In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1877

JOSEPH LOPEZ,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, JENNIFER DELUCIA,

JAMES DELAFONT, DANIEL JACOBS,

and HECTOR VERGARA,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 1823—Samuel Der-Yeghiayan, Judge.

____________

ARGUED FEBRUARY 22, 2006—DECIDED SEPTEMBER 22, 2006

____________

Before FLAUM, Chief Judge, and WILLIAMS and SYKES,

Circuit Judges.

SYKES, Circuit Judge. Joseph Lopez was arrested by

Chicago police for a murder he did not commit. The murder

victim was a twelve-year-old boy, an innocent bystander hit

by gunfire in a drive-by shooting. Lopez was arrested

without a warrant, although with probable cause—an

eyewitness identified him as the shooter.

Following his arrest, the individual defendants—all

detectives with the Chicago Police Department—kept Lopez

shackled to the wall of a windowless, nine-by-seven-foot
2 No. 05-1877

interrogation room for four days and nights while they

investigated the case. Lopez had nowhere to sleep but a

four-foot-by-ten-inch metal bench or the dirty brick floor.

The interrogation room had no toilet or sink; he had to

“scream” for the detectives to let him out to use a bathroom.

He was given only one bologna sandwich and one serving of

juice as food and drink during the entire four days and

nights he was kept in the interrogation room. The detectives questioned him from time to time and made him stand

in two lineups.

After two-and-a-half days in these conditions, Lopez

started to become disoriented and began hearing voices

telling him to confess. He ultimately gave a statement

containing a false confession that did not match the details

of the crime. On the fifth day of his detention, Lopez was

moved to the city lockup, charged, and finally taken to

court. The following day, the police investigation led

detectives to another individual who confessed to the

murder. Lopez was released the next day.

Those were the facts the jury was entitled to believe

based on evidence Lopez presented during a seven-day trial

on his claim under 42 U.S.C. § 1983 for violation of his

constitutional rights and his supplemental state law claim

for intentional infliction of emotional distress. The detectives testified differently about their treatment of Lopez

while he was in their custody, but there was no dispute that

they detained him for five days after his warrantless arrest

without taking him before a judge for a probable cause

hearing. Remarkably, after hearing this evidence, the

district court refused to submit the claims to the jury and

instead granted the defendants’ motion for judgment as a

matter of law.

We reverse. Lopez was entitled to judgment as a matter of

law on his claim that the detectives violated his Fourth

Amendment right to a prompt judicial determination of
No. 05-1877 3

probable cause. See Gerstein v. Pugh, 420 U.S. 103, 125

(1975). County of Riverside v. McLaughlin, 500 U.S. 44, 56-

57 (1991), holds that if a Gerstein probable cause hearing is

not held within 48 hours of a warrantless arrest, the

government must demonstrate the existence of an emergency or other extraordinary circumstance to justify its

failure to promptly present the person arrested to a judicial

officer for a probable cause determination. Here, the

defendants offered no reason for the five-day delay other

than the continuation of their investigation, but delays for

the purpose of gathering additional evidence are per se

unreasonable under McLaughlin. Id.; see also Willis v. City

of Chi., 999 F.2d 284, 288-89 (7th Cir. 1993).

There was conflicting evidence at trial on Lopez’s treatment while in the detectives’ custody, raising a jury issue

on his constitutional claim relating to the conditions of his

warrantless detention and his state law claim for intentional infliction of emotional distress. The district judge

should not have taken these claims from the jury and

resolved the factual conflict himself; they are remanded for

retrial.

I. Background

Given the procedural posture of this case, we recount

the facts based on the evidence presented at trial in the

light most favorable to Lopez, the party against whom the

district court entered judgment as a matter of law. See

Zimmerman v. Chi. Bd. of Trade, 360 F.3d 612, 623 (7th

Cir. 2004) (when considering a motion for judgment as a

matter of law, a court must view the evidence in the

light most favorable to the nonmoving party and must draw

all reasonable inferences in that party’s favor). The facts

pertinent to Lopez’s duration-of-confinement claim under

Gerstein and McLaughlin are undisputed.

