In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2998
B RANDIE A TKINS, as administrator of the estate of
William O. Atkins, deceased,
Plaintiff-Appellant,
v.
C ITY OF C HICAGO, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 6109—Milton I. Shadur, Judge.
A RGUED S EPTEMBER 8, 2010—D ECIDED JANUARY 25, 2011
Before P OSNER, M ANION, and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. This is the second appeal from
the dismissal of a federal civil rights suit. 42 U.S.C. § 1983.
The district court initially dismissed it under Rule 25(a)(1)
of the Federal Rules of Civil Procedure, on the ground
that the motion to substitute the plaintiff’s widow
for the (original) plaintiff, who died while the suit was
pending, was untimely. We reversed, 547 F.3d 869 (7th
2 No. 09-2998
Cir. 2008), instructing the district judge to allow the
substitution. That kept the case alive, but the judge has
again dismissed it, this time on the merits—he ruled
that the complaint failed to state a claim. Hence this
second appeal.
In October 2003 Chicago police stopped a car in which
William O. Atkins, the plaintiff’s decedent, was a pas-
senger, and arrested him on the strength of a parole-
violation warrant bearing the name “William Atkins.”
He was held at the police station overnight and then
transferred to the custody of the Illinois Department of
Corrections, which placed him in Stateville prison. From
the moment of his arrest he steadfastly denied that he
was the William Atkins named in the warrant, but alter-
natively and inconsistently claimed that he was indeed
the same Atkins but that his parole had expired, so that
he could not have violated it—which seems in fact to be
the case.
Released from the Department’s custody after 37 days
when the parole board acknowledged that he was being
detained in error, Atkins sued the arresting offi-
cers, who are employees of the City of Chicago, plus
the City itself, prison guards at Stateville, and other
employees of the Department of Corrections. The
state defendants are accused of having unjustifiably
protracted a mistaken detention and imposed impermis-
sible hardships during the detention, all in violation of
rights conferred by the due process clause of the Four-
teenth Amendment. The charge against the City de-
fendants is that the arrest was unconstitutional be-
No. 09-2998 3
cause it was not based on probable cause; and we’ll start
there.
When arrested, Atkins denied that he was the William
Atkins named in the warrant and noted discrepancies
between his identifying characteristics and the descrip-
tion in the warrant. Although both Atkinses were of
the same race and sex and had the same first and last
names, our William Atkins was slightly taller and some-
what heavier than the person described in the warrant
and had a middle initial, which the name on the warrant
lacked. But oddly—if they were different people—the
month and day of their birth (though not the year) were
the same and the first three digits of their social
security numbers were also the same.
The police did not have probable cause to stop the
vehicle in which our William Atkins was riding, but clearly
if he was the William Atkins named in the warrant the
illegality of the stop did not invalidate the arrest. United
States v. Johnson, 383 F.3d 538, 544-45 (7th Cir. 2004); United
States v. Green, 111 F.3d 515, 521 (7th Cir. 1997); contra,
United States v. Lopez, 443 F.3d 1280, 1285-86 (10th Cir.
2006). In Green we said the question was whether “the
causal chain has been sufficiently attenuated to dissipate
the taint of the illegal conduct,” 111 F.3d at 521, and in
like vein in Johnson we considered whether “a lawful
arrest based on any outstanding warrant for a passenger
in the vehicle constituted an intervening circumstance
that dissipated any taint caused by an initial traffic stop
that had lacked reasonable suspicion,” 383 F.3d at 544,
and concluded that it did. But a simpler way to justify
4 No. 09-2998
the result in those cases (and this one), without talking
about “taints” and “dissipation” and “intervening cir-
cumstances” (and what do those terms mean, really?), is
to note simply that the arrest was based on a valid
warrant rather than on anything turned up in the
illegal search. If police stopped cars randomly, looking
for persons against whom there were outstanding war-
rants, the drivers and passengers not named in warrants
would have good Fourth Amendment claims. But a
person named in a valid warrant has no right to be at
large, and so suffers no infringement of his rights when
he is apprehended unless some other right of his is in-
fringed, as would be the case had the police roughed up
Atkins gratuitously in the course of trying to determine
whether he was the person named in the warrant. Graham
v. Connor, 490 U.S. 386, 396-97 (1989); Catlin v. City of
Wheaton, 574 F.3d 361, 366 (7th Cir. 2009); Cortez v.
McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007) (en banc).
But that is not the plaintiff’s complaint.
Yet in the course of making an arrest on the basis of an
outstanding warrant the police may learn something
that shows that the warrant does not actually create
probable cause to arrest the person they’re arresting—
suppose the warrant in this case had identified the
person to be arrested as a woman, named Wanda
Atkinson. The police would know at a glance that the
William Atkins they were about to arrest was not the
person named in the warrant and if they arrested him
anyway it would be an illegal arrest because the
mistake would not be “understandable” or “the arrest a
reasonable response to the situation facing them at the
No. 09-2998 5
time.” Hill v. California, 401 U.S. 797, 804 (1971). As
nearly as we can determine, the police who made the
arrest made no mistake, as distinct from whoever failed
to notice that Atkins’s parole had expired before his
alleged violation of it. And if the police did make a
mistake, it was a reasonable one.
Anyway the plaintiff’s real complaint is not about the
initial error but about the time it took to correct it—the
state defendants are thus the main target. Atkins was
transferred from the Cook County jail to Stateville
within a day of his arrest, but it was another 36 days
before the prison released him, having finally satisfied
itself that he was not a parole violator. The complaint
alleges that he protested continuously against his deten-
tion.
