In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3873

WAYNE JACKSON,

Plaintiff-Appellant,

v.

JOE DORTHA PARKER,

Defendant-Appellee.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 08 C 1958—Suzanne B. Conlon, Judge.

ARGUED SEPTEMBER 13, 2010—DECIDED DECEMBER 3, 2010

Before EASTERBROOK, Chief Judge, and POSNER and

TINDER, Circuit Judges.

TINDER, Circuit Judge. Plaintiff-Appellant Wayne Jackson

brought a Fourth Amendment claim against DefendantAppellee Joe Dortha Parker for false arrest pursuant

to 42 U.S.C. § 1983. He claimed that Parker, a Chicago

police officer, did not have probable cause to arrest

him for driving under the influence and various other

minor traffic violations. Jackson presented evidence that
2 No. 09-3873

Parker framed him for DUI by falsifying the results of

his field sobriety tests as part of an ongoing scheme of

making phony DUI arrests to obtain increased overtime

pay. The district court granted summary judgment in

favor of Parker, based in part on its finding that there

was probable cause to arrest Jackson for driving a prohibited vehicle on Lake Shore Drive in violation of a

city ordinance. The court correctly determined that a

finding of probable cause bars Jackson’s false arrest claim

even if Parker did not have probable cause to arrest

Jackson for a DUI and even though Jackson was not

ultimately charged with driving a prohibited vehicle.

Recognizing the weakness of his false arrest claim,

Jackson re-structures his argument on appeal to assert

that he was unreasonably detained in violation of the

Fourth Amendment because of the alleged DUI frame-up.

Jackson forfeited this argument by not raising it

below and accordingly, we affirm the district court’s

grant of summary judgment in favor of Parker.

I.

While on duty, Officer Parker observed Jackson’s

vehicle, a Chevrolet Silverado pickup truck, driving

southbound on Lake Shore Drive on May 10, 2006,

around 3:30 p.m. Jackson’s vehicle had “B Truck” license

plates, as opposed to passenger-type plates. Parker testified that he noticed Jackson’s vehicle was prohibited

from Lake Shore Drive under Chicago Municipal Code,

Ill. § 9-72-020, which makes it unlawful to operate “any

vehicle upon any boulevard . . . when such vehicle is
No. 09-3873 3

designed primarily for carrying freight or other goods and

merchandise” subject to an exception not at issue here.

Chi., Ill., Mun. Code § 9-72-020(b). Parker also testified

that he observed Jackson make an illegal lane change in

violation of Chicago Municipal Code § 9-12-050, which

makes it “unlawful for the driver of any vehicle to fail

or refuse to keep his vehicle within the designated boundaries of any . . . lane except when lawfully passing

another vehicle.” Id. § 9-12-050(b). Parker testified that

he saw Jackson abruptly move his vehicle twice from

the right to the left lane of Lake Shore Drive and then

back again.

Parker executed a traffic stop, approached Jackson,

and informed him that he was prohibited from operating

his truck on Lake Shore Drive. When Parker asked

Jackson if he was aware that he was not supposed to be

on Lake Shore Drive, Jackson said “yes.” Parker further

observed that Jackson’s windshield had a crack, an

alleged violation of Chicago Municipal Code § 9-40-170,

which makes it “unlawful for any person to drive . . . on

any roadway any vehicle . . . which is in such unsafe

condition as to endanger any person or property . . . or is

not equipped with . . . equipment in proper condition . . .

as required in the traffic code . . . .” Id. § 9-40-170.

After allegedly observing that Jackson had pinpointed

pupils, bloodshot eyes, a flush complexion, and

slurred speech, Parker asked Jackson if he had been

drinking and Jackson said “no.” Jackson testified that in

the twenty-four hour period before being pulled over,

he had not consumed any alcohol or drugs. Parker ad-
4 No. 09-3873

Jackson’s guilty charge for failure to notify the Secretary of 1

State of an address change was not brought to the attention of

the district court and was disregarded by Parker on appeal.

ministered several roadside field sobriety tests and reported that Jackson failed each test. Parker arrested

Jackson and took him to the police station, where he

administered a breathalyzer test. Jackson testified that

he blew into the machine in accordance with Parker’s

instructions, but Parker manipulated the test to make

it appear that Jackson refused to submit to the test.

Parker, on the other hand, claimed that Jackson

attempted to circumvent the test. Jackson was detained

at the police station until his release at approximately

3:00 the next morning.

