejudice. In support of that

position, she put forth a reasonable legal theory that failed;

we see no abuse of the courts or the defendants in that. Nor

is there evidence that Mustafa or her attorney is the kind

of serial filer who must be deterred from clogging the courts

with junk lawsuits in the future (a policy goal of Section

1927). The motion for attorneys’ fees is denied.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court. The defendants’ motion for attorneys’ fees is

DENIED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—3-23-06