Timothy Harney v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-2095, 10-2817

T IMOTHY L. H ARNEY and

P ATRICIA A. M ULDOON,

Plaintiffs-Appellants,

v.

C ITY OF C HICAGO and

O FFICER JOSEPH M IDONA,

Defendants-Appellees,

and

P AMELA D EV ARELA,

Defendant.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:07-cv-02814—Joan Humphrey Lefkow, Judge.

A RGUED JUNE 1, 2011—D ECIDED D ECEMBER 10, 2012

Before F LAUM and SYKES, Circuit Judges, and C ONLEY,

District Judge.Œ

Œ

The Honorable William M. Conley, United States District

Court for the Western District of Wisconsin, sitting by designa-

tion.

2 Nos. 10-2095, 10-2817

C ONLEY, District Judge. Plaintiffs Timothy L. Harney and

Patricia A. Muldoon brought this civil action against the

City of Chicago and one of its police officers, Joseph

Midona, pursuant to 42 U.S.C. § 1983, alleging that defen-

dant Midona entered their residence and arrested them

without a warrant or probable cause in violation of the

Fourth Amendment of the United States Constitution.

The district court granted summary judgment to defen-

dants on all claims. Agreeing that there are no genuine

issues of material fact or legal grounds on which plain-

tiffs are entitled to proceed, we affirm that court’s grant

of summary judgment. The following facts are taken

from the undisputed findings submitted to the district

court, viewing the facts in a light most favorable to de-

fendants and drawing all reasonable inferences in

their favor.

I.

A. The Parties

Harney and Muldoon are married and occupy

one unit of a three-unit condominium building in

Chicago, Illinois. Pamela DeVarela occupies one of the

other two units.1 This lawsuit developed out of a history

of contentious interactions between these neighbors and

1

Plaintiffs also alleged state law claims against DeVarela. In

granting summary judgment to defendants the City of

Chicago and Midona on the federal claims, the district court

opted not to exercise its supplemental jurisdiction and dis-

missed the state law claims without prejudice. DeVarela is not

a party to the appeal.

Nos. 10-2095, 10-2817 3

the involvement of defendant Midona in this spat be-

tween neighbors.

B. History of Strained Relations

In April 2004, DeVarela contacted the Chicago Police

Department to complain about damage to a mirror on

her vehicle. Officer Midona was dispatched to respond to

her complaint. Although DeVarela had no proof, she

claimed that the damage was caused by Harney and

Muldoon. Lacking any evidence of the identity of

the offender, Midona’s police report indicated that the

damage was caused by an “unknown offender.” At this

time, Midona also apparently gave DeVarela his personal

cell phone number in the event of any further incidents.

On September 21, 2004, DeVarela’s dog bit Harney.

Harney reported the incident to the City of Chicago and

obtained medical treatment for the dog bite.

A couple days later, DeVarela telephoned Officer Midona

on his cell phone, requesting that he prepare a second

police report. This time DeVarela reported that on Septem-

ber 21, 2004, Harney and Muldoon chased her up the stairs

and pushed her as she tried to enter her unit’s door.

C. Events Leading Up To Plaintiffs’ Arrests

On May 16, 2005, DeVarela again called Midona to

complain about damage to her vehicle. The next day,

Midona and Sergeant Woznicki met with DeVarela and

were shown a videotape consisting of clips DeVarela

4 Nos. 10-2095, 10-2817

compiled from two separate videotapes.2 In her sum-

mary judgment opinion, the district judge aptly

described the clips as follows:

The first clip, on March 6, 2005, depicts a man, identi-

fied as Harney, performing a series of tasks. Harney

first examines his car’s rear left tire, then briefly

stops at DeVarela’s car’s rear left tire before

squatting by her rear right tire and fiddling with it.

He returns to his rear left tire, performs some work

on it, and then turns to look at DeVarela’s front left

tire. After some time passes, Harney pulls his car

partially out of the garage, changes the rear left

tire, and drives away.

...

The second clip, on March 26, 2005, depicts a woman,

identified as Muldoon, moving around the garage.

Muldoon closes the garage door and walks past the

rear of DeVarela’s car with an object in her right

hand. She then turns around, walking back toward

her own car, with her right arm at her side, her wrist

turned away from her body. Once she passes

DeVarela’s car, she turns her wrist over. She then

opens the garage door and walks out.