As indicated by Parker’s arrest report, Jackson was

arrested and charged with (1) driving under the

influence of narcotics (2 counts); (2) failing to notify the

Secretary of State of an address change; (3) failing to

keep in lanes; and (4) driving an unsafe vehicle. Jackson

was not charged with the prohibited vehicle violation,

but the arrest report does indicate that Jackson was

observed “operating a prohibited motor vehicle on

Lake Shore Drive.” Prior to trial in the Circuit Court of

Cook County, the prosecutor amended the charges to

eliminate the DUI counts and substituted a charge of

negligent driving. After a bench trial, the court found

that Jackson violated Chicago Municipal Code § 9-12-050

by engaging in improper traffic lane usage and failing

to notify the Secretary of State of an address change,1

but found him not guilty on the other charges. Jackson
No. 09-3873 5

was given a diversionary sentence; he was placed

under supervision and ordered to pay a $50 fine. He

satisfactorily completed his supervision.

Jackson brought suit against Parker under 42 U.S.C.

§ 1983, asserting a Fourth Amendment violation for

false arrest. Parker filed a motion for summary judgment arguing, in part, that there was probable cause

to arrest Jackson for the lane change violation and prohibited vehicle violation and that probable cause to arrest is

an absolute bar to a § 1983 claim for false arrest. In response, Jackson argued that Parker did not have

probable cause to stop or arrest him for any traffic violation. Specifically, he presented evidence that he did not

make any abrupt lane changes and never changed lanes

illegally. He further denied that the vehicle he was

driving was a prohibited vehicle and instead asserted

that there was a genuine issue of material fact whether

he was driving a vehicle that violated the ordinance.

Jackson, however, did not present supporting evidence

or legal argument that probable cause was lacking to

arrest him for the prohibited vehicle violation. Rather,

he merely asserted that Parker did not present credible

or direct evidence of such a violation. Neither party

addressed the unsafe vehicle charge at the district court

or on appeal.

In his brief in opposition to Parker’s motion for summary judgment, Jackson further clarified that his complaint “makes clear that his theory of liability is false

arrest for DUI.” In fact, he stated, “that is the only

criminal charge referenced in [the] complaint.” He
6 No. 09-3873

asserted that he passed his field sobriety test, that his

speech was not slurred during his encounter with

Parker, that his balance was perfect, and that he did not

sway, stagger, or swagger. He stated that there was no

evidence of any impairment to support an arrest for

DUI and instead, Parker falsified the results and wrongfully arrested him for DUI as part of an ongoing scheme

to increase his overtime pay. Jackson presented evidence showing that Parker intentionally reported false

information in DUI reports in forty-nine other cases

by misrepresenting that arrestees failed their field

sobriety tests. Jackson also presented evidence that the

Public Corruption and Financial Crimes Unit of the

Special Prosecutions Bureau of the Cook County State’s

Attorney’s Office was involved in an ongoing investigation of Parker concerning his conduct as a police officer.

The district court agreed with Parker that Jackson’s

false arrest claim must fail because Parker had probable

cause to stop and arrest Jackson. The court determined

that Jackson could not contest probable cause on the

lane change violation under the principles of Heck v.

Humphrey, 512 U.S. 477 (1994), because his state conviction

on that charge rested on Parker’s testimony that he observed Jackson make an illegal lane change. Even if Jackson’s claim was not barred by Heck, the court found

that there was probable cause to arrest Jackson on the

prohibited vehicle violation. The court concluded that

a finding of probable cause for that offense defeated

Jackson’s false arrest claim whether or not there was

probable cause to substantiate the DUI charges. Jackson

appealed.
No. 09-3873 7

II.

Jackson re-structured his argument on appeal. He

now asserts that Parker violated his Fourth Amendment

rights by unreasonably detaining him after the initial

traffic stop so he could frame Jackson for DUI. He

contends that probable cause to arrest for a minor traffic

offense does not immunize an officer who, after making

the traffic stop, frames the motorist for a more serious

crime, thereby unreasonably prolonging the seizure.

Jackson points out that under Illinois law, a person arrested for a minor traffic offense “shall” post bail in any

of three ways, one of which is “by depositing . . . a current Illinois driver’s license.” Ill. Sup. Ct. R. 526(a). On

the other hand, a person arrested for driving under

the influence cannot deposit his driver’s license to

obtain release, but must post a cash bail. Ill. Sup. Ct. R.

526(c). Accordingly, Jackson asserts that because of the

frame-up he could not simply leave his driver’s license

with Parker at the scene of the traffic stop, but instead,

was placed under formal arrest, transported to the

police station, and held in custody for nearly twelve

hours before being released on a cash bond.

