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Bevier v. Hucal

decided: November 18, 1986.


Appeal from the United States District Court for the Central District of Illinois, Springfield Division. No. 83 C 3295--Charles H. Evans, Magistrate.

Author: Cummings

Before CUMMINGS, FLAUM and EASTERBROOK, Circuit Judges.

CUMMINGS, Circuit Judge

This 42 U.S.C. § 1983 case was tried before a United States magistrate. Defendant appeals from judgment in favor of plaintiffs in the amount of $8,206.80 each. The magistrate also awarded attorneys' fees and costs in the amount of $3,888.63. At issue is whether the defendant police officer had probable cause to arrest and detain plaintiffs.

In the summer of 1983, Robert and Annette BeVier worked for Links Amusements, a company that operated carnival rides at state and county fairs. Robert drove trucks and assembled rides; Annette later was employed to work in the cookhouse. They, along with their children, traveled with the carnival, camping out in a tent. The BeViers purchased a tent and other camping equipment and packed cooking utensils, bedding, clothing, and toys for the children.

The amusement company stopped at the Illinois State Fair in Springfield in early August. The BeViers set up camp in a ravine known as "Happy Hollow" after being told to move from a shaded hilltop area. The BeViers employed a teen-aged girl named Molly to care for the children during their working hours. They instructed Molly on how to care for the children, including to keep them out of the sun, change their diapers regularly, and bring them to the cookhouse for meals. Molly did not follow those instructions.

On August 17, 1983, Molly took one of the children, Clifford, to the Red Cross Center on the fairgrounds because he appeared to be bleeding when he urinated. Robert and Annette were summoned to the Center and instructed to take Clifford to St. John's Hospital in Springfield. At the hospital Clifford was diagnosed as having severe diaper rash and the BeViers were advised to change his diapers frequently, use paper diapers, and apply the prescribed medication. The next day Robert went into town to purchase the paper diapers and fill the prescription. The BeViers fired Molly and hired anew babysitter, Bobbie. Bobbie was given the same care instructions as Molly; specifically, she was told to change Clifford's diaper every hour, applying the medication. By the next day the rash seemed to be improving.

On Friday, August 19, Robert checked the children in the morning and found them in the shade. Annette saw the children at breakfast and lunch and they appeared to be fine.

Late that same afternoon defendant Steven Hucal and Ray Thompson, Illinois state police officers, were patrolling the Happy Hollow area when the spotted the BeViers' tent. They had heard that a child living in that area had been taken to the hospital. There was no shade in the ravine where the tent was located. The tent was located about 40 to 50 feet from diesel generators and maintenance equipment. Livestock was also in the area, which consequently smelled of manure. Sanitary facilities were some distance from the area.

They saw the BeViers' two young children sitting in direct sunlight. The temperature was over 100@. Clifford was sitting still in a swing with his head slumped to one side and Robert, Jr., was listless. According to Hucal, both children were filthy and their skin looked sunburned. Hucal approached a teen-aged girl, sitting in the shade, who said she was watching the children. She showed him Clifford's diaper rash and told him that Clifford had been taken to the hospital because he appeared to be urinating blood. Hucal did not question her further but instead allowed her to leave the area.

Hucal contacted the state police headquarters and requested an ambulance. Robert arrived as the children were being placed in the ambulance and identified himself as their father. Without asking Robert any questions, Hucal arrested him for child neglect. The children were taken to the Red Cross Center and Robert was taken to police headquarters. When Annette arrived at the police station she was also arrested.

While at police headquarters Hucal contacted the Illinois Department of Children and Family Services (DCFS) to arrange temporary foster care for the children. He spoke with Bob Randall, a child abuse and neglect investigator for the DCFS, and described the BeViers' situation. Randall replied that he did not consider the situation abusive and suggested alternatives to arrest. Hucal became angry and explained that the arrests had already been made.

Randall picked up the children at the Red Cross Center later that evening and placed them in foster homes. Robert and Annette were taken to the Sangamon County Jail. They were not released until late Monday afternoon, although no charges were ever filed against them. Robert and Annette were reunited with their children the next day. During their incarceration most of their property was lost when Links Amusements moved to the next destination.

Robert and Annette brought this § 1983 action alleging that they were arrested without probable cause. They sought compensatory and punitive damages against Hucal and Thompson; Thompson was later dismissed as a defendant. Damages of $16,413.60 and attorney's fees of $3,888.63 were awarded to the plaintiffs. The magistrate, in his memorandum opinion, found that the arrests were unreasonable under the circumstances. Although he found that the children's condition and physical living environment "would only weakly support an arrest for intentional child neglect," the ...

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