(App. 3.)

Midona testified at his deposition that the first clip

showed Harney removing the valve cap from DeVarela’s

2

Harney and Muldoon raise evidentiary objections to these

videotapes that are addressed below.

Nos. 10-2095, 10-2817 5

tire, letting out the air and putting the cap on his own

car. Midona acknowledged, however, that he could not

actually see Harney take the valve cap off or even see the

valve cap, but he believed the video corroborated

DeVarela’s claim that Harney had let the air out of her

tire and taken the valve cap.

As for the second clip, Midona described the video

as showing Muldoon walking behind DeVarela’s car,

scratching the back of the vehicle with some object,

then opening the garage door again and leaving. He

testified at his deposition that he heard a scratching

noise on the tape. DeVarela also showed Midona and

Woznicki the damage to her car that she believed

Muldoon had caused. Midona observed a long scratch

along the back of the car, although he did not recall at

the time of his deposition whether it was on the trunk

or the bumper.

DeVarela told Midona and Woznicki that she wanted

to press charges. Woznicki advised her to first obtain an

estimate of the cost of repairing her car and then

contact the police. DeVarela obtained an estimate that

same day.

The next day, on May 18, 2005, Midona received

another call from DeVarela. Midona then went to the

condominium building with detectives Kurt Kourakis

and Gloria Ekerman, who had been assigned to investi-

gate. The detectives went to DeVarela’s unit to talk

with her. While DeVarela gave Kourakis her account of

how her vehicle had been damaged, DeVarela’s roommate

showed Ekerman the video clips. DeVarela later played

6 Nos. 10-2095, 10-2817

the same video for Kourakis, identifying the people on

the videotape were Harney and Muldoon. Kourakis

later testified about the contents of the video he viewed,

which was consistent with the district court’s descrip-

tion above.

DeVarela then provided the detectives with this “compi-

lation” video as well as the repair estimate for her car.

After finishing with DeVarela, the detectives went with

Midona to arrest Harney and Muldoon.

D. The Arrests and Prosecution

Harney contends that he heard someone ring the door-

bell. The record is unclear as to the location of the

doorbell, but giving plaintiffs the benefit of any doubt,

we will assume it was located outside of the front walk-

way of the condominium building rather than directly

outside of Harney and Muldoon’s particular unit.3

In response to the doorbell, Harney exited his condomin-

ium unit and saw the officers inside the gate on the

front walkway to the condominium building.

Once Harney stepped outside his unit, Midona advised

that he was under arrest and that there was a videotape

3

The record also does not reveal when or how the officers

entered the condominium building itself, although it is only

reasonable to assume that DeVarela had already let them in or,

at the very least, had given them implicit permission for them

to enter common areas having just visited her condominium

unit in the same building.

Nos. 10-2095, 10-2817 7

of him letting air out of DeVarela’s tire. Midona also

asked to speak with Muldoon, informing Harney that

there was also a videotape of Muldoon keying DeVarela’s

car. Harney told the officers that Muldoon had been

injured and was in bed.

While still outside of his unit, Harney told the officers

that he would go get Muldoon. The officers followed

Harney into the unit. Harney did not invite the officers

in, but he also did not instruct them to remain outside

or tell them that he would be right back. The record

does not reveal whether the door had closed prior to the

officers entering the unit or if they slipped in behind

Harney prior to the door closing.4

The officers walked about eight to ten feet into the

unit to the kitchen. Harney went to the bedroom to tell

Muldoon that the police wanted to speak with her

about keying DeVarela’s car. While Harney was

speaking with Muldoon, the officers instructed Harney

and Muldoon that they needed to come out of the bed-

room. Harney had not heard the officers enter behind

him and did not know that they were in the unit until

he was instructed to leave the bedroom. Even so,

neither Harney nor Muldoon objected to the officers’

presence in their home.

Harney and Muldoon came out of the bedroom, and

Muldoon was informed that she was under arrest. Harney

and Muldoon then followed the officers outside of the

4

Harney did not attempt to close the door behind him, al-

though it closes automatically.

