Richard Reynolds v. Dawn Jamison and Christopher Darr

ROVNER, Circuit Judge,

concurring in part and dissenting in part.

I join my colleagues in affirming the grant of summary judgment as to the November 28, 2004 arrest, but dissent with respect to the July 12, 2004 arrest. In his complaint, Reynolds asserted what are conceded to be viable claims for wrongful arrest in violation of state and federal law. R. 1 Counts I — III. He was entitled to discovery on those claims, including in particular the right to depose the two defendants, Darr and Jamison, in order to determine what Jamison told Darr about Reynolds’ phone calls and thus to determine what Darr knew when he made the decision to arrest Reynolds for telephone harassment. But he was never given that opportunity. Instead, the district court treated as conclusive the version of events that Darr set forth in his police report concerning the arrest and the fact that Reynolds later pleaded guilty to telephone harassment. R. 40 at 4. In both respects, I believe the district court erred.

As my colleagues point out, Reynolds’ ability to recover on his claim that his July 12 arrest amounted to an unlawful seizure in violation of the Fourth Amendment depends on whether Darr had probable cause to arrest him. Ante at 764-65. The assessment of probable cause in turn focuses on the facts known to Darr at the time of the arrest. Ante at 765.

Darr’s decision to arrest Reynolds was based primarily on the information that Jamison provided to him: what she told him about Reynolds’ phone calls, what she showed him on (or printed out from) her computer, and so forth. This is clear both from the affidavit that Darr submitted in support of his motion for summary judgment, R. 18-2 ¶¶ 4-5, 7, 9-15, as well as Darr’s police report, R. 23-8 at 3-5. Only two individuals know what Jamison conveyed to Darr about her telephonic contact with Reynolds on July 12: Darr and Jami-son. Deposing those two individuals consequently was the only means Reynolds had at his disposal to develop the record as to what transpired between Jamison and Darr and what Darr knew when he decided to arrest Reynolds.1 It is certainly possible that Darr and Jamison, if and when deposed about the July 12 arrest, might testify entirely consistently with their affidavits, with Darr’s report, and with one another. But there is a reason why we allow the parties to depose one another and their witnesses during the discovery process. Affidavits, responses to interrogatories, and other written statements are typically drafted by lawyers and by their nature are self-serving. See, e.g., Payne v. Pauley, 337 F.3d 767, 772 (7th Cir.2003). Even something like a police *770report, prepared after the fact to document what the police officer observed, what he knew, and why he did what he did, is often written with a calculating eye to litigation and to the author’s potential liability. There is no reason to believe that such written statements invariably tell the complete and unvarnished truth, and that is why the parties are entitled to take depositions. Cf. Shoen v. Shoen, 5 F.3d 1289, 1297 (9th Cir.1993) (“Written interrogatories are rarely, if ever, an adequate substitute for a deposition when the goal is a witness’s recollection of conversations .... Only by examining a witness live can a lawyer use the skills of his trade to plumb the depths of a witness’ recollection. ...”).

Reynolds’ need to depose Darr and Ja-mison was something that his counsel made clear to the district court at every opportunity. The point was made repeatedly both in Reynold’s opposition to Darr’s motion to stay discovery, see R. 25 (passim), and in the memoranda he filed in response to the defendants’ motions for summary judgment, R. 22 at 3, 11-13, 17-18, 19, 24; R. 36 at 4, 11-13, 23. Reynolds also specifically sought relief pursuant to Federal Rule of Civil Procedure 56(f). R. 23-2, 23-3.2

Yet the district court came to the conclusion that discovery was unnecessary as to the events leading up to Reynolds’ arrest on July 12. One of the two bases for the court’s decision that discovery was unnecessary, and that the claims related to the July 12 arrest could be resolved by way of summary judgment, was that the relevant facts were set forth in Darr’s police report. “The police report discusses the evidence presented to Darr prior to the arrest,” the court observed. R. 40 at 4. “Jamison showed Darr a computerized phone log displaying numerous phone calls from Reynolds. She told Darr she’d received five phone calls that day, and she considered several of those to be threatening. Darr then went to Reynolds, questioned him, and arrested him for harassment by telephone.” Id. Evidently accepting the representations set forth in Darr’s report as undisputed and true, the court concluded that “[njothing in these facts suggests that discovery would lead to a triable issue.” Id.3 My colleagues acknowledge the court’s reliance on Darr’s report, noting that “the [district] court concluded that the evidence presented in the police report was sufficient to demonstrate that Darr had probable cause,” ante at 763, and that “[i]n the court’s view, these undisputed facts demonstrated that Darr had probable cause to arrest Reynolds,” ante at 761. They also endorse this treatment of Darr’s report, remarking that “[n]one of the material facts relied upon by the district court were in dispute and, thus, the court did not abuse its discretion in denying discovery as to the July 12, 2004 arrest.” Ante at 762.

