Chortek, Steven v. City of Milwaukee

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 03-1329
STEVEN CHORTEK, GREG HEITZ,
JERRY MASON, et al.,
Plaintiffs-Appellants,
v.

CITY OF MILWAUKEE, ARTHUR L. JONES and
CITY OF MILWAUKEE POLICE DEPARTMENT,
Defendants-Appellees.

____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 323—J.P. Stadtmueller, Judge.
____________
ARGUED SEPTEMBER 9, 2003—DECIDED JANUARY 23, 2004
____________

Before CUDAHY, EASTERBROOK and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. Fifteen plaintiffs brought this action
under 42 U.S.C. § 1983 against the City of Milwaukee (“the
City”), the Milwaukee Police Department (“the MPD”), and
the police chief. The plaintiffs alleged that the defendants
had violated their constitutional rights when the plaintiffs
were arrested for selling tickets in the vicinity of the Bradley
Center, Milwaukee’s sports and entertainment arena. The
2 No. 03-1329

defendants moved for summary judgment. After a hearing,
the district court granted the motion and dismissed the
plaintiffs’ claims. The plaintiffs appeal. For the reasons set
forth in the following opinion, we affirm the judgment of
the district court.

I
BACKGROUND
A. Facts
Milwaukee city ordinances prohibit a “direct seller”
from “engag[ing] in direct sales on any public way or other
public premises,” Milw. Mun. Ord. 95-1, and prohibit any-
one from “sell[ing] or offer[ing] to sell” tickets on a public
street or sidewalk within five hundred feet of the Bradley
Center during the time between two hours before and one
hour immediately after any scheduled event, id. 105-
56(2)(b). The penalty for violation of either of these ordi-
nances is a fine plus the costs of prosecution. See id. 95-1(12),
105-56(3). The plaintiffs were arrested for allegedly violating
these ordinances.

1
1. Bradley Center Initiative
In January 2001, the Milwaukee Police Department
received complaints from the Bradley Center regarding
ticket scalpers who bothered arriving fans. Bradley Center
representatives believed that the number of regular ticket
scalpers was increasing and found that they were unable to

1
The initiative is also described in this court’s recent opinion in
Arlotta v. Bradley Center, No. 03-1584, slip op. (7th Cir. Nov. 18,
2003).
No. 03-1329 3

handle the problem on their own. In response, the MPD
launched an initiative that called for police to arrest and jail
every person observed selling tickets in violation of the
ordinances. The initiative was designed as an undercover
operation. A plainclothes officer who observed a violation
would call a uniformed officer, identify the offender and
then confirm that the uniformed officer arrested the ap-
propriate individual.
Those arrested were taken to a police vehicle behind the
Bradley Center until one-half hour after game time. During
that time, a representative from the Bradley Center read a
prepared “Notice of Violation and Prohibition from Prop-
erty” speech. The notice informed those arrested that they
were no longer welcome at the Bradley Center and that they
would be charged with trespassing if they returned. After
the Bradley Center speech, those arrested were taken to the
Prisoner Processing Section (“PPS”) at the police adminis-
tration building for booking, processing, citations and
release.
Lieutenant Gary Edman, with the approval of Deputy
Chief Leslie Barber, made the decision to arrest summarily
all offenders, regardless of whether they were “first-time”
offenders or “regular” ticket sellers. Lieutenant Edman later
testified that on-the-scene citations had been ineffective in
deterring violations of the ordinances: “[P]eople were given
tickets, released on the scene, and they continued engaging
in scalping tickets. And again, they were involved with
harassing the fans coming into the Bradley Center.” R.27,
Ex.F at 37-38. Lieutenant Edman explained: “[T]hat’s when
we decided to take a more affirmative action as it relates to
arresting and detaining people violating the scalping
ordinance.” Id. at 38. Chief Arthur Jones testified that
summary arrest procedures are appropriate under certain
circumstances, depending in part on “the number of people
4 No. 03-1329