8 Nos. 10-2095, 10-2817

condominium building and were taken to the police

station. Harney was charged with misdemeanor theft;

Muldoon was charged with felony property damage.

Both trials were to the bench. In both, the trial judge

directed a finding of not guilty, concluding that the

videotape evidence did not prove guilt beyond a rea-

sonable doubt.

E. District Court Proceedings

Harney and Muldoon then filed the present lawsuit,

alleging violations of § 1983 against Midona and the

City of Chicago and state law claims against DeVarela. The

district court granted summary judgment to Midona

and the City of Chicago as to all claims. The court

found that qualified immunity shielded Midona as to

plaintiffs’ false arrest claims. As for plaintiffs’ unlawful

arrest claims, the court concluded that Harney was ar-

rested in public and that the officers had implied consent

to enter Harney and Muldoon’s condominium unit to

arrest Muldoon. The court’s grant of summary judgment

to Midona mooted plaintiffs’ indemnification claim

against the City of Chicago.

II.

The court reviews the district court’s decision to

grant summary judgment to defendants de novo and may

affirm on any basis supported by the record and law.

See Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 681 (7th

Cir. 2007). In addition to the appeal of the district court’s

Nos. 10-2095, 10-2817 9

grant of summary judgment, appellants also raise an

evidentiary challenge to the district court’s considera-

tion of certain videotapes at summary judgment. The

court reviews this challenge for abuse of discretion. See

Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 475 (7th Cir.

2010). The court also reviews for abuse of discretion

the district court’s awarding of costs to defendants. See

U.S. Neurosurgical, Inc. v. City of Chi., 572 F.3d 325, 333

(7th Cir. 2009).

A. Evidentiary Issue Concerning Videotapes

Midona produced two videotapes in support of his

motion for summary judgment. Plaintiffs contend that

these videotapes are not the ones Midona viewed on

May 18, 2005. Rather, Midona viewed the compilation

video that DeVarela claims to have created from the

two separate videotapes submitted at summary judgment.

Harney and Muldoon fail to substantiate their sug-

gestion that Midona did not view the portions of the

video clips relevant to this lawsuit. As explained in the

district court’s opinion, while the videotapes submitted

in support of summary judgment contain footage not

contained in the compilation video, and therefore

Midona did not view the entirety of the footage sub-

mitted at summary judgment, there is no dispute that

Midona viewed the portions of the tape relevant to the

court’s determination of whether probable cause existed.

(App. 9 n.6.) The content of the videotape—what

Midona saw and how he interpreted it—is material to

whether probable cause existed, not the format of the

10 Nos. 10-2095, 10-2817

content absent some substantiated claim that the

excerpted video clips had been tampered. Accordingly,

the district court did not abuse its discretion in con-

sidering these videotapes in its discussion of plaintiffs’

false arrest claims.

For the first time on appeal, plaintiffs also argue that

the videotapes cannot be produced in an admissible

form. “In granting summary judgment, the court may

consider any evidence that would be admissible at trial.

The evidence need not be admissible in form (for

example, affidavits are not normally admissible at trial),

but it must be admissible in content.” Stinnett v. Iron

Works Gym/Exec. Health Spa, Inc., 301 F.3d 610, 613 (7th

Cir. 2002) (internal citation omitted). Even though defen-

dants were apparently unable to produce the original or

copy of the compilation video Midona viewed prior to

Harney's and Muldoon’s arrests, Midona himself was

competent to testify as to the portions of the two original

videotapes he viewed prior to their arrests. See Fed. R.

Evid. 1004 (allowing for admissibility of other evidence

of content).5

5

Here, the original videotapes are at least arguably better

evidence, because it is in unaltered form, limiting defendants to

justify the arrests based on actual conduct rather than some

excerpted clips taken out of context, unless plaintiffs’ theory

is that DeVarela excerpted clips that were more favorable

to defendants than the original.

Nos. 10-2095, 10-2817 11

B. False Arrest Claim

Turning to the merits of Harney and Muldoon’s

claim that they were falsely arrested, plaintiffs must

demonstrate that Midona lacked probable cause to arrest

them. See Mucha v. Vill. of Oak Brook, 650 F.3d 1053, 1056

(7th Cir. 2011). “Probable cause exists if ‘at the time of the

arrest, the facts and circumstances within the officer’s

knowledge are sufficient to warrant a prudent person,

or one of reasonable caution, [to believe] . . . that the

suspect has committed, is committing, or is about to

commit an offense.’ ” Mucha, 650 F.3d at 1056 (quoting

Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009)).

