Jose Garcia v. Shawn Posewitz

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 22-1124

JOSE GARCIA,

Plaintiff-Appellant,

v.

SHAWN POSEWITZ, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 20-cv-988-bbc — Barbara B. Crabb, Judge.

____________________

ARGUED OCTOBER 4, 2022 — DECIDED AUGUST 22, 2023

____________________

Before SCUDDER, ST. EVE, and JACKSON-AKIWUMI, Circuit

Judges.

PER CURIAM. After the district attorney’s office dropped

charges against Jose Garcia for sexually assaulting a minor, he

brought this suit for false arrest against two prosecutors from

the office and a local detective. Garcia argued that they

omitted material information from the criminal complaint

they used to support probable cause for his arrest. The district

court entered summary judgment for the defendants based on

2 No. 22-1124

qualified immunity, concluding that no reasonable jury could

find that it would have been clear to a reasonable officer that

the information omitted from the complaint would have

negated probable cause. We agree and affirm.

I

On August 23, 2016, Monique Cichocki called the Village

of Lake Delton Police Department in Wisconsin to report that

her 15-year-old daughter, G.C., had been the victim of a

sexual assault. Monique explained that the assault happened

a few days earlier while her family was vacationing at a resort

in the Village of Lake Delton with another family, the Garcias.

Monique reported that G.C. was sexually assaulted in one of

the resort’s pools by the other family’s father, Jose Garcia.

Detective Shawn Posewitz followed up with Monique to

conduct an interview. According to Monique, on the day

before they left the resort, G.C. told her that Garcia assaulted

her earlier that day in the pool while horseplaying with both

families’ children. Monique said that she and her husband

were not present at the time of the incident, having already

returned to their room to prepare dinner. Monique recounted

G.C.’s report that, while G.C. and the other children were in

the pool, Garcia purposely touched her breasts. Later that

night, Monique recalled, G.C. said that Garcia had also

touched her “down there.” The families stayed at the resort

until the next afternoon.

Monique then told Posewitz what happened after they

returned to their home in Chicago, and her statement

suggested that G.C. could not remember all the details of the

incident. Monique said that she informed her husband of their

daughter’s account and could not answer his questions about

No. 22-1124 3

it, saying, “I don’t know … [M]aybe it will come back to her.”

Monique told Posewitz that she tried to help G.C. remember

by encouraging G.C.’s brother, who was also in the pool at the

time, to tell G.C. what he saw. According to Monique, when a

friend suggested that surveillance cameras might have

captured the assault on video, G.C. expressed fear that the

video would contradict what she said.

Posewitz interviewed G.C. later that day. G.C. told him

that Garcia touched her inappropriately. She described her

location in the pool when Garcia pulled her onto his lap and

grabbed her breasts. G.C. recalled that Garcia’s daughter

began to swim toward them, so Garcia threw G.C. into the

water. About ten minutes later, Garcia pulled her onto his lap

again and rubbed her vagina over her bathing suit. G.C. told

Posewitz that the incidents lasted around two minutes each.

She said she was surprised nobody saw what happened

because Garcia’s wife was at a nearby table.

The next day, Posewitz met with the resort’s security

director and reviewed surveillance footage of the pool area at

the time of the incident. Posewitz noted that the footage was

poor quality and inconclusive: it did not clearly show whether

Garcia and G.C. were together and thus neither supported nor

ruled out her account.

Posewitz discussed the case with Richard Spoentgen, an

assistant district attorney. Spoentgen reviewed the police

reports and consulted with another assistant district attorney,

Linda Hoffman. Hoffman suggested that G.C. or a family

member conduct a “pretext call” with Garcia that law

enforcement would record, but no call ever took place.

4 No. 22-1124

Spoentgen then drafted a criminal complaint, which

Hoffman reviewed, suggesting three minor edits (to delete an

extra word, identify the resort’s location, and consider

shortening the draft). The final complaint included some, but

not all, of the details from Posewitz’s interview with G.C. and

did not mention Monique’s interview or the surveillance

footage. Posewitz and Spoentgen signed the complaint. The

complaint was reviewed by the Circuit Court Commissioner,

who found probable cause for Garcia’s arrest. Garcia was

soon arrested. Hoffman was assigned as the prosecutor on the

case.

