The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-2246 & 04-2368
EMILIANO HERNANDEZ,
Plaintiff-Appellee,
Cross-Appellant,
v.
MICHAEL F. SHEAHAN, Sheriff
of Cook County, and
CITY OF CHICAGO,
Defendants-Appellants,
Cross-Appellees.
____________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 99 C 6441—John F. Grady, Judge.
____________
ARGUED APRIL 10, 2006—DECIDED JULY 26, 2006
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Before EASTERBROOK, RIPPLE, and WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. On June 9, 1999, police
in Chicago stopped Emiliano Hernandez for running a
stop sign. He was not carrying a driver’s license and
lacked proof of insurance. A check from the squad car
revealed that his license had been suspended. Through this
check the officers learned the number of Hernandez’s
driver’s license, which they used to inquire about his
criminal record. The Law Enforcement Agencies Data
2 Nos. 04-2246 & 04-2368
System database reported that the person assigned to that
license number, Enrique Hernandez, was wanted on an
outstanding warrant. Deeming “Enrique” and “Emiliano” to
be aliases for a single person, the police took Hernandez
into custody. No one noticed that one digit of Emiliano’s
driver’s license (an Illinois license has one letter and
11 numerals) had been mistyped on the squad car’s termi-
nal. Enrique Hernandez, the wanted man, is a different
person—though the birthdays of Enrique and Emiliano are
identical and their physical characteristics match (an
Illinois license records sex, height, weight, and eye color, all
of which tallied).
At the stationhouse police brushed off Hernandez’s
contention that he is not the fugitive “Enrique Hernandez.”
They took him to court the morning of June 10. A lawyer
was appointed to represent Hernandez, who pleaded
guilty to three traffic infractions: failing to stop at a stop
sign, driving after his license had been suspended, and
driving without insurance. Judge Thomas O’Hara, presiding
in traffic court, then remanded Hernandez to the Sheriff’s
custody so that he could be arraigned in the criminal court
on the charge that led to the warrant. That afternoon
Hernandez (supported by his wife, who presented his
passport and Social Security card) again insisted that he is
not the man named in the warrant. Like the police before
them, the Sheriff’s deputies refused to listen and informed
Hernandez that this was a matter for the judge.
The very next morning Hernandez was back in court,
before Judge Thomas Carmody, who called him “Enrique
Hernandez.” He did not protest. Indeed, neither Hernandez
nor his lawyer ever argued to either Judge O’Hara or Judge
Carmody that Enrique and Emiliano Hernandez are
different persons. Judge Carmody set bond at $5,000 and
returned Hernandez to the Sheriff’s custody pending the
next hearing, scheduled for July 1. On June 24 Hernandez
was released on bail. (He would have been released earlier
Nos. 04-2246 & 04-2368 3
but for a gaffe that made desk officials at the jail think that
the judge had denied his motion for bail; that error is no
longer at issue.) During the period between June 11 and
June 24 deputies continued to rebuff Hernandez’s insistence
that he is not the wanted Enrique; the deputies took the
view that they had an obligation to produce him in court on
July 1 and were going to hold him, unless bailed out, no
matter what arguments and documents he and his family
presented. Whether he was to be detained in the interim,
the deputies maintained, was a decision already made by a
judge.
While Hernandez was out on bond the prosecutor realized
that an error had occurred and dismissed the pending
charge. In this suit under 42 U.S.C. §1983 Hernandez
contends that both the police and the deputies violated the
Constitution’s fourth amendment (applied to the states by
the fourteenth) and the due process clause of the fourteenth
amendment by refusing to entertain his claim of erroneous
identification. The only remaining defendants are the City
and the Sheriff’s Department, however, and units of
government can be liable under §1983 only for unconstitu-
tional policies, as opposed to errors in the implementation
of valid policies. See Monell v. Department of Social Ser-
vices, 436 U.S. 658 (1978). The district court granted
summary judgment in the City’s favor, ruling that its policy
(which we describe later) is lawful. But the Sheriff’s policy
of refusing to entertain claims of mistaken identification
violates the Constitution, the judge concluded. A jury
awarded Hernandez $750,000 in damages for the time he
had spent in the Sheriff’s custody. The Sheriff appeals from
that decision, and Hernandez cross-appeals from the
judgment in Chicago’s favor. We start with Hernandez’s
appeal.