Probable cause does not require that the existence of

criminal activity is more likely true than not, rather (true

to its label) probable cause simply requires “a probability

or substantial chance of criminal activity exists.” Mucha,

650 F.3d at 1056-57 (citing Purvis v. Oest, 614 F.3d 713, 722-

23 (7th Cir. 2010); Mannoia v. Farrow, 476 F.3d 453, 457

(7th Cir. 2007)).

Moreover, the court’s inquiry is limited to what the

officer knew at the time of the arrest and not what has

been gained from hindsight. Mucha, 650 F.3d at 1057. The

court considers the evidence from the “perspective of

a reasonable person in the position of the officer.” Mucha,

650 F.3d at 1057 (citing Gonzalez, 578 F.3d at 537).

Here, Midona had ample reason to find probable

cause for Harney’s and Muldoon’s arrests. Initially,

Midona relied on DeVarela’s complaint, namely her

statement that air had been released from her tire

while located in a closed garage to which only a few,

12 Nos. 10-2095, 10-2817

including defendants, had access and that the back of

her car had been scratched, along with Midona’s own

visual inspection of the car.6 Importantly, the history of

tension between the neighbors did not require Midona

to disregard DeVarela’s complaint. See Spiegel v. Cortese,

196 F.3d 717, 724 (7th Cir. 2000) (“While the lengthy

and ongoing dispute culminating in the altercation and

the other charges Cherny had filed might tend to

establish Cherny’s bias, these facts do not render

Cherny’s report incredible as a matter of law.”); Guzell v.

Hiller, 223 F.3d 518, 519-20 (7th Cir. 2000) (“Police are

entitled to base an arrest on a citizen complaint, whether

of a victim (as here) or a nonvictim witness, without

6

The parties dispute whether DeVarela signed a complaint

before or after plaintiffs’ arrest. Viewing the facts in the light

most favorable to plaintiffs, the district court correctly assumed

the complaint was not signed until after Harney and Muldoon

were arrested. (App. 8.) As a result of this finding, the district

court concluded that it could not rely on DeVarela’s complaint

to support a finding of probable cause. There is no dispute,

however, that Midona spoke with DeVarela prior to the

arrests. The district court does not cite a case, nor could this

court find one, supporting the district court’s assumption that

a formal, written statement is required to constitute a victim

complaint sufficient to support a finding of probable cause.

See Bledsoe v. City of Chi., No. 96-2815, 1997 WL 374808, at *2 (7th

Cir. June 24, 1997) (unpublished) (finding probable cause

based on “oral complaint” of victim and dismissing § 1983

false arrest claim). What matters is what the officer knew at the

time of the arrest—regardless of whether that information

came from an oral statement or a formal written complaint.

Nos. 10-2095, 10-2817 13

investigating the truthfulness of the complaint, un-

less—this turns out to be an important qualification—they

have reason to believe it’s fishy.”); Gerald M. v. Conneely,

858 F.2d 378, 381 (7th Cir. 1988) (“We are not unaware

that a person who dislikes another has a motive to lie to

the detriment of that person, but motive without at least

a shred of evidence suggesting that the motive was

acted on does not taint a statement.”).

Even if Midona’s reliance on DeVarela’s complaint

was somehow questionable, the videotape obviated any

taint from the complaint. The videotape shows Harney

bending down to examine DeVarela’s tire and shows

Muldoon walking past DeVarela’s car with keys in her

hand. While far from definitive proof, these video

clips substantiate motive (Harney’s own deflated tire),

opportunity (Harney’s and Muldoon’s uninterrupted

access to DeVarela’s car) and means (Harney’s unex-

plained, prolonged inspection of DeVarela’s tire).