At a preliminary hearing, a Wisconsin judge heard

testimony from Posewitz and determined that there was

probable cause to proceed to trial. But the trial was short-

lived. After Hoffman gave an opening statement, the judge

declared a mistrial because Hoffman mentioned that G.C. had

a learning disability, which had not been disclosed to the

defense. The district attorney’s office reassigned the case to

Spoentgen and another prosecutor. The new team moved to

dismiss the charges because the state “w[ould] not be able to

present sufficient credible evidence at trial to prove the

charged offenses.”

Garcia then sued detective Posewitz and prosecutors

Hoffman and Spoentgen for violating his Fourth Amendment

rights by arresting and detaining him without probable cause.

See 42 U.S.C. § 1983. He also pursued additional constitutional

and state-law claims (such as due-process violations and

malicious prosecution) that were dismissed and are not

relevant to this appeal.

After discovery, the defendants moved for summary

judgment (Posewitz moving separately). Hoffman and

No. 22-1124 5

Spoentgen argued that they had absolute immunity because

they acted only as prosecutors, and the doctrine of issue

preclusion barred relitigating whether they had probable

cause, which was an issue decided at the preliminary hearing.

All defendants argued that they had qualified immunity

because their decisions to arrest and prosecute Garcia did not

violate clearly established law.

Garcia countered that a jury could find that the defendants

intentionally or recklessly omitted material information from

the criminal complaint that called into question the reliability

of G.C.’s account. He highlighted (1) Monique’s statement

that G.C. was afraid that the surveillance video would not

match her account; (2) the “inherently improbable” nature of

the assault, which occurred in a crowded pool, surrounded by

lifeguards, and with no apparent eyewitnesses; and (3) the

apparent inconsistency between what Monique said in her

initial report to the police (G.C. told her Garcia only touched

G.C. inappropriately once) and what G.C. said in her

interview (Garcia touched her twice, ten minutes apart).

Garcia also argued that the prosecutor-defendants were not

entitled to immunity because Hoffman made investigatory

suggestions to Posewitz, and Spoentgen acted as the

complainant for the document used to obtain a warrant.

Finally, Garcia argued that the probable-cause issue was not

precluded because, among other reasons, a lawsuit under

42 U.S.C. § 1983 is more extensive than was his preliminary

hearing, and the state judge who presided at the preliminary

hearing did not adequately justify his ruling.

The district court entered judgment for all defendants,

concluding that they were immune from damages under the

doctrine of qualified immunity. The pertinent question,

6 No. 22-1124

according to the court, was “whether a reasonable officer

could have believed plaintiff’s arrest was lawful, in light of

the clearly established right to be free from arrest without

probable cause and based on the information defendants had

at the time they prepared and signed the criminal complaint.”

Here, the court explained, a reasonable officer could believe

that there was probable cause because G.C.’s and Monique’s

accounts were largely consistent, and the defendants lacked

any indication that G.C. or Monique had a motive to lie.

Moreover, the inconsistencies identified by Garcia did not

negate probable cause: for example, G.C.’s apprehensiveness

upon learning of the surveillance footage could just as easily

reflect a fear of mistaking details rather than fabricating them,

and nothing in the record suggests that the footage was

exculpatory.

II

Garcia challenges the district court’s summary-judgment

ruling. The parties’ arguments on appeal mirror those raised

in the district court. They debate whether the defendants are

immune from suit and whether the probable-cause issue is

altogether precluded by the state-court proceeding.

As a preliminary matter, we agree with Hoffman that

Garcia waived any argument against her. Garcia does not

argue the nature or extent of Hoffman’s involvement in the

alleged constitutional violations; in fact, he does not mention

Hoffman once in the argument section of his opening brief.

Undeveloped arguments cannot preserve a claim on appeal.

Rock Hemp Corp. v. Dunn, 51 F.4th 693, 704–05 (7th Cir. 2022).

As for Garcia’s claims against Posewitz and Spoentgen, we

begin by addressing qualified immunity, which resolves this

No. 22-1124 7

appeal. Qualified immunity protects government officials

from liability for damages unless they “violate clearly

established statutory or constitutional rights.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); accord Greenpoint Tactical

Income Fund LLC v. Pettigrew, 38 F.4th 555, 567 (7th Cir. 2022).

