CA7: Arguable PC means QI in a § 1983, even though the ptf is proved innocent

The defendants had arguable probable cause for plaintiff’s arrest, even though it proved that plaintiff was innocent. Therefore, they had qualified immunity. Judge Posner, however, dissents finding no probable cause at all. Burritt v. Ditlefsen, 2015 U.S. App. LEXIS 20760 (Nov. 30, 2015):

Here, when Ditlefsen arrested Burritt she had the following pieces of information: SMH had repeated her detailed story to different individuals and there was no indication from her recitations that she was lying or suggestible; the information given by SMH’s mother and stepfather tended to corroborate SMH’s story; SMH was able to describe and draw a picture of the scene of the assault, which generally matched Burritt’s property; SMH reported that Burritt had a number of dogs, which he actually did have; and the trip took roughly two hours when it should have taken forty minutes. Ditlefsen believed the routes she mapped on MapQuest supported SMH’s story.

Burritt argues that the information gained by Ditlefsen from MapQuest never supported SMH’s story. In this same vein, Burritt presented evidence that the owners of Handi-Lift, Bill and Connie Lussier, both independently expressed their doubts to Ditlefsen, prior to Burritt’s arrest, that the trip with the stops as alleged by SMH could even be accomplished in the established time frame. Ditlefsen denied the Lussiers ever expressed such concerns to her. Although she could have been mistaken, Ditlefsen believed the routes she mapped on MapQuest supported SMH’s version of events.

Burritt also argues that Ditlefsen should have waited to arrest him until after she received the GPS data. We rejected a similar argument in Mustafa, explaining that “police officers have no duty to investigate extenuating circumstances or search for exculpatory evidence once probable cause has been established via the accusation of a credible witness.” Mustafa, 442 F.3d at 548 (citation omitted). See also Abbott v. Sangamon Co., Ill., 705 F.3d 706, 716 (7th Cir. 2013) (citations omitted). Law enforcement is not required to discover more information to undermine probable cause once it has been established. Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004) (citations omitted).

Further bolstering Ditlefsen’s qualified immunity is the fact that she consulted with the Polk County District Attorney and her supervisor before arresting Burritt. In Fleming, we explained that the fact that the officer had consulted with the District Attorney prior to arresting the plaintiff-arrestee “goes a long way toward solidifying his qualified immunity defense.” Fleming, 674 F.3d at 881, (citing Kijonka v. Seitzinger, 363 F.3d 645, 648 (7th Cir. 2004)); see also Davis v. Zirkelbach, 149 F.3d 614, 620-21 (7th Cir. 1998). Prior to Burritt’s arrest, Ditlefsen met with the Polk County District Attorney, Steffen, multiple times to keep him advised of developments in the investigation. When Ditlefsen believed she had probable cause to arrest Burritt, legal counsel (Steffen) and her supervisor (Smith) vetted her determination. When it came time to arrest Burritt, Steffen made the decision to arrest and told Ditlefsen to take Burritt into custody. Steffen independently determined that probable cause existed. Also, Ditlefsen’s supervisor, Smith, believed probable cause supported the arrest.

We find Ditlefsen was reasonable in her belief that she had probable cause to arrest Burritt. Further, Ditlefsen was objectively reasonable in her reliance on Steffen’s probable cause determination and instructions [*26] to effect the arrest. Because Ditlefsen is entitled to qualified immunity, the district court did not err in granting her motion for summary judgment on Burritt’s § 1983 claims.

. . .

Posner, Circuit Judge, dissenting. The arrest of the plaintiff was not based on probable cause, and the dismissal of his suit should therefore be reversed.

I disagree with the majority that Investigator Ditlefsen, the principal defendant, had “arguable probable cause” to arrest Burritt. She had nothing of the sort. A reasonable officer in her position would not have ignored the obvious red flags that arose during her investigation, and so would not have believed that she had probable cause. E.g., Sornberger v. City of Knoxville, 434 F.3d 1006, 1016 (7th Cir. 2006). Prior to the arrest Ditlefsen had researched the route that SMH, Burritt’s accuser, had said that Burritt had taken (from Impact Counseling Center to Burritt’s house, and then from his house to SMH’s house), and she had concluded with some help from MapQuest that it would have taken him roughly two hours and twenty-five minutes to drive the alleged route, not including the stops for gas and at Burritt’s house reported by SMH. According to his vehicle log Burritt had left Impact Counseling Center with SMH at 4:15 and SMH’s mother estimated that her daughter had arrived home between 6:30 and 6:45, and that timeline contradicted SMH’s version of events. For how could Burritt have driven a distance that takes two and a half hours to cover nonstop, yet while en route stop to get gas and assault SMH and arrive at her home all in two and a quarter hours or at most two and a half hours? As it turned out, he couldn’t have, and we now know that he didn’t.