# Joseph R. Anderer, Jr. v. Police Chief Arthur Jones

> Court of Appeals for the Seventh Circuit · October 6, 2004 · 385 F.3d 1043

URL: https://www.frixlaw.com/law-library/cases/788013

## Case

- **Full name:** Joseph R. ANDERER, Jr., Plaintiff-Appellant, v. Police Chief Arthur JONES, Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** October 6, 2004
- **Citations:** 385 F.3d 1043; 21 I.E.R. Cas. (BNA) 1545; 2004 U.S. App. LEXIS 20857; 2004 WL 2238532
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Posner, Coffey, Williams
- **Cited by:** 28 later opinions in the Frix Law Library

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## Opinion text

385 F.3d 1043
Joseph R. ANDERER, Jr., Plaintiff-Appellant,
v.
Police Chief Arthur JONES, et al., Defendants-Appellees.
No. 02-3669.
United States Court of Appeals, Seventh Circuit.
Argued February 25, 2003.
Decided October 6, 2004.
COPYRIGHT MATERIAL OMITTED Appeal from the United States District Court for the Eastern District Court of Wisconsin, J.P. Stadtmueller, J.
William R. Rettko (argued), Rettko Law Offices, Brookfield, WI, for Plaintiff-Appellant.
Rudolph M. Konrad (argued), Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants-Appellees.
Before POSNER, COFFEY, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge.
1
Joseph R. Anderer, Jr. is a former Milwaukee police officer who was arrested for physically abusing a child. Though he was not prosecuted, Anderer was terminated following an internal affairs investigation into this incident. Anderer sued the police chief, other officers involved in his arrest, and the City of Milwaukee for violating his Fourth Amendment rights by arresting him without probable cause, and for terminating his employment after his representative spoke out against the arrest and Anderer filed this lawsuit. Finding that probable cause existed at the time Anderer was arrested and that the speech at issue was not protected by the First Amendment, the district court granted summary judgment to defendants. We agree with the district court's decision and affirm.
I. BACKGROUND 1
2
On April 17, 2001, Milwaukee police officer Joseph Anderer and several other officers arrested four juveniles for burglarizing a boat. After the juveniles were handcuffed, and while they were being escorted to the patrol cars, one 12-year-old boy (whom we will call JR) started shouting that one of the officers who was escorting him to the car, Officer Jeffrey Cook, was touching him on the buttocks and trying to rape him. Three of the juveniles were then transported to the police station by Officer Cook and his partner Officer Jeffrey Logan, while Sergeant Michael Jones, Officer Janice Shoman, Anderer, and JR remained behind. JR was placed in a patrol car and driven to the station by Anderer, while Sgt. Jones interviewed witnesses before returning to the station.
3
Once Anderer and JR arrived at the station, several officers noticed that JR was bleeding from the nose and mouth and had blood on his clothing. Lieutenant Kim Stack asked JR what happened, and he said that Anderer hit him in the face. When Sgt. Jones heard Lt. Stack talking to JR, he asked JR what had happened to him, and JR said that Anderer hit him. Sgt. Jones then asked Anderer how JR had received the bloody nose, to which Anderer responded, "how would I know ... I just transported him." Several other officers also interviewed JR, including Lt. Mary Hoerig and Detective William Smith of the Internal Affairs Department (IAD), and he told them all that he had been hit in the face by Anderer.
4
When Det. Smith interviewed him, JR explained the details of the burglary for which he had been arrested. JR said that when he was placed in Anderer's patrol car, Anderer did not immediately shut the door, but instead asked him questions about what JR had been saying Officer Cook did to him. JR then said that when he told Anderer that Officer Cook nudged him in the buttocks with a flashlight, Anderer started yelling at him and told him he shouldn't be making up "bullshit lies." JR told Det. Smith that he got smart with Anderer, ignored him, and looked away. JR stated that when he turned back to face Anderer, Anderer struck him in the face and caused his nose and mouth to bleed. 2 JR added that while he was being transported to the station, Anderer was yelling at him and saying "do you understand me?", and at one point stopped the car, opened the back door, and said he was going to "whip [JR's] ass." JR said he thought they were alone when all of this occurred and did not know if anyone else had witnessed it.
5
While others were talking to JR, Officer Cook contacted JR's mother to inform her that JR had been arrested. 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." She also told him that JR had not taken his medication that day and needed to be released from custody as soon as possible. Officer Cook informed Sgt. Brunson and IAD Detectives Harrison and Smith that he had been in contact with JR's mother and that JR had been prescribed a variety of drugs that he had not taken all day and should be processed as soon as possible.
6
Det. Smith attempted to interview Officers Cook and Logan about the facts surrounding JR's arrest and the cause of his injuries, but they refused to give a statement without police union representatives present. Det. Smith interviewed Sgt. Jones, who indicated that he was the last person to leave the scene of the arrest and that he had not seen any sign of injury to JR. Sgt. Jones informed Det. Smith that he saw no blood on JR at the scene, and probably would not have noticed the cuts on the inside of JR's lips, but there was enough blood on his shirt at the station that he would have noticed it if it had been there earlier. Sgt. Jones then relayed to Det. Smith the substance of his interview with JR, in which JR detailed the events that resulted in his arrest and the interactions with Anderer that resulted in JR's bloody nose and lip.
7
Detectives Smith and Harrison then interviewed Officer Janice Shoman, who also provided details about JR's arrest. She indicated that she left the scene to pursue another crime before JR was transported to the station, but before she left she saw Anderer with JR in the back of Anderer's car. She could not recall if JR had handcuffs on, but did not see any physical confrontation between JR and Anderer. She stated that she did not see any blood or injury on JR, and said she would have noticed if there had been blood on his shirt.
8
Anderer refused to give a formal statement without union representation, but at one point asked, "off the record," 3 "What did he say I hit him with?" When he was told by one officer that JR said he had punched him in the face, Anderer stated that he was a 200 pound man and if he had punched JR in the face it would have left bruises on JR. Anderer then let the investigating officers inspect his hands, but no photographs were taken, as there did not appear to be any marks or injuries on them. Anderer did not provide any explanation for how JR received the cuts and bloody nose. He did not indicate that there had been any force exercised in effecting the arrest, nor did he suggest that any kind of accident or incident had occurred on the way back to the station. Anderer states that during the course of his "off the record" conversations with them, Detective Harrison, Lt. Stack, and Officer Cook told him that they thought JR's claim was bogus, to which Anderer responded to Officer Cook that he thought was going to get " Driebeled. " 4
9
Lt. Hoerig placed a call to Milwaukee Police Chief Arthur Jones to apprise him of the situation. Chief Jones asked Lt. Hoerig if she thought there was probable cause to arrest Anderer for physical abuse of a child, in violation of Wis. Stat. § 948.03 . Lt. Hoerig informed Chief Jones that she believed there was probable cause to arrest, and the investigating detectives concurred. Chief Jones asked Lt. Hoerig if she would arrest Anderer if he were a private citizen, and Lt. Hoerig indicated that she would. Chief Jones then ordered Anderer's arrest.
10
Immediately following his arrest, Anderer was taken to the Milwaukee County Criminal Justice Facility, where he was held for twelve hours before being released without bail. That afternoon, April 18, Anderer appeared at the Deputy District Attorney's office to make a statement, but because the union attorney was not present, his statement was to be rescheduled. On April 19, after being authorized by Anderer, union president Bradley DeBraska told a local TV station that Anderer was arrested without probable cause because of vindictiveness of the IAD Unit due to prior run-ins between Anderer and one of the IAD investigators, and the union was "hoping and praying" Anderer would sue the police department to correct these wrongs.
11
On June 7, the district attorney's office decided not to pursue the criminal charges against Anderer with respect to JR's accusation. At that time, a local Milwaukee television station reported that charges would not be pursued and that Anderer had retained an attorney to file a complaint against the Milwaukee Police Department and its police chief. On June 13, the reopened criminal investigation into JR's allegations was closed and no further information was developed to further a potential prosecution. On June 19, Anderer was required to give a statement to the IAD for the purpose of a work-rule-violation investigation of his excessive use of force.
12
On July 2, Anderer filed suit in federal district court alleging violations of his civil rights for arresting him without probable cause with respect to JR's accusation. On July 6, the IAD commander issued charges against Anderer alleging that he violated rules and regulations with respect to JR's arrest, and in doing so he quoted from the allegations in Anderer's complaint. On July 17, Chief Jones terminated Anderer's employment, which Anderer has appealed to the City's Fire and Police Commission. Anderer then filed an amended complaint, adding a count alleging that he was terminated in retaliation for exercising his First Amendment rights.
13
Defendants filed a motion for summary judgment, claiming that there was probable cause to arrest Anderer and that his First Amendment count failed to state a claim for relief. The district court granted summary judgment on Anderer's Fourth and First Amendment claims, finding that there was probable cause for his arrest and the speech at issue concerned a private personal dispute that was not a "matter of public concern." Anderer appeals. 5
II. ANALYSIS
A. Probable Cause to Arrest
14
We review a district court's grant of summary judgment de novo, and in doing so draw all reasonable inferences from the record in the light most favorable to Anderer, the non-movant. Woods v. City of Chicago, 234 F.3d 979, 986 (7th Cir.2000). This court discussed at length the standard for evaluating probable-cause-to-arrest challenges in § 1983 cases in Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir.1999), and Driebel v. City of Milwaukee, 298 F.3d 622 (7th Cir.2002). Probable cause is "`a commonsense determination, measured under a reasonableness standard.'" Spiegel, 196 F.3d at 723 (quoting Tangwall v. Stuckey, 135 F.3d 510, 519 (7th Cir.1998)). Probable cause exists if, at the time of the arrest, "`the facts and circumstances within [the arresting officer's] knowledge and of which she has reasonably trustworthy information would warrant a prudent person in believing that the suspect had committed or was committing an offense.'" Id. (quoting Qian v. Kautz, 168 F.3d 949, 953 (7th Cir.1999)).
15
In evaluating whether probable cause was reasonably determined, the court "must consider the facts as they would have reasonably appeared to the arresting officer `seeing what he saw, hearing what he heard' at the time of the incident." Driebel, 298 F.3d at 643 (quoting Richardson v. Bonds, 860 F.2d 1427, 1431 (7th Cir.1988)); Spiegel, 196 F.3d at 723 ("The existence of probable cause turns on the information known to the officers at the moment the arrest is made, not on subsequently-received information."). "An officer's belief in the existence of probable cause ` need not be based on evidence sufficient to support a conviction, nor even a showing that the officer's belief is more likely true than false. '" Driebel, 298 F.3d at 643 (quoting Woods, 234 F.3d at 996 ) (emphasis in original). Accordingly, "`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, and their actions will be cloaked with qualified immunity if the arrestee is later found innocent.'" Spiegel, 196 F.3d at 723 (quoting Jenkins v. Keating, 147 F.3d 577, 585 (7th Cir.1998)). In reviewing a probable cause determination, the court should consider whether the arresting officer "`acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed several years after the fact.'" Id. (quoting Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir.1998)). "Moreover, this court has emphasized that once probable cause has been established, officials have `no constitutional obligation to conduct any further investigation in the hopes of uncovering potentially exculpatory evidence.'" Id. (quoting Eversole v. Steele, 59 F.3d 710, 718 (7th Cir.1995)).
16
With these standards in mind, we agree with the district court's conclusion that probable cause to arrest existed at the time Anderer was arrested. 6 In Wisconsin, a person physically abuses a child when he intentionally or recklessly "causes bodily harm to a child." Wis. Stat. § 948.03 . Here, JR arrived at the police station in Anderer's sole custody and was bleeding from his nose and mouth with split lower and upper lips, and no police officer observed him in that condition at the time of his arrest or when he was turned over to Anderer's sole custody. JR told several police officers the same story: Anderer had hit him in the face when JR had gotten "smart" with Anderer. 7 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 8 — we believe the Milwaukee police officers had probable cause to believe that Anderer had intentionally or recklessly caused JR's bodily injury. See Wis. Stat. § 948.03 .
