Jermaine Jackson v. City of Peoria, Illinois

In the

United States Court of Appeals
For the Seventh Circuit
____________________

No. 14-‐‑3701
JERMAINE JACKSON,
Plaintiff-‐‑Appellant,
v.

CITY OF PEORIA, ILLINOIS, et al.,
Defendants-‐‑Appellees.
____________________

Appeal from the United States District Court
for the Central District of Illinois.
No. 13-‐‑1130 — James E. Shadid, Chief Judge.
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ARGUED SEPTEMBER 25, 2015 — DECIDED JUNE 3, 2016
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Before WOOD, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
EASTERBROOK, Circuit Judge. Clarence Heinz was the vic-‐‑
tim of a home invasion in October 2011. One burglar en-‐‑
tered, punched Heinz and locked him in a closet, then was
joined by a second burglar. They stole some of Heinz’s pos-‐‑
sessions, including his car (they got the keys from his home).
Police arrested Jermaine Jackson for this crime. After he was
acquitted at trial, he turned the tables and sued the police
2 No. 14-‐‑3701

under 42 U.S.C. §1983. The district court granted summary
judgment for the defendants.
One of Jackson’s theories is that the police arrested him
without probable cause. Yet Heinz identified Jackson’s pic-‐‑
ture in a photo spread, and one of Heinz’s neighbors identi-‐‑
fied Jackson as one of two people he had seen loitering out-‐‑
side Heinz’s house near the time of the burglary. Jackson’s
own son told the police that his father had committed some
burglaries recently. Eyewitness identifications supply prob-‐‑
able cause for an arrest. See, e.g., Gramenos v. Jewel Cos., 797
F.2d 432, 437–41 (7th Cir. 1986); Smith v. Chicago, 913 F.2d 469
(7th Cir. 1990).
Jackson contends that the police are culpable for failing
to investigate his alibi before arresting him. But police may
arrest and leave to the judicial process the question whether
a defense applies. See, e.g., Baker v. McCollan, 443 U.S. 137,
145–46 (1979); Hurem v. Tavares, 793 F.3d 742 (7th Cir. 2015);
Askew v. Chicago, 440 F.3d 894 (7th Cir. 2006). Jackson also
maintains that the photo spreads were conducted improper-‐‑
ly, with the officers suggesting to the witnesses that they
choose his picture. For this claim of serious official miscon-‐‑
duct he offers … nothing. The witnesses testified by deposi-‐‑
tion that no such thing occurred. So did the officers. It takes
a dispute of material fact to move a case past summary
judgment to trial. Because Jackson has no evidence for his
contention, the police were entitled to summary judgment.
(The existence of probable cause also knocks out Jackson’s
state-‐‑law theory that he is a victim of malicious prosecution.
See, e.g., Swick v. Liautaud, 169 Ill. 2d 504, 512 (1996).)
Jackson also accuses the police of searching his home
without a warrant. Once again he offers no evidence. The
No. 14-‐‑3701 3

police indeed searched his home to see whether it contained
evidence tying him to the burglary (it didn’t), but the search
was authorized by a warrant. According to Jackson, one of-‐‑
ficer entered his home, searched, and came back later with
the warrant and a second officer. Jackson produced an affi-‐‑
davit stating that one of his neighbors told a member of
Jackson’s family that an officer had done this, and that the
family member had relayed the information. But affidavits
must be based on personal knowledge, and this was double
hearsay. In discovery, the neighbor denied telling anyone
that a police officer had entered Jackson’s home before the
warrant issued. That left Jackson bereft of evidence.
Jackson’s next theory of liability is that the police denied
him a fair trial by not investigating his alibi adequately and
withholding exculpatory evidence. The problem with this
theory is that he had a trial and was acquitted. A “fairer” tri-‐‑
al could not have ended more favorably to him. We held in
Saunders-‐‑El v. Rohde, 778 F.3d 556 (7th Cir. 2015), that a per-‐‑
son acquitted at trial cannot recover on a theory that the trial
was unfair. The acquittal itself is the relief to which the per-‐‑
son is entitled. An acquitted person walks free, so the con-‐‑
duct of the trial cannot have led to unwarranted custody. At-‐‑
torney Scott T. Kamin, who represents Jackson, also repre-‐‑
sented Saunders-‐‑El and is therefore well aware of that deci-‐‑
sion. Yet his brief on appeal in this case does not mention
our decision in Saunders-‐‑El. After the appellees’ brief relied
heavily on Saunders-‐‑El, Kamin did not file a reply brief.
Lawyers are not entitled to ignore controlling, adverse prec-‐‑
edent. We expect (and are entitled to) better performance by
members of the bar.
4 No. 14-‐‑3701

The arrest (as opposed to the trial) did subject Jackson to
a period of custody, but it was justified by the probable
cause to arrest and later by an indictment. Jackson maintains
that he was mistreated during this custody by being held in-‐‑
communicado and without food for several days. That
would be a good ground for recovery against the jailers (if it
happened), but Jackson did not sue any of the guards. He
sued only the arresting officers. His theory is that the officers
instructed the guards to mistreat him. For this assertion he
has—once again—not a smidgen of evidence. He does not
say that he heard any police officer issue such instructions.
He does not explain how he learned about these supposed
instructions. Discovery did not turn up instructions to mis-‐‑
treat him. The police and the jailers said in discovery that no
such instructions had been issued or received. An argument
of this kind, resting on nothing at all, is irresponsible. Attor-‐‑
ney Kamin should count himself lucky that the appellees
have not requested sanctions under Fed. R. App. P. 38.
AFFIRMED