Due process requires government to follow reasonable
procedures for minimizing mistaken deprivations of
liberty. In determining what is reasonable “the court
must consider the weight of the interest at stake, the risk
of error, and the costs of additional process.” Hernandez
v. Sheahan, 455 F.3d 772, 777 (7th Cir. 2006); see Mathews
v. Eldridge, 424 U.S. 319, 334-35 (1976); cf. Sutton v. City
of Milwaukee, 672 F.2d 644, 645-47 (7th Cir. 1982). The
interest in liberty increases in weight the longer a
person is detained, and the accuracy of the procedures
for avoiding mistaken detentions that is constitutionally
required increases concomitantly. In the case of persons
arrested for violating parole, a preliminary hearing to
determine probable cause must be conducted “as
promptly as convenient after arrest while information is
6 No. 09-2998
fresh and sources are available,” and a plenary hearing
must be held within a “reasonable time after the parolee
is taken into custody”—normally two months. Morrisey
v. Brewer, 408 U.S. 471, 484-88 (1972). Parole proceedings
are traditionally administrative rather than judicial, so
the hearing need not be held before a judicial officer. Id.
at 486. Illinois’s procedures, codified at 20 Ill. Admin.
Code § 1610.140, comply with the standard set forth in
the Morrisey case. Faheem-El v. Klincar, 841 F.2d 712, 722-
23 (7th Cir. 1988) (en banc).
Atkins had a preliminary hearing on the seventh day
after his arrest but failed to persuade the hearing officer
that it was a case of misidentification. He muddied the
waters by arguing that he should be released because
his parole had expired. Probably it had expired, but to
offer contradictory grounds was bound to arouse
the hearing officer’s suspicion. Alternative pleading is
permissible but a person who says both that I am not the X
named in the parole-violation warrant and I am that X
but my parole expired is calling himself a liar. The
hearing officer’s failure to find misidentification thus
was reasonable.
The full hearing took place 29 days later, and Atkins
was released on that day. The delay was well within the
two-month deadline set by the Brewer case. The plaintiff
contends that guards and miscellaneous prison staff
have a continuing constitutional duty, even when there
are constitutionally adequate formal administrative
remedies against unjustified imprisonment, to con-
duct an exhaustive investigation of a prisoner’s claim
No. 09-2998 7
of misidentification. Prisons would be unmanageable if
the contention were accepted. “Given the requirements
that arrest be made only on probable cause and that one
detained be accorded a speedy trial, we do not think a
sheriff executing an arrest warrant is required by the
Constitution to investigate independently every claim
of innocence, whether the claim is based on mistaken
identity or a defense such as lack of requisite intent. Nor
is the official charged with maintaining custody of the
accused named in the warrant required by the Constitu-
tion to perform an error-free investigation of such a
claim. The ultimate determination of such claims of
innocence is placed in the hands of the judge and the jury.”
Baker v. McCollan, 443 U.S. 137, 145-46 (1979). We have
rejected a rule “under which every deputy [sheriff] must
be open to persuasion for as long as a person is in cus-
tody.” Hernandez v. Sheahan, supra, 455 F.3d at 777. Such
a rule “would create a substantial possibility that by
presenting his contention over and over even a guilty
suspect would eventually find a deputy who did not
understand the weight of the evidence and let him go.
That would frustrate the public interest in carrying out
the criminal law.” Id.; see also Askew v. City of Chicago,
440 F.3d 894, 895 (7th Cir. 2006); Pasiewicz v. Lake County
Forest Preserve District, 270 F.3d 520, 524 (7th Cir. 2001).
One could argue for drawing a distinction between a
person arrested for a parole violation who denies he
violated his parole and a person arrested for a parole
violation who denies that he is the person named in the
arrest warrant. The fact that parole violations are adjudi-
8 No. 09-2998
cated administratively is one of the terms of parole, and
by accepting parole a prisoner accepts the procedures,
held constitutional by the Supreme Court, for adjudicating
parole violations. “Revocation deprives an individual, not
of the absolute liberty to which every citizen is entitled, but
only of the conditional liberty properly dependent on
observance of special parole restrictions.” Morrissey v.
Brewer, supra, 408 U.S. at 480. But a person arrested for a
parole violation who had not actually been named in the
arrest warrant—who might never have been convicted of
a crime, and therefore never have been paroled, in his
life—is not someone who accepted administrative adjudi-
cation as the price of parole. He could therefore argue
for the same right as a person arrested on other grounds—
the right to a judicial (not administrative) determination
of probable cause to hold him, conducted within two days
(not seven days) of the arrest, as required by County of
Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991), and
Gerstein v. Pugh, 420 U.S. 103, 125 (1975); cf. Hernandez v.
Sheahan, supra, 455 F.3d at 777; Patton v. Przybylski, 822
F.2d 697, 700-01 (7th Cir. 1987); Brown v. Patterson, 823 F.2d
167, 169 (7th Cir. 1987); Fed. R. Crim. P. 32.1(a)(1). The
argument could be bolstered by noting that Illinois law
allows parole-violation warrants to be issued by parole
officials, without any involvement of a judicial officer.
730 ILCS 5/3-14-2(c), -2(c-1); People ex rel. Johnson v. Pate,
265 N.E.2d 144, 146 (Ill. 1970); People ex rel. Jefferson v.
Brantley, 253 N.E.2d 378, 379 (Ill. 1969).
