Ryan Leaver v. Gary Shortess

In the

United States Court of Appeals

For the Seventh Circuit

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No. 15-2730

RYAN LEAVER,

Plaintiff-Appellant,

v.

GARY SHORTESS,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 14-C-224 — William C. Griesbach, Chief Judge.

____________________

ARGUED JANUARY 7, 2016 — DECIDED DECEMBER 21, 2016

____________________

Before EASTERBROOK, MANION, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Ryan Leaver was arrested in

Montana on a Wisconsin warrant for theft by lessee after he

failed to return a rental car to Hertz Rent-A-Car in Appleton,

Wisconsin. He spent more than two months in a Montana

jail before being extradited to Wisconsin. The theft charge

was eventually dropped.

2 No. 15-2730

Leaver then filed this suit under 42 U.S.C. § 1983 alleging

that the investigating officer, Sergeant Gary Shortess of the

Outagamie County Sheriff’s Department, intentionally or

recklessly omitted certain exculpatory information from his

police reports that would have defeated probable cause for

the charge and accompanying warrant. The district court

granted summary judgment for Shortess.

We affirm. No evidence suggests that Shortess was per-

sonally aware of the information Leaver claims was wrongly

omitted from the police reports. And even if he was aware of

it, qualified immunity applies. It’s not clear that the infor-

mation would have negated probable cause.

I. Background

The saga of Leaver’s arrest and extradition begins in

August 2010 in Appleton, Wisconsin, where Leaver was then

living in a motel. On August 2 Leaver’s parked car was

struck by a driver who was insured by West Bend Mutual

Insurance Company. West Bend covered Leaver’s loss and

agreed to pay for a rental car from Hertz. That same day

Leaver went to Hertz’s Appleton office, signed a rental

agreement, loaded all his belongings into a rented 2010

Toyota Camry, and set off westward, leaving the state. He

wound up in Montana. There he stayed.

The rental contract, however, provided that the Camry

was due back to Hertz Appleton on August 12. At Leaver’s

request, and with West Bend’s consent, Hertz extended the

return date to August 16. That date came and went, but

Leaver did not return the car. When he still hadn’t returned

the car by August 18, Hertz reported it stolen.

No. 15-2730 3

Deputy John Drews of the Outagamie County Sheriff’s

Department took the initial theft report from Hertz. He

learned that Leaver had designated Sam Cartier, his room-

mate in Appleton, as his contact person. Drews contacted

Cartier, who said he had last spoken to Leaver on August 9

or 10. Cartier also explained that Leaver had packed all his

belongings in the rental car and was possibly headed for

California. Cartier gave Drews the last contact information

he had for Leaver—a phone number for a Motel 6 in

Montana. Drews called the number but Leaver had already

checked out. With no further leads on either Leaver or the

car, Drews directed the communications center in the

Outagamie County Sheriff’s Department to enter the car into

the stolen-vehicle registry and send an alert to the Montana

Highway Patrol to be on the lookout for the missing Camry.

On September 10 Sergeant Shortess picked up the inves-

tigative trail when the Sheriff’s Department received a

teletype that the stolen Camry had been located, undam-

aged, in Montana. Shortess reviewed Drews’s report and the

statement he had taken from the complaining witness at

Hertz Appleton. He also looked at the rental agreement,

which showed that Leaver had a Michigan driver’s license.

Shortess called the Michigan State Police looking for contact

information for Leaver or anything else that might assist in

locating him or a family member. This inquiry turned up

nothing. Based on what he then knew, Shortess concluded

that he had enough to refer the matter to the Outagamie

County District Attorney for a theft charge. He prepared a

report to that effect, listing that day’s date—September 10,

2010—as the date the car was recovered in Montana.

4 No. 15-2730

The matter stalled for six months. Then on March 16,

2011, an Outagamie County Assistant District Attorney filed

a criminal complaint charging Leaver with theft by lessee.

See WIS. STAT. § 943.20(1)(e). An arrest warrant was issued

that same day, though many weeks would pass before

Leaver was located and arrested.

Leaver maintains that he was entitled to keep the Camry

for up to 62 days and return it to any Hertz location in the

country. He points to the following clause in the rental

agreement: “This vehicle must be returned to Appleton, WI

on 08/12/10 at 16:42 or a higher rate and/or inter city fee will

apply. Minimum keep: 1 rental day. Maximum keep: 62 days

@26.99/day.” But a separate section entitled “Return” also

states: “You must return the car to Hertz by the due date

specified on the rental record, or sooner if demanded by

Hertz.” Adding to the confusion, the agreement also pro-

vides that “[i]n no event” is the renter allowed to keep the

car “for more than thirty (30) days.”

