### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

- 1568

R ASHAD B. S WANIGAN

, Plaintiff

- Appellant

.

v.

C ITY OF C HICAGO

, Defendant

- Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

.

No. 08 C 4780

— Virginia M. Kendall

, Judge

.

____________________

A RGUED M AY 31, 2017

— D ECIDED F EBRUARY 2, 2018

____________________

Before K ANNE

, S YKES

, and H AMILTON

, Circuit Judges

.

S YKES

, Circuit Judge

. While on the lookout for a s erial

bank robber

, Chicago police officers misidentified Rashad

Swanigan as the perpetrator

, arrested him, and detained him

for approximately 51 hours without a probable

- cause hearing

. He was released when the state prosecutor decided not

to press charges , and police later found the true culprit

.2 No. 16

- 1568

Swanigan sued the officers involved in his arrest and detention under 42 U.S.C. § 1983 alleging various cons titutional

violations . He later filed a related suit against the City

raising Monell claims. The suits were consolidated but

maintained separate case numbers and dockets, and the

district judge stayed the Monell suit to allow the suit against

the officers to proceed on its own. A jury found for Swanigan

on a single claim

— for unconstitutionally prolong ing his

detention

— and awarded $60,000 in damages

. Swanigan then

moved to lift the stay on his suit against the City. The judge

denied the motion a nd dismissed the suit entirely, ruling

that Swanigan waived most of his claims and that t he others

were not justiciable. W e vacated the dismissal order as

premature and remanded with instructions to all ow

Swanigan to amend his complaint

. Swanigan v. City of

Chicago

, 7 75 F.3d 953 (7th Cir. 2015)

.

With the stay lifted

, Swanigan filed an amended complaint alleging constitutional injuries stemming from three

police

- department policies : (1) a “ hold ” policy by which t he

officers kept him in custody; (2) a policy of requiring detainees to participate in police lineups ; and (3) a policy regarding the contents of the closed case file that continued to label

him as the bank robber. T he judge dismissed the Monell suit

in its entirety

.

We affirm. Swanigan cannot recove r twice for the prolonged detention, and his other claims have no basis in

federal law. The Constitution has nothing to say about

unreliable police lineups that don ’ t taint a trial. Neither does

the Constitution address reputational harm from false or

misl eading police reports. And Swanigan lacks standing toNo. 16

- 1 5 68 3

pursue injunctive or declaratory relief because the challenged policies are unlikely to harm him in the future.

I. Background

Our earlier opinion contains a more complete description

of the facts and procedural history of the case ; the following

is a condensed version

. A fter cashing checks at a Chicago

bank in August 2006

, Swanigan was stopped by two Ch icago

police officers looking for the “ Hard Hat Bandit, ” who was

known to rob banks while wearing a y ellow hard hat. After

learning that Swanigan ’ s automobile registration was suspended, t he officers searched the car and found a knife

— and

a yellow hard hat. (Swanigan kept the knife in his car to peel

produce

, and the hard hat was required for his job as a

construction worker.) Thinking Swanigan was the Hard Hat

Bandit, the officers arrested him for traffic violations an d

unlawful use of a weapon and took him to the police station

.

Three hours into the detention, officers placed a “ hold ”

on Swanigan in order to keep him at the station while detectives investigate d him for a robbery linked to the Hard Hat

Bandit

. While in custody the police used Swanigan as a filler

in lineups for other investigations and as the target in

lineups investigating the Hard Hat Bandit robbery . Several

witnesses identified Swanigan as the robber

.

On the second full day after Swanigan ’ s arrest, a state

prosecutor assessed the case. She decided not to charge

Swanigan for the robbery after concluding that the identifications wer e suspect. After 51 hours of detention without a

probable

- cause hearing , Swanigan was released

.

A month later police entered a final notation into

Swanigan ’ s case file : “ Cle ared

— closed other exceptional. ”4 No. 16

- 1568

Swanigan contends that because the police department

assigns the clear ed

- closed notation to the offender ’ s file after

solving a crime, the designation labels him as the Hard Hat

Bandit. A lthough “ other exceptional ” conveys that he wasn ’ t

prosecuted

, the file ’ s narrative account lists the reasons t hat

the police initially thought he was the perpetrator. A nd no

change was made to Swanigan ’ s file after the police arrested

the real Hard Hat Bandit. Swanigan contends that the case

file continues to cast suspicion on him as the Hard Hat

Bandit , giving ri se to possible reputational harm and police

bias against him.

