Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 81 C 1630 -- Brian B. Duff, Judge.
Before POSNER and COFFEY, Circuit Judges, and GRANT, Senior District Judge.*fn*
Plaintiff-appellant Gary Hensley appeals the district court's grant of a summary judgment in favor of defendants-appellees Theodore Williams and Robert Stanley on his claim that Williams and Stanley allegedly conducted a suggestive lineup which resulted in Hensley being arrested and confined for a period of 111 days. We affirm.
On September 12, 1979, an unknown man followed Carol Pufpaf to her home at 4120 N. Campbell in Chicago, Illinois. While Pufpaf was entering the front door of her home, the unknown man entered the house through an unlocked rear door, confronted Pufpaf and forced her onto a bed. The assailant fled after Pufpaf and her seven year-old son started screaming. Pufpaf subsequently described the assailant as a white male with an olive complexion, dark brown hair, about 5'9" in height, approximately 150 pounds in weight, and about 19 years of age.
Hensley, a white male, 18 years of age, with a blond military-style haircut, with light skin, is 6'0" tall, weighed 165 pounds and was a member of the United States Marine Corps on active duty in the city of Chicago. Three days after the assault, on September 15, 1979, Hensley was stopped by a Chicago policy officer who questioned him and asked for identification. The following day, two police officers visited Hensley's home in the company of Chris Vandenberg, a witness who had observed a man following Pufpaf into her home. Vandenberg identified Hensley in the presence of the police officers as the man he had seen following Pufpaf. The two officers placed Hensley under arrest and conveyed him to the local police station.
During the evening of September 15, 1979 appellant Theodore Williams, a Chicago police officer, arranged for a lineup that included Hensley and five other white males. Hensley was the only person in the lineup wearing a short military-style haircut. Even though Williams was aware of this fact he and another officer, Detective John Beaumont, attempted to but were unable to locate any other white males with short haircuts, including members of the policy department itself, to participate in the lineup. Appellant Robert Stanley, also a Chicago policy officer, approved of the lineup, and the group was exhibited to Pufpaf. Pufpaf identified Hensley as her assailant, and Hensley was subsequently indicted on various criminal charges of burglary, attempted rape, and attempted robbery. Hensley, unable to post bond, remained in custody for 111 days while awaiting trial.
According to the prosecuting attorney assigned to the case, Pufpaf's seven-year-old son after observing Hensley at a preliminary hearing*fn1 stated to the mother "that is not the man," meaning that Hensley was not Pufpaf's attacker. According to police investigators, they believed Pufpaf's son a had more than ample opportunity to view the assailant during the attack as he observed the assailant push his mother into the bedroom. After her son's comment, Pufpaf told the prosecuting attorney that she had not had a good look at her assailant and picked Hensley out of the lineup because of his short hair. While Pufpaf was not sure whether Hensley was her attacker after her son's comment, she maintained that her earlier description of the assailant had been accurate. At the hearing in which the state court dismissed the charges pending against Hensley, the prosecution stated:
"I spoke to the victim, Carol Pufpaf, about this at length and it was her opinion that she certainly was not now convinced and definitely decided the defendant was not the person who committed the crime in question. Carol expressed to me her opinion that she would stick by her original description and that the Defendant had dark brown hair and olive skin and the reason for picking him out of the lineup and being confused was the military look definitely portrayed by the Defendant in this case, the same type of military look that she recalled the Defendant or perpetrator of this crime having.
She further went on to say that she did not get a very good look at the offender on the date in question due to the fact that she was staring at a very large knife that he was jabbing towards her and pushing her into a bedroom."
The police re-evaluated the case and conducted a further investigation of Hensley's prior alibi that he had been elsewhere at the time of Pufpaf's attack and now convinced of Hensley's truthfulness released him on January 4, 1980.
On March 23, 1981, Hensley filed suit against Williams and Stanley pursuant to 42 U.S.C. § 1983 alleging that his constitutional rights had been violated under the Fifth, Sixth, and the due process clause of the U.S. Constitution in that the officers had conducted a suggestive lineup. Hensley originally named Bernard Carey, the Cook County States Attorney, Williams, Stanley and various other defendants in his suit but the district court dismissed all but ...