Leaver claims that he returned the Camry to the parking

lot at a Hertz location in Belgrade, Montana, on August 26,

2010. He also says that he called Hertz’s national number

and got oral permission to return the car there, though

nothing corroborates that claim.

On April 9, 2011—after the criminal complaint was filed

and the warrant was issued—Leaver wrote to Outagamie

County Assistant District Attorney Patrick Taylor informing

him that he had returned the Camry to Hertz in Belgrade,

Montana. He accused Hertz of insurance fraud and suggest-

ed that the prosecutor contact “Matt” at Hertz Belgrade and

Katherine Horton at Hertz’s toll-free national number, both

of whom (he said) would confirm his story. On May 12 ADA

No. 15-2730 5

Taylor sent Shortess a memo directing him to follow up with

the people Leaver identified in his letter.

Shortess did not do so, but he did investigate further in

Appleton. He contacted James Foytik, the manager at Hertz

Appleton, who told him that the Camry wasn’t a “one-way

rental” (as Leaver’s letter claimed) and confirmed that

Leaver had to return the car to Hertz Appleton by Au-

gust 16. Foytik also told Shortess that Hertz had placed

Leaver on a nationwide “do not rent” list based on his

failure to return the Camry. Shortess then contacted the

corporate security manager for West Bend Insurance, who

likewise confirmed that the rental agreement was not a one-

way rental. After discussing the case with another sergeant

and the prosecutor, Shortess filed a supplemental report

memorializing this additional investigation and concluding

that nothing in Leaver’s letter called into question the factual

basis for the theft charge.

On May 27, 2011, Leaver was arrested in Bozeman,

Montana. He remained in jail until August 4, when he was

extradited to Wisconsin. The next day he was brought before

a court commissioner in Outagamie County Circuit Court

for an initial appearance. Leaver’s lawyer moved to dismiss

the case, arguing that the rental contract was vague about

when and where the car needed to be returned. He also told

the court commissioner that Leaver had returned the car to

the Hertz lot in Belgrade, Montana, and pointedly noted that

the prosecutor had failed to mention that the car was recov-

ered there. The court commissioner denied the motion,

finding probable cause for the crime of theft by lessee in

violation of § 943.20(1)(e). Leaver renewed his dismissal

6 No. 15-2730

motion when the case came before a circuit court judge in

December, but the motion was again denied.

On January 17, 2012, the prosecutor dropped the charge

and the case was dismissed. Leaver then turned his sights on

Hertz, winning a substantial financial settlement. We’re

concerned here with Leaver’s § 1983 damages claim against

Shortess for violating his Fourth Amendment right to be free

from unreasonable seizure. Leaver contends that Shortess

intentionally or recklessly omitted from his police reports

certain facts that would have affected the prosecutor’s

probable-cause determination—namely, the terms of the

“maximum keep” provision in the rental agreement and the

“fact” that he had returned the car to Hertz Belgrade on

August 26, 2010. The district judge entered summary judg-

ment for Shortess, holding that no evidence supported

Leaver’s assertion that Shortess was aware of the omitted

information and the omitted information wouldn’t have

undermined the probable-cause determination anyway.

II. Discussion

We review a summary judgment de novo, construing the

evidence in the light most favorable to Leaver and drawing

all reasonable inferences in his favor. Townsend v. Cooper,

759 F.3d 678, 685 (7th Cir. 2014). Leaver claims that Shortess

intentionally or recklessly omitted facts from his written

reports that would have affected the prosecutor’s charging

decision, which in turn led to the issuance of an invalid

arrest warrant and thus his arrest without probable cause, all

in violation of his rights under the Fourth Amendment. 1

1A warrantless arrest without probable cause gives rise to a Fourth

Amendment claim for false arrest, which “cover[s] the time of detention

No. 15-2730 7

We accept, as we must at this stage, Leaver’s claim that

he returned the car to Hertz Belgrade on August 26. But no

evidence suggests that Shortess was actually aware of that

fact. The September 10 teletype said only that the stolen car

was recovered in Montana—not that it was returned to a

Hertz location there. As for the terms of the rental agree-

ment, the most we can say is that the agreement contains

some apparent inconsistencies. It prescribes a fixed date and

place for the car’s return: August 12, 2010 (extended to

August 16); Hertz Appleton. But it also includes a longer

“maximum keep” period (62 days), together with a warning

that extra fees will apply for intercity returns and any addi-

tional days beyond the listed return date. In light of the

other facts Shortess had gathered in his investigation, these

conflicting contract provisions do not conclusively negate

probable cause. Or at least qualified immunity applies. It

would not have been clear to a reasonable officer that these

contract provisions defeat probable cause.