17
Anderer claims that JR was not a credible victim because (1) he had made other allegations about Officer Cook earlier that evening, and (2) the officers investigating JR's claims knew JR was on medication for mental illness and had failed to take his pills that day. We disagree with Anderer's conclusion with respect to both assertions. JR himself reported to the investigators that he had made allegations about Officer Cook and he explained that it was his repetition of those statements to Anderer that he believed prompted Anderer's hostility and violence. As for JR's failure to take his medication, the fact that the investigating officers knew about JR's medication does not ipso facto negate JR's credibility or require the officers to further investigate JR's medical history to substantiate or refute his claim of abuse by Anderer, see Driebel, 298 F.3d at 643; Spiegel, 196 F.3d at 723 . And the fact that investigators later learned that JR had previously been diagnosed with psychosis, paranoia, hallucinations, and self-mutilation is irrelevant to what the officers reasonably knew at the time they arrested Anderer. Spiegel, 196 F.3d at 723 . 9
18
Anderer further claims that no officers corroborated JR's allegation and that no effort was made to interview the other officers and citizen witnesses who were present at the time of the arrest. First, while Sgt. Jones and Officer Shoman could not corroborate JR's allegation against Anderer, neither could they refute it, and both stated that JR was not bloody at the time he had been turned over to Anderer's sole custody. Second, Sgt. Jones and Officer Shoman were interviewed, and there were efforts made to interview other officers; Officers Cook and Logan were asked to provide a statement prior to Anderer's arrest, but they refused to do so without union representation. Notably, when Officers Cook and Logan finally agreed to give statements (very shortly after Anderer's arrest), they could neither corroborate nor refute JR's allegations. Furthermore, they could not explain JR's bloodied condition, and both stated that JR had not been bloody at the time he was turned over to Anderer's sole custody. 10
19
Anderer also asserts that probable cause was lacking because two identification technicians ("ID techs") who took photographs of JR's injuries and appearance within hours of Anderer's arrest believed that "there were no injuries on JR" or that the injuries were "very minor." Anderer appears to believe that these ID techs should have been consulted by the officers investigating JR's claims prior to arresting Anderer, but we fail to see why this would be necessary when the investigating officers themselves regularly investigate batteries against persons and are capable of assessing the nature and possible cause of injuries. And once those officers determined that probable cause had been established, they had "`no constitutional obligation to conduct any further investigation in the hopes of uncovering potentially exculpatory evidence.'" Spiegel, 196 F.3d at 723 (quoting Eversole, 59 F.3d at 718 ). Furthermore, one ID tech did not photograph JR until after Anderer had already been arrested, and so would have had nothing to contribute to the probable cause determination prior to his arrest, and the other ID tech's photographs were not developed until after Anderer's arrest. 11
20
Finally, Anderer points to other occurrences after his arrest as evidence to support his argument that probable cause did not exist. Anderer challenges JR's credibility by arguing that the Deputy District Attorney's decision not to pursue criminal charges means there was no prosecutorial merit to JR's claim. The decision not to pursue criminal charges, 12 made months after the actual arrest and with information not available at the time of the arrest, see Driebel, 298 F.3d at 643, does not constrain or guide our analysis of whether probable cause existed at the time Anderer was arrested. See id. ("An officer's belief in the existence of probable cause ` need not be based on evidence sufficient to support a conviction, nor even a showing that the officer's belief is more likely true than false. '") (quoting Woods, 234 F.3d at 996 ) (emphasis in original). It is similarly not relevant to our analysis that the booking judge commented, when ordering Anderer's release without bail, that JR's "allegations against [Anderer] were baseless and that the show up report presented no probable cause to have [Anderer] arrested in the first place."
B. Retaliation for First Amendment Speech
21
Anderer alleges that he was retaliated against and terminated, in violation of his First Amendment rights, in response to (1) statements made by union president Bradley DeBraska, with Anderer's apparent authorization, 13 that Anderer had been arrested without probable cause as a result of IAD vindictiveness due to personal animus with one of the IAD investigators, and that the union was "hoping and praying" that he would sue the police department to correct these wrongs, (2) Anderer's confirmation that he had retained a lawyer to look into the matter, and (3) his filing of this lawsuit against defendants.
22
Whether a government employee's speech is protected by the First Amendment is a legal question that we review de novo. Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir.2002). As we explained in Gustafson , there are four elements to a First Amendment retaliation claim, 14 but the only element at issue here is whether Anderer's speech was a "matter of public concern." Id. at 906-07 . "Whether a government employee's speech addresses a matter of public concern depends upon `the content, form, and context of [the speech] as revealed by the whole record.'" Id. at 907 (quoting Connick v. Myers, 461 U.S. 138, 147-48 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983)). "Of these three factors, content is the most important." Id. (citations omitted); Campbell v. Towse, 99 F.3d 820, 827 (7th Cir.1996). "The `public concern' element is satisfied if the speech can fairly be said to relate to a matter of political, social, or other concern to the community, rather than merely a personal grievance of interest only to the employee." Gustafson, 290 F.3d at 907 (citing Connick, 461 U.S. at 146 , 103 S.Ct. 1684 ). If the speech is not on a matter of public concern, "it is unnecessary for us to scrutinize the reasons for [the employee's] discharge." Connick, 461 U.S. at 146 , 103 S.Ct. 1684 .
23
The content of the speech at issue here was, quite plainly, a matter solely of Anderer's private concern. The speech concerned and addressed only Anderer's arrest; nothing in these statement alleges any greater societal impact than Anderer's possible grievance for being arrested, Connick, 461 U.S. at 147-48 , 103 S.Ct. 1684 ; Gustafson, 290 F.3d at 908 . Anderer claims that his speech was a matter of public concern because "pervasive and systematic misconduct" in the Milwaukee police department leads to a high number of arrests of officers without probable cause and that bringing this to light was the motivation for the speech. We acknowledge that motive is relevant to the "matter of public concern inquiry, [though] it is not dispositive," Gustafson, 290 F.3d at 908 (citations omitted), but "speech on a subject that would be of interest to the public will not be protected if `the expression addresses only the personal effect upon the employee." Id. (quoting Marshall v. Porter County Plan Comm'n, 32 F.3d 1215, 1219 (7th Cir.1994)). And while we recognize that there are few matters "of greater public concern in a large metropolitan area than police protection and public safety," Auriemma v. Rice, 910 F.2d 1449, 1460 (7th Cir.1990) (en banc), nothing in the speech at issue here addresses or seeks to resolve anything about what Anderer may or may not have believed regarding the police department's or Chief Jones's policies, other than his dissatisfaction with his arrest and his desire for personal redress. As such, his speech cannot fairly be described as a "matter of public concern," and any further inquiry into why he was terminated is unnecessary given the wide latitude we afford government officials in managing their offices. See Connick, 461 U.S. at 146 , 103 S.Ct. 1684 ; Driebel, 298 F.3d at 638 (discussing internal affairs investigatory tactics employed by the Milwaukee police department).
III. CONCLUSION
24
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Notes:
1
Because "[t]he existence of probable cause turns on the information known to the officers at the moment the arrest is made, not on subsequently-received information," Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir.2000), we limit our recitation of facts to those known at the time of the arrest.
2
Photographs were later taken that showed cuts on the inside of both of JR's lips, and blood on his shirt and pants
3
While Anderer's question was meant to be "off the record," Anderer put the contents of this "off the record" conversation in both his affidavit and his briefs
4
Getting " Driebel ed" is a slang term used by Milwaukee police officers that refers to a police officer who is arrested without probable cause. We assume the term takes its name from the facts underlying this court's decision in Driebel v. City of Milwaukee, 298 F.3d 622 (7th Cir.2002), in which we concluded that probable cause to arrest did in fact exist at the time that Officer Robert J. Driebel was arrested. Id. at 645. In that case, however, we did find that there was no probable cause to arrest another officer (Officer Johnny C. Sgrignuoli). Id. at 651.
5
The district court, in granting defendants' motion for a protective order, stayed all discovery pending the court's resolution of defendants' summary judgment motion. The district court also denied Anderer's request for copies and use of JR's post-arrest medical records in defendants' possession (apparently unlawfully obtained). Because JR's medical records were obtained after Anderer was arrested, they are irrelevant to the probable cause determination See Spiegel, 196 F.3d at 723 . Therefore, we do not find that the district court abused its discretion in denying Anderer's request for access to and use of the records.
6
The dissent's analysis stresses that the summary judgment standard requires us to view all facts in the light most favorable to Anderer. While we certainly view all facts in the light most favorable to Anderer and draw all reasonable inferences in his favor, Woods, 234 F.3d at 986 , our review of a probable cause determination does not ask whether an officer's belief in the existence of probable cause is more likely true than not true. Driebel, 298 F.3d at 643. Rather, our review focuses on whether a reasonable officer would have believed that probable cause existed to arrest Anderer based on the facts and circumstances known to the officer at the time of the arrest. See id.; see also Beauchamp v. City of Noblesville, 320 F.3d 733, 743 (7th Cir.2003) ("Probable cause is only a probability or substantial chance of criminal activity, not a certainty that a crime was committed") (citing Illinois v. Gates, 462 U.S. 213 , 244 n. 13, 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983)).
7
Anderer claims that JR's story is inconsistent because while all the officers reported that JR said Anderer "hit" him in the face (statements or reports of Officers Cook and Logan, Lt. Stack, and Sgt. Jones), Anderer says one officer told him that JR had said Anderer "punched" him in the face (Det. Harrison's statement to Anderer in "off the record" conversation), and one report indicates JR said Anderer "back-handed" him in the nose and mouth (Det. Smith's report of JR's statement to Deputy District Attorney the day after Anderer was arrested). We think this is a difference without a distinction, as they are all forms of "hits." Furthermore, because the "back-handed" description was not known at the time of Anderer's arrest, it is irrelevant to our analysis. See Spiegel, 196 F.3d at 723 .
8
Although the dissent contends that any reference to Anderer's failure to explain JR's bloody appearance in the probable cause analysis impinges on Anderer's Fifth Amendment and contractual rights, Anderer himself makes no such argument and, in fact, concedes his inability to explain JR's injuries See Pl.'s Resp. to Def.'s Motion for Summ. J. at 73 ("[D]efendants state they are entitled to summary judgment because it is undisputed that Anderer did not explain how J.R. was injured, or claim that he used lawful force to maintain custody of J.R. In this respect, plaintiff does not dispute these facts."). Recall, too, that before Anderer said he did not wish to make a formal statement without union representation — the focus of the dissent's argument on this point — Anderer made several voluntary comments to other officers, including that he did not know how JR received the bloody nose. (Compl. ¶ 34; Anderer Aff. ¶¶ 60, 75, 79-81.)
9
As we have noted, "[t]he existence of probable cause turns on the information known to the officers at the moment the arrest is made, not on subsequently-received information." Spiegel, 196 F.3d at 723 . In addition to later-acquired knowledge about JR's medical history, we are puzzled by the dissent's discussion of irrelevant facts which have no bearing on what the officers reasonably knew when they arrested Anderer, such as: (1) the Deputy District Attorney's later decision not to pursue criminal charges; (2) subsequent investigations into Anderer's arrest; (3) statements in affidavits signed after Anderer's arrest containing information other than that made known to officers before Anderer's arrest; (4) photographs of JR, as they were developed after Anderer's arrest; and (5) statements made by identification technicians after the arrest. While the dissent's discussion of these facts and the adequacy of the department's investigation might present a persuasive closing argument in a criminal trial, the officers did not need to establish Anderer's guilt of the underlying charge beyond a reasonable doubt, or even by a preponderance of the evidence, before arresting him. See United States v. Funches, 327 F.3d 582, 587 (7th Cir.2003). Moreover, although the dissent emphasizes that no officer saw Anderer hit JR, that no officer saw the action does not negate the undisputed facts that a 12-year-old boy, uninjured at the time he was turned over to Anderer, arrived at a police station with blood on his face and shirt after being in Anderer's sole control, identified Anderer as the cause of his injuries, and neither Anderer nor any other officer could offer any explanation for the boy's injuries.
10
Indeed, the statement given by Officer Cook, had it been given prior to Anderer's arrest, seems likely to have further supported the investigating officers' determination that probable cause existed to arrest Anderer. (He told the investigators that when Anderer and JR arrived at the station, he "immediately noticed [JR] with blood running down both nostrils, his chin, blood on his shirt and both pant legs," and "was taken aback because the kid was in perfectly good shape before he went into the squad, but not when he came out and thought that's not good.")
11
We note that the ID techs'"observations" were not included in the initial affidavits that they provided six months after the incident, and were only included in the affidavits they provided a year after they took the photographs. We review probable cause determinations based on the information available at the time of the arrest, to assess whether the arresting officer "`acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed several years after the fact. '" Spiegel, 196 F.3d at 723 (quoting Humphrey, 148 F.3d at 725 ) (emphasis added). Similarly, the dissent's conjecture that other factors could have caused JR's bloody nose and cuts to his face does not bear on our analysis. Again, we emphasize that our inquiry focuses on whether probable cause existed to arrest Anderer, not on whether other explanations for JR's injuries are also possible. See id.; Driebel, 298 F.3d at 643.