Swanigan ’ s first lawsuit named 20 officers and the City as

defendants and alleged nine separate constitutional and

state

- law claims. Late in the litigation Swanigan tried to add

a Monell claim against the City, but the judge wouldn ’ t allow

the amendment. So he filed a new freestanding Monell action

against the City, which was promptly consolidated with the

first suit and stayed pending the disposition of the claims

against the officers. Partial summary judgment narrowed the

scope of the litigation, and a jury eventually found that the

officers had probable cause to arrest Swanigan at the bank

but that they unconstitutionally prolonged his detention. See

County of Riverside v. McLaughlin , 500 U.S. 44 (1991) (holding

that a detention lasting longer than 48 hours without a

judicial determination of probable cause is presumptively

unreasonable under the Fourth Amendment). In the end,

se ven officer s were held liable for the unduly long detention

. The j ury awarded $60,000 in c ompensatory damages

.

In the related Monell suit against the City, Swanigan alleged constitutional injuries arising from nine separate

policies. After our remand, Swanigan trimmed his complaintNo. 16

- 1 5 68 5

in light of the jury ’ s verdict. The amended version centered

on the police department ’ s hold policy, its lineup policy, and

its policy regarding clear ed

- closed case report s

. T he City

moved to dismiss under Rule s 12 (b)(1) and 12(b)(6) of the

F ederal Rules o f Civil Procedure. The judge granted the

motion, and the case now returns to us for further review.

II. Discussion

We review the judge’s dismiss al order de novo. 1 Roake v.

Forest Pres. Dist. of Cook Cty. , 849 F.3d 342, 345 (7th Cir. 2017).

Questions of s tanding are appropriately addressed via a

motion to dismiss under Rule 12(b)(1) for lack of subject

matter jurisdiction

. Berger v. NCAA , 843 F.3d 285, 289 (7th

Cir. 2016). A case is properly dismissed under Rule 12(b)(6)

if the complaint does not “ state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544,

570 (2007).

Section 1983 provides a claim a gainst a person acting under color of law who deprives another of a federal right.

42 U.S.C. § 1983. A municipality is sub ject to § 1983 liability

if one of its policies caused the plaintiff’s harm. Monell v.

Dep’t of Soc. Servs. of New York , 436 U.S. 658 (1978)

.

1 We reject Swanigan ’ s contention that the judge abused her discretion by

taking judicial notice of the facts recited in our first Swanigan opinion.

Our factual narrative rested on the trial record, and Swanigan doesn ’ t

dispute any part of it. I f “ the findin g taken from the prior proceeding is

not subject to reasonable dispute, then the court has satisfied the evidentiary criteri [on] for judicial notice. ” Gen. Elec . Capital Corp. v. Lease

Resolution Corp. , 128 F.3d 1074, 1082 (7th Cir. 1997) (quotation marks

omitted).6 No. 16

- 1568

A. Hold Policy

F ederal common law prevents § 1983 plaintiffs from recovering twice for the same injury. Janusz v. City of Chicago

, 832 F.3d 770, 774 & n.1 (7th Cir. 2016)

. That means Swanigan

can not reco ver from the City for the prolonged detention

because he was compensat ed for that constitutional violation

in his suit against the officers.

Attempting to evade the double

- recovery rule

, Swanigan

contends that his detention occurred in three di stinct stages:

(1) the arrest; (2) the three hour s at the police station before

the hold was issued; and (3) the two days at the station after

the hold was placed

. Because the seven officers found liable

for the detention each arrived during the third stage

, Swanigan argues that he hasn’t been compensated for the

arrest and first three hours.