Chicago contends that there are at least two obstacles
to Hernandez’s claim, even if (as he maintains, and the City
4 Nos. 04-2246 & 04-2368
denies) the police turned a deaf ear to his entreaties. First,
custody between the arrest on June 9 and the initial
appearance before a judge on June 10 was justified whether
or not Hernandez is the person wanted on the warrant. He
had committed three traffic offenses, and the police there-
fore were entitled to hold him until his appearance in court.
The Constitution permits custodial arrests even when the
sole authorized punishment is a fine. See Atwater v. Lago
Vista, 532 U.S. 318 (2001). Hernandez therefore does not
contest his initial custody. (The police could not have let
him drive home, as he lacked a valid license.) The fourth
amendment allows the police up to 48 hours to take a
suspect to court, see County of Riverside v. McLaughlin, 500
U.S. 44 (1991), and Chicago’s police used only 12 (for
Hernandez had been arrested the evening of June 9, while
traffic court was closed). From the time of Hernandez’s
appearance in court, the matter was out of Chicago’s hands.
Second, Chicago requires its police to verify that the
person in custody is the one named in a warrant. Arresting
officers must submit reports with identifying details. The
desk sergeant then must check with the Central Warrant
Unit to determine that the wanted person matches the
person in custody. Any discrepancies must be submitted
to the watch commander for resolution. It is true, as
Hernandez emphasizes, that Chicago does not require the
police to accept identifying information submitted by
relatives, but that is understandable. Given the number
of people who use aliases, and the ease with which
many documents can be faked, a police department is
not required to be credulous but may limit its attention
to information it deems reliable—especially because de-
tention on the police department’s resolution cannot exceed
48 hours. Police are entitled to act on information that may
be inaccurate and let the courts determine whether to credit
a suspect’s claim of innocence. See, e.g., Askew v. Chicago,
440 F.3d 894 (7th Cir. 2006); Gramenos v. Jewel Companies,
Nos. 04-2246 & 04-2368 5
Inc., 797 F.2d 432 (7th Cir. 1986). All the police need is
probable cause, which is well short of certainty. Like a
grand jury, see United States v. Williams, 504 U.S. 36
(1992), police may act on the basis of inculpatory evidence
without trying to tote up and weigh all exculpatory evi-
dence.
Perhaps the police failed to live up to their obligations
under the City’s procedures. But Monell establishes that an
operational error does not support municipal liability.
Hernandez contends that, if double checking (which the
City requires) does not prevent mistakes, then the Constitu-
tion must require triple checking. That argument, however,
was rejected in Baker v. McCollan, 443 U.S. 137 (1979),
which held that an arrest based on a mistaken identifica-
tion does not lead to liability in damages if the suspect is
taken to court promptly. Baker, like this case, concerned an
arrest of one person on a warrant meant for someone else.
Hernandez insists that Baker is not controlling because that
warrant gave the full name of the person who was to be
arrested (a mistake had been made in filling out the
warrant), while “Emiliano” and “Enrique” differ. But that
misses the point: Chicago’s police thought (and not without
reason, given the identical birthdates and physical charac-
teristics) that these were two names for one person. Baker
is not limited to same-name misidentifications. The Su-
preme Court established a broader constitutional rule:
Absent an attack on the validity of the warrant
under which he was arrested, respondent’s com-
plaint is simply that despite his protests of mis-
taken identity, he was detained in the Potter
County jail from December 30, when Potter County
deputies retrieved him from Dallas, until January
2, when the validity of his protests was ascertained.
Whatever claims this situation might give rise to
under state tort law, we think it gives rise to no
claim under the United States Constitution. Re-
6 Nos. 04-2246 & 04-2368
spondent was indeed deprived of his liberty for a
period of days, but it was pursuant to a warrant
conforming, for purposes of our decision, to the
requirements of the Fourth Amendment. Obviously,
one in respondent’s position could not be detained
indefinitely in the face of repeated protests of
innocence even though the warrant under which he
was arrested and detained met the standards of the
Fourth Amendment. . . . We may even assume,
arguendo, that, depending on what procedures the
State affords defendants following arrest and prior
to actual trial, mere detention pursuant to a valid
warrant but in the face of repeated protests of
innocence will after the lapse of a certain amount of
time deprive the accused of “liberty . . . without due
process of law.” But we are quite certain that a
detention of [one business day] . . . does not and
could not amount to such a deprivation.