The district court concluded that fact issues as to what

the videotape actually depicts precluded a finding that

Midona had probable cause to arrest as a matter of

law. (App. 10.) Still, the district court granted summary

judgment to defendants, finding qualified immunity

shielded Midona from liability. In so holding, the court

concluded that a reasonable officer could have believed

that the arrests were lawful. (Id. at 14.) Arguably at

least this is all that probable cause itself requires—namely,

a showing that “a prudent person, or one of reasonable

caution” with the officer’s knowledge at the time of the

arrest believed that the suspect committed an offense.

14 Nos. 10-2095, 10-2817

Mucha, 650 F.3d at 1056. As the district court apparently

held, a good faith defense arguably requires something

even less than probable cause—that is, a good faith

belief that there is a basis to believe. Since the undis-

puted facts meet the burden of probable cause, this court

need not attempt to discern any differences on a good

faith standard.

Here, plaintiffs Harney and Muldoon failed to put

forth evidence to create a genuine issue of material fact

as to whether Midona lacked probable cause at the time

of their arrests. Contrary to plaintiffs’ apparent position,

the fact that the state trial judge decided the video-

tape evidence was insufficient to find either Harney

or Midona guilty beyond a reasonable doubt does not

undercut the finding of probable cause for the arrests.

Scruggs v. United States, 929 F.2d 305, 307 (7th Cir. 1991)

(“Acquittal does not establish the lack of probable

cause[.]”). Moreover, though not required, the fact that

Midona undertook to engage two detectives in further

investigation and the decision to arrest undermines

any argument of even subjective bad faith here. The

court, therefore, affirms the grant of summary judgment

as to this claim, albeit on a different basis than that

relied on by the district court.

C. Unlawful Arrest Claims

In addition to the false arrest claim, Harney and

Muldoon also challenge the lawfulness of their arrests

without a warrant, but for divergent reasons.

Nos. 10-2095, 10-2817 15

1. Harney’s Arrest

“[P]olice officers may constitutionally arrest an individ-

ual in a public place (e.g., outside) without a warrant,

if they have probable cause.” Sparing v. Vill. of Olympia

Fields, 266 F.3d 684, 688 (7th Cir. 2001). Harney contends

that he was arrested in the curtilage of his condo and,

therefore, his warrantless arrest was in violation of his

rights under the Fourth Amendment. The “curtilage” has

been described by this court as the area “so close to and

intimately connected with the home and the activities

that normally go on there that it can reasonably be con-

sidered part of the home.” United States v. French, 291

F.3d 945, 951 (7th Cir. 2002). In United States v. Dunn, 480

U.S. 294, 300-01 (1987), the United States Supreme Court

described four factors to be considered in determining

whether an area constitutes the curtilage of a home:

[1] the proximity of the area claimed to be curtilage

to the home, [2] whether the area is included within

an enclosure surrounding the home, [3] the nature of

the uses to which the area is put, and [4] the

steps taken by the resident to protect the area from

observation by people passing by.

It is undisputed that Harney’s arrest occurred in the

walkway outside of the condominium building, but

inside of a gate.7 While the proximity of the area of

7

While the district court stated in its opinion that it was

unclear whether the arrest occurred inside or outside of the gate

(App. 11), the parties both represent in their briefs to this

(continued...)

16 Nos. 10-2095, 10-2817

Harney’s arrest to the condominium building and the

fact that it occurred behind a gate may support a finding

that this area fell within the curtilage of a the condomin-

ium building, the record contains no photographs or

detailed descriptions of the area from which a fact finder

could determine whether the gate created a barrier,

shielding the area from public view. This is plaintiffs’

burden. See Reeves v. Churchich, 484 F.3d 1244, 1254 (10th

Cir. 2007) (explaining that the burden of establishing

a claimed invasion of the curtilage is on the party

asserting a Fourth Amendment violation). A plaintiff

must begin to meet this burden by submitting admissible,

supporting evidence in response to a proper motion

for summary judgment. See Delapaz v. Richardson, 634

F.3d 895, 900 (7th Cir. 2011).

More critically, the record does reveal that the area

of Harney’s arrest was in an area shared by all of the

tenants of the condominium building. Absent certain

particular facts not alleged here, there is no reasonable

expectation of privacy in common areas of multiple

dwelling buildings. See, e.g., United States v. Villegas, 495

F.3d 761, 767-68 (7th Cir. 2007) (finding no reasonable

expectation of privacy in the common hallway of a

7

(...continued)

court that the arrest occurred inside the gate. To the extent a

dispute remains, it is, as the district court also found, immate-

rial. An arrest outside of the gate is plainly in public, requiring

no warrant. Plaintiffs’ claim, therefore, turns on the lawful-

ness of an arrest occurring inside of the gate to the condo-

minium building property.