*771The problem, of course, is that the representations in Darr’s report (as to what Jamison said to him, what she showed him, and what Darr otherwise knew) are not undisputed. They are untested. And they are untested because Reynolds has never been afforded the opportunity to question either Darr or Jamison about the contents of Darr’s report. See n. 1, supra. Absent the opportunity to depose the only two people with personal knowledge of what information Jamison conveyed to Darr, Reynolds could not possibly contest the veracity of Darr’s report. That is the only sense in which the substance of Darr’s report is undisputed.4

The contents of Darr’s report thus cannot be accepted as fact. Darr’s report is nothing more than his out-of-court statement as to what he was told by Jamison and what information she gave him. Certainly it is evidence of what Darr knew when he made the decision to arrest Reynolds, and in that sense it is relevant to the determination of whether he had probable cause to make the arrest. But it cannot be treated as the final word on the subject; the report is not, for example, a judicial finding that might be entitled to preclusive effect in this litigation. The defendants can no more rely on Darr’s report to preempt all inquiry into what he knew than an employer charged with discriminatory discharge can rely on the written documentation in its personnel file as conclusive proof of the reason why the plaintiff was fired. Reynolds is entitled to look behind the report and to question both its author and Jamison about the contents of that report. This is routine in false arrest cases.

My colleagues rely on Woods v. City of Chicago, 234 F.3d 979, 991 (7th Cir.2000), for the proposition that it was appropriate for the district court to deny Reynolds the opportunity to take discovery concerning Darr’s report and then to rely on that report in granting summary judgment. Ante at 762 n. 3. With respect, I submit this grants an overly broad sweep to a dictum in,Woods arising from facts that are readily distinguishable. Although the plaintiff in Woods, like Reynolds here, argued that he was never given the opportunity to depose either the police officers who had arrested him for assault or the (putative) assault victim whose complaint to the police had triggered the arrest, there were key circumstances present in Woods that are missing here. The victim in Woods had filed a verified criminal complaint with the police narrating the alleged assault, and the arresting officers’ report “essentially repeated this account of the incident[J” 234 F.3d at 983. The Woods plaintiff did not dispute that the officers made the decision to arrest him based on the victim’s complaint. See id. at 984, 990. More importantly, he did not contest the facts that were alleged in that complaint and repeated in the arrest report; on the contrary, he relied on (and therefore admitted) the accuracy of both the complaint and the report in pursuing his false arrest claim. See id. at 989, 990, 991. Against that backdrop, the Woods panel naturally concluded that there was no point in allowing the plaintiff to depose the victim and the arresting officers before resolving the validity of the arrest on summary judgment. Id. at 991. The court made that point in the course of explaining why it “would most likely affirm” the district *772court’s grant of summary judgment even if (contrary to its earlier conclusion) the lower court had not properly given the plaintiff adequate notice that it was converting the defendant’s motion to dismiss into one for summary judgment and an opportunity to respond. Id. Placed in context, Woods’ unremarkable dictum lends no support to the notion that a police officer sued for false arrest may rely on his own report to foreclose inquiry into what facts were communicated to him prior to the arrest. “What was conveyed to the officers goes to the heart of probable cause,” Washington v. Haupert, 481 F.3d 543, 549 (7th Cir.2007), and where, as here, the plaintiff lacks personal knowledge of what the putative victim told the arresting officer, he is entitled to discovery on that score before the court treats the officer’s version of events as undisputed fact.

The other basis for the district court’s conclusion that discovery was unnecessary as to the July 12 arrest was Reynolds’ subsequent plea of guilty to the charge of telephone harassment. R. 40 at 4. Although the court did not elaborate on the reasons why it thought that Reynolds’ guilty plea was relevant, the court apparently agreed with Darr that the plea foreclosed Reynolds from arguing that his arrest was wrongful in violation of either federal or state law. Darr maintained that Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), barred Reynolds’ section 1983 claim because a finding that Reynolds was arrested without probable cause would necessarily call into question the validity of his conviction, which Reynolds had not succeeded in having set aside or otherwise nullified. R. 17 at 5. Darr argued that the parallel state law claims were precluded on the basis of collateral estoppel, because Reynolds’ conviction for telephone harassment necessarily reflected an adjudication that he was properly arrested on that same charge. Id. at 5-7. Darr has repeated these same arguments on appeal in defense of the district court’s judgment. Neither argument withstands scrutiny, however.