“Qualified immunity protects police officers from suit to

the extent that their actions could reasonably have been

thought consistent with the rights they are alleged to have

violated.” Whitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010)

(internal quotation marks omitted). Leaver’s Fourth

up until issuance of process or arraignment.” Wallace v. Kato, 549 U.S.

384, 390 (2007). Once legal process commences, the Due Process Clause

takes over and the claim is recognized—if at all—as one for malicious

prosecution. Bianchi v. McQueen, 818 F.3d 309, 322 (7th Cir. 2016) (recog-

nizing that after Wallace a Fourth Amendment false-arrest claim is

limited to the period before legal process begins). Leaver was arrested on

a warrant that was issued with the criminal complaint. It’s not clear that

the Fourth Amendment applies at all, but Shortess didn’t raise this point

so we consider it waived.

8 No. 15-2730

Amendment claim rests on an argument that the arrest

warrant was invalid because Shortess withheld facts from

his police reports that would have negated probable cause.

Although we generally presume the validity of a warrant,

that presumption may be overcome by a showing that the

officer who sought the warrant “intentionally or recklessly

withheld material facts from the warrant-issuing judge.” Id.

at 410–11. The key question here is whether the omitted

details were indeed material to the probable-cause determi-

nation, a question we approach by asking “whether a hypo-

thetical affidavit that included the omitted material would

still establish probable cause.” Id. at 411 (quotation marks

omitted).

In the context of a § 1983 damages claim against the of-

ficer who sought the warrant, this inquiry accounts for the

availability of qualified immunity. That is, we ask whether it

would have been clear to a reasonable officer that the omit-

ted fact was material to the probable-cause determination.

Id. at 412–14; see Anderson v. Creighton, 483 U.S. 635, 641

(1987).

Probable cause “is a common-sense inquiry requiring on-

ly a probability of criminal activity; it exists whenever an

officer or a court has enough information to warrant a

prudent person to believe criminal conduct has occurred.”

Whitlock, 596 F.3d at 411. Wisconsin’s theft-by-lessee statute

makes it a crime to “[i]ntentionally fail[] to return any

personal property which is in his or her possession or under

his or her control by virtue of a written lease or written

rental agreement after the lease or rental agreement has

expired.” § 943.20(1)(e). The materiality of the omitted

information depends in part on how Wisconsin law treats a

No. 15-2730 9

rental-car agreement with both a fixed expiration date and a

longer “maximum keep” provision.

We have some guidance. The Wisconsin Supreme Court

has upheld the validity of an arrest warrant for violation of

the theft-by-lessee statute in a case involving a similarly

confusing equipment rental agreement:

We hold the arrest was valid. The equipment

was rented on September 13, 1975. The rental

agreement included a space labeled ‘Date to be

Returned.’ That space was filled in with the

date ‘9/15/75.’ Although the agreement includ-

ed a clause providing for additional rent if the

equipment was returned after the date agreed

upon, we do not believe that clause changed

the expiration date of the rental contract.

Robinson v. State, 301 N.W.2d 429, 432 (Wis. 1981). Robinson

lends support to Shortess’s reading of the Hertz contract.

At the very least, Shortess can claim the protection of

qualified immunity, which “tolerates reasonable mistakes

regarding probable cause.” Whitlock, 596 F.3d at 413. Know-

ing what Shortess knew, a reasonable officer could have

concluded that Leaver committed theft by lessee notwith-

standing the confusing language in the contract. Shortess

knew that the rental agreement had a fixed expiration date

of August 16, 2010, and also listed Hertz Appleton as the

return location. He knew that the car was not returned to

Hertz Appleton by that date. He confirmed with Hertz

Appleton—and also West Bend Insurance—that the car was

not a one-way rental. He also knew that Leaver had packed

all his belongings in the leased car and headed for the west

10 No. 15-2730

coast and was last known to be in Montana. True, he was

also aware by September 10 that the car was recovered in

Montana, but as we’ve noted, no evidence suggests that he

knew it had been returned to a Hertz location there.

Shortess’s interpretation of the rental agreement was reason-

able under the circumstances and has some support in

Wisconsin law, and he was entitled to rely on the credible

complaining witnesses at Hertz Appleton.

In short, it would not have been clear to a reasonable of-

ficer that the information Leaver claims Shortess wrongly

omitted from his police reports would have negated proba-

ble cause. Indeed, a Wisconsin court commissioner and

circuit court judge—both aware of the language in the rental

contract and Leaver’s claim that he returned the car to Hertz

Belgrade on August 26—found probable cause for the charge

of theft by lessee. The district judge properly entered sum-

mary judgment for Shortess.

AFFIRMED.