Nos. 10-2095, 10-2817 17

duplex building); United States v. Espinoza, 256 F.3d 718,

723 (7th Cir. 2001) (noting that tenants in a multi-family

building lack a reasonable expectation of privacy in

common areas of the building); United States v.

Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991) (holding

that the defendant lacked a reasonable expectation of

privacy in an apartment building’s common entrance).

Moreover, the fact that a gate barred—to some

unknown extent—public viewing or access does not

create a reasonable expectation of privacy in common or

shared areas. See United States v. Nettles, 175 F. Supp. 2d

1089, 1093 (N.D. Ill. 2001) (“Generally speaking, there is

no reasonable expectation of privacy in common or

shared areas of multiple dwelling buildings. This is so

even where the common areas are otherwise locked to

exclude persons that are not tenants of the buildings.”

(citations omitted)). Indeed as noted, the record at least

suggests, if not definitively establishes, that the officers

were invited into this area by plaintiffs’ co-tenant

DeVarela in the course of their investigation.

Having failed to put forth sufficient evidence from

which a reasonable jury could find that the area of

Harney's arrest constituted the curtilage of the condomin-

ium building, plaintiffs have not established Midona was

required to have a warrant to arrest Harney. Accordingly,

the court affirms the district court’s grant of summary

judgment to defendants on Harney’s claim of unrea-

sonable arrest.

18 Nos. 10-2095, 10-2817

2. Muldoon’s Arrest

“A warrantless entry into a residence to effect an

arrest is presumptively unreasonable under the Fourth

Amendment.” United States v. Walls, 225 F.3d 858, 862

(7th Cir. 2000). Where someone with the authority to

do so gives consent to enter, however, the entry is reason-

able and not in violation of the Fourth Amendment.

Id. Moreover, consent may be manifested in a non-verbal

manner. Id. For example, this court, on more than one

occasion, has found that the act of opening a door and

stepping back to allow entry is sufficient to demonstrate

consent. See, e.g., Walls, 225 F.3d at 862-63; Sparing v. Vill. of

Olympia Fields, 266 F.3d 684, 690 (7th Cir. 2001).

Plaintiffs cite to Hadley v. Williams, 368 F.3d 747 (7th

Cir. 2004), for support that Midona lacked consent to

enter. In Hadley, the court concluded that “[t]he consent

of Hadley’s mother was procured by an outright and

material lie, and was therefore ineffectual.” 368 F.3d at

749. Recognizing that Hadley is clearly distinguishable

on its facts from those here, plaintiffs instead point to the

court’s recognition that “[t]he fact that a person answers

a knock at the door doesn’t mean that he agrees to let

the person who knocked enter.” Id. at 750. But this, too,

does not reflect the situation Midona and his fellow

officers encountered.

Instead, Midona followed Harney into his and

Muldoon’s condominium unit after Harney informed

them that he would go and get Muldoon from their

bedroom. As the district court recognized, this situation

closely mirrors the facts in Gerald M. v. Conneely, 858

Nos. 10-2095, 10-2817 19

F.2d 378, 384 (7th Cir. 1988). In Gerald M., Officer Conneely

knocked on the door and asked to speak with Mrs. Macek’s

sons. 858 F.2d at 384. “Mrs. Macek states that when the

officer came to the door and asked to speak to her sons,

she agreed to call them up from the basement, but she

instructed Officer Conneely to ‘wait here.’ ” Id. As

Mrs. Macek went to get the boys, Officer Conneely

entered the home and proceeded down the hallway to

the kitchen, following Mrs. Macek’s path. Id. Mrs. Macek

stated in her deposition that she was “surprised” by

Officer Conneely’s presence in her home, but “did

nothing to indicate to him that she disapproved.” Id.

The court held that, while Mrs. Macek’s instruction to

the officer to “ ‘wait here’ . . . give[s] us pause,” “[h]er

subsequent silence and apparent acquiescence per-

suades us that Conneely’s presence in the home was

not against Mrs. Macek’s apparent wishes.” Id. at 384-85.

