In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2045

CARL WAGNER,

Plaintiff-Appellant,

v.

WASHINGTON COUNTY, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 04 C 1034—Rudolph T. Randa, Chief Judge.

____________

ARGUED JANUARY 24, 2007—DECIDED JULY 12, 2007

____________

Before RIPPLE, ROVNER, and WILIAMS, Circuit Judges.

PER CURIAM. Carl Wagner filed suit under 42 U.S.C.

§ 1983 claiming, as significant here, that his Fourth

Amendment rights were violated when sheriff’s deputies

in Washington County, Wisconsin, arrested him during

a town-hall meeting on the belief that his presence violated a protective order awarded to a husband and wife

who were also in attendance. The district court granted

summary judgment for the deputies after concluding

that they had probable cause to arrest Wagner. Although

we disagree with the court’s legal determination, we affirm

the judgment on the alternative ground that the deputies

are immune from suit under the doctrine of qualified

immunity.
2 No. 06-2045

I. BACKGROUND

In October 2003 husband and wife Jeffrey and Patti

Metzger obtained from the Washington County Circuit

Court identical “harassment injunctions,” see WIS. STAT.

§ 813.125(4), commanding Wagner to “avoid the residence

and any premises temporarily occupied” by the Metzgers.

One month later the Metzgers planned to attend a Plan

Commission meeting in West Bend, Wisconsin, to oppose

a “reserved road right of way” on their street. When the

Metzgers pulled into the parking lot at West Bend’s town

hall, where the meeting was to be held, they observed

Wagner entering the building. Unsure how to proceed, the

Metzgers contacted the Washington County Sheriff’s

Department, which sent Deputies Christopher Killey and

Brian Herbst to the scene.

According to an affidavit submitted by Deputy Killey

at summary judgment, Patti Metzger showed Killey a copy

of her harassment injunction and informed him that

she wished him to enforce it so that she might enter

the town hall. Killey thus escorted the Metzgers into the

Plan Commission meeting where Wagner already was

seated in the front row. After the Metzgers were seated,

Deputy Killey approached Wagner and asked him to step

into the hallway. Once in the hallway, Wagner confirmed

that he was the subject of the harassment injunctions

obtained by the Metzgers. Killey told Wagner he was

violating those injunctions and must leave the premises,

but Wagner, who had a personal interest in one item on

the agenda, refused and returned to his seat inside the

meeting room.

Still convinced that Wagner was violating the injunctions, Deputy Killey called his commanding officer, who

agreed with Killey’s assessment. Killey thus approached

Wagner inside the meeting room again and asked him to

step into the hallway for a second time. After Wagner
No. 06-2045 3

complied, Deputy Killey told him he was violating the

injunctions and could be arrested if he did not leave the

area immediately. Wagner did not leave and instead

returned to his seat inside the meeting room. Deputy

Killey followed him and told him to leave, but Wagner

refused. Thus, Killey and Deputy Herbst arrested Wagner

and took him to the county jail where he was charged

under WIS. STAT. § 813.125(7) with violating a harassment injunction. He was released two hours later after

posting bail.

On October 21, 2004, Wagner filed suit against Washington County, the county’s insurance company, Deputy

Killey, Deputy Herbst, and the Metzgers. (Wagner actually named the sheriff’s department instead of the county,

but the department is a division of the county and not

a justiciable entity. See Whiting v. Marathon County

Sheriff’s Dept., 382 F.3d 700, 704 (7th Cir. 2004)). Wagner

claimed that the Metzgers conspired with Deputies Killey

and Herbst to arrest him without probable cause in

violation of the Fourth Amendment. In addition, Wagner

asserted state-law claims for false arrest, defamation,

abuse of process, intentional and negligent infliction of

emotional distress, and false imprisonment. All of the

defendants moved for summary judgment.

The district court granted the defendants’ motions for

summary judgment, holding that the deputies had probable cause to arrest Wagner and were therefore required to

arrest him under WIS. STAT. § 813.125(6). The court thus

dismissed the Fourth Amendment claim against the

county, the county’s insurer, and the deputies. The court

also dismissed Wagner’s federal claim against the

Metzgers, reasoning that the absence of a Fourth Amendment violation precluded him from establishing an essential element of his conspiracy theory. The court then

declined to exercise supplemental jurisdiction over Wagner’s state-law claims.
4 No. 06-2045

II. ANALYSIS

We review the district court’s grant of summary judgment de novo. Tibbs v. City of Chicago, 469 F.3d 661, 663

(7th Cir. 2006). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment

as a matter of law.” FED. R. CIV. P. 56; see Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). On review we must

construe the evidence in the light most favorable to

Wagner, the non-moving party, and draw all reasonable

inferences in his favor. See Tibbs, 469 F.3d at 664.

To begin, neither the county or its insurance company

were viable parties to Wagner’s claim under § 1983. In

order to prevail against the county, Wagner would have to

demonstrate that he suffered a deprivation of his constitutional rights based on some official policy, widespread

custom, or deliberate act of a county decision-maker of the

municipality or department, see Monell v. Department of

Soc. Servs., 436 U.S. 658, 694 (1978); Davis v. Carter, 452

F.3d 686, 691 (7th Cir. 2006), which Wagner failed to do.

