Plaintiff Jon M. Woods brought suit under 42 U.S.C. § 1983 against the City, the County, and various police officers claiming unlawful detention after his arrest for reckless driving. Before releasing Woods the City police required him to post bond in accordance with a bond schedule issued by a state Superior Court judge. State law, however, explicitly eliminated the requirement that bond be posted for release in reckless driving offenses, conditioning such release instead on the defendant’s signing a promise to appear in court. Woods claimed that his detention and need to post bond in violation of state law resulted in a denial of his liberty interest under the Fourteenth Amendment. The district court concluded that the state judge’s bond directive, although contrary to state law, was not a policy of the City or County. He concluded that Woods did not state a legally cognizable claim and granted summary judgment in favor of the defendants. The district court also ruled that the defendant police officers were protected by qualified immunity, and consequently dismissed Woods’ suit against them. Woods appeals, and we affirm.
I.
On May 25,1986, at or around 10:30 p.m., defendant Officer Bigda of the Michigan City police department, while on his way home noticed an automobile “squealing” its tires in traffic within the city limits of Michigan City, located within LaPorte County, Indiana. Officer Bigda observed the car travel about one block and make an abrupt lane change in front of another car, causing that car to slow down suddenly. When Officer Bigda saw the car “squeal” from another light, he called on his police radio for assistance. Shortly, Officer Hudson and four other unknown policemen pulled the offending car over.
The police officers stopped the car and learned that the driver was Jon Woods (who was seventeen at the time) and that the car was owned by Woods’ mother Connie Blakley. Bigda informed Woods that he had been following him and was arresting him for reckless driving, a misdemean- or offense. Bigda told Woods the arrest was based on the squealing tires, and for almost causing an accident with another car because of the unsafe lane change. The policemen searched Woods’ car at the scene but found no incriminating evidence. Friends accompanying Woods were permitted to drive the car back to Woods’ mother’s house. Woods was taken to the Michigan City Jail and charged with reckless driving (Ind.Code § 9-4-1-56.1). Pursuant to a bond schedule issued by LaPorte Superior Court Judge Arthur Keppen, Woods was detained in the Michigan City Jail overnight (for about eight hours) until his mother procured his release with a $250 bond.
As a result of his detention, Woods filed a lawsuit in federal court against Michigan City, LaPorte County, and several police officers alleging an unconstitutional deprivation of his liberty. Woods claims that the police wrongfully detained him pursu
The district court entered summary judgment against Woods, stating in part that Woods could not show under Indiana law that the LaPorte Superior Court judge was a “policymaker” with ultimate policymak-ing authority necessary to impose liability on the municipal defendants for activity resulting in due process violations. The district court also granted qualified immunity to the defendant police officers, holding that the police’s enforcement of the judicially pronounced bond schedule was not a violation of the “clearly established” rights of individuals within their localities.
II.
Our standard for evaluating the grant of a summary judgment motion is well established. “In examining the district court’s grant of summary judgment, our duty is to review de novo the record and the controlling law.” PPG Indus, v. Russell, 887 F.2d 820, 823 (7th Cir.1989). Typically our task is to “decide whether the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to the judgment as a matter of law.” Wolf v. Larson, 897 F.2d 1409, 1411 (7th Cir.1990). However, when the parties do not dispute the factual basis of a motion for summary judgment, as in this case, the reviewing court’s only inquiry is whether judgment should have been issued by the district court as a matter of law. Town of South Whitley v. Cincinnati Insurance, 921 F.2d 104 (7th Cir.1990).
III.
Woods argues that Michigan City and LaPorte County are liable under 42 U.S.C. § 19832 due to the directive of Judge Kep-pen making reckless driving a bondable offense. He argues that the directive contravenes Indiana law, Ind.Code § 9-4-1-131 giving Indiana residents an inviolable liberty interest protected by the U.S. Constitution. Woods further argues that Judge Keppen, as a judicial officer, is a senior policymaking official sufficient to subject the City and County to liability for constitutional deprivations suffered from the enforcement of the illegal bond schedule.
The standards establishing municipal liability under § 1983 are set out in Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), where the Supreme Court decided that a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Id. at 694-95, 98 S.Ct. at 2037-38. “It is only when the ‘execution of [the] government's policy or custom ... inflicts the injury’ that the municipality may be held liable under § 1983.” Springfield, Mass. v. Kibbe, 480 U.S. 257, 267, 107 S.Ct. 1114, 1119, 94 L.Ed.2d 293 (1987) (quoting Monell, supra, 436 U.S. at 694, 98 S.Ct. at 2037). “Congress did not intend municipalities to be held liable unless action pursuant to offi
The “official policy” requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible ... [Rjecovery from a municipality is limited to acts that are, properly speaking, acts “of the municipality”— that is, acts which the municipality has officially sanctioned or ordered.