12
The Deputy District Attorney, in his memo explaining his decision not to pursue charges, recounted the facts of JR's claims and wrote that, while he could not "state with assurance what happened[,][he] believe[d] it more probable, particularly in view of [his] knowledge of prior complaints against Anderer, that Anderer did strike [JR]. It is entirely conceivable, however, that given [JR's] agitation, mental problems and stated intentions to get money out of this incident, that he inflicted the injuries to himself. Such speculation, however, is not the stuff of criminal charges, and none can be proven in this case."
13
We will assume, without deciding, that speech authorized by one person but made by another could be the basis for an First Amendment claim
14
To prove a First Amendment retaliation claim in the employment context, "[f]irst, the plaintiffs must prove that their speech was a matter of public concern. Next, they must prove that their speech played at least a substantial part in the employer's decision to take an adverse employment action against them. If the plaintiffs can carry their burden on these two elements, the defendants can only prevail if they prove by a preponderance of the evidence that the government's interest, as an employer, in efficiently providing government services outweighs the employees' First Amendment interests, or if they can prove that they would have disciplined the employees even in the absence of the speech." Id. (citing Klunk v. County of St. Joseph, 170 F.3d 772, 775 (7th Cir.1999); Hellstrom v. United States Dep't of Veterans Affairs, 201 F.3d 94 , 97 (2d Cir.2000)).
25
COFFEY, Circuit Judge, dissenting.
26
Joseph Anderer, a recently discharged Milwaukee police officer, argues on appeal that his constitutional rights were violated when he was arrested, booked and detained, and subsequently terminated from his employment (3.5 years) on the orders of Chief Arthur Jones of the Milwaukee Police Department ("MPD"), based almost exclusively on the fabricated story of an incorrigible and psychotic juvenile, without a scintilla of corroborating evidence. The majority attempts to defend his arrest and refuses to accept Anderer's contention and argument — which finds full support in the record — that his accuser, an out-of-control juvenile named "JR," who also maliciously created another fabricated accusation against a second officer stating that he had raped him, was likewise wholly incredible. As the trial judge noted when finding JR incredible: " [a]fter all, if J.R. could manufacture one obvious lie against an officer, he might also manufacture a more plausible lie against another officer. " Anderer v. Jones, No. 01-C-0668, at *6-7 (E.D. Wis., Sept. 30, 2002) (emphasis added). The reality of the situation is that the false information JR gave to investigators concerning Anderer's involvement in the alleged assault fell far short of establishing probable cause to arrest him and the investigators' belief in JR's veracity was just one component of a mishandled and goal-oriented (have Anderer arrested) investigation which lacked good-faith and which the majority now condones.
27
The majority also fails to recognize and avoids the fact that the investigation fell far short of a proper police inquiry, lacking in objectivity and fairness. Indeed, the Milwaukee Police Department, INTERNAL AFFAIRS DIVISION ("IAD") investigators looking into JR's false and malicious complaint, for reasons unexplained, saw fit to systematically ignore the exculpatory statement given by Officer Janice Shoman prior to Anderer's arrest and then proceeded to fail to timely interview four other police officers, Officers Cook, Centeno, Logan and Bohlen (all who would have given exculpatory statements), and one lay witness, Mitchell (who investigators well knew prior to Anderer's arrest would have exonerated him ). See infra pp. 1057-58, 1059-60, 1069-70, 1074-75, 1081-82.
28
There was absolutely no credible evidence uncovered by the investigators even suggesting that Anderer had committed a crime prior to his arrest. For example, Officer Shoman told IAD investigators prior to Anderer's arrest that she would have noticed any altercation whatsoever between Anderer and JR because of her close proximity to him if, in fact, it had taken place, and that she witnessed no such incident. Notwithstanding the exculpatory nature of this evidence, the majority distorts her testimony and cavalierly states that Shoman could not "refute" JR's story. Opinion at 1050-51. Indeed, five of the six police officers present at the scene, when questioned, later did corroborate Shoman's statement when testifying under oath (affidavit) that Anderer did not strike JR while putting him in the squad car, as JR had specifically stated that Anderer had done. See infra pp. 1083-86. In the end, the only credible fact in the record that the majority cites to suggest that Anderer committed, or was committing, an offense is his failure to explain JR's alleged injuries. Anderer (as a police officer and American citizen) was well aware that his refusal and/or silence was fully protected under both his constitutional and contractual rights. The majority's attempt to use the police officers' repeated refusals to answer questions as a fundamental factor in establishing probable cause is completely misguided, for no one, not even a law enforcement officer, can be forced to give evidence against himself while the subject of a criminal investigation. Indeed, no court has ever held that the refusal to answer questions that might incriminate a suspect would allow law enforcement officers to elevate reasonable suspicion to probable cause based on such a refusal. Cf. Hiibel v. Sixth Judicial Dist. Court, ___ U.S. ___, 124 S.Ct. 2451, 2460-61 , 159 L.Ed.2d 292 (2004); see infra pp. 1071-73. The majority implies that since neither party raised this argument we do not have jurisdiction to address this constitutional question; however, I am confident the majority realizes that this Court does have the discretion to resolve a constitutional issue discovered in the record before us sua sponte, contrary to the majority's suggestion. See Opinion at 1050 n. 8. As the Supreme Court has made clear "[t]he matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.... Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where THE PROPER RESOLUTION IS BEYOND DOUBT, or WHERE INJUSTICE MIGHT OTHERWISE RESULT. " Singleton v. Wulff, 428 U.S. 106, 121 , 96 S.Ct. 2868 , 49 L.Ed.2d 826 (1976) (emphasis added) (internal citations omitted); See infra pp. 1077-78. I believe that it is our duty to do so. It is "well-settled ... [that] [p]olicemen ... are not relegated to a watered-down version of constitutional rights." Driebel v. City of Milwaukee, 298 F.3d 622 , 637 (7th Cir.2002) (quoting Garrity v. New Jersey, 385 U.S. 493, 500 , 87 S.Ct. 616 , 17 L.Ed.2d 562 (1967)), and we must not ignore the serious constitutional problems raised by using Anderer's silence as a factor establishing probable cause.
29
In addition, the majority, without explanation, refuses to accept the well known fact that there are maladies such as a plain, everyday nosebleed or those nosebleeds of the type frequently caused by the injestion of a myriad of prescribed psychotropic drugs and other medications known and accepted as causing and contributing to nosebleeds. See infra pp. 1058-59, 1068-69, 1082-84, 1089-90. This fact becomes even more germane when viewed in combination with the established evidence that the only person claiming Anderer committed a crime was the out-of-control JR himself; a swearing, cursing malcontent who, in his attempt to get even with the arresting police officers ( i.e., threatened that he would "get paid" and "have [their] jobs") accused one, Officer Cook, of rape and accused the other, Anderer, of striking him in the face and nose, causing him to bleed. See infra pp. 1057-58, 1060-61, 1066-67, 1071-72, 1081-82, 1089-90. However, JR's accusation flies in the face of common sense and logic because the lying juvenile burglar suffered no bruises, abrasions, lacerations, contusions, much less swelling to any part of his face, nose or lips which might give some credence to his allegation that he had been struck by a 200 lb. police officer. This is not to mention that in addition to the lack of physical signs of abuse on the purported victim, there are five credible witnesses who were present at the scene and stated that they never witnessed Anderer assault JR at any time, much less during the particular time frame when Anderer was assisting him with his entry into the squad car. See infra pp. 1057-58, 1059-60, 1069-70, 1074-75, 1081-82, 1083-86. Therefore, in light of the relevant facts and circumstances, Anderer's arrest was not predicated on information from a "reasonably credible witness or victim," as the trial judge found, nor does it qualify as being based on "reasonably trustworthy information [that] would warrant prudent person in believing that [Anderer] had committed or was committing an offense." Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir.2000) (quoting Qian v. Kautz, 168 F.3d 949, 953 (7th Cir.1999)). In effect, the majority is taking the word of a psychotic, uncontrollable, lying juvenile over that of six credible witnesses and a plethora of very convincing circumstantial evidence.
30
Indeed, the trial judge went on to state that JR was not a credible witness. Judge Stadtmueller found that "J.R.'s statement alone [was] an insufficent basis for probable cause." Anderer v. Jones, No. 01-C-0668, at *6-7 (E.D.Wis., Sept. 30, 2002). The majority disagrees with the trial judge's clear statement on the credibility subject and, in support of this holding, argues that JR told other officers that he made rape allegations against Cook and that he "told several police officers the same story." See Opinion at * 9, *12. However, the record reflects that once the investigation concerning Anderer ensued, (in contrast to the majority's contention) JR when interviewed never repeated his "rape" allegation, but claimed only that he had been "nudged" in the buttocks. Smith Report ¶ 5. Nevertheless, even if we were to assume, for purposes of this discussion, that JR did repeat his ridiculous allegations against Cook word-for-word to other officers, this does not ipso facto negate all of the other facts which rendered JR's allegations incredible and would, in fact, only serve to further undermine the value of the juvenile's description of events. See infra pp. 1066-68.
31
The majority also attempts to characterize a number of post-arrest events as "irrelevant facts," such as: (1) "the Deputy District Attorney's later decision not to pursue criminal charges"; (2) "photographs of JR, as they were developed after Anderer's arrest"; and (3) "statements made by ID technicians after the arrest." See Opinion at 1050-51 n. 9. However, as we make clear, all of this evidence is used, not as part of a probable cause review, but to further establish that the IAD investigators responsible for conducting the probable cause inquiry were neither being truthful nor fair and objective when they claimed that JR was "seriously injured" and that their investigation (which can best be described as no more than a rush to judgment) suffered from a serious lack of good-faith, resulting in an improper finding that probable cause existed to arrest the officer. See infra pp. 1066-73, 1087-88, 1091-93 (discussing the deputy district attorney's decision not to prosecute); pp. 1071-73 (discussing evidence and testimony given by the I.D. Technicians).
32
Because this case is so fact-oriented and because the majority's decision fails to provide an accurate representation of the record, I have been forced to recite the facts with corresponding record cites, as well as my reasoning and conclusion in detail. My purpose is not to provide a closing argument, as the majority for some reason saw fit to mockingly suggest, 1 but is an honest attempt to persuade my colleagues that the district court's decision should be reversed and set aside and that Anderer should, at the very least, be afforded his day in court in order that he might present his case to a jury of his peers and furthermore that a history of investigative problems of this nature in the Milwaukee Police Department might be exposed to the light of day. See also Driebel v. City of Milwaukee, 298 F.3d 622 (7th Cir.2002).
I. Factual Background
33
At approximately 7:28 p.m. on April 17, 2001, the Milwaukee Police Department received two telephone complaints, one from James C. Mitchell and the other from Eric Guenther, alerting the police that there was a burglary in progress aboard a boat at 2011 South First Street, the Pump House Marina (the "Marina"), on Milwaukee's South Side. Officer Anderer, the subject of this case and a 3 ½-year veteran on the Department, was assigned to work without a partner that evening and was dispatched to the crime scene with six other officers: Sergeant Michael Jones, and Officers Jeffrey Cook, Jeffrey Logan, Todd Bohlen, Victor Centeno, and Janice Shoman. These seven police officers, after arriving at the crime scene, and while conducting their investigation, came upon four juveniles (one African-American male, JR, and three white males) that had been observed breaking into a boat parked at a slip in the Marina and stealing a fire extinguisher and high-powered flashlight from aboard the vessel (burglary). Sergeant Michael Jones patted down the suspects and, with the assistance of Officers Jeff Logan and Jeffrey Cook, escorted the juveniles from the boat slip over to the Marina mainland for questioning.
34
As the officers were escorting the four juvenile burglars, JR became abusive, loud, and obscene and acted out in a most strange and "extremely obnoxious" manner. Cook Aff. ¶ 10. In the presence of Officers Logan, Cook and Anderer, JR began "yelling and screaming [obscenities]," ignored the Officers' commands, and during this time "accus[ed] [police officer Jeffrey Cook] of hitting him in the buttocks with the flashlight and attempting to rape him. " Cook Aff. ¶ 10-12, 16 (emphasis added); Logan Aff. ¶ 10. When the juveniles reached the Marina mainland they were assembled for further questioning, and "JR ... [again] accused [Cook] of attempting to rape him" (while possibly experiencing a psychotic episode or hallucination) and "continually screamed that he would get paid, that he would get a check, and he would have [the police officers'] jobs, " Cook Aff. ¶¶ 12, 16 (emphasis added), 2 implying that he would sue the officers for money and get them fired from the Department.