On July 19, 2000, a twelve-year-old boy was shot and

killed in a drive-by shooting in Lopez’s Chicago neighbor-
4 No. 05-1877

hood. Based on one eyewitness’s identification, Chicago

police officers arrested Lopez without a warrant at approximately 2 p.m. on July 20. Lopez stipulated at trial that the

officers had probable cause to arrest him. The arresting

officers took him to the Chicago Police Department’s Area

5 detective headquarters where they left him in the custody

of the defendant detectives: Jennifer Delucia, James

Delafont, Daniel Jacobs, and Hector Vergara.

Lopez was placed in a nine-by-seven-foot interrogation

room, and one of his arms was handcuffed to a metal ring

fastened to the wall about three feet off the floor. When he

asked if he could be unshackled from the wall, one of the

detectives—Lopez does not remember who—told him “no”

because he “was a murderer.” The room’s brick floor was

dirtied with gum, cigarette butts, used matches, wrappers,

and dust. Next to the wall and below the ring to which

Lopez was shackled was a metal bench that was four feet

long and ten inches wide. There was no sink, toilet, or

running water in the room. There was a small window in

the door, but it was covered over with paper so it was

impossible to see through it. The room had no clock and

Lopez did not have a watch or other timekeeping device

with him, so he could not tell how long he was in the

room or whether it was night or day. The detectives kept

Lopez shackled to the wall of this room for four days and

four nights.

Lopez’s expert on police practices testified that a suspect should be held in such an interrogation room only

for “short durations” not to exceed “eight hours.” He testified that “generally you want to—you don’t want to do it

longer than what would normally be a business day or

would normally be something somebody could tolerate for

a period of time.” He also said it would “[a]bsolutely not” be

appropriate to hold a suspect in an interrogation room for

even twenty-four hours, let alone the four days and nights

Lopez endured.
No. 05-1877 5

The detectives let Lopez out of the interrogation room

for only a few brief moments. They removed him twice to

appear in police lineups, first on the evening of July 20 and

then on the evening of July 21. At some point during his

detention, the detectives transferred Lopez to a second interrogation room that was essentially the same as the

first. To leave the interrogation room to use the bathroom,

Lopez said he had to “scream[ ] from the top of [his] lungs”

to get the detectives’ attention in order to be let out. It is

not clear how many times Lopez asked to use the bathroom.

He implied on direct examination that it was multiple

times: “Sometimes I’d be yelling for a while. I don’t know

how long. I couldn’t time myself.” But on cross-examination

he said he thought he only asked once to use the bathroom.

At any rate, because the interrogation room lacked a sink

or running water, Lopez was unable to attend to his

personal hygiene in any way for the four days. He realized

he began to smell badly and Detective Jacobs told him he

stunk.

Lopez had great difficulty sleeping during the four days

and nights he was shackled to the wall of the interrogation room. He tried once to lie down on the brick floor to

get some sleep, but he woke up with shooting pains down

his shackled arm, which had begun to turn purplish blue,

and pain in his shoulder, hip, and knees. Lopez then sat up

on the bench and kept his shackled arm level with the

ring on the wall in order to restore proper circulation. He

gave up trying to sleep lying down and just sat on the bench

and leaned back against the wall. It seemed to Lopez that

whenever he fell asleep in that seated position, he would

bump his head on the wall and wake up. The little sleep he

got was not restful.

For his first two-and-a-half days in the interrogation

room, no one brought Lopez anything to eat or drink. He

testified that he was able to grab a drink of water during

his trips to the bathroom. He said, “[T]he only way I could

use the bathroom or drink some water [was] if the detec-
6 No. 05-1877

tives that were working on my case were there. If not, I had

to wait.” Lopez testified that he became disoriented and

began to hear voices in his head at some point after he was

brought back from the second police lineup, about a day and

a half into his detention. He told the jury:

I couldn’t even put my ideas in place. I couldn’t even

think straight. And every time I would, like, say something, I would tell myself man, you know, I didn’t shoot

that little boy and then a voice will click in and say

yeah, you did shoot him. . . . It was just some voice that

was coming from the back of my head just kept telling

me yeah, you did shoot him. So after awhile me fighting

against that voice, it just came true. I was like you

know what, I started to believe that I did shoot [him].

