Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 83 C 227 - William C. Lee, Judge.
Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and GORDON, Senior District Judge*fn*
Plaintiff Meredith Coleman filed this civil rights action against Nyal Frantz, the Sheriff of Wells County, Indiana, pursuant to 42 U.S.C. § 1983. The district court granted defendant's motion for summary judgment. Plaintiff appeals on the grounds that the district court erroneously failed to recognize a violation of his constitutional rights and improperly afforded the defendant a qualified immunity from Section 1983 liability. For the reasons set forth below, we affirm the summary judgment.
As noted, defendant is the Sheriff of Wells County, Indiana, and he occupied that post at all times relevant to this case. On June 23, 1981, the Wells Circuit Court issued a bench warrant for the arrest of plaintiff, based upon defendant's affidavit of "probable cause" credited by the county court (p. 8 of first opinion below, R. item 31; p. 3 of second opinion below, R. Item 35). The "legally sufficient and valid arrest warrant" (p. 7 of second opinion below, R. item 35) instructed the Sheriff to arrest the plaintiff on a charge of receiving stolen property and to take him before that court "instanter." Bond was set by the court at $10,000. Defendant turned himself in at the Wells County Jail on June 30, 1981. The Sheriff read him the bench warrant naming the offense charged, informed him of the amount of his bail, and incarcerated him for want of making bail. The next day the defendant returned service of the warrant to the Wells Circuit Court through its clerk, as is customary there, thus notifying the court of Coleman's status. Plaintiff remained in the Sheriff's custody until July 18, when he was released by the Sheriff at the direction of the prosecuting attorney's office. Until then, the prosecutor had taken no action despite his early knowledge of the matter. During his detention the plaintiff asked the Sheriff several times when he was going to court and protested his innocence. In turn the Sheriff repeatedly called the prosecutor's office to arrange for defendant's "first appearance,"*fn1 but did not receive a reply or any action until July 18th, the date the prosecutor first told him to release plaintiff.
Plaintiff relies upon the language of the form bench warrant stating that the Sheriff "have [Mr. Coleman's] body before the Judge of Wells Circuit Court, instanter, then and there to answer the State of Indiana, on the charge of Receiving Stolen Property I.C. 35-43-4-2(b) * * *," and on Indiana Code § 35-1-8-1(a)*fn2 as placing a duty on the Sheriff to bring about a "first appearance." That Section of the Indiana Code states that " when an officer arrests an accused, he shall take the accused before the court issuing the warrant" for docketing by the court (emphasis supplied). No particular time limit is specified.
Throughout the 18-day detention plaintiff had access to a telephone, to visitors, and to the Sheriff and his staff. Plaintiff also spoke with an attorney during his first week for detention, but did not retain the attorney as counsel. He was not mistreated nor denied necessary items while incarcerated. See p. 4 of second opinion below, R. Item 35. There is no indication from the record that he ever requested that an attorney be provided for him because he could not afford counsel. The criminal charge against him was dismissed on August 23, 1982.
The June 1983 complaint sought $10,000 compensatory and $10,000 punitive damages, attorney's fees and costs. The district court granted summary judgment in favor of the defendant on the Section 1983 count after reviewing the pleadings, depositions and other documentary evidence. Simultaneously a pendent state count was dismissed with prejudice but is not involved on appeal. The court held that Sheriff Frantz was shielded from Section 1983 liability by a qualified immunity, and alternatively, that no violation of the United States Constitution took place. Two opinions were issued, the second after considering plaintiff's response to the motion for summary judgment. Each resulted in summary judgment for the Sheriff and in dismissal of plaintiff's pendent state claims.
The preliminary inquiry in any § 1983 action must focus on whether the essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or law of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 . The first of these elements was not contested by the defendant. It is important for us to examine the second even though our holding with respect to qualified immunity would constitute an adequate basis upon which to affirm the judgment below. As was stated by this Court in Egger v. Phillips, 710 F.2d 292, 315 n.27 (1983) (en banc), "to dispose of the case solely on the ground that at the time of the alleged constitutional violation the right in question was not clearly established [thus rendering defendant immune, see discussion infra, p. 10] would leave the status of such right in limbo." See Nahmod, Constitutional Wrongs Without Remedies; Executive Official Immunity, 62 Wash. U.L.Q. 221, 259 (1984).
Plaintiff first contends on appeal that his detention violated a "nationally recognized right for arrested persons to be brought before a magistrate without unreasonable delay" based upon the Fourth Amendment's prohibition of "unreasonable * * * seizures" and the Fourteenth Amendment's prohibition of deprivation of liberty without due process of law and its equal protection clause. Despite plaintiff's arguments to the contrary, the issue of an arrestee's right to a prompt first appearance before a judicial officer is largely one of first impression. The notable lack of authority regarding this important question is apparently explained by structural limitations on the opportunity afforded litigants to raise the issue in federal courts. See Fisher v. Washington Metro. Area Transit Authority, 690 F.2d 1133, 1139 n.7 (4th Cir. 1982) (the revivification of 42 U.S.C. § 1983 created a means of contesting the issue). Only the Fifth Circuit has taken the position that the lack of a prompt first appearance before a judicial officer can never violate the Constitution. See Perry v. Jones, 506 F.2d 778, 780-781 (5th Cir. 1974); Anderson v. Nosser, 438 F.2d 183, 196 (5th Cir. 1971), modified en banc, 456 F.2d 835 (1972). However, these cases preceded Baker v. McCollan, 443 U.S. 137, 61 L. Ed. 2d 433, 99 S. Ct. 2689, and Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854, discussed infra, and therefore need not detain us. The district court ruled that on the specific facts of this case, where there has been a valid determination of probable cause and a warrant issued, and where the plaintiff had access to an attorney, a telephone and to visitors, there was no constitutional violation (p. 11 of the second opinion below).