Against this it can be argued that to entitle a person
who is arrested for violating parole and claims mis-
No. 09-2998 9
taken identity to a judicial hearing would give every
such arrestee a right to two hearings: a judicial hearing
to verify his identity (for he could always deny that he
was the person named in the warrant, though he would
risk punishment for perjury if were lying) and, if his
claim of mistaken identity was rejected, an administra-
tive hearing to determine whether he had in fact
violated his parole. Before a new constitutional right is
declared, it would be prudent to inquire into the
relative merits of judicial and administrative determina-
tions of identities of alleged parole violators. We
shouldn’t disparage factfinding by nonjudicial hearing
officers; much factfinding is delegated to them, on the
theory that specialization in adjudicating a particular
type of legal dispute may offset any disadvantages
flowing from the lesser independence of such officers.
And it is not always lesser: Illinois judges, unlike the
parole board’s hearing officers, are elected. Nor are
issues of mistaken identity fraught with legal subtleties
that only judges can plumb. It is far from clear, therefore,
that there would be a gain in accuracy from requiring
a judicial hearing on top of the administrative hearing
that is already required, let alone a gain great enough
to outweigh the administrative burden that such a re-
quirement would place on the state—a state that happens
to be on the brink of bankruptcy, if not over the brink.
In any event, there is no need to decide in this case
whether there might be a constitutional entitlement to a
judicial hearing in cases of alleged mistaken identity
of parole violators. For even if the question were
answered in the plaintiff’s favor, it would not warrant
10 No. 09-2998
any relief. The question is novel, and the defendants
therefore protected from liability for damages for
possibly answering it incorrectly by the doctrine of quali-
fied immunity. Narducci v. Moore, 572 F.3d 313, 318 (7th
Cir. 2009); see Pearson v. Callahan, 129 S. Ct. 808, 818-22
(2009).
We are left with the claim that Atkins was so badly
mistreated at Stateville that he was deprived of liberty
without due process of law.
The complaint alleges that when he arrived at Stateville
he was wearing a diamond stud in one of his ears. He
swallowed it “to prevent the defendants from stealing
his property.” He was then “placed in a cell naked with-
out a mattress, sheets, blankets, or water until [he] defe-
cated his earring.” We haven’t been told why the prison
wanted the earring, but probably prisoners are for-
bidden to wear jewelry, as it would invite theft and
brawls, and jewelry often has sharp edges or a sharp pin
and so can be used as a weapon. Rowland v. Jones, 452
F.2d 1005, 1006 (8th Cir. 1971) (per curiam). The com-
plaint does not question the propriety of the defendants’
insistence on recovering the earring, only the indignities
allegedly inflicted on Atkins in the four days that he
spent in a “dry cell” before the earring emerged.
The most serious indignities alleged—the only ones that
might state a claim of constitutional magnitude—are that
he was “denied drinking water and/or food for several
days.” Depriving a person of food for four days would
impose a constitutionally significant hardship, Reed v.
McBride, 178 F.3d 849, 853-54 (7th Cir. 1999); Foster v.
No. 09-2998 11
Runnels, 554 F.3d 807, 814-15 and n. 5 (9th Cir. 2009);
Simmons v. Cook, 154 F.3d 805, 808 (8th Cir. 1998); de-
priving him of all liquids for four days would be far
worse. “A human can be expected to survive for weeks
without food, but a thirsty person deprived of water
would last [only] a matter of days.” Jessica Hamzelou, “Nil
By Mouth,” New Scientist, Apr. 16, 2010, p. 37; see also
Survival Topics, “How Long Can You Survive Without
Water?” www.survivaltopics.com/survival/how-long-can-
you-survive-without-water/ (visited Jan. 19, 2011).
Although “several days” could as a semantic matter
be more than four, the allegation that Atkins was “placed
in a cell naked without a mattress, sheets, blankets, or
water until [he] defecated his earring” (emphasis added)
implies that these deprivations would end when the
earring finally emerged, and that, the complaint alleges,
was on the fourth day. The complaint also alleges that
Atkins “agreed to drink milk to cause the defecation,
though he was lactose intolerant,” so he was not
denied liquids for four days; his complaint contains an
internal contradiction. If he defecated on the fourth day,
he must have drunk milk earlier that day, or on a
previous day.
The allegation that he was deprived of food and water
for several days is not inconceivable, which is the tradi-
tional standard for rejecting factual allegations in a com-
plaint out of hand and dismissing the suit, as illustrated
by Best v. Kelly, 39 F.3d 328, 330 n. 3 (D.C. Cir. 1994),
which approved the dismissal of a claim that a “Branch
of the Government, took my Face off of my Head, went
12 No. 09-2998
into my Scull & Put a Computer Chip of some kind & a
Camera System which makes me Project Images or Pitch-
ers, many Feet in Front of me.” A nd in Lee v. Clinton, 209
F.3d 1025, 1025 (7th Cir. 2000), we upheld the dismissal
of “two insane complaints charging the United States
and China with a conspiracy to ‘bio-chemically and bio-
technologically infect and invade’ various people in-
cluding Lee with a mind reading and mental torture
device that Lee calls ‘Mind Accessing and Torturing via
Remote Energy Transferring (MATRET).’ To elude
MATRET, Lee claims to have developed a variety of
space technologies, oddly including an email system and
nanny services, that will enable the victims of MATRET
to relocate to MATRET-free planets.” The claims de-
scribed in Best and Lee fall into the category of the “essen-
tially fictitious,” a category of claims that does not
engage the jurisdiction of the federal courts. Bailey v.