. . . I was sitting there for a while and after me crying

so much and trying to put thoughts all together, which

wasn’t even going together, I was sitting looking at the

wall and I would feel like the wall was like coming in

closer. And as I would feel it, it looked like it was

coming in closer to me.

Lopez told the jury that by this point in his detention he

could no longer think rationally and that “[his] mind was

nowhere near [his] head.” About 60 hours into his detention, Lopez gave a statement to Detectives Jacobs and

Delafont in which he falsely confessed to having shot the

twelve-year-old boy.

The details of Lopez’s confession did not match the

forensic evidence from the crime scene, and shortly thereafter Detective Jacobs returned to the interrogation room and

angrily called Lopez a liar. The detective told Lopez he did

not deserve to be a father—Lopez’s girlfriend was pregnant—and suggested that his girlfriend should get an

abortion. Lopez retracted his confession and told Jacobs

that he had not shot anyone. One of the detectives then

brought Lopez a bologna sandwich and some juice; accord-
No. 05-1877 7

1 Lopez sued the City of Chicago under Monell v. Department of

Social Services, 436 U.S. 658 (1978), alleging the City had a policy

or practice of detaining persons arrested without a warrant

beyond McLaughlin’s 48-hour time period for a probable cause

hearing. Lopez obtained affidavits from fourteen warrantless

detainees who were held in interrogation rooms by Chicago police

for multiple days, in violation of McLaughlin, shackled, deprived

(continued...)

ing to Lopez, it was the only food he received during his

four-day stay. The detectives testified that they fed Lopez

regularly by purchasing fast food with their own money, but

they produced no receipts or other record of these purchases

and there are no police documents indicating Lopez was fed

in this manner.

On July 24, four days into Lopez’s detention, an assistant

state’s attorney approved murder charges against him and

he was transferred to the city lockup. There, Lopez was

placed in a cell with a padded bunk for sleeping, a toilet,

and a sink. He also received a meal that he recalls as a hot

bologna sandwich, french fries, and a soda. All indications

are that Lopez was fed regularly once he moved to the

lockup.

Lopez appeared before a judge for arraignment and a

probable cause hearing on July 25, five days after his

warrantless arrest. The police continued to investigate the

killing, and leads pointed to another individual, Miguel

Figueroa, as the shooter. On July 26 Figueroa confessed to

the murder. The state’s attorney’s office dropped the

charges against Lopez and he was released on July 27.

Lopez sued the City of Chicago and the four detectives

pursuant to 42 U.S.C. § 1983 alleging they had subjected

him to an unconstitutional detention—because of the

conditions he was subjected to and the extended duration of

the detention in light of the warrantless arrest—in violation

of the Fourth and Fourteenth Amendments.1

 He also
8 No. 05-1877

1 (...continued)

of food and sleep, and otherwise treated in the same manner as

Lopez. The City then entered a Monell waiver consenting to entry

of judgment against it in the event “the finder of fact in this case

finds that any City of Chicago employee violated Plaintiff’s rights

under the Constitution.” On the basis of this waiver, the City

moved to bar evidence of the other detainees’ treatment, and the

district court granted the motion.

asserted a state law claim for intentional infliction of

emotional distress. The case was tried to a jury, which

heard seven days of evidence. At the close of the evidence, both sides moved for judgment as a matter of law

pursuant to FED. R. CIV. P. 50. The defendants moved for

judgment as a matter of law on all claims, and Lopez moved

for judgment on his constitutional claim relating to the

duration of his detention.

The district court denied Lopez’s motion and granted

judgment for the defendants on the duration-of-detention

claim, concluding that extraordinary circumstances justified

the five-day delay in presenting Lopez to a judicial officer

for a probable cause hearing. The judge held that because

the police were “actively attempting to solve a crime”

involving the “heinous” shooting of “an innocent twelve-year

old boy,” and because Lopez had lied to police about his

identity when he was arrested and gave “false alibis” and a

false confession during detention, the detectives were

justified in delaying his presentment for a probable cause

hearing so they could continue their investigation.

