Appeal from the United States District Court for the Western District of Wisconsin. John C. Shabaz, Judge.
Posner and Coffey, Circuit Judges, and Gibson, Senior Circuit Judge.*fn*
GIBSON, Senior Circuit Judge.
Plaintiff, David K. Guenther, a resident of Black River Falls, brought this § 1983 damage action claiming his arrest by defendant Mark Holmgreen, a police officer for the defendant city of Black River Falls, was made without probable cause, resulting in his detention in deprivation of his substantive Fourth Amendment rights and his due process rights under the Fourteenth Amendment. The district court, 573 F. Supp. 599, granted defendant's motion for summary judgment, concluding: (1) under Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), Guenther was not deprived of his liberty without due process of law because post-deprivation state tort remedies were available (viz., actions for false arrest, false imprisonment, and malicious prosecution); (2) Guenther was collaterally estopped from litigating the Fourth Amendment probable cause issue because that issue was decided against him at his preliminary hearing. Guenther claims these two conclusions were erroneous. We affirm.
On July 25, 1982, shortly after midnight, Holmgreen arrested Guenther at a public festival held on the Jackson County Fairgrounds in Black River Falls. In his complaint, Guenther alleged thata, just prior to the arrest, he was peaceably minding his own affairs when a fellow festival participant struck him in the mouth. Allegedly, Holmgreen then immediately arrested Guenther, handcuffed him and transported him to the Jackson County Jail, where he was charged with disorderly conduct and resisting arrest, both misdemeanors. Bail was initially set at $400.00, but Holmgreen allegedly refused to accept Guenther's wife's offer to post that amount. Guenther was later transferred to the Wood County Jail, where bail was accepted at 9:00 A.M. on July 25, 1982. Guenther then left the Wood County jail.
Guenther's attorney moved the state trial court to dismiss the misdemeanor criminal charges against him, claiming a lack of probable cause to arrest. The state trial court held an evidentiary hearing on the probable cause issue, during which Guenther attempted to show that Holmgreen falsified the factual basis for the arrest by relying on events that actually occurred after the arrest. To do this, Guenther's counsel rigorously cross-examined Holmgreen and other state witnesses to the incident, and called a witness to contradict the state's version of the incident. Following this hearing, the trial court determined that there was probable cause to arrest and denied Guenther's motion to dismiss.
After his criminal trial, Guenther was found not guilty of the charge of disorderly conduct; the jury was unable to reach a verdict on the resisting arrest charge. Presumably, the resisting arrest charge was subsequently disposed of in favor of Guenther.
Thereafter, Guenther brought this § 1983 "constitutional tort" action against Holmgreen and the City of Black River Falls. In the district court and on this appeal, Guenther has claimed that the arrest, allegedly made without probable cause and based upon Holmgreen's factual misrepresentations, violated his Fourteenth Amendment right to be secure against unreasonable searches and seizures. Guenther has also claimed he was deprived of liberty without due process of law under the Fourteenth Amendment. Guenther has named the City of Black River Falls as a defendant for its alleged failure to properly train and supervise defendant Holmgreen. On this appeal, Guenther principally challenges the district court's conclusion that he was not denied liberty without due process and that he was collaterally estopped from relitigating the Fourth Amendment probable cause issue, which was determined against him in the state court's preliminary hearing.*fn1
First, Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), does not entirely dispose of Guenther's § 1983 claim. In Parratt, 451 U.S. at 543-44, the Supreme Court held tht the negligent loss of property by state officials did not present a cognizable § 1983 due process claim when state tort remedies provided adequate relief for the deprivation. The Seventh Circuit has applied Parratt to deprivations of life, liberty, as well as property. Wolf-Lillie v. Sonquist, 699 F.2d 864, 871 (7th Cir. 1983); State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir. 1983). The rationale behind Parratt is that a victim of a property or liberty deprivation who has recourse to an adequate state remedy has not been denied "due process of law". Id.; see also M. Wells and J. Eaton, "Substantive Due Process and The Scope of Constitutional Torts" 18 Georgia L. Rev. 201, 211-12 (1984). Hence, as the court stated in Wolf-Lillie, 699 F.2d at 871, "The Parratt decision . . . requires federal courts to consider the adequacy and availability of remedies under state law before concluding that a deprivation of life, liberty, or property violates due process of law", citing Ellis v. Hamilton, 669 F.2d 510, 515 (7th Cir. 1982).
As the district court properly recognized, there are Wisconsin tort remedies for matters which form the basis of Guenther's claim that he was deprived of liberty without due process of law. Specifically, claims for false arrest, false imprisonment, and malicious prosecution are all actionable in Wisconsin. Strong v. City of Milwaukee, 38 Wis. 2d 564, 157 N.W.2d 619, 621-22 (1968); Elmer v. Chicago and Northwestern Railroad Co., 257 Wis. 228, 43 N.W.2d 244 (1950). Presumably, the recovery of consequential damages for these torts would permit compensation for injuries to Guenther's reputation. See Gladfelter v. Doemel, 2 Wis. 2d 635, 87 N.W.2d 490, 497 (Wis. 1958). Because of the availability of these state tort remedies, it could be said that Wisconsin has done all that the Fourteenth Amendment requires in this context to guarantee Guenther procedural due process. Cf. Camic, 712 F.2d at 1144; Baker v. McCollan, 443 U.S. 137, 145, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979).
However, Guenther has not merely stated a procedural due process claim; he also has claimed that the arrest, allegedly made without probable cause and based upon Holmgreen's misrepresentation, violated his substantive Fourth Amendment right to be free from unreasonable searches and seizures. Two separate Seventh Circuit panels and various other courts and commentators have recognized that Parratt is inapplicable where the plaintiff asserts a violation of substantive constitutional guarantees -- e.g., Fourth Amendment protections -- as distinguished from a violation of his procedural due process rights. Wolf-Lillie, 699 F.2d at 871-72; Camic, 712 F.2d at 1147 n. 5; Duncan v. Poythress, 657 F.2d 691, 704 (5th Cir. 1981); M. Wells & T. Eaton, "Constitutional Torts" 18 Georgia L. Rev. at 202, 211-12. Thus far, the Supreme Court has not retrenched from its seminal holding in Monroe v. Pape, 365 U.S. 167, 183, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), that a substantive Fourth Amendment violation gives rise to a cognizable § 1983 action regardless of the existence of state tort remedies. See Patsy v. Board of Regents, 457 U.S. 496, 516, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982) (reaffirming Monroe v. Pape).
Baker v. McCollan, 443 U.S. 137, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979) is illustrative of the distinction the court has drawn between a general Fourteenth Amendment due process right claim and a substantive Fourth Amendment claim, as alleged in Monroe v. Pape and here. In Baker, the plaintiff was mistakenly named in a valid arrest warrant and, as a result, spent three days in jail until it was discovered that he was not the person whom ...