Th at argument falls flat. First, a jury found that the officers lawfully arrested Swanigan, and t he City can’t be liable

“ based on the actions of one of its officers when in fact the

jury has concluded that the officer inflicted no constitutional

harm.” City of Los Angeles v. Heller , 475 U.S. 796 , 799 (1986) ;

see also Thomas v. Cook C ty

. Sheriff’s Dep ’ t , 604 F.3d 293, 305

(7th Cir. 2010) ( observing that a municipality cannot be

found liable under Monell when “ such a finding would

cr eate an inconsistent verdict”) (emphasis omitted )

.

The City isn’t liable for the first three hours at the station

either

. Swanigan cannot carve out particular hours from his

detention as separately compensable. He faced a single

det ention, not multiple detentions, and h e’s entitled to only

one recovery though different constitutional theories support liability and different officers were involved

. See BoscoNo. 16

- 1 5 68 7

v. Serhant , 836 F.2d 271, 281 (7th Cir. 1987) (“[O]nce the

plaintiff has been fully compensated for his injuries by one

or more of the tortfeasors, he may not thereafter recover any

additional compensation f rom any of the remaining tortfeasors.”) (quotation marks omitted)

.

Moreover, even if Swanigan could split the detention into

separate segments , he’d still encounter two problems

. First,

n othing suggests that the City’s hold policy caused the

prehold detention. That’s fatal: In a Monell case, “[t]he central

question is always whether an official policy ... caused th e

constitutional deprivation.” Glisson v. Ind. Dep’t of Corr

. ,

849 F.3d 372, 379 (7th Cir. 2017)

. Second, McLaughlin establishes that detenti ons lasting less than 48 hours are presumptively lawful and cannot be challenged on the basis of the

timespan alone. 500 U.S. at 56. S ome additional factor, like

animus toward the detainee, must be present to rebut the

presumption. Id. No a dditional factor is present here, so

even if we consider ed the first three hours in isolation , the

claim is doom ed

.

That rules out monetary relief , but Swanigan also seeks

an injunction against the hold policy . That request additional ly fails for lack of standing, which is “an essential and

unchanging part of the case

- or

- controversy requirement of

Article III.” Lujan v. Defenders of Wildlife , 504 U.S. 555, 560

(1992); see U.S. C ONST

. art. III, § 2 , cl. 1

. Because an injunction

is a forwar d

- looking remedy, a plaintiff seeking this form of

relief has standing to sue for an alleged future injury only if

“the threatened injury is ‘ certainly impending ,’ or there is a

‘substantial risk ’ that the harm will occur.” Susan B. Anthony

List v. Driehau s , 134 S. Ct. 2334, 2341 (2014) (quoting Clapper

v. Amnesty Int'l USA , 568 U.S. 398, 4 14 n.5 (2013) ) (internal8 No. 16

- 1568

quotation marks omitted )

. “[P] ast injury alone is insufficient ,” as is a threat of injury that is “merely conjectural or

hypothetical.” Simic v. City of Chicago , 851 F.3d 734, 738 (7th

Cir. 2017) (quotation marks omitted).

The injury Swanigan forecasts

— he says he might be

pulled over, arrested, and again subjected to an unconsti tutionally long detention

— is layered with hypothetical and

nowhere near certain . That’s particularly true because we

assume that Swanigan will con form his conduct to the

requirements of the law and avoid arrest altogether. See

O’Shea v. Littleton , 414 U.S. 488, 497 (1974)

. Without a showing of “a sufficient likelihood tha t he will again be wronged

in a similar way, [Swanigan] is no more entitled to an injunction tha n any other citizen .” City of Los Angeles v. Lyons

,

461 U.S. 95, 111 (1983)

. 2

B. Lineup Policy

During his detention, Swanigan was placed in several

lineups

, and four eyewitnesses misidentified him as the

Hard Hat Bandit. His claim for damages against the City

rests on the Due Process Clause of the Fourteenth Amendment . He alleges that the lineups were conducted improperly and led to unreliable identifications

.