Regarding Lopez’s claim relating to the conditions of his

detention, the parties had agreed during trial that the

Fourth Amendment’s “objectively unreasonable” standard

applied to the detectives’ conduct and submitted jury

instructions reflecting that standard. The district judge

disagreed. He concluded that the evidence would have to
No. 05-1877 9

establish the detectives acted with deliberate indifference—a standard from the Eighth Amendment and due

process contexts—not merely that they acted in an objectively unreasonable manner. The judge concluded that

“none of the evidence introduced at trial indicates that

Defendant officers” were deliberately indifferent; “at best,”

the judge held, “the Defendant officers were negligent.” On

this basis the court entered judgment for the defendants on

this claim.

Similarly, the district judge thought the evidence was

insufficient to support Lopez’s intentional infliction of

emotional distress claim because the detectives’ conduct

“was at best negligent conduct.” The court entered judgment as a matter of law for the defendants on this claim

as well. Lopez appealed.

II. Discussion

We review de novo the district court’s decision to grant

judgment as a matter of law. Mendenhall v. Mueller

Streamline Co., 419 F.3d 686, 692 (7th Cir. 2005). A court

may enter judgment as a matter of law only if “a party has

been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that

party on that issue.” FED. R. CIV. P. 50(a)(1). When ruling

on a Rule 50 motion, a court must view the evidence presented at trial in the light most favorable to the

nonmoving party and draw all reasonable inferences in that

party’s favor. See Davis v. Wis. Dep’t of Corr., 445 F.3d 971,

975 (7th Cir. 2006).

A. Unconstitutional Conditions of Confinement

As we have noted, during trial the parties agreed that the

Fourth Amendment governed Lopez’s claim that the

detectives subjected him to unconstitutional conditions
10 No. 05-1877

and treatment during his warrantless detention. The

district judge thought otherwise and evaluated Lopez’s

unconstitutional conditions claim using the more demanding “deliberate indifference” standard applicable to convicted prisoners’ claims of cruel and unusual punishment

under the Eighth Amendment and similar claims of pretrial

detainees under the Fourteenth Amendment. See, e.g.,

Johnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006)

(deliberate indifference requires a culpable state of mind

such as ignoring a known risk of harm; it “is more than

negligence and approaches intentional wrongdoing”)

(quotation marks and citation omitted); Hart v. Sheahan,

396 F.3d 887, 891 (7th Cir. 2005) (convicted prisoners’

challenge to conditions of confinement governed by the

Eighth Amendment, “which has been interpreted to require

proof that the convicts’ custodians were deliberately

indifferent to a serious hazard created by those conditions”);

Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir. 2003)

(Fourteenth Amendment’s due process standard as applicable to claims of pretrial detainees is the same “deliberate

indifference” standard of the Eighth Amendment). The

district court’s application of the deliberate indifference

standard made things more difficult for Lopez; the Fourth

Amendment requires only proof that the defendants’

conduct was objectively unreasonable under the circumstances. Abdullahi v. City of Madison, 423 F.3d 763, 768

(7th Cir. 2005).

The district court should have analyzed the detectives’

conduct under the Fourth Amendment and its “objectively

unreasonable” standard. The Fourth Amendment protects

against unreasonable seizures; an arrest is a seizure, and

the Fourth Amendment affords persons who are arrested the further, distinct right to a judicial determination

of probable cause “as a prerequisite to extended restraint of

liberty following arrest.” Gerstein, 420 U.S. at 114. The

judicial determination of probable cause may be made
No. 05-1877 11

before the arrest (in the form of an arrest warrant) or

promptly after the arrest, at a probable cause hearing

(sometimes called a Gerstein hearing). But whether the

arresting officer opts to obtain a warrant in advance or

present a person arrested without a warrant for a prompt

after-the-fact Gerstein hearing, the Fourth Amendment

requires a judicial determination of probable cause. See

Haywood v. City of Chi., 378 F.3d 714, 717 (7th Cir. 2004)

(even though warrantless arrest was “clearly” supported

by probable cause, Fourth Amendment required a probable cause hearing before a judicial officer).