Patterson, 369 U.S. 31, 33 (1962); see Hagans v. Levine, 415
U.S. 528, 536-37 (1974). It would be strange to think that
such cases could not be dismissed without putting the
parties to the burden of further pleading, of discovery, and
perhaps even of trial (though such trials would be fun).
The allegation about Atkins’s being deprived of food
and water for four days is not in that class. It is not impos-
sible; it is merely implausible. But it is highly implausible.
Remember that the indignities to which the prison
guards allegedly subjected Atkins are said to have been
incidental to their desire to recover his earring. Depriva-
tion of food and liquids would retard rather than ac-
celerate the fulfillment of that desire. And we know that
he was not denied all liquids, which is the pertinent
No. 09-2998 13
category (not water), because the complaint alleges that
he drank milk. In addition there is no allegation that he
incurred any physical injury from the alleged deprivations.
All three amended complaints imply, fantastically, that
Atkins was forced to remain naked for the entire 37 days
of his incarceration, for they state that the defendants
violated his civil rights by “forcing him to remain naked
in a cell” (emphasis added). But even if all that is meant
is that he was intermittently forced to remain naked,
this is hard to believe. Nor is the nakedness alleged
merely incidental to the conducting of frequent strip
searches, for that is a separate allegation, and the allega-
tion that he was forced to remain naked is bracketed
with an allegation that the defendants “den[ied] him
clothes.”
There is also a curious evolution of allegations in suc-
cessive iterations of the complaint. The initial complaint,
though it alleged that Atkins had been denied drinking
water until he defecated his earring, did not mention
any deprivation of food but instead alleged that “for the
first couple of days at Statesville [sic], [he] did not eat
because the defendants wrongfully desired to obtain
[his] earring.” This suggests that any deprivation of food
was short-lived and self-inflicted.
The four successive complaints are riddled with contra-
dictions. And they are not pro se complaints. They
were drafted by the plaintiff’s lawyer. We have noted
that the original complaint didn’t mention deprivation
of food by the prison as distinct from Atkins’s refusing
to eat for two days. The first amended complaint dropped
14 No. 09-2998
all reference to deprivation of food or drink, while the
second amended complaint restored the claim that Atkins
had been “denied drinking water” but said nothing
about food. Not until the third amended complaint do
we read that Atkins was denied “food and/or water,”
which still leaves unclear whether it was one or both.
And the response to the defendants’ motion to dismiss
that complaint muddied the waters further by stating
that the defendants had “deprived him of water and/or
food for several days and [made] him drink milk.” Milk
is not water, but it is a substitute for water. The plain-
tiff’s final submission to the district court listed all the
ways in which the “defendants forced [Atkins] to
endure unconstitutional mistreatment” but did not in-
clude in the list deprivation of food or water.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), require that a
complaint be dismissed if the allegations do not state a
plausible claim. The Court explained in Iqbal that “the
plausibility standard is not akin to a ‘probability require-
ment,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Id. at 1949. This is a
little unclear because plausibility, probability, and pos-
sibility overlap. Probability runs the gamut from a zero
likelihood to a certainty. What is impossible has a zero
likelihood of occurring and what is plausible has a moder-
ately high likelihood of occurring. But one sees more or
less what the Court was driving at: the fact that the allega-
tions undergirding a plaintiff’s claim could be true is no
longer enough to save it. Twombly and Iqbal do not
reject the principle that when a complaint is dismissed
No. 09-2998 15
for failure to state a claim the reviewing court is to
assume that the factual allegations made in the com-
plaint (unless fantastic, or contradicted in the complaint
itself or in documents attached to it) are true. But
the complaint taken as a whole must establish a
nonnegligible probability that the claim is valid, though
it need not be so great a probability as such terms as
“preponderance of the evidence” connote. Iqbal like this
was a case in which the defendants were public officers
entitled to immunity from damages liability if they were
acting in good faith. The earlier a case is dismissed, the
more meaningful the immunity.
When the Court said in Iqbal “we do not reject these
bald allegations on the ground that they are unrealistic
or nonsensical,” id. at 1951, it didn’t mean that nonsensical
allegations can survive a motion to dismiss; that wasn’t
the rule even before Twombly and Iqbal. The point was
rather that the allegations in Iqbal, though somewhat
paranoid, were not nonsensical; nevertheless the Court
ordered dismissal.
After Twombly and Iqbal a plaintiff to survive dis-
missal “must plead some facts that suggest a right to
relief that is beyond the ‘speculative level.’ ” In re
marchFIRST Inc., 589 F.3d 901, 905 (7th Cir. 2009). And
(another rule that antedates Twombly and Iqbal) he can
plead himself out of court by pleading facts that show
that he has no legal claim. Hecker v. Deere & Co., 556
F.3d 575, 588 (7th Cir. 2009); Tamayo v. Blagojevich, 526
F.3d 1074, 1086 (7th Cir. 2008); EEOC v. Concentra Health
Services, Inc., 496 F.3d 773, 777 (7th Cir. 2007); Orthmann
16 No. 09-2998
v. Apple River Campground, 757 F.2d 909, 915 (7th Cir. 1985);
Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006). So
suppose some of the plaintiff’s factual allegations are
unrealistic or nonsensical and others not, some contra-
dict others, and some are “speculative” in the sense of
implausible and ungrounded. The district court has to
consider all these features of a complaint en route to
deciding whether it has enough substance to warrant
putting the defendant to the expense of discovery, Bell
Atlantic Corp. v. Twombly, supra, 550 U.S. at 558-59;
Francis v. Giacomelli, 588 F.3d 186, 193 and n. 2 (4th Cir.
