In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-1918

BEVERLY THOMPSON,

Plaintiff-Appellant,

v.

DAVID E. WAGNER and KEITH GARDNER,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 4266—John W. Darrah, Judge.

____________

ARGUED SEPTEMBER 17, 2002—DECIDED FEBRUARY 13, 2003

____________

Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.

EVANS, Circuit Judge. Several things don’t quite add

up in this bizarre little case, which started at a flea market and ended with the brief arrest of a 50-year-old cake

decorator at a Kroger’s grocery store some 5 months later.

The case is here for our review of a district court’s grant

of summary judgment on qualified immunity grounds to

the defendants, two members of the Kane County (Illinois) sheriff’s department.

We know little about the Kane County flea market

where this saga started, but we do know that a “flea market” conjures up images of booths where sellers display

items—used household goods, antiques, pieces of bric-a-
2 No. 02-1918

brac, for example—on card tables, hoping to entice wandering buyers to part with their money. We can assume,

for our purposes, such a scene in early December of 2000

when a seller, Diane Richardson, sold items to a purchaser

named Chuck Berry. We won’t assume, however, that

“Chuck Berry” was The legendary “Chuck Berry” who rode

classics like “Maybellene,” “Sweet Little Sixteen,” and

“Johnny B. Goode” into the Rock ‘n Roll Hall of Fame.

The items Richardson sold to Berry—two diamond

rings—strike us as odd for a flea market. The price

paid—over ten thousand dollars—seems even odder. And

the method of payment—two separate personal checks

from Berry, a stranger to Richardson, seems odder still. Yet,

that is what everyone seems to agree happened.

Soon after the checks—surprise, surprise—bounced,

Richardson complained to the Kane County sheriff’s department, and two deputies, our defendants David Wagner and Keith Gardner, were put on the case. They interviewed Berry 2 weeks after the sale at a correctional facility

where he was in custody on an unrelated matter. Berry

admitted writing two bad checks totaling $10,475 for the

rings, each a tad over a carat. Berry said two gentlemen,

Myers and Risch, who were with him when he purchased

the rings, had them. Myers and Risch were, like Berry,

local felons. The deputies interviewed Myers and Risch and

both admitted being present at the sale, but each denied

ever possessing the rings. Each said the other had the

rings and may have given them to a girlfriend. Later, 5

months removed from the flea market sale, Myers changed

his tune. He said he did, in fact, possess one of the rings

at one time (the man’s ring; the other was a woman’s),

and his new story went like this:

• Risch gave Myers a men’s 2 carat diamond ring

(never mind that the two flea market rings were

a carat each!);
No. 02-1918 3

• Myers gave the 2 carat diamond ring to his girlfriend, Delores Henry;

• Henry removed the diamond from the ring and

placed the stolen diamond into one of her own rings;

• Henry gave her ring with the stolen 2 carat diamond

to her brother, Robert Thompson, in exchange for

a car;

• Robert Thompson removed the diamond from the

ring and placed it into the wedding ring of his

wife, Beverly;

• Beverly Thompson wears her wedding set, with the

2 carat diamond, on her left hand;

• Myers took back the men’s ring (minus the 2 carat

diamond) from Henry;

• Myers placed a cubic zirconia stone into the men’s

ring and was going to return it to Risch. The ring,

with the cubic zirconia stone, was given to the deputies.

After speaking with Myers, and now 166 days after the

flea market sale, our two deputies decided to go to the

Kroger store in Ottawa, Illinois, where 50-year-old Beverly Thompson had worked for more than 20 years in its

bakery department. Mrs. Thompson, by the way, had no

criminal record, and the officers’ visit was made without

any additional investigation on their part. For instance, no

one looked to see if Delores Henry had in fact recently

received a car from Robert Thompson, her brother. They

didn’t know if the ring (minus the diamond) received

from Myers matched one of the two sold by Mrs. Richardson at the flea market. Also, our deputies were not gemologists. They had no training whatsoever in identifying

diamonds as to cut, clarity, carat weight, or value. For

all they knew, the “diamond” on anyone’s finger could

have come from “Imposters.”
4 No. 02-1918

Undaunted by their lack of knowledge about gems, and

without any further investigations, the officers went to the

Kroger store and introduced themselves to Mrs. Thompson.

They then went with her to the customer waiting area

of the store’s pharmacy. Thompson, the officers observed,

was wearing a diamond ring on each hand. She was told

she was not under arrest but that the officers believed

that she was in possession of a “stolen” diamond. If she

admitted “guilt,” she was told she would not be arrested

that day. The officers asked to take her rings which, they

said, would be returned to her if they turned out not to

be “stolen.” Thompson then told the officers she wanted

to call her husband. She rose from her chair and began

to walk away when Wagner blocked her way. He and

Gardner then secured her in handcuffs.

Gardner later testified that he believed Thompson

was committing, or was about to commit, the crime of

obstruction when she would not permit them to take the

rings, said she was going to call her husband, and began

to walk away. Wagner testified that he cuffed her because he suspected the diamond on her left hand was

stolen and that she was going to conceal or destroy it if

she left.

Thompson was upset, and she remained cuffed for about

5 to 10 minutes. When she calmed down, the cuffs were

removed and she gave up the rings. But she remained

in the officers’ custody, again asking to call her husband.