McLaughlin established a general rule that persons

arrested without a warrant must receive a judicial determination of probable cause within 48 hours. McLaughlin, 500

U.S. at 56-57. (We will have more to say on the McLaughlin

issue later.) Because Lopez was arrested without a warrant

and had not yet been presented for a probable cause

hearing, the Fourth Amendment should have been applied

to his claim relating to the treatment and conditions he

endured during his four days and nights in warrantless

detention. Although his claim does not challenge the

existence of probable cause, our cases hold that the Gerstein

probable cause hearing is the event that terminates the

Fourth Amendment’s applicability following a warrantless

arrest.

Accordingly, we have held that “the Fourth Amendment

governs the period of confinement between arrest without

a warrant and the preliminary hearing at which a determination of probable cause is made, while due process regulates the period of confinement after the initial determination of probable cause.” Villanova v. Abrams, 972 F.2d 792,

797 (7th Cir. 1992); see also Brokaw v. Mercer County, 235

F.3d 1000, 1018 n.14 (7th Cir. 2000) (after a probable cause

hearing the Fourth Amendment no longer applies); Luck v.

Rovenstine, 168 F.3d 323, 326 (7th Cir. 1999) (Fourth

Amendment applies before the probable cause hearing and
12 No. 05-1877

Due Process Clause applies after); Reed v. City of Chi., 77

F.3d 1049, 1052 (7th Cir. 1996) (the “seizure” of an arrestee

ends after the probable cause hearing). Our cases thus

establish that the protections of the Fourth Amendment

apply at arrest and through the Gerstein probable cause

hearing, due process principles govern a pretrial detainee’s

conditions of confinement after the judicial determination

of probable cause, and the Eighth Amendment applies

following conviction.

Although the defendants agreed in the district court

that the Fourth Amendment’s “objectively unreasonable”

standard should apply, they have changed their tune on

appeal. They now agree with the district court and argue

that the claim is governed by the due process analysis

applicable to claims of pretrial detainees, which borrows

from the Eighth Amendment’s “deliberate indifference”

standard, applicable to conditions-of-confinement claims

by convicted prisoners. See Cavalieri, 321 F.3d at 620. They

cite Wilkins v. May, 872 F.2d 190, 193-95 (7th Cir. 1989),

but their reliance on that case is misplaced. Although

Wilkins held that the period between arrest and charge falls

under the rubric of due process rather than the Fourth

Amendment, later cases, cited above, have limited Wilkins

in light of Gerstein and McLaughlin. In particular,

Villanova specifically recognized the tension between this

court’s holding in Wilkins and the Gerstein/McLaughlin

line of cases, which apply the Fourth Amendment’s reasonableness standard to the deprivation of liberty suffered by

a warrantless arrestee. Villanova, 972 F.2d at 797.

Villanova held that the conflict in the cases “can be reconciled” by applying the Fourth Amendment to the period

between a warrantless arrest and the judicial probable

cause determination and the principles of due process to

confinement after probable cause has been judicially

determined. Id.

The defendants cite Bell v. Wolfish, 441 U.S. 520, 535

(1979), for the proposition that the Fourth Amendment does
No. 05-1877 13

not apply to pretrial detainees. But Bell concerned “persons

who have been charged with a crime but who have not yet

been tried on the charge”—that is, pretrial detainees for

whom a judicial determination of probable cause has

already been made. Id. at 523. That the Fourth Amendment

does not apply to postarraignment detention does not make

its protections inapplicable to the period between Lopez’s

arrest and his probable cause hearing. Bell is inapposite.

Lopez’s trial evidence, if credited by the jury, was more

than adequate to support a finding that the detectives’

conduct was objectively unreasonable under the circumstances. Indeed, this case should not have been taken from

the jury even if the more burdensome standard of deliberate

indifference applied. The defendants concede on appeal that

the district court should have permitted the jury to consider

Lopez’s claim insofar as it alleged that shackling him to the

wall of the interrogation room for four days and nights

violated his constitutional rights. The jury should have been

permitted to consider the totality of Lopez’s evidence, not

just the evidence of shackling. Lopez presented evidence

that he was deprived of food, drink, and sleep during the

four days and nights he spent shackled to the wall of the

interrogation room, and was forced to yell for an extended

period of time before being let out to use the bathroom. The

defendants argue there is no evidence Lopez ever asked for

food or drink or soiled himself. This is an argument for a

jury, not a reviewing court.