we’re going to take into custody, the conduct that they’re
engaged in, and the potential for them to return and engage
in that same conduct—or I mean not return, never leave.”
Id., Ex.E at 20. MPD policy permitted the summary arrest of
individuals who committed ordinance violations when, in
the discretion of the officer, arrest was necessary. Addition-
ally, MPD policy permitted supervisors to implement a
summary arrest procedure for a class of ordinance viola-
tions if the supervisor deemed summary arrests to be
appropriate for that class of violations. The Bradley Center
initiative, as designed by Lieutenant Edman and approved
by Deputy Chief Barber, fell within the confines of these
MPD policies.
Because the Bradley Center fell within the jurisdiction
of Police District 1, those arrested as part of the Bradley
Center initiative were subject to the standard processing
routine at PPS. Processing at PPS involved a series of pro-
cedures related to booking, searches, paperwork and
release. After arriving at PPS, the arrestees waited fifteen
minutes to one-half hour to have their name, charges and
other information entered into the police blotter. An officer
then prepared an order for detention, and the arrestee en-
tered the booking room. In the booking room, the arrestee
removed outerwear, which was inventoried, and submitted
to a thorough search. The arrestee then completed a med-
ical-screening form. After the search, police placed the
arrestee in a gender-specific holding cell while the paper-
work was completed. Although PPS officers performed the
search and other booking procedures, the arresting officer
had to remain present.
The arresting officer also had to fill out and complete
an arrest and detention report (the “ADR”). The ADR
required the arresting officer to receive a “want” package,
which is a computer teletype processed by the Bureau of
No. 03-1329 5

Identification. The “want package” lists local, extended state
and national outstanding warrants, as well as an indi-
vidual’s criminal record. Processing time for the “want”
package typically varies and depends upon the number of
requests made to the Bureau of Identification at that time.
The ADR usually requires about one-half hour to complete,
but it can take longer when an officer arrests more than one
person at the same time.
After the shift commander approved the completed ADR,
the arrestee was issued a citation. The citations required “a
fairly lengthy supplemental narrative on the back.” Id., Ex.G
at 12. Once a PPS sergeant reviewed the paperwork, the
arrestee received his belongings and was released. Supervi-
sors at PPS monitored the progress of the booking process.
The length of the processing time was affected by the total
number of people being processed at PPS as well as by the
number of people for which the arresting officer was
responsible. Although efforts were made to expedite
processing, the paperwork was “extensive” and “easily”
required six to eight hours to complete. Id., Ex.I at 31-33.

2. Arrests and Booking of the Plaintiffs
The fifteen plaintiffs were among the individuals arrested
as part of the Bradley Center initiative for selling tickets in
violation of the Milwaukee municipal ordinances. The
plaintiffs were detained at PPS from approximately three to
fourteen and one-half hours while the administrative
processing steps were completed. They underwent the
procedures previously described. With one exception, the
plaintiffs were not allowed to make phone calls during their
6 No. 03-1329

detention. With one exception, they were released between
2
11:00 p.m. and 4:00 a.m.
The plaintiffs underwent certain treatment they found
objectionable. For example, some report that they were re-
quired to kneel in the police car, that they were humiliated
at being arrested in front of people going to the game, that
they were afraid in the holding cell because of other pris-
oners, and that they suffered anxiety knowing spouses
would be concerned about their whereabouts. One testified
that he was threatened by an officer with lengthier deten-
tion for asking what was taking so much time.

B. District Court Proceedings
The district court granted summary judgment to the de-
fendants. On its own motion, the court denied class cer-
tification to the arrestees. It also dismissed claims against
the MPD as a non-suable entity under § 1983. On the merits
of the arrestees’ claims, the district court held that the
Eighth and Fourteenth Amendments did not apply. Al-
though the Fourth Amendment applied, the district court
found as a matter of law that it was not violated because
arrests can be made for ordinance violations; police did not
conduct the arrests and detentions in an extraordinary
manner; and the lengths of the plaintiffs’ detentions were
reasonable.
The plaintiffs timely appeal the district court’s entry of
summary judgment on the Fourth Amendment claims.