Once the defense is raised, the plaintiff bears the burden of

defeating it by showing that (1) the defendants violated a

constitutional right and (2) the constitutional right was clearly

established at the time of the violation. Fosnight v. Jones,

41 F.4th 916, 924 (7th Cir. 2022).

With respect to the first step, an official violates the Fourth

Amendment by intentionally or recklessly omitting from a

warrant application information that is material to

determining probable cause. Whitlock v. Brown, 596 F.3d 406,

408 (7th Cir. 2010). “[A]n omitted fact is material if its

inclusion would have negated probable cause.” Id. at 411. To

test materiality, we ask “whether a hypothetical affidavit that

included the omitted information would still establish

probable cause.” Hart v. Mannina, 798 F.3d 578, 593 (7th Cir.

2015) (quoting United States v. Robinson, 546 F.3d 884, 888

(7th Cir. 2008)).

Probable cause, in turn, exists when there is a probability

or substantial chance of criminal activity. District of Columbia

v. Wesby, 138 S. Ct. 577, 586 (2018). It is a “fluid concept” that

is judged by considering the totality of the circumstances.

Illinois v. Gates, 462 U.S. 213, 232–33 (1983). Thus, probable

cause is “not readily, or even usefully, reduced to a neat set of

legal rules.” Id. at 232.

Garcia points to several omissions that he deems material

to the probable-cause finding. He contends that the complaint

should have included (1) Posewitz’s conclusion that the

8 No. 22-1124

surveillance footage does not show the alleged assault;

(2) inconsistencies between G.C.’s and Monique’s statements;

(3) the lack of eyewitnesses to the assault; (4) G.C.’s difficulty

recalling details of the episode (as reflected in Monique’s

statement to Posewitz); (5) G.C.’s fear (also according to

Monique) that the footage would contradict her statement;

and (6) a more thorough explanation of Monique’s behavior,

because it was “highly inconsistent” with mothers who learn

that their daughter was sexually assaulted.

But Garcia has a high hurdle to combat a probable-cause

determination because G.C., the putative victim, identified

him as responsible. See Beauchamp v. City of Noblesville,

320 F.3d 733, 744–45 (7th Cir. 2003). An officer need not even

believe that a witness is reliable to determine that her

statement supports probable cause for an arrest because the

assessment of credibility rests with courts, not officers.

See Coleman v. City of Peoria, 925 F.3d 336, 351 (7th Cir. 2019).

In fact, even a recantation of a statement does not on its own

negate probable cause. See id. And in sexual-assault cases, an

officer may find probable cause even more easily when a

witness is inconsistent or has memory problems because

these reactions are not rare among victims of such crimes.

See Beauchamp, 320 F.3d at 745.

We need not decide whether any of the omissions were

material to probable cause, however, because regardless of

whether Posewitz and Spoentgen violated a constitutional

right, that right was not clearly established. See Whitlock,

596 F.3d at 408 (courts may skip to step two of the qualified-

immunity analysis). To be “clearly established,” the right at

issue must be so “beyond debate” that any reasonable official

in the defendant’s position would know that his actions

No. 22-1124 9

would violate it. Kisela v. Hughes, 138 S. Ct. 1148, 1152–53

(2018). And the undebatable right must be defined with

particularity. See id. at 1152 (noting that specificity is

especially important in the Fourth Amendment context); City

of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (holding that

“the right to be free of excessive force” was defined too

generally; the court should have asked “whether clearly

established law prohibited the officers from stopping and

taking down a man in these circumstances”); Whitlock,

596 F.3d at 412–13 (holding that officers were protected by

qualified immunity because criminal-conversion law was not

sufficiently developed such that a well-trained officer would

necessarily know that defendants’ explanation for taking the

property was material).

To meet his burden, Garcia needed to identify a

reasonably analogous case that articulated the constitutional

right at issue and applied it to a similar factual circumstance,

or he needed to show that the violation was so obvious that a

reasonable official in the defendants’ positions necessarily

would have recognized that their actions violated the

Constitution. Cibulka v. City of Madison, 992 F.3d 633, 640

(7th Cir. 2021); Leiser v. Kloth, 933 F.3d 696, 701–02 (7th Cir.