Relying on the undisputed fact that Mrs. Macek did

not “verbally object” or “physically respond in any way

that might relay the message she disapproved of his

movement,” the court found Mrs. Macek’s simple

surprise at Officer Conneely’s presence “falls well short

of demonstrating that under the totality of the circum-

stances her consent was not voluntary.” Id. at 385.

The facts at issue here present a far easier question

than that posed in Gerald M. Before going into his condo-

minium, Harney was informed that he was under arrest

and that the officers intended to place Muldoon under

arrest. Most likely, Harney did not ask Midona and the

other officers to wait outside of the condominium

20 Nos. 10-2095, 10-2817

unit because he understood (or should have under-

stood) that, having himself been arrested, he was not

free to go anywhere without the officers accompanying

him or, at least, consenting to his doing so without

them. In any event, Harney simply told them that he

would go and get Muldoon out of the bedroom. Further,

like in Gerald M., the fact that neither Harney nor

Muldoon objected to the officers’ presence in their con-

dominium unit or otherwise indicated that they had

not consented to their presence provides additional

support that Harney implicitly consented to the offi-

cers’ entry. See also Walls, 225 F.3d at 863 (“Her consent is

further illustrated by her actions after they entered the

residence in motioning for them to follow her to the

kitchen where she could speak with them privately.”).8

Even if the court were to find consent lacking, plaintiffs

fail to demonstrate—and cannot demonstrate in light of

this court’s holding in Gerald M.—that Officer Midona’s

following of his prisoner Harney into his apartment

was unreasonable, much less a clearly established

violation of the Fourth Amendment. See Sparing, 266

F.3d 684, 691 (finding officers entitled to qualified im-

munity because the law surrounding “doorway arrests”

was not clearly established at the time of the arrest).

8

In their reply brief, plaintiffs appear to argue that the only

way Muldoon and Harney could have objected to the offi-

cers’ presence was by physically resisting arrest, which is a

violation of Illinois state law. (Reply Br. 21.) But nothing

would have prevented Harney and Muldoon from voicing

an objection to the officers’ presence in their home.

Nos. 10-2095, 10-2817 21

Indeed, this court’s holding in Gerald M. would under-

mine any sense of “fair warning” to Officer Midona that

his conduct was unlawful. Wheeler v. Lawson, 539 F.3d

629, 640 (7th Cir. 2008) (describing policy underlying

qualified immunity). As such, even construing the facts

in the light most favorable to plaintiffs, Midona would

still be entitled to qualified immunity.

E. Challenges to Award of Costs

Under Federal Rule of Civil Procedure 54(d)(1), a prevail-

ing party is entitled to recover “[c]osts other than attor-

neys’ fees . . . as of course.” Among the costs a court may

tax are: “(1) Fees of the clerk and marshal; (2) Fees

for printed or electronically recorded transcripts neces-

sarily obtained for use in the case; (3) Fees and disburse-

ments for printing and witnesses; [and] (4) Fees for ex-

emplification and the costs of making copies of any

materials where the copies are necessarily obtained for

use in the case.” 28 U.S.C. § 1920.

Plaintiffs challenge the district court’s award of costs

pursuant to 28 U.S.C. § 1920 in four respects, three of

which warrant little discussion. Dealing with those three

first—the district court’s award of (1) costs for binding

deposition transcripts; (2) so-called “excessive” costs

for transferring VHS tapes to DVDs and duplicating the

DVDs; and (3) $529 for copies of Midona’s cell phone

records—the court agrees that plaintiffs have failed

to demonstrate that these costs are unreasonable or

otherwise contrary to the Judicial Conference policy

since all fall within allowable categories of expenses. See

22 Nos. 10-2095, 10-2817

Beamon v. Marshall & Isley Trust Co., 411 F.3d 854, 864

(7th Cir. 2005) (noting that the losing party has the

burden of demonstrating that taxed costs are not appro-

priate).