This argument goes nowhere because the mistaken identifications were never admitted in a trial. “[T] he constitutional interest implicated in challenges to police

identification procedures is evidentiary in nature.” Alexander

2 Swanigan ’ s claim for declaratory relief fails for the same reason. See

Feit v. Ward , 886 F.2d 848, 857 & n.11 (7th Cir. 1989) ( holding that claims

for declaratory relief

, like claims for injunctive relief, require ongoing or

impending harm)

.No. 16

- 1 5 68 9

v. City of South Bend , 433 F .3d 550 , 555 (7th Cir. 2006). Specifically, t he due

- process right to a fair trial requires exclusion

of unreliable eyewitness identifications procured through

police misconduct

. Perry v. New Hampshire

, 565 U.S. 228, 238

–

40 (2012 ) (synthesizing cases)

. But a mis identification “does

not in itself intrude upon a constitutionally protected interest.” Manson v. Brathwaite , 432 U.S. 98, 113 n.13 (1977). In this

case Swanigan “could not possibly have been deprived of

his right to a fair trial since he was never tried.” Hensley v.

Carey

, 818 F.2d 646, 649 (7th Cir. 1987).

Trying a different route, Swanigan inventively describes

his coerced participation in lineups as an unconstitutional

“seizure within a seizure

. ” T here’s no such thing

. A Fourth

Amendment seizure occurs “ when there is a governmental

termination of freedom of movement through means intentionally applied.” Scott v. Harris , 550 U.S. 372, 381 (2007)

(quotation marks omitted). Being placed in a lineup while in

custody “does not curtail a person’s freedom of action”

because he has “already lost that freedom.” Wilkins v. May

, 872 F.2d 190, 194 (7th Cir. 1989). Suspects are given any

number of compulsory instructions while seized, and

Swanigan’s logic would turn each command into a new

seizure. That’s plainly wrong

. A person can’t be seized while

seized any more than he can jump while jumping. He’s

either seized or not ; he isn’ t extra seized when forced t o sit

in a p olice car or stand in a lineup.

C. Clear ed

- Closed Case Policy

Finally

, Swanigan claims that the police department’s

policy regarding clear ed

- closed case files violates his constitutional rights by continuing to label him as the Hard Hat

Bandit. He alleges that the policy harms him in two ways.10 No. 16

- 1568

First, because the public can access the record with a Freedom of Information Act request, he might su ffer reputational harm. Second, if he is stopped by police, even for a rout ine

traffic matter, the officer might use the misleading case

report against him. Swanigan grounds this claim in the D ue

P rocess Clause and seeks damages and an injunction expunging the record.

The City responds that the case file doesn’t actually label

S wanigan as the Hard Hat Bandit because it accurately

repo rts that the prosecutor declined to p u r sue charges based

on the u nreliab le identifications

. This argument overlooks

the difference between “not guilty” and “innocent.” If

Swanigan is correct that the record could be read as continuing to link him to the Hard Hat Bandit robbery

, a reader

could reasonably surmise that he committed the crime but

the prosecutor simply couldn’t prove it beyond a reasonable

doubt. That, of cou rse, isn’t the truth.

Swanigan ’s real problem is that the claim has no legal

anchor. The potential for public stigma isn’t cognizable as a

due

- process violation because reputational harm doesn’t

deprive a person of life, liberty, or property. See Paul v.

Davis , 424 U.S. 693, 712 (1976)

. And it’s entirely speculative

to suggest that a police officer might use the cleared

- closed

file to violate Swanigan’s rights in some unknown way in

some hypothetical future traffic stop

. For th e se reasons,

Swanigan has n either a legal hook for this claim nor standing to seek an injunction.

A FFIRMED

.No. 16

‐ 1568 11

H AMILTON

, Circuit Judge

, concurring in part and dissenting

in part. The good news for plaintiff Swanigan came several

years ago, when a jury awarded him $60,000 for the violation

of his constitutional rights by his prolonged detention after

his arrest, which had been lawful but mistaken. The issue in

this separate Monell suit is whether Swanigan should be al

‐

lowed to seek further relief in the form of additional damages

or an injunction. I agree with my colleagues that Swanigan is

not entitled to additional damages based on what has been

called the “hold past court call” policy or on his having been

included in line

‐ ups while he was in custody.