35
After the officers completed their questioning, the four juvenile burglars were arrested, handcuffed and searched. Cook Aff. ¶ 13. Officers Logan and Cook took three of the juveniles into custody, and escorted them to their squad, while Officer Anderer was assigned to escort the fourth individual, JR, to his single-manned squad car (possibly because it would be easier to separate the out-of-control, threatening, and foul-mouthed juvenile from the other three). James C. Mitchell, the citizen witness who had earlier reported the burglary to police, stood nearby and continued to observe Anderer and JR as the officer "guide[d and secured] [him] into the back seat of the squad, ... [and] close[d] the door to the car...." Mitchell Aff. ¶ 14. Mitchell heard JR continue to scream obscenities directed at the officers and continue to act out in an obnoxious and belligerent manner. Mitchell continued to observe Anderer as he escorted JR to the car, and testified that at no time did he witness Anderer strike the juvenile. Mitchell states in his affidavit that he:
36
[W]atched 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 (Mitchell)] 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 observed that] at all times ... Anderer acted in a very professional manner [toward JR].
37
Mitchell Aff. ¶¶ 14-16 (emphasis added).
38
Once Anderer positioned JR into the squad, he (Anderer) left the Marina and proceeded directly to the Second Precinct Police Station, which was only a stone's throw from the Marina (the recorded trip time was only two minutes and two seconds). Anderer Aff. ¶ 43. When Anderer's car arrived at the station, Officer Cook helped unload JR and noticed blood dripping onto the juvenile's chin. Cook Aff. ¶ 26. When Sergeant Michael Jones approached JR and asked why he was bleeding, JR continued his pattern of false accusations and in a flippant and offhand manner (while laughing and joking with the three other children) "point[ed][at] Officer Anderer [and stated], `[t]hat officer hit me,' and then pointed at [the other officer,] Cook and stated, `that officer raped me.'" Id. ¶ 30. Upon further questioning, and in the presence of Sergeant Jones and Officers Cook and Anderer, JR voiced his claim that Anderer "`hit [him] when he put [him] in the [squad] car.'" Sgt. Michael Jones Aff. ¶ 6. JR went on to allege that as Anderer was securing him in the squad car, "he said something to [Anderer]," who "told him `don't get smart' and [then] hit him one time [on] the mouth and nose [and] g[ave] him a bloody nose and bloody lip." JR's Citizen's Complaint ¶ 5.
39
As the police were commencing their investigation into the burglary charges against the juveniles (including JR), they became aware of information concerning JR's mental health problems and his history of run-ins with the police. This fully confirmed by that point what should have become clear — that JR, the juvenile burglary arrestee, was at best a most highly incredible and suspect claimant. Specifically, police, at this time, learned from JR's mother that her son, on that very day, had failed to take any of his prescribed drugs (five or six different prescriptions). 3 Cook Aff. ¶ 35. And given the type of drugs prescribed for JR, police investigators were well aware that at least two of those drugs, the ones Cook recognized, were used to treat JR's psychiatric and behavioral disorders. 4 Moreover, JR's mother made it clear to the officers that these prescription drugs were vital to her son's mental well-being, and she urged the officers to "release[ ][him] from custody as soon as possible" in order that he might ingest his medication immediately. Cook Aff. ¶ 34. Considering JR's out-of-control, belligerent and obnoxious behavior that night and combined with the revelation that he had failed to take a number (3) of his prescribed psychotropic drugs that very day, investigators should have viewed all of JR's statements with caution and skepticism.
40
As if this were not sufficient reason to raise a red flag of suspicion and serve to discount JR's false and malicious accusations, the investigating officers, at this time, also became aware that this was not JR's first run-in with the law. Officer Shoman informed the IAD investigators that JR was a known trouble-maker who had proven to be a constant problem in her patrol area. Shoman Aff. ¶ 6. Shoman's account of JR's problems with the law was further corroborated by his own mother, who stated to the officers that she was "not [at all] surprised" that her son had been arrested for burglary. Cook Aff. ¶ 32. The fact that JR had prior run-ins with the law, and that his mother was not surprised he had been arrested, should have further served to put in question and possibly discredit JR's fabricated story and again cause each one of the officers involved to question the veracity of this psychotic and out-of-control juvenile.
41
In addition, the complete lack of any physical trauma to JR's face (not one mark, contusion, abrasion, or bruise) fell far short of supporting his allegations that he was punched in the mouth and nose by a 200 lb. male. I.D. Technician David Brown, who photographed JR at 10:05 p.m. that same night (while the police investigation was in progress) noted that the only visible injuries on JR's body were the two cuts inside his mouth (upper and lower lip), which "looked to [be] nothing more than ... pre-existing dried[-up] lip[s] that cracked open just like lips do in the winter," Brown Aff. ¶ 15 (emphasis added) and which JR himself could have intentionally bit open with his teeth. Indeed, Brown stated that, in his opinion, JR's inner lip cuts were " not caused by a punch. " Id. ¶¶ 5, 6. Interestingly, when Brown was subsequently informed that "officer [Anderer] had just been arrested for allegedly punching [JR]," I.D. Technician Brown " told those [police] officers they must be kidding, [because he (Brown)] had [just] taken pictures of [the] kid [JR] and there were no injuries on JR .... " Id. ¶¶ 14-15 (emphasis added).
42
Kara Kathrein, who had in excess of nine years experience with the MPD and more than three years specializing as an I.D. Tech while on the MPD, took pictures of JR on the morning of April 18, 2001, at 1:30 a.m. and, like Brown, testified in a sworn affidavit that the "small cut to [JR's] lower lip" was a "very minor injury" and " was not consistent with being struck in the face by an adult male. " Kathrein Aff. ¶¶ 14-16 (emphasis added). Moreover, she stated that " there were no observable injuries to JR other than the cut to his lower [interior] lip. " Id. ¶ 17 (emphasis added). Because Kathrein had such extensive experience photographing and observing victims of abuse (she "ha[d] [previously] taken many photographs of injuries caused to victims by battery") and because she was of the " opinion that the injury JR allegedly sustained was not consistent with being struck in the face by an adult male, " id. ¶ 16, Kathrein stated that she was "surprised [when she learned] that JR's allegations le[d] to an officer's arrest ...." Id. ¶ 20 (emphasis added).
43
Also, it is most interesting and convincing to note that the record is barren of even one report of any finding of any traces of blood or any type of abrasion, bruising, scratches or other evidence of trauma on either of Officer Anderer's hands much less any evidence of blood, tears, dirt, or debris on his uniform or hands — investigators performed a thorough inspection of Anderer's hands with a high-powered flashlight at Anderer's insistence, and furthermore had ample opportunity to inspect his clothing. See Smith Report at 9; Anderer Aff. ¶ 98. Indeed, it was Anderer himself who requested that an I.D. Technician take pictures of his hands to document the fact that they were neither bruised, marked, cut, nor injured in any manner. Anderer Aff. ¶ 81. This request was summarily rejected by IAD Detective Mercedes Cowan, who had arrived at the Second Precinct Police Station just a few minutes earlier with Lt. Hoerig; however, she did examine Anderer's hands with a high-powered flashlight when concluding that he didn't "need a photo tech." Id. at ¶ 85-98. Evidence suggesting that Anderer's hands were in pristine condition is consistent with Sergeant Jones' statement to Detective Harrison when he stated that he had "s[een] no evidence of any physical fight [between Anderer and JR;] [n]or [any] injury to the juvenile " at the arrest scene. Jones Aff. ¶ 3 (emphasis added).
44
In addition, investigators were aware 5 that a bystander, citizen James Mitchell, was present on the scene at the time the incident allegedly took place, and was willing, able and available to provide exonerating testimony delineating the professionalism that Anderer exhibited while directing JR to, and placing him in, his squad car. However, for reasons unexplained, investigators, who had knowledge that Mitchell would exonerate Anderer, 6 neither conducted an in-person interview of Mitchell nor did they even bother to pick up the phone to call and ask any questions of him at any time prior to Anderer's arrest and confinement . Why ?
45
Completely disregarding the wealth of factors mitigating against JR's reliability, trustworthiness and honesty, as well as the lack of even a scintilla of proof anywhere in the record that JR had been injured by Anderer, Lt. Hoerig determined there was probable cause to arrest Anderer at the close of her alleged investigation. At this time Hoerig recommended to Chief Jones that Anderer be arrested for child abuse, based exclusively upon her findings, as set forth in her affidavit testimony as follows:
46
(a) "JR was 12 years old";
47
(b) "JR was not injured at the time he was turned over to Officer Anderer to be conveyed to the Second District station in Anderer's squad";
48
(c) "JR was in Anderer's custody exclusively while conveyed to the Second District station";
49
(d) "JR was handcuffed in the back of Anderer's squad when he was conveyed to the Second District Station";
50
(e) "JR had injuries consistent with being hit in the mouth when he arrived at the Second District station [sic]";
51
(f) " JR IDENTIFIED OFFICER ANDERER AS THE POLICE OFFICER THAT HIT HIM IN THE MOUTH ";
52
(g) " ANDERER DID NOT EXPLAIN HOW JR WAS INJURED "; and
53
(h) "Anderer did not report use of force involving JR or any incident involving JR, or any injury to JR"
54
Hoerig Aff. ¶ 16. However, at least four officers, not including Anderer (Cook, Shoman, Centeno, and Bohlen), two I.D. Technicians (Kathrein and Brown), and one lay witness (Mitchell) came to conclusions that were in stark contradiction to Hoerig's. Indeed, Hoerig also falsely reported that JR had been "serious[ly]" injured, yet Hoerig neither saw fit to have JR evaluated by a medical professional nor to convey the juvenile to a hospital so that he could be treated if necessary (as the MPD rules and regulations and Wisconsin law would have required her to do if in fact JR had truly been "serious[ly]" injured). See, e.g., infra p. 1082 note 21, and accompanying text.
55
After Hoerig informed Chief Jones of her recommendation, at 12:30 a.m., without any investigation into JR's obvious and self-evident mental troubles or medical history (of which investigators were on notice), without attempting to solicit statements from any other officers (Centeno or Bohlen — Cook had refused to make any statement without representation, as did Anderer, and Shoman had said she did not witness any fight between JR and Anderer and that JR was a constant problem in her patrol area) or the citizen witness (Mitchell) at the scene, and without even considering seeking the counsel of the DA or his Deputy, 7 Chief Jones went full speed ahead and ordered police detectives Smith and Harrison to place Anderer under immediate arrest. Anderer was then booked, fingerprinted and confined in jail for nearly 12 hours on a malicious (and fabricated) charge of physical abuse of a minor.
56
Anderer was released without bail at noon the next day without having any criminal charge brought against him. Some sixty days later, in the first week of June 2001, "[Lt. Hoerig] was notified by Deputy District Attorney Jon Reddin that the case involving ... Anderer and [JR] would be no processed 8 ... BASED ON THE FACT THAT THE CASE LACKED PROSECUTABLE MERIT, " and, in fact, the criminal prosecution of the case was closed without any misdemeanor or ordinance violation, much less criminal felony, charges being brought against Officer Anderer. See Hoerig Aff., Ex. 1001 at 2-3 (emphasis added). Thus, Lt. Hoerig and Chief Jones were both rebuffed by the Deputy DA's decision refusing to bring criminal charges against Anderer.
57
On June 11, 2001, despite Deputy District Attorney Jon Reddin's outright refusal to charge Anderer with any crime, Chief Jones, not satisfied with that result, saw fit to re-open and continue the criminal investigation into JR's false and malicious accusations against Anderer on his own initiative. At this time the Chief, offering a hollow excuse, stated as the reason for continuing his harassment of Anderer that he "wanted to make sure the investigation was complete and ... the investigating officers had not missed any facts." Jones Aff. ¶ 10. 9 Lt. Hoerig was then instructed by Chief Jones to "re-interview all parties involved in this case." See Hoerig Aff., Ex. 1001 at 3 (emphasis added). However, in her summary report after completing the second Anderer investigation, Hoerig stated, upon completing these interviews, that she had failed to turn up "[any] information" to merit "further criminal prosecution" of Anderer. Id.