2009), or, in a case such as this (like Iqbal itself), burdening
a defense of immunity. Ashcroft v. Iqbal, supra, 129 S. Ct. at
1953-54; Smith v. Duffey, 576 F.3d 336, 339-40 (7th Cir.
2009); Amore v. Novarro, 624 F.3d 522, 529-30 (2d Cir.
2010); Fletcher v. Burkhalter, 605 F.3d 1091, 1095-96 (10th
Cir. 2010).
We are left in darkness as to whether the plaintiff is
actually alleging that Atkins was denied food or water
for four days, or for a lesser, but still constitutionally
significant, length of time. The plaintiff’s lawyer has had
four bites at the apple. Enough is enough. United States
ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378-
79 (7th Cir. 2003).
All this is apart from the futility of the suit. Atkins is the
only witness for the plaintiff, and Atkins is dead. His
widow would be happy to testify to what he told her
had happened to him, but her testimony would be inad-
missible hearsay. There is no other evidence to support
the charge of unconstitutional conditions of confinement,
No. 09-2998 17
and no suggestion that any defendants, or other members
of the prison staff, are prepared to support the plaintiff’s
version of the facts—or, should we say, any one of the
plaintiff’s versions.
The district court was correct to dismiss the suit.
A FFIRMED.
H AMILTON, Circuit Judge, concurring in part and con-
curring in the judgment. I join the majority opinion in
affirming the dismissal of Atkins’ claims regarding his
arrest and the conditions of his detention. I would
resolve differently, however, Atkins’ due process claim
against the individual state officials. In my view, Atkins
alleged sufficiently that he was deprived of liberty with-
out due process of law when he was held by the state
for more than 48 hours without a hearing before a
judge. He was entitled to a hearing in which he could
have shown that he was not the same William Atkins
sought on the parole violation warrant or, if perhaps
he was indeed the William Atkins sought (we cannot tell
from the sparse record), that he was no longer on parole
at the time of the alleged violation. I agree with my col-
leagues, however, that the individual defendants are
entitled to qualified immunity on that claim because
18 No. 09-2998
the law was not and still is not sufficiently clear to
impose individual liability under 42 U.S.C. § 1983.
I therefore concur in the judgment to affirm dismissal
of the claim.
This case has been unnecessarily challenging because,
as my colleagues point out, the attorney for the late
Mr. Atkins has buried one solid claim in a crowd of
hopeless claims against virtually every potential defen-
dant in sight. The suggestion, for example, that every
prison or jail employee risks personal liability if he does
not investigate an inmate’s claim of innocence is beyond
frivolous. Despite these distractions, there is a real and
serious due process problem in the possibility for mis-
taken identifications under parole violation warrants.
The problem is this. Law-abiding persons often have
encounters with police officers during which they
provide basic identifying information. The police are
free to check this information against any outstanding
warrants, including those for parole violations. Suppose
that, during that check, the police come across a war-
rant bearing the same name and some other identifying
information. Even if the identifying information does
not match perfectly, as it did not in Atkins’ case, the
police officers on the scene may reasonably arrest the
person over his protests that he is a different person.
So far, none of this is controversial, but we know that
mistakes are made in such arrests. What process is due
to the person who claims he has been wrongly identified?
Typically, a person arrested without a warrant from a
magistrate is entitled to (1) a hearing (2) before a judicial
No. 09-2998 19
officer where a wrong identification could be addressed
(3) “promptly after arrest.” See Gerstein v. Pugh, 420
U.S. 103, 125 (1975). Under this promptness standard,
“judicial determinations of probable cause within 48
hours of arrest will, as a general matter,” suffice unless
the prisoner can prove unreasonable delay. County of
Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991); but see
id. at 71 (Scalia, J., dissenting) (“Hereafter a law-abiding
citizen wrongfully arrested may be compelled to await
the grace of a Dickensian bureaucratic machine, as it
churns its cycle for up to two days—never once given
the opportunity to show a judge that there is absolutely
no reason to hold him, that a mistake has been made.”).
This 48-hour standard is well-established. State courts
and local police and jail officers comply with it routinely.
A law-abiding citizen who has been misidentified is
therefore vulnerable to only a relatively brief detention
before he may insist on having a judge take a close look
at a claimed misidentification.
The process due to a parolee arrested on a charge of
parole violation is quite different. In such cases, a prelimi-
nary hearing “to determine whether there is probable
cause” to detain the arrestee need be held only “as
promptly as convenient after arrest while information
is fresh and sources are available.” Morrissey v. Brewer,
408 U.S. 471, 485 (1972). In Atkins’ case, it was a full
seven days before he had even that preliminary hearing.
Delays as long as 24 days between the arrest and even
the preliminary hearing are constitutionally permissible,
even without any showing of emergency or extraordinary
circumstance. See Faheem-El v. Klincar, 841 F.2d 712, 714-
20 No. 09-2998
15, 723 (7th Cir. 1988) (en banc). While the probable
cause determination “should be made by someone not
directly involved in the case,” the hearing officer “need
not be a [neutral and detached] judicial officer” and may
be an administrative official such as a parole officer.