2
One of the plaintiffs held an out-of-state driver’s license and
had to follow additional processing procedures. He was detained
for a total of approximately twenty-one hours but only for
fourteen and one-half hours at PPS, until 9:30 a.m.
No. 03-1329 7

II
DISCUSSION
A. Standard of Review
We review de novo a grant of summary judgment. See
Dykema v. Skoumal, 261 F.3d 701, 704 (7th Cir. 2001). We
view all facts and draw all inferences in the light most
favorable to the nonmoving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is
appropriate when there is no genuine issue of material fact
and the party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(c).

B. Reasonableness of the Initial Arrests
The plaintiffs submit that their arrests for selling tickets in
violation of the Milwaukee municipal ordinances were
unconstitutional. Under Wisconsin Statute § 968.07(1)(d), a
law enforcement officer may arrest when “there are rea-
sonable grounds to believe that the person is committing or
has committed a crime.” The plaintiffs do not dispute that
the arresting officers had probable cause to believe they
violated Milwaukee Municipal Ordinances 95-1 and 105-
56(2)(b).
Arrest for a minor, non-jailable offense does not violate
the Fourth Amendment. See Atwater v. City of Lago Vista, 532
U.S. 318, 354 (2001). When officers have probable cause to
believe that an individual has committed an offense in their
presence, they may arrest the offender. See id. In Atwater, a
mother was arrested for the misdemeanor offenses of failing
to wear and failing to have her children wear seatbelts. See
id. at 323. The Supreme Court held that the Fourth Amend-
ment did not prohibit arrest for these offenses. See id. at 354.
Atwater makes clear that even non-violent misdemeanor
8 No. 03-1329

offenses, such as unauthorized ticket sales, can support an
arrest under the Fourth Amendment, as long as the officer
had probable cause to believe the offense had been commit-
ted.
The Court in Atwater noted, however, that individualized
review may be appropriate “when a defendant makes a co-
lorable argument that an arrest, with or without a warrant,
was ‘conducted in an extraordinary manner, unusually
harmful to [his] privacy or even physical interests.’ ” Id. at
352-53 (quoting Whren v. United States, 517 U.S. 806, 818
(1996)). The Court then determined that the petitioner’s
arrest may have been “humiliating,” but it was no more
harmful to her privacy or physical interests “than the
normal custodial arrest.” Id. at 354. Similarly, in Whren, the
Court noted that the traffic stop at issue did not “remotely
qualify” as an extraordinary search or seizure. Whren, 517
U.S. at 818. When probable cause exists, only searches or
seizures conducted in an extraordinary manner require a
“balancing” analysis. Id.
The plaintiffs argue that individualized review is appro-
priate in their case given the minor nature of the offense.
Particularly, they contend that they faced “much worse”
treatment than did the plaintiff in Atwater. The differences,
they emphasize, relate primarily to the length of time spent
handcuffed in a police vehicle, the thoroughness of the body
searches, their inability to make phone calls and the fact that
they had to share a holding cell with other prisoners rather
than being placed in holding cells alone. We cannot say,
however, that this treatment is “unusually harmful” to
physical interests or privacy. Cf. Whren, 517 U.S. at 818
(listing examples of extraordinary searches and seizures as
“seizure by means of deadly force . . . unannounced entry
into a home . . . entry into a home without a warrant . . . or
physical penetration of the body” (internal citations omit-
No. 03-1329 9

ted)). Indeed, the plaintiffs’ situation was quite similar to
that of the petitioner in Atwater: The arrests may have been
“humiliating,” but they were no more harmful “than the
normal custodial arrest.” Atwater, 532 U.S. at 354.