58
Chief Jones — in an obvious last-ditch effort to have Anderer criminally prosecuted (with all his authority as the Chief of Police of a large department) went over the head of the Deputy District Attorney and now personally requested that the District Attorney himself, Mr. E. Michael McCann, review and re-evaluate his Chief Deputy's (Jon Reddin's) prior decision not to prosecute; now, a fourth (second independent) investigation into the malcontent juvenile burglar and troublemaker JR's fabricated and flippant allegation ensued. After independently reviewing and considering all of the information, McCann also refused to pursue any criminal charge, and "informed [Jones] that the District Attorney's office would not change its prior no-charge decision. " Jones Aff. ¶ 12 (emphasis added). In explanation of why he chose to uphold the Deputy DA's (Reddin's) prior decision refusing to prosecute the meritless case, McCann provided Jones "with a copy of a confidential memorandum written by ... Reddin dated June 7, 2001," id., in which Reddin stated:
59
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 sustained .... Whether Anderer struck him or he inflicted 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 conceivable, however, given [JR]'s agitation, mental problems and stated intentions to get money out of this incident, that he inflicted the injuries to himself.
60
Jones Aff., Ex. 1002 at 1-2 (emphasis added). 10 Thus, after Jones personally requested, on two separate occasions, that criminal charges be filed against Anderer, the chief law enforcement officer in Milwaukee County, District Attorney E. Michael McCann, and his Chief Deputy Jon Reddin both found no merit to the charges and declined to prosecute Anderer.
61
On July 2, 2001, probably to clear his name and reputation, and to save his family from further disgrace and humiliation, Officer Anderer filed a lawsuit against Chief Jones, the IAD and the MPD command officers who investigated JR's claims (Lt. Hoerig, Detective Mercedes Cowan and Deputy Inspector Charles Grisham) for violation of his constitutional rights. Chief Jones (possibly in a retaliatory manner) directed the new commander of the IAD, Steven Settingsgaard, on July 6, 2001, ( a mere 96 hours after Anderer filed his lawsuit, and approximately a month after District Attorney E. Michael McCann's final decision not to institute criminal charges against Anderer) to institute internal charges against Anderer alleging that he had violated MPD Rule 4, Section 2/455.00 11 on the purported basis that he unnecessarily struck JR on April 17, 2001. This, in spite of the fact that Lt. Hoeirg's second investigation and two independent investigations by the D.A.'s office, one by Deputy District Attorney Reddin and the other by District Attorney E. Michael McCann himself, failed to uncover evidence which would support criminal charges of any kind. In bringing this back-up internal child abuse charge, Chief Jones once again exhibited his unrelenting determination to remove Officer Anderer from the force, and finally succeeded in having him terminated on July 17, 2001.
62
Given that four investigations (two by the MPD's Internal Affairs Division, one by the Deputy District Attorney Jon Reddin) (who concluded that "he could not say with any assurance what happened") and an additional review of the matter by District Attorney E. Michael McCann failed to uncover evidence to sustain any type of felony or misdemeanor criminal charge against Anderer, and considering no person alive witnessed the alleged blow to JR's mouth or nose other than the unruly psychotic juvenile himself, Chief Jones's continued his unrelenting insistence on getting Anderer off the police force by pursuing a rules violation charge against Anderer was at best a most shocking display of continued harassment and bad judgment. At worst, as the timing of his bringing this charge implies (a mere 96 hours after Anderer filed suit against the MPD), this constituted an example of retaliation reflecting poorly not only on the Chief of the Department, but on each of the individual officers of the MPD who participated in this speedy, lightning-like, careless, and almost pre-determined investigation, arrest and subsequent termination decision. In any case, the questionable conduct during the investigation and filing of the internal MPD rules and regulations charges, resulting in Anderer's dismissal, casts a dark cloud of suspicion over Anderer's initial arrest as well as the entire contrived and orchestrated procedure, and only serves to strengthen Anderer's claim that the MPD's internal investigation into the matter was unreasonable and lacking in good-faith, and that his arrest was not based on probable cause.
II. Analysis
63
The Rule 56(c) summary judgment standard provides for the granting of summary judgment only when " the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. " Fed.R.Civ.P. 56(c) (emphasis added); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). Said differently, summary judgment is only proper where "a rational trier of fact [could not] find for the non-moving party," here Anderer. See Wolf v. Northwest Indiana Symphony Soc'y, 250 F.3d 1136, 1141 (7th Cir.2001). Of paramount importance in this case is that "[i]n reviewing the propriety of a district court summary judgment ruling under Fed.R.Civ.P. 56, we review de novo and adhere to the same standards as the district court set forth in its memorandum opinion and order." Dykema v. Skoumal, 261 F.3d 701, 704 (2001) (internal citations omitted) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986)). Also, it is critically important, in the instant case, to recall that " [t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [Anderer's] favor. " Id. (citing Anderson, 447 U.S. at 255, 100 S.Ct. 2124 ).
64
A. The District Court's Determination that Probable Cause Existed
65
It is well-settled that a law enforcement officer has probable cause to make an arrest only when "`the facts and circumstances within [his] knowledge and of which [he has] reasonably trustworthy information [are] sufficient to warrant a prudent person in believing the suspect has committed or is committing an offense.'" United States v. Mounts, 248 F.3d 712, 715 (7th Cir.2001) (quoting United States v. Gilbert, 45 F.3d 1163, 1166 (7th Cir.1995)). Keeping in mind that the resolution of a probable cause question " typically falls within the province of the jury, " Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 473 (7th Cir.1997) (emphasis added), it is appropriate for a court to conclude that probable cause exists as a matter of law only "when THERE IS NO ROOM FOR A DIFFERENCE OF OPINION concerning the facts or the reasonable inferences to be drawn from them." Id. (emphasis added).
In this case, the trial judge stated:
66
JR'S STATEMENT ALONE IS AN INSUFFICIENT BASIS FOR PROBABLE CAUSE.... ANDERER RAISES SERIOUS ISSUES CONCERNING JR'S CREDIBILITY BY SHOWING THAT JR MADE FANCIFUL ALLEGATIONS AGAINST ANOTHER OFFICER. AFTER ALL, IF JR COULD MANUFACTURE ONE OBVIOUS LIE AGAINST AN OFFICER, HE MIGHT ALSO MANUFACTURE A MORE PLAUSIBLE LIE AGAINST A DIFFERENT OFFICER. WITHOUT MORE THAN JR'S WORD. THEREFORE, ISSUES OF FACT EXIST AS TO WHETHER A REASONABLE OFFICER WOULD HAVE CONCLUDED THERE WAS PROBABLE CAUSE TO ARREST ANDERER....
67
Anderer v. Jones, No. 01-C-0668, at *6-7 (E.D.Wis., Sept. 30, 2002) (emphasis added). As evinced by this statement, the trial judge found no credence in JR's allegation, as the judge properly recognized that JR's demonstrated propensity to lie rendered his abuse claim against Anderer suspect and untrustworthy. Thus, the trial court concluded that, " JR'S STATEMENT ... [ WAS] UNRELIABLE " Id. at *9.
68
In spite of this clear single phrase in the statement of his findings, the district court judge ultimately took an end run around the established facts and proceeded to do a curious flip-flop, somehow holding that there was probable cause to arrest Anderer in light of other facts. Specifically, the district court anchored its speculative probable cause finding on "THE BLOOD ON JR'S FACE AND SHIRT ... AS WELL AS THE TIME IN WHICH ANDERER WAS ALONE IN HIS SQUAD CAR WITH JR, AND ANDERER'S INABILITY TO EXPLAIN JR'S NOSEBLEED." Id. at *8 (emphasis added). The trial court found that these circumstances "would have given a prudent police officer probable cause to arrest Anderer." Id. I disagree.
69
I am of the opinion that a consideration of the totality of the evidence available to investigators at the time of Anderer's arrest would have failed to convince a "prudent person" that "an offense" had been committed (that Anderer had hit JR). See Mounts, 248 F.3d at 715 ; see also Beauchamp v. City of Noblesville, 320 F.3d 733, 743 (7th Cir.2003). As discussed infra, prior to Anderer's arrest, JR never claimed that he was struck during the time frame he was alone with Anderer in the squad car on the way to the station. Also, I must note that, although the trial judge, in his decision, cited the blood on JR's shirt as evidence of abuse, no testing was ever performed verifying that the stains were fresh blood. Indeed, the I.D. Technicians stated that the blood stains did not look "real fresh" and that "JR's clothing and coat had been soiled and appeared to have been worn for several days." Brown Aff. ¶ 16; Kathrein Aff. ¶ 13. Anderer agreed, stating that JR's "clothes had ground-in dirt and looked very worn." Anderer Aff. ¶ 28. The fact that some of the blood on JR's shirt did not appear "fresh" suggests that JR had been experiencing nose bleeds in the days and hours leading up to his arrest and, thus, the presence of blood on JR's shirt does nothing to advance the theory that Anderer struck the juvenile.
70
Furthermore, although the district court and the majority made much of the fact that no witnesses observed blood on JR's shirt at the arrest scene, see Opinion at 1050, it should be made clear that when the officers "first observed JR [at the Marina], [the juvenile] was wearing a hooded jacket with Japanese writing and WAS ZIPPED CLOSED. " Logan Aff. ¶ 11 (emphasis added). The fact that JR's jacket was zipped closed, as Logan stated, explains why none of the witnesses observed blood, most probably from past nosebleeds, on JR's shirt at the Marina. Therefore, such observations (or the lack thereof) do absolutely nothing to corroborate JR's claim of abuse, contrary to the district court and the majority's contention. See Opinion at 1050 ("both [Sgt. Jones and Officer Shoman] stated that JR was not bloody at the time he had been turned over to Anderer's sole custody").
71
Also, any reference to Anderer's "inability" (refusal) to explain the nosebleed suggests that the trial judge must not have been aware of Anderer's right, as a suspect of a criminal offense, to protection under the Fifth Amendment to the United States Constitution which entitles him to refuse to give a statement that might be used against him in a criminal proceeding, nor of his contractual employment right not to make a statement without a representative present. See MPD Manual, Anderer Aff., Ex. B. The record is barren of, and there is no possible explanation by the trial judge, as to why and how he believed Anderer's refusal to give a statement could be used as a prong of the foundation for his finding of probable cause.
B. JR's Lack of Credibility
72
The majority would like us to affirm the district court's unfathomable and unexplained grant of summary judgment to the Defendants, on the basis 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...." Opinion at 1049 (emphasis added) (quoting Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir.2000)). I am forced to disagree with the majority's unsupported contention that JR was a "reasonably credible" witness. The juvenile, JR, under the facts and circumstances set forth herein, could not be classified as reliable or trustworthy, much less reasonably credible. Thus, what the majority fails to take into consideration is that the fictitious claim made by the 12-year-old juvenile in this case — THAT OF A PSYCHIATRICALLY CONFUSED DELINQUENT JUVENILE ACTING OUT-OF-CONTROL WITHOUT THE BENEFIT OF HIS PRESCRIBED PSYCHOTIC MEDICATION — was found by the trial judge "NOT [TO BE] SUFFICIENTLY RELIABLE OR TRUSTWORTHY." And unlike the majority, I refuse to cast aside and pay no heed to that portion of the trial judge's specific finding that JR was NOT a reasonably credible witness; for this (lack of) credibility determination by the trial judge is well established in the record.
73
Based upon the facts and circumstances set forth herein, it is imprudent and most ill-advised for the majority to rely on the juvenile's complaint and such highly questionable facts surrounding JR's statements to conclude that probable cause existed to arrest Officer Anderer. See Opinion at 1051. I understand that, generally, the "complaint of a single witness or putative victim alone [is] generally ... sufficient to establish probable cause," EXCEPT IN THOSE INSTANCES WHERE THE "COMPLAINT [BY ITSELF] WOULD LEAD A REASONABLE OFFICER TO BE SUSPICIOUS," for in those cases "THE OFFICER HAS A FURTHER DUTY TO INVESTIGATE. " Beauchamp, 320 F.3d at 743 (emphasis added). As this Court explained in Hebron v. Touhy, 18 F.3d 421 (7th Cir.1994):
74
Sometimes information from or about a person claiming to be the victim of crime would lead a reasonable officer to be suspicious, making further investigation prudent — and, because the "reasonableness" standard of the fourth amendment links the constitutional obligation to the standard of prudent conduct, the officer must do more.
75
Id. at 422-23 (emphasis added). Therefore, I must point out that while I fully understand that "`the law does not require that a police officer conduct an incredibly detailed investigation at the probable cause stage,'" Spiegel, 196 F.3d at 724 -25 (quoting Gerald M. v. Conneely, 858 F.2d 378, 381 (7th Cir.1988)), certainly in the investigation of a situation such as the one presented to us, which could and did result in a grave injustice — Anderer's arrest (and his ultimate termination from the police force), an investigating officer " SHOULD CONDUCT FURTHER INVESTIGATION" especially when he or she is aware of certain "information from or about a putative victim of crime [that] WOULD LEAD A REASONABLE OFFICER TO BE SUSPICIOUS. " Id. at 724 (emphasis added).