Morrissey, 408 U.S. at 485-86.
The reason we tolerate the slower and different proce-
dures for parolees is precisely because they are parolees.
They have already been convicted of a crime through
the full processes of the criminal law. Their interest in
liberty is much more limited than for the vast majority
of citizens who are not on parole. These limitations and
their importance to the due process calculus are woven
throughout the Supreme Court’s opinion in Morrissey,
which balanced competing interests and found the
slower, more limited procedures permissible for parole
revocation proceedings. “Revocation deprives an indi-
vidual, not of the absolute liberty to which every citizen
is entitled, but only of the conditional liberty properly
dependent on observance of special parole restrictions.”
408 U.S. at 480.
When Atkins was arrested, though, the pivotal issue
was whether he was actually an individual on parole.
Morrissey and its progeny dealing with parolees never
address this narrow issue. Those cases all operate on the
justifiable assumption that the right person has been
arrested—someone actually on parole, subject to restric-
tions on liberty. That’s precisely why those decisions
tolerate the slower review processes. That reasoning
simply does not extend to the issue of what processes are
No. 09-2998 21
necessary to determine whether an arrested person is
actually on parole. If that question of identity—is the
arrested person actually the parolee sought by the
warrant?—is subject to only the much slower Morrissey
procedures, then any law-abiding citizen faces not just
48 hours of detention, decried by Justice Scalia but
accepted by a majority of the Supreme Court in
McLaughlin, but perhaps weeks of unjustified detention
without any right to a hearing before a judge.
Because an arrestee’s identity—parolee or average
citizen—determines whether he is entitled to the 48-hour
Gerstein-McLaughlin processes or the much slower
Morrissey processes, I conclude on the merits of Atkins’
case that due process of law requires greater procedural
protection to guard against cases of mistaken identity
in the context of parole-violation warrants. Cf. Patton v.
Przybylski, 822 F.2d 697, 700-01 (7th Cir. 1987) (noting that
“to arrest a person over his vigorous protest that he is
the wrong man . . . and keep him in jail [for almost a
week] without either investigating the case or bringing
him before a magistrate raises serious constitutional
questions . . . under the due process clause”); Brown v.
Patterson, 823 F.2d 167, 169 (7th Cir. 1987) (“[A] prolonged
confinement of an arrested person without a hearing
to determine whether he is the person named in the
warrant would be a deprivation of liberty without due
process of law . . . .”).
To decide how much process is due, the familiar three-
part Mathews v. Eldridge analysis provides the framework.
424 U.S. 319, 334-35 (1976). We consider (1) the private
22 No. 09-2998
interest that will be affected by the government action;
(2) the risk of an erroneous deprivation with the proce-
dures in place and the probable value of different proce-
dures; and (3) the government’s interest, including the
costs of different procedures. See Hernandez v. Sheahan,
455 F.3d 772, 777 (7th Cir. 2006) (applying Mathews to
analysis of detainee’s claim of mistaken identity after he
had appeared before judge).
First, the private interest at stake here is significant:
basic liberty, for a period that can be measured in weeks.
While an innocent person is being held in prison for
weeks, his entire life can be disrupted—by loss of a job,
inability to support and care for loved ones, inability to
tend to financial affairs, and on and on. That is why
Gerstein and McLaughlin tolerate no more than 48 hours
delay before an arrestee must be brought before a judge.
But an arrestee mistakenly identified as a parole violator
may be wrongfully incarcerated without a hearing for
much longer than the 48 hours tolerated for ordinary
arrests.1
1
The difference between the permissible initial detention
times before a preliminary hearing for average citizens
(two days) and parolees (the 24 days we found acceptable in
Faheem-El) is enough to distinguish those cases rejecting
requests for stricter jailhouse procedures to prevent
misidentifications in the context of the typical warrantless
arrest. See, e.g., Hernandez, 455 F.3d at 775 (“a police depart-
ment is not required to be credulous but may limit its atten-
tion to information it deems reliable—especially because
(continued...)
No. 09-2998 23
Second, while the risks of an error are difficult to quan-
tify on this record, where the claim was resolved without
a trial, they are likely to be significant. Justice Stevens
suggested in a similar case that the risk of misidentifica-
tions based on coincidental similarity of names, birthdays,
and descriptions is “unquestionably substantial.” Baker
v. McCollan, 443 U.S. 137, 155-56 (1979) (Stevens, J. dis-
senting).2 In this case, the coincidence of the similar
birth dates and Social Security numbers may help to
explain plaintiff Atkins’ unfortunate experience.3 As my
colleagues point out, police officers on the street are
entitled to reasonable latitude in executing arrest war-
rants. See Patton, 822 F.2d at 699-700 (affirming dismissal
1
(...continued)
detention on the police department’s resolution cannot
exceed 48 hours”).
2
The man arrested in Baker v. McCollan was in fact the
person identified in an arrest warrant that had been issued by
a judicial officer. 443 U.S. at 140-41. The man’s brother had
stolen his identification and had given law enforcement
officials the wrong identity when he had been arrested. In
Atkins’ case, the parole violation warrant was issued not by a
judicial officer, but by parole officials.
3
The fact that the two William Atkinses shared the first three
digits in their Social Security numbers does not help with
identification. It means only that both were assigned their
numbers in the same geographic region. See Social Security
Administration, Frequently Asked Questions, Answer #18,
www.ssa.gov/history/hfaq.html (last visited Jan. 19, 2011).