C. Reasonableness of the Detentions
After being taken into custody, the plaintiffs waited for
some time to be transported to PPS. They were then de-
tained at PPS between three and fourteen and one-half
hours. All but one of the plaintiffs was detained over four
hours. Twelve of the fifteen were detained over six hours.
Six were detained over eight hours. The plaintiffs complain
that the length of these detentions was constitutionally
unreasonable.

1. Length of the Detentions
An excessive length of detention may be sufficient to
violate the reasonableness requirement of the Fourth
Amendment. The Supreme Court held in Gerstein v. Pugh,
420 U.S. 103 (1975), that an officer’s “on-the-scene assess-
ment of probable cause” justifies an arrest and “a brief per-
iod of detention to take the administrative steps incident to
arrest.” Id. at 113-14. The Court also held that individuals
arrested without a warrant are entitled to a timely and
judicial determination of probable cause prior to “extended
restraint of liberty following arrest.” Id. at 114; see also id.
at 126. The Court left unspecified in Gerstein just how
“promptly” a probable cause determination had to be made,
see id. at 125, but in County of Riverside v. McLaughlin, 500
U.S. 44 (1991), the Court clarified that a determination of
probable cause within forty-eight hours is presumptively
reasonable, see id. at 56. In the case of detentions over forty-
10 No. 03-1329

eight hours, the government bears the burden of proving an
emergency or other extraordinary circumstance which
justifies the delay. Id. at 57.
County of Riverside is generally invoked to evaluate cases
involving extended detention because the forty-eight hour
framework governs the length of time which may elapse
before a probable cause hearing. See, e.g., Kyle v. Patterson,
196 F.3d 695, 696 (7th Cir. 1999); United States v. Sholola, 124
F.3d 803, 819-21 (7th Cir. 1997). Here, neither extended
detention of the plaintiffs nor probable cause hearings were
contemplated. Rather, police held the plaintiffs only while
they completed their processing. County of Riverside is rel-
evant to this discussion, nonetheless, because the Court
noted in County of Riverside that unreasonable delays, even
within the forty-eight hour period, may be constitutionally
troublesome. See County of Riverside, 500 U.S. at 56. The
Court specified: “Examples of unreasonable delay are de-
lays for the purpose of gathering additional evidence to
justify the arrest, a delay motivated by ill will against the
arrested individual, or delay for delay’s sake.” Id. Thus,
under Gerstein and County of Riverside, the length of time
taken to complete administrative steps incident to arrest
must be reasonable.
This court has addressed previously the reasonableness of
the length of detention during administrative steps. In
Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336 (7th Cir.
1985), we required defendants to explain why individuals
spent more than four hours in jail after they were arrested
in the middle of the night for a minor offense. See id. at 1350-
51. Similarly, in Gramenos v. Jewel Companies, Inc., 797 F.2d
432 (7th Cir. 1986), an individual was arrested for shoplift-
ing and detained for four hours in the middle of the night.
See id. at 437. As to the length of detention, we noted:
No. 03-1329 11

It is premature to say how long is too long under the
fourth amendment. On remand the police should ex-
plain what must be done after an arrest for shoplifting
and why reasonably diligent officers need more than
four hours to do it. The court also should determine
whether four hours is an acceptable period for a non-
violent misdemeanor.
Id. We also suggested that “[i]f the police choose to perform
time-consuming tasks after an arrest, perhaps they must do
so on their own time rather than the suspect’s, issuing a
citation rather than keeping the suspect locked up in the
interim.” Id. We later stated that the reasonableness of a
length of detention typically “is a question best left open for
juries to answer based on the facts presented in each case.”
Lewis v. O’Grady, 853 F.2d 1366, 1370 (7th Cir. 1988) (holding
that an eleven-hour detention of individual waiting to be
discharged presented a jury question).
All but one of these plaintiffs was held for longer than
four hours at PPS. Many were held substantially longer than
four hours. Under Moore and Gramenos, we require an
explanation for the length of the plaintiffs’ detentions. See
also Arlotta v. Bradley Center, No. 03-1584, slip op. at 11 (7th
Cir. Nov. 18, 2003) (evaluating government’s explanation of
the length of detention of an individual arrested as part of
the Bradley Center initiative).
The defendants explain the length of the detention as
a product of backlog. They note that PPS is the processing
facility for the downtown area, that PPS is busiest in late
evening to early morning and that the arrest of large groups
can cause a backlog at PPS. The defendants also note that
supervisors monitored the progress of the booking process
and that arresting officers processed the paperwork as
quickly as they could, given the number of arrestees for
which each was responsible and the number of arrestees at
12 No. 03-1329