76
The record establishes that the investigating officers possessed more than ample information that would and should have led a well-trained and competent officer, exercising reasonable judgment based upon the knowledge he or she possessed, to be suspicious and most cautious of young JR's fabricated allegation of abuse. This, in turn, should have mandated that the officers go forward and perform a good-faith investigation in an unbiased, fair and objective effort to satisfy the probable cause standard. However, there is no evidence in the record that IAD officers were cautious or suspicious, much less objective; for they never even took the simple step of checking JR's juvenile court contact record, but instead accepted JR's fabricated allegations at face value. As noted above, JR was shouting obscenities and threats, as well acting in an out-of-control and very strange manner on the night of the incident, for in addition to off-handedly remarking that Anderer had hit him in the mouth, JR repeatedly stated, in front of a number of other police officers, that Officer Cook had raped him (possibly hallucinating), and repeatedly inferred that he would sue ("get money") and get the arresting officers, including Cook and Anderer, fired. The mentally disturbed JR (who had not ingested his psychiatric medication that day) had a clear motive to make up a malicious lie in order to "harm others" and get Anderer and Cook in trouble, and thus was unworthy of belief concerning his "rape" allegation against Cook and his abuse allegation against Anderer. Again, as the trial judge aptly found, "if JR could manufacture one obvious lie against an officer, he might also manufacture a more plausible lie against a different officer. " Anderer v. Jones, No. 01-C-0668, at *7 (E.D.Wis., Sept. 30, 2002) (emphasis added). As I stated earlier, I wholeheartedly agree with that part of the district court's finding and statement that JR's allegation of abuse does fall far short of fulfilling the good-faith standard required to establish probable cause.
77
Also, the majority's contention that "JR told several police officers the same story," Opinion at 1050, is inaccurate and misleading; for the record reveals the contrary, i.e., that JR was neither truthful nor forthcoming with the IAD investigators about his previous rape allegations against Cook. At the Marina, the scene of the burglary, after JR had been apprehended by Officer Cook, he began "screaming and yelling and accusing [Cook] of attempting to rape him." Cook Aff. ¶ 11. JR also continued his barrage of obscenities and threats by stating that Cook was a "f* * *ing pig and I'm going to get you." Hoerig Aff., Ex. 1001 at 25. Once again, after JR had been transported to the Second Precinct Police Station, JR again accused Cook by pointing at him and stating "that officer raped me." Cook Aff. at ¶ 30. However, once the investigation into the allegations against Anderer commenced, at no time did JR repeat this absurd and ridiculous rape allegation to IAD investigators. Instead, JR only stated to them that Cook " nudged him on his buttock with a flashlight. " Smith Report ¶ 5 (emphasis added). This statement (that Cook had "nudged" him in the buttock) was in all likelihood more "true" than JR's "obvious lie" that Cook raped him, but it does not support the majority's conclusion that "JR told several police officers the same story...." Opinion at 1050. Moreover, even if JR had repeated his prior rape statement to the investigating officers — rather than restore his credibility, the juvenile's willingness to repeatedly make a specious rape claim against police officers (which the district court judge termed as an "obvious lie"), if anything, would have served to further diminish JR's credibility concerning his concomitant child abuse allegation.
78
As for the very powerful evidence that JR was presently, and in the immediate past had been, undergoing treatment for psychiatric and behavioral problems which necessitated the prescription of a myriad of psychotropic drugs — and that he had failed to take his medicine on the day in question (the very day he participated in the boat burglary, levied false allegations of rape and abuse against Cook and Anderer, made numerous threats of harm against the arresting officers and somehow ended up with a bloody nose and accused a police officer of causing it ) should have raised the red flag of caution and suspicion for investigators — the majority says only that "the fact that the investigating officers knew about JR's psychiatric medication does not ipso facto negate JR's credibility or require the officers to further investigate JR's medical history to substantiate or refute his claim of abuse by Anderer." Opinion at 1050. No one says now, or at any time, that this one fact alone would even be sufficient to refute the abuse claim. Surprisingly, in an attempt to support their assertion, the majority relies on this Court's holdings in Driebel v. City of Milwaukee and Spiegel v. Cortese. See Opinion at 1051-52. But Driebel is wholly inapposite, for in that case (unlike the instant case), the purported victim's allegation that he was struck by a police officer was bolstered by " numerous witnesses who [were allowed to] g[ive] [more than] sufficient corroborating testimony to establish that [the police officer] may have committed a battery...." Driebel, 298 F.3d at 644 (emphasis added). Yet, in this case, not one living, breathing individual corroborated JR's allegations of abuse. ARE WE REALLY TO BELIEVE THAT ANDERER, ALL FOUR OF HIS FELLOW OFFICERS (WHO WERE ON THE SCENE) AND MITCHELL ARE ALL LIARS? Moreover, there was absolutely nothing to interfere with the MPD and Chief Jones from waiting a few days, or even weeks, while they pursued their investigation and gathered sufficient evidence about the allegation. At the very least they should have consulted with the independent senior law enforcement officer of the county, i.e., the D.A. or his representative, before taking the most serious step of subjecting Officer Anderer to arrest (as is the department's modus operandi for an investigation into an alleged crime with accompanying serious consequences), confinement and ultimate discharge.
79
The majority's reliance on Spiegel is likewise inappropriate, for the complainant in Spiegel was found to be reasonably credible, despite "inconsistent" statements to officers. See Opinion at 1050; Spiegel v. Cortese, 196 F.3d 717, 724 (7th Cir.2000). By contrast, in the case before us, the police had available to them a plethora of evidence, beyond that of merely "inconsistent" statements to authorities, establishing beyond doubt that JR was unbelievable and untrustworthy: (1) he had made a false allegation of rape — an "obvious lie" — against Officer Cook at the same time he accused Anderer of abuse; (2) he had expressed a clear and unambiguous intent to sue and make money off of his arrest and to "have the arresting officers' jobs"; (3) he was supposed to be ingesting five or six prescription drugs each day — including three (Paxil, Seroquel, and Adderall) which treat mental and behavioral deficits (schizophrenia, generalized anxiety disorder, attention deficit disorder, etc.) — and he had not taken his medication that day; (4) he had a history of delinquency, was a "constant problem" on Officer Shoman's beat, and furthermore his mother was "not surprised" that he was arrested for burglary; and (5) there was not one noticeable sign of physical abuse on his body, much less evidence that would suggest he had been punched in the face or nose, i.e., there were no marks, bruises, cuts, abrasions or lacerations on the boy's face or nose, except the two small cuts on the inside of his lip; which more likely were from sources other than an alleged punch from a 200 1b. male to the facial area. 12 I am convinced that the very nature of this evidence should have led "a reasonable officer to be suspicious." Hebron, 18 F.3d at 422-23 . The combination of these factors, when considered in their totality should have severely undermined and/or destroyed the validity of JR's fabricated and malicious statements, as reflected in the district court's finding that JR's previous "fanciful allegations against [Officer Cook]" raised " serious issues concerning JR's credibility. " Anderer v. Jones, No. 01-C-0668, at *7 (E.D.Wis., Sept. 30, 2002) (emphasis added).
80
While I am well aware, and agree, that the law does not require investigating officers to "exclude every suggestion that a victim is not telling the truth" prior to making an arrest, Spiegel, 196 F.3d at 724 (emphasis added), the facts and circumstances of this case most certainly would have "le[d] a reasonable officer to be suspicious" and most cautious of his claims. Beauchamp, 320 F.3d at 743 . Under these conditions, where investigating officers knew that the position of an officer who had been employed by the Department (3½ years service on the force) was in jeopardy, and that the claimant was an incorrigible, malcontent, out-of-control psychotic juvenile, JR (12 years of age), who made what may best be characterized as flippant and offhand accusatory statements 13 that he had been hit by Anderer and raped by Cook; can the majority really argue on legal grounds that the investigators did not have a duty to do more investigating into the juvenile and his statement? I think not. I am therefore at a loss to understand the majority's conclusion that JR was a reasonably credible witness and that no further investigation into his allegation was necessary, which is in sharp contrast with the credibility findings of the trial judge, as well as my personal appraisal. See Opinion at 1049-50 (citing the "reasonably credible witness" standard, and refuting "Anderer['s] claim[] that JR was not a credible victim....").
81
C. Lack of Evidence Corroborating JR's Claims of Abuse
82
As clearly portrayed in the photographs taken immediately after the alleged assault as well as the reliable affidavit testimony of officers that examined JR (Officers Logan and I.D. Techs Brown and Kathrein), there wasn't one scratch or bruise nor any type of abrasion, contusion or blemish on the outside of JR's face, nose or mouth. In spite of this, the majority attempts to lend credence to the trial judge's speculatory statement ( i.e., that "J.R.'s statement that Anderer hit him was consistent with the blood on J.R.'s face and shirt"). In doing this the majority evidently relies on JR's bloody nose and dirty and worn shirt, as well as two cuts on the inside of his mouth and upper lip, see Opinion at 1049-50, to somehow validate JR's (otherwise unbelievable) story and relieve the police from performing a reasonable investigation into the validity of his delusionary claim of abuse. In so doing, the majority completely casts aside any and all exonerating testimony from the citizen witness (Mitchell) and six police officers (two of whom clearly stated they did not see any physical confrontation between Anderer and JR, and four of whom stated no such confrontation took place). See Opinion at 1051. The majority also somehow sees fit to ignore the sworn affidavit testimony and exhibits (photographic renditions of JR), see Opinion at 1051, submitted by the trained and knowledgeable I.D. Technicians, David Brown and Kara Kathrein, who concluded that JR's lip cuts were most likely due to "a pre-existing condition" and that they did not appear to be "caused by a punch ...," Brown Aff. ¶ 5, 6; see also Kathrein Aff. ¶ 15, and which instead could more likely have been caused by JR biting his inner lip or as a result of a dried out mouth condition and a canker sore. Indeed, Brown claimed — and we must accept as true his statement — that "th[e] injury was so minor that it was not worth taking a picture of except for the purpose of being able [to] identify in the future the exact extent of the alleged injury [JR]" referred to. Brown Aff. ¶ at 6. As Kathrein maintained, the " small cut appeared [to be a] bit[e] [to the inner] lip or ... a canker sore," rather than an injury caused by a "punch to his face. " Kathrein Aff. ¶¶ 15, 16 (emphasis added).
83
The majority attempts to cast to the winds and dismiss the photographs and affidavit testimony submitted by the I.D. Techs' out of hand, on the purported basis that "one ID tech did not photograph JR until after Anderer had already been arrested, and so would have had nothing to contribute to the probable cause determination prior to his arrest." Opinion at 1051. This statement is also inaccurate, for the fact remains that I.D. Technician David Brown did take the photographs of JR well prior to Anderer's arrest — photographs taken at 10:15 p.m. —a full two and a half hours before Anderer's 12:35 a.m. arrest. The majority also criticizes the time frame during which these photographs were developed by stating that the "photographs [of JR] ... were not developed until after Anderer's arrest." Opinion at 1051. The question naturally arises: are photographs usually taken and DEVELOPED at the very scene of a crime of this nature? I think not (at least not before the advent of digital cameras which, at the time, were not carried by police officers).
84
Furthermore, although the photographs were not developed until post-arrest, the majority's argument that they are thus irrelevant is a red herring. 14 See Opinion at 1051. These photographs are relevant to the probable cause inquiry because the developed negatives support the determination of ID Technician David Brown that the cut on JR's inner lip was the result of a "pre-existing condition" such as a "dr[iedup] lip" or "canker sore" and thus did not appear to be "caused by a punch." Brown Aff. ¶¶ 5, 6; Kathrein Aff. ¶ 16. Furthermore, the majority fails to recognize that David Brown's determination that JR's "injuries" were not consistent with abuse was made well before Anderer's arrest (at 10 p.m., two hours prior to Anderer's arrest). Thus, both the pictures of JR's lips before and after the arrest, and the testimony of the I.D. Technicians who took them, support the conclusion that JR's injuries were not consistent with a punch to the face from a 200-1b. man and, thus, casts grave doubt on Chief Jones's and his command officers' decision to place Anderer under arrest for abuse and Officer Hoerig's less than forthright statement that the cuts on JR's lips were either "serious" in nature or consistent with abuse. See Hoerig Aff. ¶ 16.