Plaintiffs also challenge the district courts award of

$475.00 for court reporter “appearance fees” in addition

to the per page transcript fee. The parties agree that

the Northern District of Illinois Local Rule 54.1 governs

the award of transcription costs. It provides in

pertinent part:

(b) Transcript Costs. Subject to the provisions of

Fed.R.Civ.P. 54(d), the expense of any prevailing

party in necessarily obtaining all or any part of a

transcript for use in a case, for purposes of a new trial,

or amended findings, or for appeal shall be taxable

as costs against the adverse party. If in taxing costs

the clerk finds that a transcript or deposition was

necessarily obtained, the costs of the transcript or deposi-

tion shall not exceed the regular copy rate as established

by the Judicial Conference of the United States and in

effect at the time the transcript or deposition was

filed unless some other rate was previously provided

for by order of court. Except as otherwise ordered

by the court, only the cost of the original of such

transcript or deposition together with the cost of one

copy each where needed by counsel and, for deposi-

tions, the copy provided to the court shall be allowed.

(Emphasis added.) Plaintiffs argue that defendants are

entitled to $3.65 per page—the regular copy rate estab-

lished by the Judicial Conference of the United States. In

Nos. 10-2095, 10-2817 23

addition to this amount, the district court also awarded

appearance fees which exceed the per page allowable

amount and which plaintiffs contend are contrary to

the plain language of Rule 54.1.

In Extra Equipmentos E Exportacao v. Case Corp., 541 F.3d

719, 727 (7th Cir. 2008), we affirmed the district court’s

award of attendance fees, holding that “the separate

attendance fee is properly regarded as a component of the

fee for the transcript.” See also Held v. Held, 137 F.3d 998,

1002 (7th Cir. 1998) (“[W]e have previously held that

even though [deposition attendance fees] are not specifi-

cally mentioned in the statute, the district court may

award them in its discretion pursuant to 28 U.S.C.

§ 1920(2).”). This holding does not fully resolve the

issue posed here—namely, whether the local rule’s limit

on the per page reimbursement includes appearance

fees. Indeed, there appears to be a split among the

district judges in the Northern District of Illinois, with

some judges awarding appearance fees in addition to

the maximum allowable per page transcript fee and

other district courts limiting the taxable costs to the per

page rate. Compare Dishman v. Cleary, 279 F.R.D. 460, 467

(N.D. Ill 2012) (Denlow, M.J.); Comrie v. IPSCO Inc., No. 08-

3060, 2010 WL 5014380, at *3 (N.D. Ill. Dec. 1, 2010)

(Darrow, J.); Wagner v. University of Illinois Medical Center,

No. 09 C 7591, 2010 WL 4074376, at *1 (N.D. Ill. Oct. 12,

2010) (Conlon, J.), with Serwatka v. City of Chi., No. 08 C

5616, 2011 WL 2038725, at *1 (N.D. Ill. May 24, 2011)

(Feinerman, J.); Perry v. City of Chi., No. 08-4730, 2011 WL

612342, at *5 (N.D. Ill. Feb. 15, 2011) (Schenkier, M.J.);

24 Nos. 10-2095, 10-2817

Fletcher v. Chi. Rail Link, LLC, No. 06 C 842, 2007 WL

4557816, at *1 (N.D. Ill. Dec. 20, 2007) (Kennelly, J.).

Some of the district courts awarding appearance fees

above the per page rate point to this court’s award of

appearance fees in addition to the maximum allowable

rate in Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 457

(7th Cir. 1998). While in Cengr, the court awarded a

per page transcription costs and “court reporter ser-

vices” fees, there is no indication in the opinion that

the losing party raised a challenge or the court even

considered whether an award of appearance fees would

result in a per page amount exceeding the maximum

allowed under Local Rule 54.1. Certainly, the plain lan-

guage of Local Rule 54.1 does not appear to support

awarding appearance fees where the total award

would exceed the allowable per page amount, but simi-

larly, the rule does not expressly preclude such an

award rather than addling the prevailing party with

this cost. Since this issue arises solely out of the applica-

tion of the district court’s own local rule and would

appear best addressed by an amendment of that rule

clarifying the availability of court reporter appearance

fees over and above the allowable per page amount, and

since it would appear plaintiffs fail to address this issue

at all in their reply brief, the issue will be deemed

waived here.

The judgment of the district court is therefore A FFIRMED.

12-10-12