PPS. The plaintiffs, on the other hand, have not argued that
the detention times were the result of “delay for delay’s
sake,” County of Riverside, 500 U.S. at 56, or for any other
3
impermissible reason. They merely assert that the times
were unreasonably long.
The detention times of the plaintiffs, on average, were
significantly longer than the four-hour periods which gave
us pause in Moore and Gramenos and which another panel of
this court evaluated in Arlotta. Nonetheless, in the absence
of any evidence of improper purpose for the delay, we
believe the government has provided a sufficient explan-
ation. Cf. Gramenos, 797 F.2d at 436-37 (noting lack of
evidence of time required to complete tasks and evidence of
punitive intent); Moore, 754 F.2d at 1350-51 (noting absence
of any evidence justifying length of detention). The Supreme
Court cautioned in County of Riverside that, in evaluating the
reasonableness of delay, “courts must allow a substantial
degree of flexibility.” County of Riverside, 500 U.S. at 56. The
Court warned:
Courts cannot ignore the often unavoidable delays in
transporting arrested persons from one facility to an-

3
We have reviewed the record carefully and have discovered no
evidence that the plaintiffs were held for any improper purpose.
See Gramenos v. Jewel Cos., Inc., 797 F.2d 432, 436 (7th Cir. 1986)
(noting additional evidence that police held individual “out of
spite—or perhaps to impose the real punishment for shop-
lifting”). Although Lieutenant Edman described the initiative as
a “more affirmative action,” R.27, Ex.F at 38, that statement must
be considered in the context of the perceived ineffectiveness of
citations given on the scene. Alone, the comment does not
provide evidence of improper purpose. Furthermore, the
plaintiffs have not argued that police held them out of spite or
with intent to punish.
No. 03-1329 13

other, handling late-night bookings where no magistrate
is readily available, obtaining the presence of an arrest-
ing officer who may be busy processing other suspects
or securing the premises of an arrest, and other practical
realities.
Id. at 56-57. The Court issued this warning in reference to
determinations about the reasonableness of delay in proba-
ble cause determinations, but the circumspection the Court
advises applies to this situation as well. We must conclude,
therefore, that the length of the plaintiffs’ detentions was
not constitutionally unreasonable given the natural backlog
in processing at PPS.

2. Municipal Liability
Even had the length of the detentions warranted a jury de-
termination of reasonableness, the plaintiffs could not
4
succeed on their § 1983 claim against the City. The Supreme
Court determined in Monell v. Department of Social Services,
436 U.S. 658 (1978), that a government entity is only liable
under § 1983 when execution of a government policy or
custom “by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy” inflicts the
injury of which the plaintiff complains. Id. at 694; see Henry