85
Additionally, contrary to the majority's contention, although the other I.D. Technician, Kara Kathrein, took pictures of JR approximately an hour after Anderer's arrest, her stated observation that JR's lip cut "was not consistent with being struck in the face by an adult male, " Kathrein Aff. ¶ 16 (emphasis added), is certainly relevant to the reasonableness of the probable cause determination, since Kathrein's observations of JR were very proximate in time to Anderer's arrest. See Opinion at 1051. Again, the majority appears to misconstrue Anderer's argument regarding the importance of the I.D. technicians' observations that the "injuries" referred to were inconsistent with a punch. The majority states in its opinion that I.D. Technician Brown's and Kathrein's accounts of JR's injuries on the night of his arrest are irrelevant because police officers "themselves regularly investigate batteries against persons and are capable of assessing the nature and possible cause of injuries" and, thus, there was no reason "these ID techs should have been consulted by the officers investigating JR's claims prior to arresting Anderer." Opinion at 1050-51. Might I make clear that I am not arguing that the investigating officers were under any duty, much less an obligation, to ask the I.D. Technicians for their opinions before reaching their determination that the injuries were or were not caused by Anderer. Instead, Anderer argues (and I agree) that the observations of these QUALIFIED EXPERTS who personally observed, witnessed and photographed JR's alleged lip lacerations after he arrived at the station — and, more specifically, their opinion that the condition of JR's lip injuries were inconsistent with the allegations of abuse — are relevant in determining whether Lt. Hoerig's assessment of the juvenile's injuries to the contrary was reasonable or credible. It was not. Just as there is no requirement that investigators consult with I.D. Technicians about the possible cause of injuries to an alleged victim, neither is there any requirement that an individual get a second opinion when diagnosed with a malignant brain cancer which requires surgery; however, such an opinion is often helpful and instructive and could very well inform the initial examining doctor of something he or she may have overlooked. After all, two minds, especially those specifically trained and possessing a great amount of experience, are frequently considered more convincing and helpful than one.
86
It was illogical and indicative of incredibly poor judgment for Hoerig and the IAD investigators to cite JR's "injuries" — including his inner lip cuts — as evidence supporting their decision that there was probable cause to arrest Anderer for abuse of a child without a scintilla of evidence as to any bruise, abrasion, blemish, contusion or laceration to JR's outer facial area consistent with the juvenile's flippant and offhand accusation that he was punched in the face and mouth by a 200-1b. man while entering the squad car. There is no evidence in the record that JR's inner lip cut had changed in appearance (improving or worsening) in the short space of time between Hoerig's examination of JR (approximately 9:15 pm), Brown taking his photographs (10:15 pm). Anderer's being arrested (12:30 am) and the time at which Kathrein took her photographs (1:30 am). 15 Thus, as I have pointed out earlier, viewing the facts in a light favorable to Anderer, as we must at this stage of the proceedings, veteran officer Kathrein's observations that JR's inner lip cuts resembled "pre-existing" canker sores or a "bitten lip" causing bleeding were, contrary to the majority's contention, highly relevant to the probable cause inquiry. See Opinion at 1070. This evidence casts serious doubt on Lt. Hoerig's most questionable and unfathomable determination that "JR['s][lip] injuries [were] consistent with being hit in the mouth, " Hoerig Aff. ¶ 16 (emphasis added), and thus also serve to undermine Hoerig's careless and unsupported judgment that there existed probable cause to arrest Anderer. 16 Did this constitute a good-faith probable cause inquiry? The answer is NO. Thus, I reiterate that the statements of the I.D. Technicians, which are contrary to those of Hoerig and the IAD investigators, were highly relevant when considering the question of whether there was probable cause.
87
It is obvious that Anderer's arrest, which the district court and the majority have seen fit to uphold as supported by probable cause, was at least in part predicated on Lt. Hoerig's recommendation to Chief Jones that probable cause existed. See Opinion at 1049-50. This is in spite of the fact that no living person interviewed either before or after the Anderer's arrest could corroborate JR's claims of abuse. For example, Officers Michael Jones and Jeffrey Logan testified that they had no idea what caused the alleged injury to JR. In addition, as outlined above, I.D. Techs Brown and Kathrein testified as to the lack of any bruise, blemish, abrasion or laceration on JR's face or nose and to the fact that JR's "injuries" were not consistent with being punched in the mouth or nose by a 200 lb. man. Also, as set forth infra, Officers Shoman, Centeno, Cook, and Bohlen, as well as the lay witness, Mitchell, testified that they did not witness any altercation whatsoever between Anderer and JR, contrary to JR's allegations. In conjunction with the testimonial evidence, the pictures taken both before and after Anderer's arrest do not corroborate JR's story. Rather, these photographs and statements establish that there were no cuts, bruises, abrasions, lacerations, contusions or other signs of trauma to JR's face which might tend to give some credence to his claim that Anderer had punched him. Thus, when all the facts and circumstances in the record are viewed in the light most favorable to Anderer as the law requires us to do at this stage of the proceedings, I remain convinced that probable cause was not established and, furthermore, that it was unreasonable for Lt. Hoerig to deduce, for the district court to speculate, and for the majority to similarly conclude, that Anderer "had committed ... an offense." Spiegel, 196 F.3d at 723 (quoting Qian v. Kautz, 168 F.3d 949, 953 (7th Cir.1999)).
88
D. Anderer's Fifth Amendment and Contractual Rights
89
More importantly, THE MPD'S PROBABLE CAUSE DETERMINATION, AS WELL AS THE DISTRICT COURT'S FINDING AND THE MAJORITY'S OPINION RATIFYING THAT DECISION, leave a great deal to be desired insofar as each one of them rely on Anderer's "TOTAL FAILURE TO PROVIDE ANY EXPLAINATION FOR THE INJURIES" AS A "CIRCUMSTANCE" SUPPORTING JR'S CLAIM OF ABUSE. Opinion at 1050 (emphasis added). After all, Anderer properly invoked his lawful contractual right — which is protected by his employment contract with the MPD — not to give a statement without representation present while he was under investigation for a crime. In addition, like any other citizen of the United States, including law enforcement officers, Anderer had every right to refuse to make any statement that could be used against him in a criminal proceeding under the Fifth Amendment to the Constitution.
90
As to his contractual rights, the MPD Rules and Regulations set forth that:
91
In investigations that require an immediate interview, the member will be allowed a reasonable opportunity to obtain the presence of and to consult with a representative of his/her choice before and during the interview. If a representative of the member is not readily available and if the supervisory officer determines that it is necessary to immediately continue the interview to complete the investigation, the supervisor shall consult with the Commanding Officer of the [IAD] prior to the continuation of such an investigation. If any member being interviewed by a supervisory officer requests representation, and that representation is denied, the supervisory officer shall prepare an In the Matter of Report indicating the circumstances which led up to the request for representation and the reason why the representation was denied.
92
MPD Rule 3/450.05(D)(8) (emphasis added). Additionally, I must note that, according to the MPD Rules and Regulations which were received into the record as evidence, an officer can be compelled to answer questions posed by an investigating supervisory officers only when, prior to the interview, the officer IS GRANTED IMMUNITY and advised that any answers to questions presented and responses made thereto "and the fruits thereof, cannot be used against [him] in any criminal proceeding." See MPD Manual § 3/450.05(D)(5); see also Driebel, 298 F.3d at 638 n. 8. At no time was Anderer offered immunity and he was never compelled to give a statement, nor was he provided with a union representative as he demanded, because he was arrested shortly thereafter. However, IAD officers did attempt to coerce a statement from him in complete disregard for their own regulations. Detective Harrison "asked if [Officer Anderer] would give a statement," and Anderer told Harrison, "absolutely not, not without union representation." Anderer Aff. ¶¶ 71, 72. Also, Detective Harrison, who, as an acting MPD command officer (and like every other MPD officer), is sworn to uphold the laws of the State of Wisconsin and the ordinances of the City of Milwaukee, then proceeded to blatantly threaten Anderer when stating that she was "going to get a sergeant [t]here to [do a] PI-21." Id. at ¶¶ 73, 74. This meant she was 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. What was not stated to Anderer was that any statement that might have been given as the result of a PI-21 could not be used against him in any criminal proceeding. As it turned out, Harrison and the IAD investigators had no intention of ever "PI-21ing" Anderer because their goal throughout this pre-ordained and result-orientated process was to arrest him, therefore, the speedy arrest process continued while Anderer remained silent.
93
It is interesting to note that, at this time, before his arrest and after her threat to compel him to speak, Anderer did speak to Detective Harrison "off of the record...." Anderer Aff. ¶ 75. Anderer asked Harrison what he was going to be charged with and, according to Anderer she responded: "That's what doesn't make any sense. He's accusing you of PUNCHING HIM WITH THE BACK OF YOUR HAND AND THE KID HAS NO INJURIES OTHER THAN A SMALL CUT ON THE INSIDE OF HIS LIP, WHICH YOU CAN BARELY SEE, AND WHICH IS NOT CONSISTENT WITH A PUNCH. " Id. at ¶ 76 (emphasis added). Anderer then gave the eyewitness James Mitchell's address and phone number to Harrison and watched as she transcribed this information in her notebook, trusting that he (Mitchell) might be contacted to corroborate Anderer's lack of involvement in the alleged incident. Id. at ¶ 77-78. Anderer also asked Harrison if Officer Cook was going to be charged with rape, and Harrison replied that Cook was not going to be charged and that he (Anderer) was the sole target of the investigation. Id. at ¶ 79. Anderer responded by saying "that's bullshit, I'm 200 pounds, if I would have punched that kid, I would have left some brusing or swelling on his face, and would have cuts or redness on my hands...." Id. at ¶ 80. Anderer then requested that JR be taken to be "medically cleared" (or examined by a medical professional). Id. In addition, Anderer displayed his hands to the detectives, which Harrison examined, and at that time he (Anderer) requested that his hands be photographed. Id. at ¶ 80-81. Harrison told Anderer that the I.D. Technician had left, but she later reassured him that "WE KNOW [ALL OF] THESE COMPLAINTS ARE BULLSHIT ... WE ARE GETTING TIRED OF INVESTIGATING FALSE ACCUSATIONS." 17 Id. at ¶ 81-82 (emphasis added). A few minutes later, Anderer once again requested that photographs be taken of his hands. Id. at ¶ 94. Instead, Harrison's superior, IAD Detective Mercedes Cowan, examined Anderer's hands with a high-powered flashlight and stated "you don't need a photo tech." Id. at ¶ 98. Photographs never were taken of Anderer's hands nor was the pristine and unblemished condition of his hands ever noted in the record, and, as noted above, the MPD "fast-track" arrest process resulted in Anderer being arrested shortly thereafter. Was this blatant declination of his request for photographs of his hands an example of good-faith and fairness? I think not.
94
Furthermore, in their haste to arrest, confine and humiliate Anderer, the MPD went so far as to ATTEMPT TO HAVE ANDERER BOOKED AND JAILED IN HIS POLICE UNIFORM, apparently in an effort to further demean him. However, the Milwaukee County Sheriff's Department officers, in an exercise of good judgment, refused to admit and accept Anderer into the Criminal Justice Facility (county jail) dressed in his police uniform, and sheriff's officers directed that he change into his street clothes. Thus, following the IAD's rush to judgment, Anderer was seized and arrested and, to add insult to injury, was very close to being subjected to further ridicule, and possible physical harm, by almost being jailed in his police uniform (there being little affection between prisoners and law enforcement personnel).
95
As mentioned above, under his employment contract with the City of Milwaukee Police Department (specifically, MPD Rule 3/450.05(D)(7)), Anderer was entitled to "have a representative of [his] choice present" during questioning; thus he was fully justified in relying on his CONTRACTUAL RIGHT TO REFUSE TO ANSWER QUESTIONS, SPECULATE OR ATTEMPT TO PROVIDE ANY TYPE OF EXPLANATION AS TO WHEN, WHY AND HOW JR SUFFERED THE NOSEBLEED. The fact that "Anderer made no comment or report concerning how JR [might have been] injured," Jones's Br. at 20, could not and should not have been held against him. Also, by no stretch of the imagination, could Anderer's refusal to speculate as to the cause of JR's alleged injuries be considered a factor in establishing probable cause to arrest him for abuse (pursuant to his Fifth Amendment right not to incriminate himself). Nevertheless, the district court, without a scintilla of precedential support, exhibited faulty reasoning and SPECULATED THAT ANDERER'S LACK OF "EXPLA[NATION FOR] THE CAUSE OF JR'S BLOODY NOSE" could be considered a "factor[] sufficient to supplement any lack of credibility in JR's statement[s]." See Anderer v. Jones, No. 01-C-0668, at *11 (E.D.Wis., Sept. 30, 2002) (emphasis added). Even more unfortunate is that my colleagues in the majority readily adopted this unsound rationale, without any support in the law, holding and stating that:
96
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 that Milwaukee police officers had probable cause to believe that Anderer had intentionally or recklessly caused JR's bodily injury.