443 U.S. at 143-45 (footnote omitted). Given Baker, there is
no constitutional infirmity in Chicago’s policy.
Baker does not necessarily carry the day for the Sheriff,
because his staff held Hernandez for 15 days, substantially
beyond the period that the Court dealt with in Baker. But
the Sheriff’s role also is easier to justify, because
Hernandez had been to court first. (This case is not re-
motely like Armstrong v. Squadrito, 152 F.3d 564 (7th Cir.
1998), on which Hernandez relies: In Armstrong an error
caused a sheriff to imprison for almost two months someone
who had never been to court.) That the deputies acted after
the judicial appearance leads the Sheriff to invoke what he
calls “quasi-judicial immunity.” After all, the deputies were
just carrying out the judge’s orders. They aren’t themselves
judges (hence the “quasi”), but they were the judge’s
instruments.
That argument won’t wash, again for two reasons. First,
units of government are not entitled to immunity in suits
Nos. 04-2246 & 04-2368 7
under §1983. Official immunities (judicial, legislative,
absolute, qualified, quasi, and so on) are personal defenses
designed to protect the finances of public officials whose
salaries do not compensate them for the risks of liabil-
ity under vague and hard-to-foresee constitutional doc-
trines. That justification does not apply to suits against
units of state or local government, which can tap the public
fisc. Owen v. City of Independence, 445 U.S. 622 (1980),
holds that governmental bodies whose own policies are
unconstitutional cannot obtain a derivative benefit from the
qualified immunity that may protect their employees. That
decision did not entail a claim of “quasi-judicial immunity,”
but we cannot see any reason why a governmental entity
would be entitled to one kind of immunity but not another.
Second, an invocation of “quasi-judicial immunity” begs
the question. Hernandez maintains that the Constitution
requires jailers to investigate claims of misidentification
even after a judge has remanded the suspect to custody.
If that is true, then the judge’s initial order awarding
custody to the Sheriff’s department can’t be dispositive.
Maybe if the judge forbade the Sheriff’s department to
continue checking on identity there would be immunity
(at least for the deputies personally): they ought not be
put to a choice between penalties for contempt of court
and damages under §1983. The collateral-bar doctrine,
which provides that injunctions must be obeyed (even if
constitutionally infirm) until stayed or reversed by a higher
court, see Pasadena City Board of Education v. Spangler,
427 U.S. 424, 439 (1976), would block an award of damages
against a public official who carried out a direct command
of a judge, made in a case over which the court had jurisdic-
tion. Judge Carmody, however, did not forbid all additional
inquiries into Hernandez’s identity. The Constitution may
not require such inquiries after the arraignment, but that
concerns the merit of Hernandez’s contentions and not any
form of immunity.
8 Nos. 04-2246 & 04-2368
The Sheriff’s policy is simple: Ignore all claims of mis-
identification (and any other version of the assertion that a
suspect is innocent). It is the same policy that Tommy Lee
Jones (portraying a U.S. Marshal) announced in The
Fugitive when Harrison Ford’s character proclaimed his
innocence: “I don’t care.” A judge had committed Ford’s
character to prison, and that was that. We hold that it is an
entirely lawful policy unless the custodian knows that the
judge refuses to make an independent decision or there is
doubt about which person the judge ordered held. It is
possible to imagine a local judge saying something like “I’ll
detain anyone the prosecutor wants me to.” In former times,
it was possible to imagine a judge saying that all black
suspects will be bound over for trial no matter what the
evidence shows. But Hernandez does not contend that the
Circuit Court of Cook County in general, or Judge Carmody
in particular, delegates judicial power to the executive
branch. He can’t contend that the judge abdicated responsi-
bility in his individual case because, as we have mentioned,
he never asked the court to consider whether Enrique and
Emiliano Hernandez are different people. And Judge
Carmody did not tell the Sheriff’s office: “Go find Enrique
Hernandez and keep him in custody until July 1.” He told
the Sheriff to hold plaintiff, in particular. Every detainee in
the Sheriff’s custody has his hand stamped with a number.
