Chauncey L. Moore, Jr. v. The Marketplace Restaurant, Inc.

FLOYD R. GIBSON, Senior Circuit Judge,

concurring in part and dissenting in part.

I concur specifically in Judge Coffey’s probable cause determination, see supra at 1347, and, also agree with both Judge Coffey and Judge Posner that if the arrest was unlawful then the defendants are liable for all the foreseeable consequences stemming from the arrests. Although I agree that this case should be remanded for a jury trial, I feel strongly that the officers in this case had neither probable cause nor the right to arrest these plaintiffs under the factual circumstances of this case. An arrest, without a warrant and without the benefit of a filed complaint, seems to me to violate an individual’s right under the Fourth Amendment to be free from unreasonable seizures and the right under the Fourteenth Amendment to due process of law. In all other respects, I concur in Judge Coffey’s opinion except as follows.

First, I disagree with Judge Coffey and concur with Judge Posner on the issue of the defendant police officers’ immunity. The question of their immunity may be decided as a matter of law and need not be submitted to the jury. It is clearly established that the Fourth Amendment requires that officers have probable cause for an arrest. Thus, if in this case there was no probable cause for the arrests, an issue to be determined by the jury, then there is no immunity under Harlow for the official defendants.

Second, I disagree with Judge Coffey’s determination that the restaurant owner, Sehneiter, must be dismissed entirely from this action. I agree with Judge Posner that Sehneiter should be retained in the action under the doctrine of pendant parties.

Finally, I disagree with both Judge Coffey and Judge Posner on the issue of dismissing the § 1983 claim against Sehneiter. The plaintiffs allege that their rights were violated pursuant to a customary plan and agreement which existed between Schneiter and the Sheriff, or the Sheriff’s deputies, to arrest anyone named or fingered by Sehneiter. In resolving this issue on appeal, it is essential to remember that the plaintiff’s complaint need only be sufficient to survive a motion for summary judgment. Summary judgment should not be granted unless it is clear that the plaintiffs would be unable to recover under any conceivable set of facts. Murray v. Chicago, 634 F.2d 365, 366 (7th Cir.1980), cert. granted sub nom., Finley v. Murray, 454 U.S. 962 , 102 S.Ct. 501 , 70 L.Ed.2d 377 (1981), cert. dismissed, 456 U.S. 604 , 102 S.Ct. 2226 , 72 L.Ed.2d 366 (1982).

I think the Supreme Court’s decision in Adickes v. Kress, 398 U.S. 144 , 90 S.Ct. *1362 1598 , 26 L.Ed.2d 142 (1970), is directly on point and is controlling in this case. It is clear that a plaintiff will be entitled to relief under § 1983 if he or she can show that a private individual and a public official somehow reached an understanding to violate the plaintiff’s constitutional rights. Dennis v. Sparks, 449 U.S. 24, 27-28 , 101 S.Ct. 183, 186 , 66 L.Ed.2d 185 (1980); Adickes, 398 U.S. at 152 , 90 S.Ct. at 1605 ; Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1206 (7th Cir.1980); Brucar v. Rubin, 638 F.2d 987, 993 (7th Cir.1980), quoting, Adickes, 398 U.S. at 152 , 90 S.Ct. at 1605 .

In Adickes , as in this case, the defendants supported their motion for summary judgment by pointing to uncontested facts in affidavits establishing that no pre-arranged conspiracy existed between the private party and the police, and by pointing out that the plaintiff had failed to allege any knowledge of communication between the private party and the police. Adickes, 398 U.S. at 153-56 , 90 S.Ct. at 1606-07 . In Adickes , the plaintiff argued that even though she had no personal knowledge of an agreement between the private party and police, the sequence of events created a substantial enough possibility of a conspiracy to allow her to proceed to trial, especially given the fact that direct evidence of a conspiracy could come only from adverse witnesses. The Supreme Court agreed with the plaintiff and held that, because the defendants failed to foreclose the possibility of an unconstitutional agreement between a police officer and an employee of the private party, the motion for summary judgment should have been denied. Id. at 157-58 , 90 S.Ct. at 1608-09 .

