Food-Fighting, Chair-Wrestling Spouses Tell Arresting Officers "We're Just Playing"; Unlikely, But Must Go To Jury

WASHINGTON v. HAUPERT, USCA-7 No. 05-4225, 2007 U.S.App. LEXIS 7129, on appeal from USDC-INND, before USCJs Cudahy, Manion, Rovner, opinion by Cudahy, concurrence by Manion, filed 27 Mar 2007.

LONG STORY SHORT: Married couple arrested for domestic battery on each other claimed that they were only playing instead of fighting and sued for false arrest, and their account was different enough from the arresting officers' testimony to preclude qualified immunity before trial. Binding in IL, IN, WI.

FACTS: Plaintiffs are Husband and Wife, who were not living together at the time but both were staying that night at Wife's house after coming back from Wife's brother's funeral. Fort Wayne, IN's 911 center received a call from Wife requesting a car, and then the call was disconnected. The 911 operator called back and asked to talk to Wife, who said Husband was trying to fight her and had hung up the first 911 call, but Wife denied that Husband hit her. Later, Wife testified that she had only called 911 to tell Fort Wayne police she thought her brother had been murdered, and that she told 911 that there was no problem when 911 called back. Earlier, she and Husband had playfully thrown a little water and juice on each other, and Husband had raised a chair over his head, pretending he was going to hit her--but there was no real problem.

Both Defendants, who were Fort Wayne police officers, responded to Wife's house. Defendants testified that Wife said she and Husband were arguing and had thrown water and juice on each other; that Husband had grabbed and shoved her; and that she had taken up a chair in self-defense, which Husband used to pin and choke her. Defendants testified that Husband told them Wife had jumped on him, saying "you wanna fight mf" and scratched him on the back of the neck, of which the police took photographs. Husband also admitted they had been wrestling over a chair, and Defendants took photographs of an overturned chair on the kitchen floor. After a police supervisor arrived, Defendants arrested both Plaintiffs for domestic battery, which Indiana statute defines as knowingly or intentionally touching a spouse "in a rude, insolent, or angry manner that results in bodily injury."

Plaintiffs, though, testified that Husband was asleep when Defendants got there, and that Plaintiffs explained they were only playing with the juice and water; the overturned chair was an accident; Wife was depressed about her brother's death; and that nothing was wrong. When Defendants arrested Wife, Husband asked "you're not taking her to jail for this, are you?" and consequently was arrested too. Plaintiffs therefore considered any police report in support of their arrests to have been fabricated.

PROCEDURE: Plaintiffs sued Defendants per 42 U.S.C. § 1983 for false arrest in violation of the Fourth Amendment and for Indiana state torts. Defendants removed the case to the U.S. District Court for the Northern District of Indiana, and after discovery moved for summary judgment on qualified immunity grounds, arguing that Defendants had probable cause to arrest Plaintiffs for domestic battery, and that Plaintiffs' version of events was implausible. The trial court ruled that among other things, Plaintiffs' account of playfulness and accidentally dialing 911 were sufficient basis for a reasonable jury to find that Defendants had no probable cause to arrest either Plaintiff. QUALIFIED IMMUNITY DENIED. Defendants appealed to the U.S. Court of Appeals for the Seventh Circuit.

DECISION: To get past summary judgment on their claim of unreasonable seizure in violation of the Fourth Amendment, Plaintiffs had to present enough evidence for a reasonable fact finder to conclude that their arrests were without probable cause. Though the trial court did not rely on the photographs in its findings of fact, the Seventh Circuit could do so since the photos were in the record on appeal and no one disputed their authenticity. The photos showed some minor injuries to Husband and an overturned chair on the floor, but because Plaintiffs and Defendants materially differed as to the facts behind the pictures, Defendants could not show qualified immunity. Even if the photos of Husband's injuries were enough to make probable cause, Defendants could only have arrested Wife, unless they also had evidence other than what appeared in the photos.

Given that enough evidence was forecast to establish the constitutional violation of arrest without probable cause, the Seventh Circuit then had to rule whether that right was clearly established at the time of the events in question. As a matter of law, a reasonable officer in Defendants' position would have known that arrest without probable cause, and fabrication of a police report in support of same, was unconstitutional, because innumerable appellate cases had said so by then. Though Plaintiffs might not prevail ultimately, the Seventh Circuit was not in a position to resolve swearing contests between litigants and had to agree that summary judgment was not available. DENIAL OF QUALIFIED IMMUNITY AFFIRMED.

The concurrence agreed with the result, but would have accepted the trial court's recital of the facts wholesale, and not looked to the photographs, which the trial court did not consider in reaching its decision.

EDITORIAL: Another Seventh Circuit anti-police WTF! Last week a couple of Child Protective Chekists perpetrate a career-ending false accusation against an officer--and walked. This week Mr. & Mrs. Dingleberry forgot why they were separated and got in no doubt their five hundredth mutual pounding, then made up a whale of a fish story to win the lawsuit lottery--and take the green flag. Of course they'll lose at trial and on their next appeal, after wasting six figs in defense fees, which they can't pay back after the Rule 11 motion.

NO repeat NO reasonable fact finder could read that 911 transcript calling for a police car and reporting a domestic battery, and then believe the second version that they were just playing. And if facts really WERE in dispute, the Seventh Circuit should have dismissed the appeal for lack of jurisdiction. This is one of those times where I just have to throw up my hands and say I only work here, I don't ask questions.