We hold that the plaintiff's eighteen-day detention without an appearance before a judge or magistrate was a deprivation of liberty without due process of law. State action which "shocks the conscience" of the court, Rochin v. California, 342 U.S. 165, 172, 96 L. Ed. 183, 72 S. Ct. 205, or which is highly offensive to the "concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 288 has caused the Supreme Court to find a denial of due process. In Gerstein v. Pugh, 420 U.S. 103, 114, 43 L. Ed. 2d 54, 95 S. Ct. 854, the Court ruled that the Constitution required a judicial determination of probable cause as a prerequisite to an "extended restraint of liberty following arrest," and recognized that the consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationship.
The protracted incarceration of Mr. Coleman with its incident harms is constitutionally impermissible because it is wholly inconsistent with notions of "fundamental fairness" required of criminal prosecutions under the Due Process Clause, see e.g., California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 2532, 81 L. Ed. 2d 413, and with the concept of "ordered liberty." See Palko, supra.
In Baker v. McCollan, 443 U.S. 137, 61 L. Ed. 2d 433, 99 S. Ct. 2689, the Supreme Court reiterated its concern with "extended restraints of liberty following arrest," Gerstein, supra, in the context of arrests made pursuant to a valid warrant and following a judicial determination of probable cause. Baker ruled that no unconstitutional deprivation of liberty occurred where the plaintiff was arrested pursuant to a valid warrant, jailed for three days and then released when it was determined that the wrong man had been imprisoned. The sheriff involved had no duty under the Constitution to "investigate independently every claim of innocence," nor to "perform an error-free investigation of such a claim." 443 U.S. at 146. The Court observed that because of the Sixth Amendment right to a speedy trial, "one in respondent's position could not be detained indefinitely in the face of repeated protests of innocence." Id. at 144. Then applying a due process standard, the Court alternatively held that a three-day detention over a new York's weekend did not amount to a deprivation of liberty without due process of law. Id. at 145. While Baker did not expressly adopt a due process standard, the Court apparently found such an analysis relevant, and we can discern no reason why prolonged detentions of this sort should be exempt from scrutiny under the requirements of due process.
The analysis utilized in Baker indicates that the duration of the detention and the burden placed on state officials in providing procedural safeguards are highly relevant to a constitutional examination of post-arrest detentions. The detention in Baker spanned three days and could only have been prevented by the institution of significant and burdensome investigative procedures by the defendant sheriff. In the present case, however, the plaintiff was incarcerated by nearly three weeks, in the face of repeated protests of innocence and requests to go to court, before the prosecutor ordered his release. Where first appearances are provided, the requirement that they be timely would place a relatively small burden on law enforcement and judicial officers. In light of disturbing and unexplained factors before us, Baker supports, if not requires, our conclusion that plaintiff's 18-day detention was a violation of liberty without due process of law.
Almost every element of a "first appearance" under state statutes or the Federal Rules of Criminal Procedure serves to enforce or give meaning to important individual rights that are either expressly granted in the constitution or are set forth in Supreme Court precedent. the following is a listing of traditional components of a first appearance (see supra, note 1) and the rights enforced by them: (1) inform the suspect of the charge - Sixth Amendment ("the accused shall enjoy the right * * * to be informed of the nature and the cause of the accusation"); (2) inform the defendant of the right to counsel and determine if the defendant is indigent and desires the assistance of appointed counsel - Sixth Amendment ("the accused shall enjoy the right * * * to have the Assistance ("the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence"); Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 ; Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 ; Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 ; Coleman v. Alabama, 399 U.S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999 ; (3) inform the suspect of the right to remain silent under the privilege against self-incrimination - Fifth Amendment ("No person * * * shall be compelled in any criminal case to be a witness against himself"); Miranda v. Arizona, supra ; (4) set or review bail - Eighth Amendment ("Excessive bail shall not be required"); Stack v. Boyle, 342 U.S. 1, 96 L. Ed. 3, 72 S. Ct. 1 . An extended detention before a first appearance, whether or not there has been a valid determination of probable cause, substantially impinges upon and threatens all of these rights. The significant benefit resulting from the interposition of a neutral judicial officer into the post-arrest detention situation with regard to the protection of these rights cannot be ignored. Although the absence of a first appearance here may not have caused a specific violation of any one of these rights as they have been interpreted by the Supreme Court, the ultimate effect of the omission here must be deemed a denial of due process. The tremendous burden placed on a presumptively innocent person by this type of prolonged detention cannot be permitted without more regard for that person's basic rights under the Constitution.
United States v. Ragen , 176 F.2d 579, 584 (7th Cir. 1949), does not preclude this holding. Ragan was a pre- Baker case and considered whether the failure to present defendant ( a convicted murderer sentenced to death) before a magistrate after arrest rendered the defendant's confession involuntary and thus inadmissible in evidence. Ragan concluded that because the confession was not a product of "intimidation, coercion, promises or oppressive and violent treatment," the failure to present the defendant to a magistrate did not amount to such a denial of fundamental fairness as to prevent a fair trial. Id. Whether the lack of a first appearance renders a confession involuntary presents a different question from the issue here. While the absence of a timely first appearance may not be a basis for the exclusion of evidence, its absence here for eighteen days surely runs counter to the Constitution under the Fourteenth Amendment. We recently so held under the Fourteenth and Fourth Amendments with respect to a 42-hour detention without ...