Wagner and Gardner then walked Thompson out of the

store and placed her in their squad car. Thompson was

in the squad car for about 10 minutes when her husband

arrived. He signed a property receipt for the rings and

Mrs. Thompson was released from custody. Although subsequent matters are not important on the issue before

us, neither of the seized rings turned out to be the ones

sold at the flea market.
No. 02-1918 5

This police encounter at her place of employment must

have been embarrassing, for it prompted Mrs. Thompson

to sue under 42 U.S.C. § 1983 alleging that her constitutional rights were violated. After some discovery, the

district court granted summary judgment to the officers

on qualified immunity grounds, a decision we review de

novo. White v. City of Markham, 310 F.3d 989 (7th Cir.

2002).

We start with a few basics. The Fourth Amendment

prohibits unreasonable searches and seizures. But a

warrantless arrest is permitted under the Fourth Amendment if the arresting officer has probable cause. Sparing

v. Village of Olympia Fields, 266 F.3d 684, 688 (7th Cir.

2001) (citing United States v. Watson, 423 U.S. 411, 417-24

(1976)). Probable cause for an arrest exists if an officer

reasonably believes, in light of the facts and circumstances within his knowledge at the time of the arrest,

that the suspect has committed, or is committing, an offense. See United States v. Carrillo, 269 F.3d 761, 766 (7th

Cir. 2001). Arresting officers may draw reasonable inferences based on their training and experiences in determining whether suspicious circumstances rise to the

level of probable cause. Whether probable cause exists

“turns on the information known to the officers at the

moment the arrest [was] made, not on subsequently received information.” Id. (citing Spiegel v. Cortese, 196 F.3d

717, 723 (7th Cir. 2000)). Because the issue of whether

probable cause for an arrest existed is linked to the determination of whether the arresting officers are shielded

from liability by qualified immunity in a § 1983 action,

the two issues are often analyzed together, and it makes

good sense to do so in our case.

Qualified immunity shields police officers from liability

for civil damages insofar as their conduct does not violate “clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow
6 No. 02-1918

v. Fitzgerald, 457 U.S. 800, 818 (1982). The defense of

qualified immunity, however, is not available to “the plainly

incompetent or those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341 (1986).

So, what this all boils down to is that the officers here

are entitled to qualified immunity, and Thompson’s

§ 1983 action against them must be dismissed without

a trial if a reasonable officer could have believed that, in

light of the facts and circumstances within the officers’

knowledge and clearly established law, Mrs. Thompson

had committed or was committing an offense. See Hunter

v. Bryant, 502 U.S. 224, 227 (1991). A reasonable but

mistaken belief that probable cause exists is sufficient

for entitlement to qualified immunity. Id. at 227. In cases

involving the issue of whether probable cause existed to

support an arrest, “the case should not be permitted to

go to trial if there is any reasonable basis to conclude

that probable cause existed.” McDonnell v. Cournia, 990

F.2d 963, 968 (7th Cir. 1993) (quoting Cross v. City of

Des Moines, 965 F.2d 629, 632 (8th Cir. 1992)). So we see

that in getting around the defense of qualified immunity

in a probable cause to arrest situation, plaintiffs have

a very difficult hurdle to pass. Difficult, but not impossible. We now get to the point.

Although Mrs. Thompson was told she was not under

arrest when she went with the officers to the waiting

area in the store’s pharmacy, she was clearly arrested

when the officers blocked her from leaving, cuffed her,

and questioned her. She remained under arrest until

she was released from the squad car. The whole episode,

from what we can gather, appears to have taken about

a half hour.

The officers are a bit inconsistent on just what they

contend formed the basis for their arrest. Several possibilities are suggested. At one point they say they “mis-
No. 02-1918 7

takenly believed that one of the diamond rings which

plaintiff was wearing was the diamond ring which had

been sold at the flea market.” So the basis for the arrest,

this statement implies, was possession of stolen property

or, more accurately, property acquired by fraud or deception, for Mr. Berry didn’t sneak off with the rings; he

took them after leaving bad checks as the consideration for the sale. But in the district court, the defendants

emphasized another theory—the officers arrested Thompson for “obstruction” when she got up to leave, saying

she was going to call her husband.

On the facts of this case, neither theory holds up. The

“probable cause” theory has to fail because it was unreasonable to assume that probable cause existed. What the

officers had was simply this: the statement, 5 months

after the “crime,” by a convicted felon who admittedly

lied to them earlier in their investigation. Without even

a modicum of additional investigation, we think a reasonable officer would not have believed he had probable

cause to place Mrs. Thompson under arrest based on

what Myers said in his second statement. Add to this

what the officers didn’t have—knowledge about diamonds—and we have more fuel to add to the fire of unreasonableness.

The “obstruction” theory also fails. Mrs. Thompson

voluntarily went with the officers to the waiting area. She

was told she was not under arrest. When she wanted to

get up and go to call her husband, she had a right to do

so. To hold otherwise would be to say that anyone who

decides to terminate a voluntary conversation with a police officer commits a crime. It would not be reasonable—or consistent with the Fourth Amendment—for a

police officer to hold this view.

Finally, Mrs. Thompson’s cuffing and detention cannot

be justified under Terry v. Ohio, 392 U.S. 1 (1968), as
8 No. 02-1918

the officers have made no attempt to say their actions

were necessary for their own protection.

So, what we have here is a situation where the officers seem to have decided on their course of action before they even entered the Kroger store. If Mrs. Thompson had a diamond, and refused to give it up, she would

be arrested. Without probable cause or a valid charge of

obstruction, their actions cannot be protected by qualified immunity. It may well be that Mrs. Thompson is

entitled to win on the liability issue, but the district

court didn’t rule on her motion for summary judgment.

And we will not do so here. All we are saying at this time

is that qualified immunity is not a valid defense in

this case. The judgment of the district court is REVERSED

and the case REMANDED for further proceedings consistent with this opinion.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-13-03