2019). Though a case need not be exactly on point to make a

right clearly established, see Wesby, 138 S. Ct. at 590, Garcia

does not cite any analogous case—nor can we find one—

clearly establishing that the sort of information omitted here

is material to a probable-cause determination. Nor is a

constitutional violation otherwise obvious. If we imagine a

complaint that includes all of the information that Garcia

insists should have been included, a reasonable official might

still determine that there was probable cause to arrest him.

10 No. 22-1124

First, Garcia argues that the complaint should have noted

that the surveillance footage does not show the assault. But an

official could understandably discount the significance of the

surveillance footage. Posewitz testified that he could not tell

who was captured in the footage or whether bodies were in

contact because of the poor video quality. He further testified

that children frequently err when providing time frames. For

those reasons, a reasonable official could decide that the

footage was inconclusive and immaterial to the probable-

cause determination.

Next, Garcia argues that the complaint omitted material

inconsistencies between G.C.’s and Monique’s statements to

Posewitz. Monique said that G.C. told her of a single assault,

and G.C. said that Garcia touched her breasts in the pool and

ten minutes later touched her vagina. This inconsistency does

not obviously negate probable cause. There is no requirement

that a warrant application include all information, or even all

inconsistencies, discovered in a preliminary investigation.

See Beauchamp, 320 F.3d at 745. And an official could

reasonably believe that G.C.’s trauma resulted in memory

lapses or that she considered both assaults to have occurred

on one occasion.

Garcia also contends that the complaint should have

mentioned that there were no eyewitnesses. Garcia deems this

fact significant because the circumstances of the alleged

assault provided for plain viewing of misbehavior (a shallow

pool and the presence of many people in the vicinity,

including lifeguards, Garcia’s wife and their children, and

G.C.’s brother). But the complaint does mention that Garcia’s

wife, his children, and G.C.’s brothers were there. A

reasonable official could assume that this presented enough

No. 22-1124 11

information for the Circuit Court Commissioner to conclude

that the lack of eyewitnesses was suspicious, and therefore

any comment on it was unnecessary. It would also be

reasonable to think the statement was irrelevant. The absence

of eyewitnesses that are willing to report an assault does not

clearly undermine a victim’s story.

Garcia argues that G.C.’s difficulty recalling details of the

episode (as reflected in Monique’s statement to Posewitz) was

a material omission. But lapses in memory are not uncommon

for victims of sexual assault. See id. (finding it reasonable for

an officer “to not place great emphasis on the [rape] victim’s

… inability to recall the details of the crime clearly”). And

G.C.’s statement to Posewitz did not indicate any lapses in her

memory. The defendants were entitled to rely on G.C.’s

statement because “the responsibility of sorting out

conflicting testimony and assessing the credibility of putative

victims and witnesses lies with the courts.” Id.

Garcia also challenges that the complaint should have

included the portion of Monique’s statement to Posewitz that

G.C. was fearful that the footage would contradict her

statement. Monique told Posewitz that G.C. asked, “What if I

make a mistake and I say something wrong and the video

camera says something different?” We agree with the district

court’s analysis of this fact: “[I]t is equally reasonable to infer

that [G.C.’s apparent nervousness] simply reflects G.C.’s

concern, given the gravity of her allegations, that she not

‘make a mistake’ about the details.” Again, this credibility

assessment is one for the courts, not officers or prosecutors.

Finally, Garcia says that Posewitz and Spoentgen were

required to include in the complaint a more thorough

explanation of Monique’s behavior, because it was “highly

12 No. 22-1124

inconsistent” with a mother who learns that her daughter was

sexually assaulted. This argument does not help him. There is

no rulebook for how parents should respond in these

circumstances, so the defendants were not committing an

obvious constitutional violation by excluding details about

Monique’s behavior.

Most critically, these omissions were offset by G.C.’s clear,

detailed, and internally consistent statement to Posewitz that

Garcia assaulted her. To be sure, the omissions are details of

the type that Garcia would be able to highlight in his defense

at a trial or in pretrial proceedings. But the question

confronting the defendants was not Garcia’s ultimate guilt;

the question was whether probable cause existed to arrest

him. And we conclude that an officer could consider each of

the above omissions and reasonably determine that probable

cause existed to arrest Garcia.

Because Spoentgen and Posewitz are entitled to qualified

immunity, we need not discuss prosecutorial immunity or

issue preclusion.

III

For the above reasons, we AFFIRM the district court’s

order entering summary judgment for the defendants.