Pembaur v. City of Cincinnati, 475 U.S. 469, 479-480, 106 S.Ct. 1292, 1298-1299, 89 L.Ed.2d 452 (1986).
Thus, the official acts of a municipality include those of governmental officials “whose acts or edicts may fairly be said to represent official policy.” Monell, supra, 436 U.S. at 694, 98 S.Ct. at 2037. When the execution of such a policy or custom results in the deprivation of citizens’ rights and privileges, the municipality may be subject to liability under § 1983. Municipal liability under § 1983 “attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.” Pembaur, supra, 475 U.S. at 481, 106 S.Ct. at 1299. Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, “and of course, whether an official had final policy-making authority is a question of state law.” Id. at 483, 106 S.Ct. at 1300. The Supreme Court in Pembaur concluded:
[w]e hold that municipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. See [Oklahoma City v.] Tuttle, [471 U.S. 808, at 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985) ] (“ ‘policy’ generally implies a course of action chosen from among various alternatives”).
Id., 475 U.S. at 483-484, 106 S.Ct. at 1300-1301. With these standards in mind we must look to the submitted facts and determine whether, as a matter of law, a La-Porte Superior Court judge is a final policy-making authority for the City of Michigan City or LaPorte County.
The parties agree that Judge Keppen, as a LaPorte Superior Court judge, issued a bond schedule to the law enforcement officers within LaPorte County requiring bond for those arrested for reckless driving.3 This requires that those arrested be held until the bond is paid. It is also undisputed that this directive conflicts with Ind.Code § 9-4-1-131 which requires a defendant’s release after signing a promise to appear in court at a future date. Thus, the parties agree that Ind.Code § 9-4-1-131 vests in certain persons, including Woods, a liberty interest entitled to protection under the due process clause. Because Woods was detained pending bond payment pursuant to Judge Keppen’s directive, he was deprived of his constitutionally protected liberty in
City and county liability to Woods under § 1983 depends upon whether Judge Keppen was a policymaker with final policymaking authority for those municipalities under state law. The identification of a policymaking official is not a question of federal law and is not a question of fact in the usual sense. “Whether an official had final policymaking authority is a question of state law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 SiCt. 915, 924, 99 L.Ed.2d 107 (1988) (citing Pembaur, 475 U.S. at 483, 106 S.Ct. at 1300). State law “will always direct a court to some official or body that has the responsibility for making law or setting policy in a given area of a local government’s business.” Praprotnik, 485 U.S. at 125, 108 S.Ct. at 924-25.
Judge Arthur Keppen, author of the offending bond directive, is a judge of the LaPorte Superior Court. Under Indiana law, a judge of a court of criminal jurisdiction is the official with final authority for fixing bail. Ind.Code 35-33-8-4(a). Indiana law reveals that judges of Indiana’s circuit, superior and county courts are judicial officers of the State judicial system: “they are not county officials.” Pruitt v. Kimbrough, 536 F.Supp. 764, 766 (N.D.Ind.), aff'd 705 F.2d 462 (7th Cir.1982). County courts in Indiana are exclusively units of the judicial branch of the state’s constitutional system. Id. Also see Parsons v. Bourff, 739 F.Supp. 1266 (S.D.Ind.1989), and State ex rel. McClure v. Marion Superior Court, 239 Ind. 472, 158 N.E.2d 264 (1959).
Reckless driving is a violation of state law. State courts, such as LaPorte Superi- or Court, have jurisdiction over such violations. Since Superior Court judges in Indiana are considered to be officials of the state, Woods’ claim that Judge Keppen is an official of the city or county, or that his bond schedule is an “act that” Michigan City or LaPorte County have “officially sanctioned or ordered” is unfounded. Pembaur, supra, 475 U.S. at 480, 106 S.Ct. at 1298. Pembaur requires that “municipal liability under § 1983 attaches where, and only where, a deliberate choice to follow a course of action is made ... by the official ... responsible for establishing final policy_” Id. at 483-484,106 S.Ct. at 1300-1301. No municipal liability attaches in this case because the judge under Indiana law is not such an official vis a vis the city and county. The city and county cannot be held liable under § 1983 unless Woods proved the existence of an unconstitutional municipal policy initiated by a final policymaker for the municipalities. Woods, by naming Judge Keppen as the source of the constitutional deprivation, detaches the local governments from the unconstitutional policy. See Praprotnik, 485 U.S. at 128, 108 S.Ct. at 926. The district court’s summary judgment decision that (a) a superior court judge is not a city or county official, and (b) his offending bond schedule was not a “policy” of those localities was proper. Therefore, the City and County are not liable under § 1983 to Woods.