If Lopez’s version of events is believed, common sense

alone would justify a conclusion that the detectives’ conduct

was objectively unreasonable; when the fact finder’s task is

to decide whether an act or omission is objectively unreasonable, reliance upon common sense is particularly

appropriate. See United States v. Sharpe, 470 U.S. 675, 685

(1985) (“Much as a ‘bright line’ rule would be desirable, in

evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must
14 No. 05-1877

govern over rigid criteria.”). But the jury need not have

relied on common sense alone. Lopez’s police practices

expert testified that it would “[a]bsolutely not” be appropriate to confine an arrested person in an interrogation room

for twenty-four hours, much less for four days. On this

record, the district court’s refusal to submit this claim to

the jury was unjustified; the court impermissibly weighed

the evidence and drew inferences in favor of the defendants

rather than Lopez, contrary to Rule 50’s governing standards. Lopez’s unconstitutional conditions of confinement

claim must be retried.

B. Intentional Infliction of Emotional Distress

For similar reasons, we also reverse the judgment entered

for the defendants on Lopez’s state law claim for intentional

infliction of emotional distress. To prove this claim, Lopez

needed to establish the following: (1) that the defendants’

conduct was extreme and outrageous; (2) that they intended

their conduct to inflict severe emotional distress or knew

there was at least a high probability their conduct would

inflict such distress; and (3) that their conduct did in fact

cause him severe emotional distress. McGrath v. Fahey, 533

N.E. 2d 806, 809 (Ill. 1988). Extreme and outrageous

conduct is that which goes “beyond all bounds of decency

and [is] considered intolerable in a civilized community.”

Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001) (citing

Kolegas v. Heftel Broad. Corp., 607 N.E. 2d 201, 211 (Ill.

1992)); Campbell v. A.C. Equip. Servs. Corp., 610 N.E. 2d

745, 749 (Ill. App. Ct. 1993).

Here again, the defendants concede on appeal that the

district court erred by refusing to let the jury consider

Lopez’s shackling allegations. They argue nonetheless that

there is no evidence from which jurors could have inferred intent, at least on the matter of the extent to

which Lopez was receiving food, drink, and bathroom
No. 05-1877 15

access. But if the jurors believed Lopez’s evidence that he

received food and drink only once over the course of four

days and nights in custody, then they must also conclude the defendants lied about feeding him regularly

with fast-food purchases. It is not as if the detectives

tried to explain away Lopez’s claim by saying they all

thought someone else was giving him food. Instead, they

claimed they fed him several times. Either Lopez is lying or

the defendants are; their stories are incompatible.

If the jurors believed Lopez’s version of events, they

rationally could have inferred that the detectives intentionally deprived Lopez of food and drink and deliberately

withheld bathroom access for extended periods. Lopez’s

evidence at trial essentially painted a picture of interrogators subjecting a captive suspect to several days of dire

physical deprivation in order to coerce a confession. A

jury rationally could have found this conduct extreme,

outrageous, and intended to inflict severe emotional

distress.

This is especially so because “[t]he more control which

a defendant has over the plaintiff, the more likely that

defendant’s conduct will be deemed outrageous, particularly

when the alleged conduct involves either a veiled or explicit

threat to exercise such authority or power to plaintiff’s

detriment.” McGrath, 533 N.E. 2d at 809. The detectives

exercised nearly complete control over Lopez’s ability to

move, sleep, eat, drink, and use the bathroom for the four

days and nights he spent in their custody.

Finally, if the jurors believed Lopez’s testimony, they

rationally could have concluded that he suffered severe

emotional distress when he became disoriented and started

hearing voices telling him to confess to a murder he did not

commit. The district court should not have granted judgment for the defendants on Lopez’s claim for intentional

infliction of emotional distress. The claim must be retried,

and the retrial is not limited to Lopez’s shackling evidence.
16 No. 05-1877

C. Unconstitutional Duration of Confinement

The district court also granted judgment for the defendants on Lopez’s claim that the detectives unconstitutionally held him in custody for more than 48 hours before

taking him before a judge for a probable cause hearing. The

defendants do not dispute that Lopez was held for five days

following his warrantless arrest before he received his

Gerstein hearing, well beyond the 48-hour general

limit established in McLaughlin. The defendants argue that

this delay is not actionable in damages under § 1983

because the 48-hour rule of McLaughlin is not a core

constitutional right but a procedural safeguard designed

to secure the Fourth Amendment right to a prompt judicial determination of probable cause following a warrantless

arrest.