24 No. 09-2998
of claim against police officer who arrested person with
same name, race, and year of birth as person in war-
rant, but with different date of birth and address); see
generally California v. Hill, 401 U.S. 797, 803-04 (1971)
(police acted reasonably and in good faith in arresting
the wrong person). This is because law enforce-
ment officers making arrests in the field will often have
little information at hand to be absolutely sure whether
they have arrested the proper individual.
The logical and practical consequence of giving police
officers room to make mistakes is that there will be more
mistakes. More innocent people will be arrested. And
when, as was the case here, one unit of government (the
City of Chicago) makes an arrest on behalf of another
unit of government (the State of Illinois), the risk of
miscommunications and mistaken identifications is en-
hanced.
Regarding the third Mathews factor, the government’s
interests do not weigh against a prompt judicial hearing
to determine whether a person arrested on a parole war-
rant is in fact the parolee sought. The government has a
powerful interest in speedy, accurate resolutions of
alleged misidentifications. If the wrong person has been
arrested on the warrant, it means that the right person
remains at large, possibly endangering others. Moreover,
it would not unreasonably burden government resources
to make a quick determination whether an individual
arrested on a parole violation warrant is the same person
whose parole is already being closely monitored by the
authorities. Parolees have already been convicted. All
No. 09-2998 25
of their pertinent identifying information should be
readily available from the original incarceration. Probable
cause to believe the person being held is the parolee
sought could often be established by as little as the testi-
mony of the supervising parole officer.4 This case il-
lustrates the ease with which a misidentification of a
parolee can be confirmed. According to the Prisoner
Review Board’s eventual order to release Atkins from
custody, “documents and a call to the records office”were
enough to confirm that Atkins was not in fact on parole.
Upon weighing the three Mathews factors, I believe that
due process requires some minimal judicial procedures
to ensure against mistaken misidentifications in the
context of parole violation warrants. This is not a radical
conclusion—the Federal Rules of Criminal Procedure
already provide this basic protection to persons arrested on
federal warrants for violation of supervised release (equiv-
alent to parole for these purposes) or probation. Rule
32.1(a)(1) requires that a person “held in custody for
violating probation or supervised release must be taken
without unnecessary delay before a magistrate judge.”
And when the person is in custody in a different federal
4
On our limited record, we are left to wonder where the
suspected Atkins’ parole officer was during the five weeks
that plaintiff Atkins was in custody. That officer presumably
could have straightened out this matter immediately. Ac-
cording to the hearing officer’s report of findings made
after Atkins’ preliminary parole violation hearing, however,
the only person who testified at that preliminary hearing
was plaintiff Atkins himself.
26 No. 09-2998
court district, the rule specifically requires the magistrate
judge to find whether “the person is the same person
named in the warrant.” Fed. R. Crim. P. 32.1(a)(5)(B)(ii).
I am not suggesting that every detail of Rule 32.1 is consti-
tutionally mandated, but a prompt appearance before
a judge is needed to provide the process due when there
is a claimed misidentification of the person in custody.5
My colleagues ultimately decline to decide the merits of
Atkins’ due process claims but rely on the defense of
qualified immunity to affirm the dismissal. I agree that
qualified immunity applies and therefore concur in that
portion of the opinion and in the judgment. But I believe
5
Baker v. McCollan, 443 U.S. 137 (1979), does not lend support
to the procedures used here. The Supreme Court held in
Baker that the person named in an arrest warrant issued by a
judicial officer did not have a viable § 1983 claim against the
sheriff who kept him in custody under the warrant without
bringing him before a court over a three-day holiday weekend.
Crucial to the Court’s analysis in Baker was the fact that the
arrest had been made based on a warrant issued by a judge.
Id. at 143-44. Baker also relied on the “reasonable division of
functions between law enforcement officers, committing
magistrates, and judicial officers” in the constitutional system,
id. at 145, but there is no such division of labor in the Illinois
parole system. Parole violation warrants may be issued in
Illinois without involving any judicial officers at all. 730 ILCS
5/3-14-2(c) & (c-1); see People ex rel. Johnson v. Pate, 265 N.E.2d
144, 146 (Ill. 1970). Baker also relied on the fact that “one de-
tained [must] be accorded a speedy trial.” 443 U.S. at 145.
A hearing before a parole officer or a parole board is not the
“trial” contemplated in Baker.
No. 09-2998 27
that we should address the merits, for both substantive
and procedural reasons.
The substantive reasons are those I have explained
above. My colleagues suggest, however, that we should
know more about the relative merits of judicial and ad-
ministrative decision-making before reaching the con-
clusion on the merits. After all, perhaps these identifica-
tion issues are straightforward and suitable for adminis-
trative decision-making. Both judges and parole officials
can make mistakes. The same argument could have
been made in Gerstein and McLaughlin, however. The
Supreme Court weighed the relevant constitutional in-
terests in Gerstein and McLaughlin, and it chose judicial
decision-making for good reasons. Gerstein and
McLaughlin tell us that persons in the United States
cannot be held in custody for more than 48 hours with-
out requiring executive branch officials—like police or
parole officers—to convince a judicial officer that there
is good reason to hold the person. That rule does not
disparage the abilities of executive decision-makers. The
rule simply insists that executive branch actions to
deprive a person of basic liberty must be subject to im-
mediate and independent review. The rule recognizes
human and institutional fallibility, as well as the value
of review and accountability. Cf. Johnson v. United States,
333 U.S. 10, 13-14 (1948) (enforcing search warrant re-
quirement of the Fourth Amendment: “The point of the
Fourth Amendment . . . is not that it denies law enforce-
ment the support of the usual inferences which reason-
able men draw from evidence. Its protection consists in
requiring that those inferences be drawn by a neutral and
detached magistrate. . . .”).