Jackson does not contend on appeal that probable

cause for the stop and arrest was lacking and implicitly

concedes that he was lawfully arrested. Jackson

rightfully concedes this issue; we find no error in the

district court’s probable cause determination. To prevail

on a claim of false arrest, the plaintiff must show there

was no probable cause for his arrest. Williams v. Rodriguez,

509 F.3d 392, 398 (7th Cir. 2007). If probable cause to
8 No. 09-3873

arrest is found to exist, it “is an absolute defense to

any claim under Section 1983 against police officers

for wrongful arrest.” Mustafa v. City of Chicago, 442

F.3d 544, 547 (7th Cir. 2006). “Probable cause exists

if an officer reasonably believes, in light of the facts

known to [him] at the time, that a suspect had committed or was committing an offense.” United States v.

Reed, 443 F.3d 600, 603 (7th Cir. 2006). A probable cause

determination “relies on the common-sense judgment

of the officers based on the totality of the circumstances.” Id.

Parker had probable cause to stop Jackson for driving

a prohibited vehicle on Lake Shore Drive. Jackson has

not refuted that he was driving a pickup truck with

“B Truck” license plates southbound on Lake Shore

Drive when Parker pulled him over. While Jackson

argued below that his truck was not a prohibited

vehicle under the ordinance, he did not present supporting evidence or legal argument for this defense.

Further, he did not present legal argument that probable

cause was lacking, nor did he raise this issue on appeal.

Based on the facts known to Parker at the time, it was

reasonable for him to believe that Jackson was violating

Chicago Municipal Code § 9-72-020(b) by driving a

vehicle designed “primarily for carrying freight or other

goods and merchandise” on a boulevard. Because Parker

had probable cause to stop Jackson for the prohibited

vehicle violation, it is unnecessary to determine whether

the principles in Heck bar Jackson from arguing that

probable cause was lacking to stop him for the lane

change violation.
No. 09-3873 9

Even if Parker’s motivation in stopping Jackson was

to frame him for DUI, the constitutional reasonableness of a traffic stop does not depend on the subjective

motivations of the individual officer involved. Whren

v. United States, 517 U.S. 806, 813 (1996). Instead, the

Fourth Amendment’s focus on reasonableness dictates

an objective analysis, under which, “the fact that the

officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the

action taken as long as the circumstances, viewed objectively, justify the action.” Id. (quotation omitted). As

such, it is irrelevant that Jackson was not charged with

the prohibited vehicle violation but instead with other

violations. “[A]n arrest is reasonable under the Fourth

Amendment so long as there is probable cause to

believe that some criminal offense has been or is being

committed, even if it is not the crime with which the

officers initially charge the suspect.” Fox v. Hayes, 600

F.3d 819, 837 (7th Cir. 2010) (citing Devenpeck v. Alford,

543 U.S. 146, 153-56 (2004)). In Devenpeck, the Supreme

Court rejected “[t]he rule that the offense establishing

probable cause must be ‘closely related’ to, and based

on the same conduct as, the offense identified by the

arresting officer at the time of arrest.” 543 U.S. at 153; see

also Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 682

(“[P]robable cause to believe that a person has committed any crime will preclude a false arrest claim, even

if the person was arrested on additional or different

charges for which there was no probable cause.”).
10 No. 09-3873

In Williams v. Rodriguez, the plaintiff brought a false

arrest claim, arguing that there was no probable cause

to arrest him for DUI. 509 F.3d at 398-99. The court disagreed because there was probable cause to arrest him

for violation of other traffic laws. Id. The court explained that the probable cause analysis “need not be

limited solely to whether probable cause existed to

arrest [the plaintiff] for driving under the influence.” Id.

at 399. “Although [the officer] arrested [the plaintiff] for

driving under the influence, an officer’s ‘subjective

reason for making the arrest need not be the criminal

offense as to which the known facts provide probable

cause.” Id. (quoting Devenpeck, 543 U.S. at 153). “[T]he

issue is whether a reasonable officer, with the same

information known to [the officer] at the time, would

have had probable cause to arrest [the plaintiff] for any

offense.” Id. The officer in that case had probable cause

to arrest the plaintiff for parking his vehicle along the

roadway. Id. at 399-400. Because of the objective nature

of the probable cause analysis, it did not matter that

the officer’s subjective reason for making the arrest was

driving under the influence rather than a violation of

the parking offense. Id. at 401; see also Jaegly v. Couch,

439 F.3d 149, 154 (2d Cir. 2006) (“Following Devenpeck,

we conclude here that a claim for false arrest turns only

on whether probable cause existed to arrest a defendant,

and that it is not relevant whether probable cause existed

with respect to . . . any charge actually invoked by the

arresting officer at the time of arrest.”).