I also agree that Swanigan does not have standing to seek

an injunction against the “hold past court call” policy. Ver

‐

sions of this policy have been under constitutional attack for

a generation. After a district judge declared the policy uncon

‐

stitutional in 1986, the city immediately rescinded the policy,

at least formally. Robinson v. City of Chicago

, 868 F.2d 959, 962

(7th Cir. 1989). Yet cases involving the same practice continue,

as in Swanigan’s case. See, e.g., Lopez v. City of Chicago

, 464 F.3d

711, 721–22 (7th Cir. 2006) (reversing dismissal of claim for

prolonged post

‐ arrest detention for investigation); Willis v.

City of Chicago

, 999 F.2d 284, 288–89 (7th Cir. 1993) (affirming

finding that prolonged post

‐ arrest detention for investigation,

before Robinson was decided, violated Fourth Amendment),

citing County of Riverside v. McLaughlin

, 500 U.S. 44, 56 (1991).

Swanigan cannot obtain an injunction against future ap

‐ plication of the “hold past court call” policy or practice to him.

He has not shown a substantial risk that the city will apply

this policy or practice to him in the future, at least not without

relying on an “attenuated chain of inferences” that impermis

‐ sibly assumes future illegal state action. See Clapper v. Amnesty12 No. 16

‐ 1568

Int’l USA

, 568 U.S. 398, 414 n.5 (2013); City of Los Angeles v.

Lyons

, 461 U.S. 95, 105 (1983).

I respectfully dissent, however, from the decision to affirm

dismissal of Swanigan’s challenge to the “cleared

‐ closed case”

policy. He alleges that the Chicago Police Department main

‐

tains a file on him that effectively—but falsely—identifies him

as the “Hard Hat Bandit.” This is not a case where the police

suspected him of those crimes but were unable to prove guilt

beyond a reasonable doubt. There is no doubt here, as my col

‐ leagues acknowledge. Swanigan was not the Hard Hat Ban

‐

dit. In my view, he has standing to raise this claim, and on the

merits he should be allowed to proceed past the pleadings.

On this issue of standing, Swanigan can show that he is at

“substantial risk” of being harmed by the “cleared

‐ closed”

policy. “Substantial risk” is the correct standard. See Susan B.

Anthony List v. Driehaus

, 134 S. Ct. 2334, 2341 (2014) (“allega

‐

tion of future injury may suffice if the threatened injury is

‘certainly impending,’ or there is a ‘“substantial risk” the

harm will occur.’”), quoting Clapper v. Amnesty Int’l USA

, 568

U.S. 398, 414 n.5 (2013). On standing, the majority asserts that

“it’s entirely speculative to suggest that a police officer might

use the cleared

‐ closed file to violate Swanigan’s rights in some

unknown way in some hypothetical future traffic stop.” Ante

at 10. I respectfully disagree. There remains a substantial risk

that harm will befall Swanigan, and, unlike with his challenge

to the “hold past court call” practice, without having to as

‐

sume intentional wrongdoing by either Swanigan or police

officers.

To begin with, the chances that Swanigan will be subjected

to just a routine traffic stop are actually quite high. Over a pe

‐

riod of several years, the same is true for any random civilianNo. 16

‐ 1568 13

driver. In just one year, police stopped more than ten percent

of all drivers nationwide. U.S. Dep’t of Justice, Bureau of Jus

‐

tice Statistics, Police Behavior During Traffic and Street Stops,

2011

, at 3, tbl. 1, https://www.bjs.gov/con

‐ tent/pub/pdf/pbtss11.pdf. For all black drivers, that percent

‐

age was higher, at 12.8 percent. Id. Over a five

‐ year period, the

chance that a given black driver will be pulled over is approx

‐ imately 50 percent. (0.872 5

= .504). 1 Over ten years, the chance

increases to about 75 percent. (0.872 10

= 0.254). 2 Cf. I.N.S. v.

Cardoza

‐ Fonseca

, 480 U.S. 421, 431 (1987) (applicant for asylum

facing ten percent chance of persecution in country of origin

would have “well

‐ founded fear of being persecuted” for pur

‐

poses of immigration law).