After entry of summary judgment in favor of Michigan City, LaPorte County, and the other defendants, Woods filed a motion to amend or alter final judgment. In his motion, Woods tried to advance another ground for Michigan City’s § 1983 liability. Woods argued that deposition testimony and certain party admissions establish that the enforcement of the constitutionally deficient bond schedule was a “custom, practice or usage” which, under Monell, can be a basis for municipal § 1983 liability even though the “custom, practice or usage” is not formally approved or authorized by express municipal policy or policymakers. Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36.5 The district court found, in part,
In particular, the plaintiffs now argue that their theory of municipal liability did not rest on Judge Keppen’s position as a policymaker for the City of Michigan City, but rested as well upon the theory that the City had its own custom or practice concerning release on bond for persons arrested for reckless driving. The court has reviewed the references in the plaintiffs’ March 17, 1988 memorandum in opposition to summary judgment and concludes that reference to what the City does was only by way of illustration of the plaintiffs’ basic premise that Judge Keppen was a policymaker. Plaintiffs’ Memorandum in Opposition to Summary Judgment, at 15-16 (“An illustration of the fact that Judge Keppen is of a sufficiently high level to set the policy of the Michigan City Police Department ... ”). The court considered and rejected the “policymaker” argument, which was the only argument raised in opposition to the summary judgment motion.6
A motion to amend or alter a final judgment under Fed.R.Civ.P. 59(e) “cannot be used to raise arguments which could, and should have been made” before the trial court entered the final judgment. See Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990); Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986). A district court’s decision to grant or deny a Rule 59(e) motion shall not be disturbed upon appeal, unless the district court abused its discretion. Lockhart v. Sullivan, 925 F.2d 214, 219 (7th Cir.1991). The district court in this case did not abuse its discretion. In the pleadings below, plaintiffs’ sole argument was that Judge Keppen was a policymaker with final authority to establish policy for Michigan City and LaPorte County. Woods’ “custom and usage” argument was not presentable in his motion to amend and was properly rejected by the district court. Consequently, that argument cannot be considered in this appeal.
Finally, Woods argues that the defendant police officers are liable to him under § 1983 because they should have known that detaining him until bond was posted violated his clearly established statutory and constitutional rights. The district court granted qualified immunity to the police officers on the basis that Woods’ right to be free from having to post bond was not “clearly established” at the time of his arrest.
The Supreme Court stated that “whether an official may prevail in his qualified immunity defense depends upon the ‘objective reasonableness of his conduct as measured by reference to clearly established law.’ ” Davis v. Scherer, 468 U.S. 183, 191, 104 5.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). This court has stated that “qualified immunity is designed to shield from civil liability ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir.1989) (quoting from Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)).
Indeed, it is undisputed that the police officers acted pursuant to a judicially promulgated bond schedule which required a cash bond in order for Woods to gain his freedom, in violation of Indiana law. However, we agree with the district court that the officers could not have known that
IV.
In his concurring opinion, Judge Will raises a valid and interesting question: whether Ind.Code § 9-4-l-131(a) actually creates a constitutionally protected liberty interest which enables Woods to state a cause of action under 42 U.S.C. § 1983. In a prison setting the Supreme Court has held that “a state creates a liberty interest by placing substantive limitations on official discretion.” Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 1909-10, 104 L.Ed.2d 506 (1989). Most of the cases analyzing the existence of a liberty interest based on state law and determining what due process is due to protect that interest, have involved prisoners and prison regulations. The existence of a liberty interest has turned on whether the regulations at issue contain “explicitly mandatory language,” in connection with the establishment of “specific substantive predicates” to govern official decisionmak-ing. Id. In other words, a state creates a liberty interest “by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” Id.