28 No. 09-2998
If my conclusion on the merits of Atkins’ claim is not
correct, then an innocent, law-abiding person could be
sent to prison without ever having a fact-finding hearing
before a judge, let alone a jury trial. Morrissey allows
administrative decision-makers to conduct both the
preliminary and plenary hearings to revoke parole. 408
U.S. at 485-88. Judicial review can be limited to deferential
review of the discretionary administrative decision. See
Black v. Romano, 471 U.S. 606, 611-12 (1985) (identifying
due process requirements that courts can enforce); Luther
v. Molina, 627 F.2d 71, 75-76 (7th Cir. 1980) (decision to
revoke parole was subject to deferential judicial review
under Administrative Procedures Act). We accept those
procedures for those who have already been convicted
of a crime and have then been granted parole (or super-
vised release, the modern federal parallel). But since
Gerstein, courts have never held such procedures as suf-
ficient to deprive an unconvicted person of his or her
liberty for more than 48 hours.
My colleagues’ doubts about the choice of decision-
maker also do not address the timing issue. Gerstein
and McLaughlin show us that the outer boundary for
executive-branch detention, in all but the most unusual
cases, is 48 hours. For persons actually on parole, we
have held that detention for as long as 24 days is permis-
sible without even a preliminary hearing before a parole
official. Faheem-El, 841 F.2d at 714-15, 723. I think that
result is clearly unconstitutional, under Gerstein and
McLaughlin, as applied to a person who is not actually
on parole.
No. 09-2998 29
There are also sound procedural reasons for deciding
the merits before deciding qualified immunity here. After
Pearson v. Callahan, 129 S. Ct. 808 (2009), we are not re-
quired to decide the merits before we decide qualified
immunity, but the choice is left to our sound discretion.
The two-step process set forth in Saucier v. Katz, 533 U.S.
194 (2001)—decide the merits and then qualified immu-
nity—is “often beneficial” in promoting the development
of constitutional precedent, especially with respect to
“questions that do not frequently arise in cases in which
a qualified immunity defense is unavailable.” Pearson,
129 S. Ct. at 818. This case fits that description.
Unless and until this view of the merits is accepted, law-
abiding citizens who are not on parole remain vulnerable
to lengthy deprivations of liberty without due process of
law and without effective remedy. Individual defendants
will be protected from damages liability by qualified
immunity, while state governments are protected from
damages liability by the limits of 42 U.S.C. § 1983 and the
Eleventh Amendment. See Will v. Michigan Dep’t of State
Police, 491 U.S. 58 (1989). It will also be difficult to find
an appropriate plaintiff in a case seeking injunctive or
declaratory relief. Surely few law-abiding citizens
would have in advance a well-founded fear of being
subjected to the treatment that Atkins alleged. To obtain
prospective relief, even someone who has experienced
such treatment by mistake might well need to show that
he has an objectively reasonable fear of being subjected
to it again, which I expect would be difficult. See, e.g.,
Los Angeles v. Lyons, 461 U.S. 95 (1983) (ordering dismissal
for lack of case or controversy; even if plaintiff was sub-
30 No. 09-2998
jected to illegal choke-hold by police in past, there was
no real and immediate threat that it would happen to
him again).
Returning to the specifics of this case, one of the mys-
teries here is why it took so long to straighten out Atkins’
identity and status. My colleagues suggest that Atkins
bears some responsibility for this because he gave incon-
sistent defenses at his preliminary hearing (before a
parole official, seven days after his arrest). The defenses
were, as far as I can tell, that the police had the wrong
man and that plaintiff Atkins’ earlier parole had expired.
I do not see those defenses as inconsistent. We have
some indication that plaintiff Atkins saw the com-
puterized information that the police relied on to arrest
him. If that is true, he could certainly have known
whether or not he was in fact the correct William Atkins.
Plaintiff Atkins also had in fact been on parole that
expired several years earlier. An honest person in his
predicament could quite reasonably volunteer that in-
formation to the hearing officer in the interest of full
disclosure.6
6
My colleagues also suggest that plaintiff Atkins was
probably the right William Atkins sought under the parole
arrest warrant. It is not clear how they reach that conclusion,
however. Perhaps the parole records had the wrong birth
date and the wrong Social Security number, making it only
appear that they described a William Atkins other than the
plaintiff. But it seems to me more likely, and at least equally
plausible, that with a name as relatively common as William
(continued...)
No. 09-2998 31
For these reasons, although the district court’s dis-
missal was correct based on qualified immunity, I would
also hold that Atkins alleged sufficiently that his right
not to be deprived of his liberty without due process of
law was violated when he was held for so long without
being brought before a judge to determine whether
there was probable cause to believe he was in fact on
parole and wanted under the parole violation warrant.
6
(...continued)
Atkins, there simply were two different people, the plaintiff
who had been on parole a few years earlier and another who
was on active parole in 2003. In light of the district court’s
dismissal, we should take that portion of the complaint at
face value and assume that the police arrested the wrong man.
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