4
The plaintiffs also have sued Chief Jones but have not specified
whether they are bringing their claims against him in his official
capacity or his individual capacity. There is no evidence that
Chief Jones was personally involved in the arrests of the plaintiffs
or the development of the Bradley Center initiative. We consider
the suit against him, therefore, to be in his official capacity.
Claims against Chief Jones in his official capacity suit are
effectively claims against the City. See Kentucky v. Graham, 473
U.S. 159, 166 (1985).
14 No. 03-1329

v. Farmer City State Bank, 808 F.2d 1228, 1237 (7th Cir. 1986)
(noting that plaintiffs must prove that their injury “was
caused by an official municipal policy or custom”); see also
Arlotta, slip op. at 8 (“To state a § 1983 claim against a
municipality, a complaint must allege that a constitutional
deprivation was caused by an official policy or custom.”).
We do not believe the plaintiffs can establish that the length
of their detentions was caused by an “official policy or
custom.”
Our case law establishes that unconstitutional policies or
customs take three forms: (1) an express policy that causes
a constitutional deprivation when enforced; (2) a wide-
spread practice, that, although unauthorized, is so perma-
nent and well-settled that it constitutes a “custom or usage”
with the force of law; or (3) an allegation that a person with
final policymaking authority caused the injury. See Rasche v.
Vill. of Beecher, 336 F.3d 588, 597 (7th Cir. 2003). The plain-
tiffs attempt to proceed under the first method by establish-
ing an express policy. Only those individuals with the
requisite policymaking authority are capable of establishing
“official policy” as required by Monell. See Cornfield by Lewis
v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1324-25 (7th
Cir. 1993).
The plaintiffs argue that the Bradley Center initiative
constituted a policy upon which to predicate § 1983 liability.
They contend that the decision to arrest summarily all
offenders, combined with the standard processing proce-
dures at PPS, led to constitutional injury. We cannot agree
5
with these contentions.

5
We note that, in Arlotta, another case involving claims of a
plaintiff arrested as part of the Bradley Center initiative, another
panel of this court determined that the plaintiff could not es-
(continued...)
No. 03-1329 15

The record indicates that Lieutenant Edman developed
the Bradley Center initiative with the approval of Deputy
6
Chief Barber. The discretionary decisions of an employee
without policymaking authority are insufficient to establish
§ 1983 liability. See McNabola v. Chi. Transit Auth., 10 F.3d
501, 510 (7th Cir. 1993); see also City of St. Louis v. Praprotnik,
485 U.S. 112, 127 (1988) (plurality) (discussing insufficiency
of decisions by subordinate municipal employees without

5
(...continued)
tablish a § 1983 claim under Monell because causation between
the alleged policy and the injury was lacking. Arlotta, slip op. at
10. Because our colleagues found causation to be absent, they did
not specifically address whether the Bradley Center initiative
qualified as an “official policy” under Monell. Our analysis does
not disturb the reasoning in Arlotta.
6
It is true that a departmental policy permitted the arrest and
detention of fine-only offenders, but our focus must be on the
more particularized decision to arrest ticket scalpers and subject
them to the routine at issue. That particular decision was the
alleged source of injury and provides the appropriate level of
meaningful specificity. See Oklahoma City v. Tuttle, 471 U.S. 808,
823 (1984) (plurality) (“[S]ome limitation must be placed on
establishing municipal liability through policies that are not
themselves unconstitutional, or the test set out in Monell [v.
Department of Social Services, 436 U.S. 658 (1978),] will become a
dead letter. Obviously, if one retreats far enough from a constitu-
tional violation some municipal policy can be identified behind
almost any such harm inflicted by a municipal official . . . .”); see
also Pembaur v. City of Cincinnati, 475 U.S. 469, 481-82 (1986) (“The
fact that a particular official—even a policymaking official—has
discretion in the exercise of particular functions does not, without
more, give rise to municipal liability based on an exercise of that
discretion.”).
16 No. 03-1329