Furthermore, although the county’s insurance company

may be obliged to indemnify county officials found liable

in a suit under § 1983, the insurer is not an appropriate

party to the suit because it is not a state actor, nor did

it deprive Wagner of any constitutional rights while acting under the color of a state statute. See Flagg Bros., Inc.

v. Brooks, 436 U.S. 149, 155-56 (1978); Thurman v. Vill. of

Homewood, 446 F.3d 682, 687 (7th Cir. 2006).

Similarly, the federal claim against the Metzers was

properly dismissed at summary judgment. Although

Wagner argues that the Metzgers acted under color of

state law by conspiring with Deputies Killey and Herbst

to violate his rights under the Fourth Amendment, there
No. 06-2045 5

is no evidence in the record to support this contention. The

Metzgers simply called the sheriff’s department after

seeing Wagner at the town-hall meeting and showed Mrs.

Metzger’s injunction to Deputy Killey. This interaction

is not evidence of a conspiracy.

Thus, the only question left is whether the district court

appropriately concluded that Deputies Killey and Herbst

had probable cause to arrest Wagner. Probable cause to

arrest is an absolute defense to any claim against police

officers under § 1983 for wrongful arrest, even where

the defendant officers allegedly acted upon a malicious

motive. Mustafa v. City of Chi., 442 F.3d 544, 547 (7th Cir.

2006). Police ordinarily have probable cause if, at the time

of the arrest, the “facts and circumstances within the

officer’s knowledge . . . are sufficient to warrant a prudent

person, or one of reasonable caution, in believing, in the

circumstances shown, that the suspect has committed, is

committing, or is about to commit an offense.” Michigan v.

DeFillippo, 443 U.S. 31, 37 (1979); see Sornberger v. City

of Knoxville, Ill., 434 F.3d 1006, 1013 (7th Cir. 2006);

Anderer v. Jones, 385 F.3d 1043, 1049 (7th Cir. 2004). In

evaluating whether an officer had probable cause, we

“must consider the facts as they would have reasonably

appeared to the arresting officer ‘seeing what he saw,

hearing what he heard’ at the time of the incident.” Driebel

v. City of Milwaukee, 298 F.3d 622, 643 (7th Cir. 2002)

(quoting Richardson v. Bonds, 860 F.2d 1427, 1431 (7th

Cir. 1988)); accord United States v. Parra, 402 F.3d 752,

764 (7th Cir. 2005).

Here, Deputies Killey and Herbst knew that Wagner had

entered the town hall prior to the Metzgers to attend a

meeting of the Plan Commission, that the Metzgers wished

to attend the meeting, and that they possessed harassment

injunctions commanding Wagner to “avoid . . . any premises temporarily occupied by [the Metzgers].” The intent
6 No. 06-2045

of the issuing court, as is evident from the language of the

harassment injunctions, was to stop Wagner from

actively harassing the Metzgers. Thus, if Wagner had

followed the Metzgers to the public meeting and entered

after them, there might be more support for an arrest

(assuming one ignores any First Amendment implications)

than in this situation where Wagner arrived at a meeting

prior to the Metzgers and was there because an item on

the agenda related directly to him and his family. See

Bachowski v. Salamone, 407 N.W.2d 533, 538-39 (Wis.

1987) (explaining that for conduct to violate Wisconsin’s

harassment injunction statute, Wis. Stat. § 813.125, it

must be intentional and devoid of “any legitimate purpose”).

We cannot agree with the district court that the deputies

had probable cause to arrest Wagner in this situation. If

we were to do so, the possibilities for the Metzgers to use

the injunction to harass Wagner would be limitless; the

Metzgers could follow Wagner around town and force him

to leave stores, restaurants, movie theaters, hospitals,

et cetera. The district court, by selectively quoting the

language of the harassment injunctions, overstated the

command of those court orders. The orders do not prohibit

Wagner from “being on” any premises occupied by the

Metzgers; rather, the orders command that he avoid

such premises. Thus, we conclude that upholding the

district court’s assessment of probable cause would

undermine, not promote, the state legislature’s goal in

enacting the harassment statute of preventing “repeated

assaults on the privacy interests of individuals without

unnecessarily infringing on their freedom to express

themselves through speech and conduct.” Bachowski, 407

N.W.2d at 538.

That said, we nonetheless uphold the judgment in favor

of the deputies because we conclude that they are immune

from suit under the doctrine of qualified immunity. As

the Supreme Court has explained, “the qualified im-
No. 06-2045 7

munity defense . . . provides ample protection to all but the

plainly incompetent or those who knowingly violate the

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986); accord

Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 761 (7th Cir.

2006) (reiterating that “the doctrine of qualified immunity leaves ample room for mistaken judgments by

police officers” (citations and quotation marks omitted)).

Thus, so long as “officers of reasonable competence could

disagree on this issue, immunity should be recognized.”

Malley, 475 U.S. at 341; accord Wollin v. Gondert, 192 F.3d

616, 625-26 (7th Cir. 1999).

Examining the facts, not as an omniscient observer

would perceive them but as they would have appeared to

a reasonable person in the position of the arresting

officers, see Mustafa, 442 F.3d at 547, we can understand

how the deputies could believe that Wagner was violating a harassment injunction that required him to

“avoid . . . any premises temporarily occupied” by the

Metzgers when he remained in the town hall after the

Metzgers arrived. That the deputies’ supervisor—and

even the district court—agreed with their assessment

only strengthens the argument that the deputies should

be protected from civil liability by qualified immunity.

III. CONCLUSION

Accordingly, we AFFIRM the decision of the district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-12-07