Next, consider how any traffic stop of Swanigan in Chi

‐

cago is likely to unfold as long as the false information is in

his police file. When the police carry out a traffic stop, they

are entitled to demand the driver’s identification, of course,

1 These rough calculations assume that no variable would cause certain

drivers to be pulled over more than others. I am under no illusions that

these “ideal” conditions prevail in the real world, but I doubt that any

such variables would alter these estimates so dramatically as to make

Swanigan’s risks insubstantial.

2 In Chicago, the racial disparity may be higher. According to a State of

Illinois study of traffic stop data, more than 76 percent of all traffic stops

conducted by Chicago police involve minority drivers. Illinois Dep’t of

Transp., Illinois Traffic Stop Study Statewide & Agency Reports 2015, at

146, https://idot.illinois.gov/transportation

‐ system/local

‐ transportation

‐ partners/law

‐ enforcement/illinois

‐ traffic

‐ stop

‐ study. Nearly half of all

traffic stops in the city involve black drivers. Id

.14 No. 16

‐ 1568

and it is routine to check the driver’s record for active war

‐

rants, driving history, and criminal history. Those checks are

done for important reasons, including officer safety.

If the files are checked, the officer checking Swanigan may

well be told that the police department believes he committed

a series of armed robberies. At that point, an officer’s normal

caution will give way immediately to extreme caution, put

‐ ting Swanigan at a much higher risk that any movement

might be misinterpreted as dangerous. And note that this sce

‐

nario assumes lawful and reasonable actions by both Swani

‐

gan and a police officer. How many cases have we seen in this

country of unarmed subjects, especially men of color, being

shot and even killed by police based on hair

‐ trigger responses

to innocent actions? In my view, these risks for Swanigan—

today—are not speculative but substantial. He has alleged,

and should be allowed to prove, that he has standing to chal

‐ lenge the “cleared

‐ closed case” policy as applied to him.

On the merits of this claim, Swanigan would face a chal

‐ lenge. Ordinarily a civilian has no cognizable legal interest in

what police investigative files say about him. Paul v. Davis

, 424

U.S. 693, 697 (1976), held that even a public accusation by the

police that a civilian was an “active shoplifter” did not violate

the due process clause of the Fourteenth Amendment. But

what Swanigan alleges here is an extreme case with substan

‐

tial risk of tangible harm not present in that case. And there is

virtually nothing to be said here for the integrity of the police

files. At this point, after the conviction of the real Hard Hat

Bandit, the police refusal to correct the files falsely labelling

Swanigan the Hard Hat Bandit is arbitrary and capricious—

and dangerous.No. 16

‐ 1568 15

Constitutional law (not to mention common sense) estab

‐

lishes that the police are entitled to rely on such information in

their files, e.g., DeLuna v. City of Rockford

, 447 F.3d 1008, 1011–

12 (7th Cir. 2006) (use of deadly force was reasonable based in

part on officer’s knowledge of suspect’s history of violence

and weapons), even if it turns out to be mistaken. See, e.g.,

Herring v. United States

, 555 U.S. 135, 146 (2009) (exclusionary

rule not applicable to arrest based on mistaken information

about active warrant); Catlin v. City of Wheaton

, 574 F.3d 361,

365–66 (7th Cir. 2009) (police acted reasonably in tackling man

they mistakenly believed was armed and dangerous felon

who had announced his intention to flee or fight rather than

be arrested). Note, however, that in Herring the Supreme

Court assumed that police reliance on knowingly false, or

even recklessly or systematically mistaken, information

would not be reasonable. 555 U.S. at 146.

Based on Swanigan’s allegations, it is hard to understand

how the false information that is still in his police file is the

product of anything other than knowing falsity or deliberate

indifference to the truth. Why not allow a civilian who faces

substantial risk of harm due to false police information an op

‐ portunity to have that information corrected?

And on the other side of the scales, what harm would the

Chicago police or public suffer if the plainly false information

were corrected? Again, that information is not just unproven

or contestable—it is false. I cannot think of any harm such a

correction would cause the police, and it might well help

avoid a tragedy. I would allow Swanigan to pursue this claim

on the merits beyond the pleadings so that the courts could

address it and its potential ramifications based on real evi

‐

dence rather than allegations and theoretical arguments.