A similar failure on the part of the defendants in this case is crucial, and necessitates denying their motions for summary judgment. By the uncontroverted testimony in their affidavits, the defendants have negated the plaintiff’s allegations of a preconceived or a customary plan between Schneiter and someone at the Sheriff’s office. However, the defendants have not negated the possibility of a spontaneous agreement between Schneiter and whomever he spoke with when he phoned in the complaint. All the plaintiffs needed to do, to survive a motion for summary judgment, was, first, allege that an agreement was reached between Schneiter and whomever he spoke with at the Sheriff’s office, Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir.1979), rev’d on other grounds, 446 U.S. 754 , 100 S.Ct. 1987 , 64 L.Ed.2d 670 (1980); see also, Rotermund v. United States Steel Corp., 474 F.2d 1139, 1145 (8th Cir.1973). Second, the plaintiffs needed to allege overt acts in support of that allegation. See Tarkowski, 644 F.2d at 1206 , quoting, Sparkman v. McFarlin, 601 F.2d 261, 268 (7th Cir.1979) (en banc) (Sprecher, J., concurring); Brucar, 638 F.2d at 993 . The plaintiffs have met these requirements, and their allegations were not controverted by the defendants’ affidavits.

The defendants do not dispute that Schneiter called the Sheriff’s office, and thus initiated these deplorable arrests; nor do they adduce any testimony regarding the content of the conversation between Schneiter and the officer with whom he spoke. There is nothing in any of the defendants’ affidavits which disclaims that Schneiter and someone at the Sheriff’s office reached an agreement regarding how the plaintiffs were to be treated. It here should be noted that Schneiter made the threat that he would take care of them in his own way. Further, there is nothing in the affidavits that precludes the possibility that Moss and the other deputies acted with an awareness of such agreement. Indeed, given that one of the deputies informed the plaintiffs that he would sue if he were in their position, a jury could find that an agreement was reached and was communicated to the deputies.

It is true that simply giving information to the police is not sufficient to constitute a private party’s participation in an arrest for purposes of § 1983. Tarkowski, 644 F.2d at 1206 ; Butler v. Goldblatt Bros., Inc., 589 F.2d 323, 326 (7th Cir.1978), cert. denied, 444 U.S. 841 , 100 S.Ct. 82 , 62 L.Ed.2d 53 (1979). However, when read in *1363 the light most favorable to them, the plaintiffs’ complaint alleges more than that Schneiter simply lodged a complaint with the Sheriff’s office; it alleges that the defendants “directed themselves toward an unconstitutional action by virtue of a mutual understanding.” Tarkowski, 644 F.2d at 1206 , quoting, Sparkman, 601 F.2d at 268 (Sprecher, J., concurring).

When the pleadings, motions, affidavits, and briefs on appeal are considered in the light most favorable to the plaintiffs we have the following essential facts. The plaintiffs alleged that Schneiter threatened to take care of them in his “own way;” Moss obtained information from Schneiter which, while sufficient to warrant an investigation, was not sufficient to establish probable cause for an arrest; and Moss relayed this information to his shift sergeant who ordered that the plaintiffs be arrested. The burden was on the defendants to show the absence of any genuine issue of material fact. Adickes, 398 U.S. at 157 , 90 S.Ct. at 1608 . Because an agreement could have been reached between Schneiter and the receipient of the complaint, there are material issues of fact as to whether such an illegal agreement was reached and whether the deputies acted with an awareness of that agreement.

It is conceivable that a jury could infer, from the sequence of events, that Schneiter and whomever he spoke with at the Sheriff’s office had a “meeting of the minds” as to how the plaintiffs were to be treated. Id. at 158 , 90 S.Ct. at 1609 . Thus, I would also reverse and remand for trial against defendant Schneiter on the conspiracy issue under § 1983.