Darr’s reliance upon the rule of Heck v. Humphrey as a bar to the section 1983 claim is mistaken for the reasons set forth in Wallace v. City of Chicago, 440 F.3d 421, 425-29 (7th Cir.2006), aff'd, — U.S. -, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Probable cause to arrest is an issue that is entirely distinct from sufficiency of evidence to convict. See, e.g., Draper v. United States, 358 U.S. 307, 311-12, 79 S.Ct. 329, 332, 3 L.Ed.2d 327 (1959) (noting “the difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search”); Simpson v. Rowan, 73 F.3d 134, 136 (7th Cir.1995) (“an illegal search or arrest may be followed by a valid conviction”). Consequently, a finding that Darr lacked probable cause to arrest Reynolds would not call into question the validity of his conviction, as my colleagues agree. Ante at 766-67.

The notion that the doctrine of collateral estoppel bars the state law claims is equally flawed. To begin with, as my colleagues point out, the district court never engaged in the case-sensitive scrutiny called for by the Illinois Supreme Court’s decision in Talarioco v. Dunlap, 177 Ill.2d 185, 226 Ill.Dec. 222, 685 N.E.2d 325, 332 (1997). Ante at 762-63. Such an examination would reveal that at least two of the criteria for the application of collateral estop-pel, see Talarico, 226 Ill.Dec. 222, 685 N.E.2d at 328, are not satisfied. First, the issue resolved by Reynolds’ guilty plea and conviction is not identical to the issue presented by the state claims he is pursuing here. Again, whether there was sufficient evidence to support the defendant’s conviction of a crime is a distinct question from whether the arresting officer had probable *773cause to believe that the defendant committed that crime. Second, the propriety of Reynolds’ arrest was never litigated in the state criminal proceeding, see ante at 766, and the finding that Reynolds was guilty of telephone harassment in no sense depended on the validity of his arrest. See Haring v. Prosise, 462 U.S. 306, 315-16, 103 S.Ct. 2368, 2374-75, 76 L.Ed.2d 595 (1983). Convictions are often if not usually founded on evidence that is broader than the evidence known to the police at the moment of arrest, and the record suggests that is true here. Darr’s own police report, for example, indicates that after Reynolds’ arrest, Jamison delivered to Darr a compact disc containing seventy-two voicemails from Reynolds. R. 23-8 at 7.

For all of these reasons, I believe that it was error for the district court to enter summary judgment against Reynolds as to the July 12, 2004 arrest without first permitting him to conduct discovery on those claims, including the depositions of Jami-son and Darr. To that extent, I respectfully dissent.

. Reynolds, of course, knows the nature of his telephonic contact with Jamison on July 12, 2004 as well as what he himself told Darr about the telephone calls. Yet, as my colleagues rightly point out, Darr was not required to believe Reynolds or to question Ja-mison’s credibility simply because Reynolds disputed Jamison's allegations. Ante at 762. This makes it all the more clear, however, why Jamison and Darr are the key witnesses vis-á-vis the July 12 false arrest claim.

. Darr contends that Reynolds never filed the requisite affidavit in support of his Rule 56(f) motion. Reynolds did support his motion with an affidavit, although it appears that the signature page was inadvertently omitted. See R. 23-5. Darr also suggests that the affidavit did not sufficiently explain why discovery was necessary in order to respond to the defendants' motions for summary judgment, but in my view the case for discovery was so straightforward (and made so repeatedly in the various documents that Reynolds filed) that little elaboration was required. In any case, the district court did not rely on any insufficiency in the affidavit in concluding that discovery was unwarranted.

. Reynolds' decision to plead guilty to telephone harassment was also among the facts that the court relied on in concluding that discovery was unnecessary. R. 40 at 4. The relevance of the guilty plea is discussed below.

. As far as I can determine, the only material fact set forth in Darr's report that Reynolds himself may have conceded is that he telephoned Jamison on July 12, 2004. See R. 23-8 at 6. Reynolds has expressly denied having called her five times. R. 36-3 at 3 ¶ 12. He has also expressly denied having threatened Jamison, her son, or her dog. R. 22-2 at 3 ¶ 12.