Judge Carmody instructed the Sheriff to maintain custody
of a particular person with a particular number, and there
is no doubt that Emiliano Hernandez is that person.
Hernandez’s claim against the Sheriff rests on the due
process clause, because the fourth amendment drops out
of the picture following a person’s initial appearance in
court. See Heck v. Humphrey, 512 U.S. 477, 484 (1994);
Gauger v. Hendle, 349 F.3d 354, 362-63 (7th Cir. 2003). The
due process clause entitles a person to an opportunity for a
hearing that is sufficiently accurate to support the gravity
of the deprivation. What is required for a crim-
inal conviction considerably exceeds what is required for,
Nos. 04-2246 & 04-2368 9
say, a brief suspension from high school. See Goss v. Lopez,
419 U.S. 565 (1975); Henry J. Friendly, “Some Kind of
Hearing”, 123 U. Pa. L. Rev. 1267 (1975). The familiar
formula from Mathews v. Eldridge, 424 U.S. 319 (1976),
specifies that, when evaluating the constitutional adequacy
of a decision-making process, the court must consider the
weight of the interest at stake, the risk of error, and the
costs of additional process.
The interest in liberty is a weighty one, but its duration
in situations of this kind is limited: at stake for Hernandez
was custody until the next appearance (scheduled for
July 1), and perhaps much less (depending on when bond
could be posted). The risk of error entailed in a rule that
judicial decisions will not be re-examined appears to be
slight. Hernandez did not offer any evidence (or point to any
scholarly study) suggesting that state judges regularly
order jailers to hold the wrong person. For all this record
shows, Hernandez is one case in 10,000, and there would
not have been an error in his situation either had he or his
lawyer only raised the subject before Judge Carmody.
(It is not a Sheriff’s job to investigate and redress claims of
ineffective assistance of counsel.) And the costs of using
additional process could be substantial. The value of depu-
ties’ time is not the main potential cost. Instead the major
cost arises from the risk of error.
The rule that Hernandez wants the Sheriff to follow,
under which every deputy must be open to persuasion for as
long as a person is in custody, would create a substantial
possibility that by presenting his contention over and over
even a guilty suspect would eventually find a deputy who
did not understand the weight of the evidence and let him
go. That would frustrate the public interest in carrying out
the criminal law. To appreciate the risk of error, one has
only to consider the point that Hernandez and his wife
made: that very reliable documents (such as a passport)
demonstrate that his first name is Emiliano. Yet that’s only
10 Nos. 04-2246 & 04-2368
half the equation. What if Emiliano were indeed the wanted
man, but the warrant was in the name of Enrique because
Hernandez had put an alias over on the police and prosecu-
tor responsible for the warrant? Sooner or later a prisoner
and his family might find a jailer who did not appreciate
that the validity of both names (and other details) must be
pinned down before it is possible to know whether Emiliano
and Enrique Hernandez are the same person. A jailer who
did not understand this would make an error, and the error
would prove irreparable if the wanted person could not be
recaptured.
The Sheriff’s policy is the norm: ensure one hearing and
abide by its outcome. State or federal law may offer the
opportunity for extra hearings; think only of the way in
which federal courts engage in collateral review of state
criminal convictions. Whether and when a claim of actual
innocence (despite a formal conviction) requires more
judicial proceedings remains a contentious subject. See, e.g.,
House v. Bell, 126 S. Ct. 2064 (2006); Herrera v. Collins, 506
U.S. 390 (1993). But everyone assumes that, to the extent
such claims must be entertained, the obligation rests on the
judiciary rather than the jailer. Hernandez has not identi-
fied, and we are not aware of, any decision by the Supreme
Court (or any court of appeals) holding that employees of
the executive branch must hold a second hearing to decide
whether to implement decisions taken by the judicial
branch at an initial hearing.
If there were deficiencies in the hearing that the Circuit
Court of Cook County offered Hernandez on June 11, then
the right response would have been for his lawyer to
insist that a better decision be made, and to appeal if the
judge refused. There is no basis for an award of damages
against executive officials whose policy is to carry out the
judge’s orders.
The judgment is affirmed on Hernandez’s appeal and
reversed on the Sheriff’s.
Nos. 04-2246 & 04-2368 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-26-06