final decisionmaking authority); Fiorenzo v. Nolan, 965 F.2d
348, 351 (7th Cir. 1992) (“[A] municipality is not liable
merely because the official who inflicted the alleged con-
stitutional injury had the discretion to act on its behalf;
rather, the official in question must possess final authority
to establish municipal policy with respect to the challenged
action.”). Whether the lieutenant or the deputy chief had the
authority to set official policy is a question of state law. See
Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602,
619 (7th Cir. 2001); see also Praprotnik, 485 U.S. at 124
(plurality). There is no indication that these officers had
policymaking authority; rather, the police chief is charged
with the command and rule-making responsibilities for the
police department under Wisconsin law. See Wis. Stat.
§ 62.09(7)(c) & (13)(a); see also Monfils v. Taylor, 165 F.3d 511,
517-18 (7th Cir. 1998) (refusing to find municipal liability
based on the acts of a Wisconsin deputy chief when evi-
dence did not establish ratification by the police chief).
There is no evidence that Chief Jones was involved in the
7
development of the Bradley Center initiative. Without the
involvement of a policymaker, the decisions of subordinate
employees do not suffice to establish municipal liability.
Thus, the plaintiffs cannot succeed on their § 1983 claim
against the City.

Conclusion
Because the plaintiffs’ arrests and detentions did not
violate the Fourth Amendment and because the plaintiffs
cannot establish an official policy or custom, the district
court correctly entered summary judgment in favor of the

7
As noted, any claim against Chief Jones in his individual ca-
pacity would also fail for this reason.
No. 03-1329 17

defendants on the plaintiffs’ § 1983 claims. We affirm the
decision of the district court.
AFFIRMED

CUDAHY, Circuit Judge, concurring. Although one may
doubt some of the reasons advanced by the City for the
prolonged period of detention here, there is enough evi-
dence (but barely) to support the majority’s conclusion that
the explanation of the detention’s length was reasonable. See
County of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991)
(cautioning reviewing courts to allow “a substantial degree
of flexibility” in determining reasonableness because delay
caused by administrative tasks is often unavoidable).
However, the majority touches upon a question (not raised
here by the plaintiffs) that remains something of a mystery
since Atwater v. City of Lago Vista had very little to say
explicitly about it: to what extent, if any, is the validity of an
arrest and detention for a fine-only offense affected by the
purpose or motive of the arresting officer? The Atwater court
frequently cited Whren v. United States, 517 U.S. 806 (1996),
as relevant here, and Whren, of course, established that
motive or purpose was not relevant to the validity of a
traffic stop. Perhaps, this is a signal that they are equally
irrelevant here. In addition, the Atwater court dismissed the
need for a case-specific balancing test in determining the
reasonableness of an arrest unless it is “conducted in an
extraordinary manner, unusually harmful to [his] privacy or
even physical interests.” Atwater v. City of Lago Vista, 532
U.S. 318, 353 (2001), quoting Whren, 517 U.S. at 818.
18 No. 03-1329

On the other hand, the majority opinion suggests that
“punishing” an individual by arresting and detaining him
is not a proper purpose for engaging in those procedures
(citing our pre-Atwater decision in Gramenos v. Jewel Compa-
nies, Inc., 797 F.2d 432, 436-37 (7th Cir. 1986), in which we
noted that there was “some evidence that the police held
Gramenos out of spite—or perhaps to impose the real
punishment for shoplifting”). Yet the entire sequence here
involved a scheme to deter repeat offenders for whom the
mandated punishment—a citation and a fine—was not
sufficient. This could constitute a punishment by ordinary
1
definitions of the term. See Ewing v. California, 538 U.S.
11 ___, 155 L. Ed. 2d 108, 120, 126 (2003) (noting that
purposes of criminal punishment are “deterrence, incapaci-
tation, retribution and rehabilitation”).
However, as indicated earlier, this issue has not been
raised or litigated (and perhaps, in light of Atwater, it is not
an issue), so it does not present a barrier to summary
judgment.
A true Copy:
Teste:

_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

1
See, e.g., Appellants’ Br. at 5, citing Deposition of James Klein at 45
(“Mr. Klein asked the arresting officer what was taking so much time
for his release from confinement, and he was told that if he was smart
with the officer, he would be held an additional three hours.”).

USCA-02-C-0072—1-23-04