It is not a violation of the Fourth Amendment to arrest

an individual for even a very minor traffic offense. The
No. 09-3873 11

Supreme Court has held that “[i]f an officer has

probable cause to believe that an individual has committed even a very minor criminal offense in his

presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista,

532 U.S. 318, 354 (2001) (holding that police may make

full custodial arrests for even fine-only offenses); see also

People v. Taylor, 902 N.E.2d 751, 759-60 (Ill. App. Ct.)

(finding that officer could lawfully place bicyclist

under custodial arrest after observing him violating two

municipal ordinances regarding bicycle use), appeal

denied, 910 N.E.2d 1131 (2009). The Court in Atwater

noted that individualized review may be appropriate

“when a defendant makes a colorable argument that an

arrest . . . was conducted in an extraordinary manner,

unusually harmful to [his] privacy or even physical

interests.” Atwater, 532 U.S. at 352-53 (internal quotations and citation omitted). In that case, the Court determined that the arrest may have been humiliating, but

it was no more harmful to the plaintiff’s privacy or physical interests “than the normal custodial arrest.” Id. at

354. Jackson has similarly not made an adequate

showing that his arrest was more harmful than the

normal custodial arrest. See, e.g., Chortek v. City of Milwaukee, 356 F.3d 740, 745-46 (7th Cir. 2004).

Further, even though Illinois law may have allowed

Jackson to post bail by depositing his current Illinois

driver’s license had he been arrested for the traffic

offenses and not for DUI, state law does not control the

reasonableness inquiry under the Fourth Amendment.

Virginia v. Moore, 553 U.S. 164, 176 (2008). In Moore,
12 No. 09-3873

officers arrested the plaintiff for a minor traffic offense

instead of issuing him a summons as required by

Virginia law. Id. at 167. The Court held that officers do not

violate the Fourth Amendment when they make an

arrest that is based on probable cause but prohibited by

state law. Id. at 175-76. A state’s choice of a more restrictive search-and-seizure policy does not render less restrictive ones unreasonable, and hence unconstitutional.

Id. at 174. The Court concluded that “warrantless arrests

for crimes committed in the presence of an arresting

officer are reasonable under the Constitution, and that

while States are free to regulate such arrests however

they desire, state restrictions do not alter the Fourth

Amendment’s protections.” Id. at 176.

Recognizing the principles set forth above, Jackson’s

counsel readily admitted at oral argument that if this

case is analyzed as a false arrest case, Jackson loses. As a

result, and as noted above, Jackson re-structured his

argument on appeal to assert a Fourth Amendment claim

for unreasonable detention arising from the false DUI

arrest. “In civil litigation, issues not presented to the

district court are normally forfeited on appeal.” Russian

Media Group, LLC v. Cable Am., Inc., 598 F.3d 302, 308 (7th

Cir. 2010). If the interests of justice require, we may

consider the forfeited argument, “but it will be a ‘rare case

in which failure to present a ground to the district court

has caused no one—not the district judge, not us, not the

appellee—any harm of which the law ought to take

note.’ ” Id. (quoting Amcast Indus. Corp. v. Detrex Corp.,

2 F.3d 746, 749-50 (7th Cir. 1993)). As such, while the

plain error doctrine is often applied in criminal cases, it
No. 09-3873 13

is rarely applied in civil cases. Moore ex. rel. Estate of

Grady v. Tuelja, 546 F.3d 423, 430 (7th Cir. 2008). “Plain

error is only available in civil cases if a party can demonstrate that: (1) exceptional circumstances exist; (2) substantial rights are affected; and (3) a miscarriage of

justice will occur if plain error review is not applied.” Id.

This is not such a rare civil case where exceptional

circumstances exist. Jackson did not sufficiently develop

the record below for review of his claim of unreasonable

detention. Further, the district court did not have the

opportunity to address Jackson’s argument because

he clearly set forth his only claim as one for false arrest. “[T]o reverse the district court on grounds not presented to it would undermine the essential function of

the district court.” Domka v. Portage Cnty. Wis., 523 F.3d

776, 784 (7th Cir. 2008) (quotation omitted). The appellee

also did not have the opportunity to develop the record

to respond to this newly developed theory, which was

not set forth in Jackson’s complaint or his response to

Parker’s motion for summary judgment. Finally, Jackson

has not made an attempt—either in his briefs or at oral

argument—to show that the elements for plain error

review have been satisfied. We, therefore, decline to

review for plain error.

Accordingly, for the reasons stated, the judgment of the

district court is AFFIRMED. 

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