McLaughlin and Gerstein, read together, foreclose this

argument. Gerstein clearly held that a prompt judicial

determination of probable cause following a warrantless

arrest is a core Fourth Amendment requirement: “the

Fourth Amendment requires a judicial determination of

probable cause as a prerequisite to extended restraint

of liberty following [warrantless] arrest.” Gerstein, 420 U.S.

at 114. McLaughlin, in turn, reiterated that “[u]nder

Gerstein, warrantless arrests are permitted[,] but persons

arrested without a warrant must promptly be brought

before a neutral magistrate for a judicial determination

of probable cause.” McLaughlin, 500 U.S. at 53. Police

may postpone a Gerstein hearing for a reasonable amount

of time in order to “cope with the everyday problems of

processing suspects through an overly burdened criminal justice system.” Id. at 55. McLaughlin held that a

“judicial determination of probable cause within 48 hours of

[warrantless] arrest will, as a general matter, comply with

the promptness requirement of Gerstein.” Id. at 56. A lesser

delay might still be unconstitutional “if the arrested individual can prove that his or her probable cause
No. 05-1877 17

determination was delayed unreasonably.” Id.; see also

Willis, 999 F.2d at 287-89. But if the delay extends beyond

48 hours, “the burden shifts to the government to demonstrate the existence of a bona fide emergency or other

extraordinary circumstance” to justify the delay.

McLaughlin, 500 U.S. at 57; see also Haywood, 378 F.3d at

717 (“Haywood was arrested lawfully [with probable cause].

But he could not, consistent with the Fourth Amendment,

be continued in custody beyond 48 hours . . . unless a

judicial officer determined there was probable cause to

believe that he had committed a crime.”); Luck, 168 F.3d at

324.

Lopez was thus constitutionally entitled to a prompt

probable cause determination by a judicial officer. Under

McLaughlin, “prompt” in this context usually means

“within 48 hours.” Because the detectives held Lopez

without a judicial probable cause determination beyond the

48-hour safe harbor of McLaughlin, it was their burden to

justify the delay by demonstrating the existence of an

emergency or other extraordinary circumstance. They did

not do so. The defendants wisely do not defend the rationale

supplied by the district court—that Lopez’s “lying” (allegedly false alibis and what we know to be a false confession)

prolonged their investigation. McLaughlin held unequivocally that delays for purposes of gathering evidence are per

se unreasonable. McLaughlin, 500 U.S. at 56; see also

Willis, 999 F.2d at 288-89. Lopez was entitled to judgment

as a matter of law on his duration-of-confinement claim.

On remand, Lopez may recover compensatory damages for

the unlawful duration of his confinement. See Carey v.

Piphus, 435 U.S. 247, 254-55 (1978) (compensatory damages

are the norm when a plaintiff prevails on a § 1983 claim for

constitutional violations and can prove actual damages).

The defendants argue that Lopez is entitled to only nominal

damages because he stipulated there was probable cause to

arrest him. This argument is weak. Lopez presented
18 No. 05-1877

evidence that he suffered physical and mental injuries as a

result of his extended detention in the interrogation room.

The jury could rationally conclude that if Lopez had

received the Gerstein hearing to which he was constitutionally entitled, he would at least have been moved from the

interrogation room to the jail before his body and mind

deteriorated into the delusional state he described at trial.

For the foregoing reasons, we REVERSE the judgment of

the district court and REMAND this case to the district court

for entry of judgment for Lopez on his duration-of- confinement claim and for a new trial on: (1) Lopez’s unconstitutional conditions of confinement claim; (2) his intentional

infliction of emotional distress claim; and (3) damages.

Circuit Rule 36 shall apply on remand.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-22-06