97
Opinion at 1050 (emphasis added). The majority's mysterious use of Anderer's refusal to give a statement as a premise on which to base their determination of probable cause, is unsupported with any case law and rests on a foundation of quicksand.
98
The district court's, as well as the majority's, willingness to rely on Anderer's refusal to give a statement as an essential prong of the "evidence" establishing probable cause to arrest him for a crime is particularly troubling when one considers and reflects upon over 200 years and volumes of precedent in case law supporting Anderer's Fifth Amendment right protecting him against self-incrimination. IT IS INDEED "WELL-SETTLED ... [THAT] `[P]OLICEMEN ... ARE NOT RELEGATED TO A WATERED-DOWN VERSION OF CONSTITUTIONAL RIGHTS.'" Driebel, 298 F.3d at 637 (quoting Garrity, 385 U.S. at 500 , 87 S.Ct. 616 ) (emphasis added). And the Fifth Amendment's self-incrimination protections, which prevent 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), are well-established. Id. Thus, I am at a loss to understand how the MPD, the district court, and now the majority include Anderer's proper and justified exercise of his well-established Fifth Amendment right to refuse to give a statement which might incriminate him (in addition to his separate and distinct contractual right not to give a statement absent representation) as a factor in satisfying the probable cause standard. After all, a person "may not be detained even momentarily 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, 497-98 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983) (emphasis added) — much less can a refusal to answer potentially incriminating questions ever be construed as constituting an element of the probable cause requirement to arrest.
99
Again, I am well aware that according to MPD Rules, and consistent with the law, a police officer who is under investigation in matter which may result in a criminal proceeding may be compelled to give a statement during an investigation — but NOT UNTIL SUCH TIME AS HE HAS BEEN GRANTED IMMUNITY FROM CRIMINAL PROSECUTION IN THE MATTER UNDER INVESTIGATION. See Driebel, 298 F.3d at 638 n. 8; accord Lefkowitz v. Cunningham, 431 U.S. 801, 806 , 97 S.Ct. 2132 , 53 L.Ed.2d 1 (1977). This was obviously not the case here (because Anderer was never compelled to give a statement), and so this exception has no bearing on Anderer. Nonetheless, considering Anderer's contractual employment right, as separate and distinct from his Fifth Amendment rights, the MPD's concerted effort to compel a statement absent representation (even by threat) — and then to make use of his lawful refusal to comply without the requested representative present as a basis for probable cause — is clearly violative of his contractual employment rights, as well as his well-established constitutional rights to refuse to answer.
100
Indeed, in the context of a lawful Terry stop (an investigatory questioning supported by reasonable suspicion) — which may be the most analogous situation — the question of whether an investigating officer may detain an individual for refusing to answer a potentially incriminating inquiry, or whether he may use such refusal to elevate his mere suspicion to the level of probable cause, is an issue neither the U.S. Supreme Court nor this Court has resolved to date . See, e.g., Tom v. Voida, 963 F.2d 952 , 959 n. 8 (7th Cir.1992); cf. Hiibel v. Sixth Judicial Dist. Court, ___ U.S. ___, 124 S.Ct. 2451, 2460-61 , 159 L.Ed.2d 292 (2004).
101
The majority insists on using Anderer's "failure to provide an[ ] explanation for [JR's] injuries" as a factor supporting probable cause. Opinion at 1047, 1050 (emphasis added). To the extent that the majority relies on Anderer's proper invocation of his contractual rights, as well as his inherent Fifth Amendment rights to refuse answer potentially incriminating questions when the suspect in a criminal investigation, to "permit the [MPD] officer[s] to elevate [their] reasonable suspicion into probable cause, " Tom v. Voida, 963 F.2d at 959 (emphasis added), I disagree with this newly created theory of law which employs most novel reasoning. In their attempt to support their argument, the majority has seen fit to follow the ill-advised MPD and district court's errant finding, which includes his "refusal" to answer as a factor establishing probable cause, and has entered into an unchartered area of the law; essentially creating this new spurious theory of the law which runs contrary to Anderer's well-established rights. Why the MPD, district court and now the majority relied on this legal hand grenade, is most puzzling. Anderer properly invoked his contractual rights when he stated to Detective Harrison that he would absolutely not answer any questions without union representation present. Given this fact, Anderer was acting well within his protected rights (both constitutional and contractual) when he refused to give a statement to the IAD investigators. 18 Thus, as a matter of logic, there was no reason for anyone to assume Anderer should have known how the bloody nose occurred, for there is no evidence in the record that Anderer has ever undergone medical training ( e.g., any type of training as a paramedic). Also, at the time JR's nose began bleeding, Anderer was seated in the driver's seat operating the police squad car while the juvenile was seated and secured alone in the back seat of the vehicle during his conveyance to the police station.
102
In the majority's brief and most limited response to my analysis on this issue, they initially state, in a footnote, that "the dissent contends that any reference to Anderer's failure to explain JR's bloody appearance in the probable cause analysis impinges on Anderer's Fifth Amendment and contractual rights, Anderer himself makes no such argument and, in fact, concedes his inability to explain JR's injuries." Id. (emphasis added). I disagree with this unsupported free-lance interpretation of Anderer's statements in the record. The majority seems to infer that because Anderer, in their opinion, did not make an argument regarding his contractual and Fifth Amendment rights, they are of no concern; I disagree. See Opinion at 1050, note 8. It should be noted that, in his complaint Anderer alleges that he was deprived of "rights secured to him by the Constitution and laws of the United States and the State of Wisconsin." Anderer Complaint at *1. Anderer specifically refers to violations of his Fourth and Fourteenth Amendment rights as well as violations of § 1983 in his complaint on more than one occasion and it is most clear that any probable cause determination, by its very nature, implicates the Fifth Amendment once an individual, as in this case, is determined to be a suspect in a criminal investigation and questions are posed to him in the course of that investigation. In addition, in his complaint Anderer (as well as the other officers) pled his contractual rights when stating that he told IAD investigators that "he wanted union representation before making any statement," and that he knew the IAD was "there to investigate criminal allegations." Id. at *8, ¶ 40, 43. Undoubtedly Anderer, as a three and a half year veteran of the MPD, was well aware of his constitutional rights, for he was required to inform suspects of them each and every time he made an arrest in the course of his duties. Once Anderer was the suspect of a criminal investigation, his Fifth Amendment, as well as his contractual rights, came into play; therefore, the "operative facts" giving rise to a violation were pleaded as part and parcel of Anderer's Fourth Amendment claim. See Kyle v. Morton High Sch., 144 F.3d 448, 455 (7th Cir.1998); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 , 113 S.Ct. 1160 , 122 L.Ed.2d 517 (1993).
103
However, even if we are to assume that in this case the issue was not pled or argued (as seems to be the majority's point of view), THE LAW IS VERY CLEAR TAT A CONSTITUTIONAL ISSUE MAY BE RAISED SUA SPONTE AT ANY TIME WHEN IT COMES TO THE ATTENTION OF THE PRESIDING JUDGE OR JUSTICE THAT AN INJUSTICE MIGHT RESULT BY NOT ADDRESSING THE ISSUE. Singleton v. Wulff, 428 U.S. 106, 112 , 96 S.Ct. 2868 , 49 L.Ed.2d 826 (1976). This is particularly true in a situation where, as here, A GRAVE INJUSTICE DID RESULT, i.e., OFFICER ANDERER BEING UNCONSTITUTIONALLY ARRESTED AND, AS A DIRECT RESULT, LOSING HIS TENURED POSITION AS A POLICE OFFICER WHICH HE HAD HELD FOR 3.5 YEARS BASED ON THE FABRICATED TESTIMONY OF A PSYCHOTIC JUVENILE. As the Supreme Court pointed out in Singleton v. Wulff:
104
The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases ... Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt, or where injustice might otherwise result.
105
428 U.S. at 121 , 96 S.Ct. 2868 (internal quotations and citations omitted) (emphasis added); see also, United States v. Heater, 63 F.3d 311, 332 (4th Cir.1995); Cruz v. Melecio, 204 F.3d 14 , 22 n. 7 (1st Cir.2000); Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808 (6th Cir.2002); Davis v. Blackburn, 803 F.2d 1371 (5th Cir.1986). But cf. Pearce v. E.F. Hutton Group, Inc., 828 F.2d 826 (D.C.Cir.1987). Anderer's well reasoned claim, which is supported in the record, that the City lacked probable cause to arrest him under the Fourth Amendment is itself a constitutional question. It follows that the Anderer's Fifth Amendment rights are implicated because they are so inextricably intertwined with the issue of whether or not the City had probable cause to arrest him based, in part, on his silence. This case should be resolved by this Court in a way that does not offend the Federal Constitution or its long-standing principle, embodied in the Fifth Amendment, that suspects in criminal prosecutions cannot have their silence, refusal or failure to explain used against them in a court of law. See, e.g., Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965). I believe that I would be derelict in my ethical duty if I failed to address this (Fifth Amendment) issue in view of the fact that Anderer has suffered a grave injustice including the loss of his tenured employment as a Milwaukee Police Officer (3.5 years on the job) based on what amounts to nothing more than fabricated testimony.
106
Next, the majority attempts to (in a self-serving interpretation of his words) highlight the fact that Anderer, in their opinion, "concedes his inability to explain JR's injuries," and that "Anderer made several voluntary comments to other officers, including that he did not know how JR received the bloody nose." Opinion at 1050, n. 8. I disagree with this statement as presented by the majority. As noted above, although Anderer did make voluntary comments, some of those qualified as "off-the-record" and the rest were made before he ever became a suspect. However, they all amounted to a "refusal" to even attempt to explain what caused JR's nosebleed. I fail to see how these additional references to the record (and to "off-the-record" statements by Anderer) have any relation to, or in any way undermine, Anderer's well-established constitutional right under the Fifth Amendment to refuse to give a statement or his refusal to even attempt to explain the facts (which was, i.e., a refusal to answer) and circumstances of an event in which he was suspected of committing a crime. An "inference of guilt for failure to [explain the] facts peculiarly [or supposedly] within [Anderer's] knowledge," Griffin v. California, 380 U.S. 609, 614 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), is constitutionally impermissible when based on Anderer's refusal to explain or speculate how JR's nose started to bleed (indeed one wonders how Anderer, who is not a medical professional, and who was seated in the front seat of the vehicle driving the squad car with JR seated in the rear, could be expected to diagnose the cause of JR's alleged "nosebleed," which was in fact "mostly [mucus] mixed with some blood," see Logan Aff. ¶¶ 25-26, and not what would be expected to result if JR was, as he alleged, punched in the nose by a 200 lb. male). Frankly, the majority misses the point.
107
What the majority has failed to consider, reply to or support in any way with relevant case law or precedent is the fact that Anderer's rights under the Fifth Amendment entitle him to absolute protection from self-incrimination beginning at the very moment he became a suspect in a criminal prosecution. Anderer's statements to Sgt. Jones, which were informal, off-the-record and made prior to an investigation being launched, as well as his clearly articulated "off-the-record" comments to IAD. See Opinion at 1047. In addition, Anderer's "on-the-record" refusals to answer any questions posed to him and right to remain silent continued to be protected throughout the course of the IAD's query into JR's preposterous allegations. See United States v. Hale, 422 U.S. 171, 180 , 95 S.Ct. 2133 , 45 L.Ed.2d 99 (1975); see also Driebel, 298 F.3d at 637 ("It is indeed "well-settled ... [that] `[p]olicemen... are not relegated to a watered-down version of constitutional rights.'"). 19 Indeed, the IAD officers attempted to side-step and take an end-run around their own regulations by threatening Anderer in an attempt to coerce him (threats) into giving a statement, however, cognizant of his rights Anderer once again refused to fall into the trap and give a statement. I am convinced that it was constitutionally impermissible for the MPD (as well as the district court and now the majority) to base their probable cause determination on "Anderer's total failure to provide any explanation for [JR's] injuries." See Opinion at 1050; Griffin, 380 U.S. at 614, 85 S.Ct. 1229 . Such an approach has never been endorsed by either the United States Supreme Court or this Court. See, e.g., Tom v. Voida, 963 F.2d at 959 n. 8.
108
It matters not in the slightest that Anderer related his refusal or inability to explain JR's alleged injuries to his fellow officers (either before becoming a suspect or after going "off the record"). It matters even less that Anderer constantly maintained this position long after the District Attorney and his immediate subordinate decided that there was no merit to the charges against him. Also, the fact that Anderer included a statement conceding his refusal to explain the cause of JR's alleged i

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/788013. Public record. Not legal advice.