“Arguably” the statute creates a liberty interest. See Abdul-Wadood v. Duckworth, 860 F.2d 280, 283 n. 3 (7th Cir.1989). On its face, Ind.Code § 9-4-l-131(a) seems to satisfy the Supreme Court’s announced requirements, although Ind.Code § 9-4-l-131(a) does not relate to the prison context. Under the statute, the arrestee must be released when the perceived “substantive predicates” are satisfied: that is, arrestee is charged with a misdemeanor traffic offense, and he is not taken immediately to a judge. (See fn. 1 supra.) The statutory “outcome” (release from custody) is expressed in “explicitly mandatory language.” Id. The statute’s protections were not realized where Woods was held by the police pursuant to Judge Keppen’s bond schedule when by law he should have been released. Under this analysis one could argue that Ind.Code § 9-4-l-131(a) implicates a liberty interest and that Woods pleads a prima facie case under § 1983. On the other hand, as Judge Will notes, Woods’ detention may limit him to making a claim under the Fourth Amendment where the reasonableness of his “seizure” must be examined, or a claim of cruel and unusual punishment under the Eight Amendment. Viewed from this perspective, the facts fall short of supporting a constitutional violation.
Nevertheless, both parties concede that Ind.Code § 9-4-l-131(a) implicates a liberty interest to which due process applies. (Appellees’ brief p. 6 states, “[t]he defendants do not challenge plaintiff’s assertion that Indiana Code § 9-4-l-131(a) implicates a liberty interest protected under the Due Process Clause of the Fourteenth Amendment. (See, Appellant’s brief, pp. 6-11.) Rather, the defendants disagree with plaintiff’s contention that [he was] deprived ... of his constitutional rights on procedural or substantive due process grounds.”). The district court accepted this view but was relieved from holding on the due process question since Woods sued the wrong parties. Woods v. City of Michigan City, 685 F.Supp. 1457, 1462, 1467 (N.D.Ind.1988). Since the court accepted the view of the parties in its analysis, it is not deemed a holding that a liberty interest was implicated or violated. United States v. Daniels, 902 F.2d 1238, 1241 (7th Cir.1990).
We are satisfied that Woods has pleaded a non-frivolous constitutional claim which is sufficient to invoke the district court’s federal question jurisdiction. Jackson Transit Authority v. Local Division 1285, 457 U.S. 15, 21 fn. 6, 102 S.Ct. 2202, 2206 fn. 6, 72 L.Ed.2d 639 (1982); see also Ricketts v. Midwest National Bank, 874 F.2d 1177, 1180 (7th Cir.1989). Because this
For the foregoing reasons the decision of the district court in all respects is
Affirmed.
1.
Ind.Code § 9-4-1-131 provides:
Whenever a person who is a resident of this state is arrested for any misdemeanor regulating the use and operation of motor vehicles, and the resident is not immediately taken to court as provided in section 130.1 of this chapter, the person shall be released from custody by the arresting officer upon signing a written promise to appear in the proper court at a time and date indicated on the promise. The resident shall be given a copy of the promise.
2.
Title 42 U.S.C. § 1983 provides, in relevant part, that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
3.
The bond schedule, in its official form, was not included in the record of this case. However, the parties have a common understanding of the nature and operation of Judge Keppen's bond schedule as demonstrated in the following excerpt from Michigan City Defendant’s Response To Request For Admissions:
1. When the Plaintiff, JON M. WOODS, was arrested for reckless driving on May 25, 1986, there was a bond schedule in force issued by Judge Arthur Keppen, Judge of the LaPorte County Court, sitting in Michigan City, directed to, among other persons and agencies, the MICHIGAN CITY POLICE DEPARTMENT and its police officers.
ANSWER: Defendant admits the allegations contained in paragraph 1.
2. This bond schedule provided, among other things, that persons cited for reckless driving within the jurisdiction of the said court, were required to post a bail bond of TWO HUNDRED FIFTY DOLLARS ($250.00) cash ... and if they did not do so, they were to be held in custody pending the posting of a proper bond or release on such other terms as the court might impose.
ANSWER: Defendant admits the allegations contained in paragraph 2....
4.
Although it is questionable whether Woods has a valid liberty interest (see Part IV and concurrence, infra), since we resolve this case on other grounds we need not reach that constitutional question.
5.
Relevant language in Monell reads as follows:
... Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 “person,” by the very terms of the statute, may be sued for constitutionalPage 280deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 [90 S.Ct. 1598, 1613-1614, 26 L.Ed.2d 142] [citations omitted] (1970): "Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials.... Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage’ with the force of law."
Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36.
6.
Judge Robert Miller's unpublished memorandum and order of February 18, 1990, at p. 2.