hearing is not in the record, it appears that it was held in the late afternoon.
A jury convicted Gonzalez of aggravated battery, armed violence, and attempt murder. The appellate court vacated the conviction for aggravated robbery and armed violence and affirmed the conviction for attempt murder. That conviction has withstood several collateral challenges in both state and federal court.
Standard of Review
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the initial burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party has pointed out the lack of a genuine issue of material fact, a non-moving party who bears the burden of proof on an issue may not rest on the pleadings. He instead must come forth with specific facts through affidavits or other materials showing that a genuine issue of material fact exists and requires trial. Id. at 324; Morgan v. Harris Trust and Savings Bank, 867 F.2d 1023, 1026 (7th Cir. 1989). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Exhaustion of Habeas Corpus Remedies
O'Quinn advances several grounds in support of his motion for summary judgment. He first asserts that Gonzalez's challenge to the conditions of his detention is essentially a challenge to the fairness of his trial which can only be made in a habeas corpus petition because it amounts to a constitutional challenge to his conviction. Accordingly, O'Quinn, citing Hernandez v. Spencer, 780 F.2d 504 (5th Cir. 1986), contends that Gonzalez cannot bring his § 1983 claim until after he has exhausted the remedies available to him under the habeas corpus statutes. Although it is true that an imprisoned § 1983 plaintiff must first exhaust his habeas remedies before pursuing his civil rights claims, see Hanson v. Heckel, 791 F.2d 93 (7th Cir. 1986), that requirement does not preclude this action.
This action would not interfere with ongoing state proceedings, undermine the validity of a criminal conviction or facilitate the circumvention of the federal habeas corpus statutes, the rationales for requiring the exhaustion of post-conviction remedies. See Scruggs v. Moellering, 870 F.2d 376, 378-379 (7th Cir. 1989); see also Johnson v. Chicago, 712 F. Supp. 1311, 1316-17 (N.D.Ill. 1989). In Arizona v. Fulminante, 499 U.S. 279, 113 L. Ed. 2d 302, 111 S. Ct. 1246, 1265 (1991), the Supreme Court stated that admission at trial of a coerced confession is "simply an error in the trial process itself" rather than a "structural defect" in the constitution of the trial. Relying on that distinction, the Court then ruled that the admission of a coerced statement will not render a conviction invalid if it was harmless beyond a reasonable doubt. In light of Fulminante, a finding that Gonzalez's statement was a product of state coercion would not necessarily, and in fact would almost certainly not, undermine his conviction. Judge Prentice Marshall dismissed Gonzalez's federal habeas corpus petition finding the evidence of his guilt "overwhelming." United States ex rel. Gonzalez v. Chrans, 87 C 10372 (N.D.Ill. June 27, 1988). That dismissal was affirmed on appeal after the close of briefing on O'Quinn's summary judgment motion. No. 88-2468 (7th Cir. Apr. 17, 1990).
More to the point, however, this § 1983 claim is not precluded because Gonzalez has in fact exhausted his habeas remedies. He has no further avenues of relief to challenge the fact of his conviction. Gonzalez was unsuccessful before the state postconviction court which found that he had waived his claim regarding his allegedly coerced statement by failing to raise it on direct appeal. In addition, as mentioned above, Judge Marshall's dismissal of Gonzalez's federal habeas corpus petition was affirmed by the Seventh Circuit after the close of briefing in this motion.
Conditions of Detention/Coerced Statement
The crux of Gonzalez's suit against O'Quinn goes not to the fairness of the criminal trial (hence the concern over exhaustion of habeas remedies) but rather to the alleged acts of coercion themselves. At the outset, it must be remembered that a police officer who takes a statement from a suspect is not responsible for determining whether that statement was sufficiently voluntary to be admitted into evidence. The mere fact that an involuntary statement was introduced at trial therefore is not be enough to subject him to § 1983 liability. See Duncan v. Nelson, 466 F.2d 939, 942 (7th Cir.), cert. denied, 409 U.S. 894, 34 L. Ed. 2d 152, 93 S. Ct. 116, 93 S. Ct. 175 (1972) (police officers who coerced defendant's confession were not proximate cause of the confession's introduction in evidence at trial) (untenable to conclude that police officers would foresee that trial judge would erroneously admit unlawful confession); cf. Hensley v. Carey, 818 F.2d 646 (7th Cir.), cert. denied, 484 U.S. 965, 98 L. Ed. 2d 395, 108 S. Ct. 456 (1987) (police officer conducting lineup not liable because defendant has no right to be free from an unduly suggestive lineup separate and apart from his right to fair trial). After all, Gonzalez had available procedures to protect his right to a fair trial independent and apart from any role O'Quinn may have played in the taking of his statement. For example, if the statement were coerced as he alleges, he could have moved to have the statement suppressed.
The concern here thus is not with the admission of the statement at Gonzalez's trial. The concern is over the means employed to extract it. Although those who take a statement from a suspect may not be responsible for determining whether that statement is voluntary and therefore admissible at trial, they are responsible for their treatment of the suspect. The relevant legal question then is not whether Gonzalez gave a voluntary statement, but whether O'Quinn violated any of Gonzalez's constitutionally protected rights by compelling Gonzalez to incriminate himself "by fear of hurt, torture, exhaustion, or any other type of coercion. . . ." Duncan, 466 F.2d at 944.
The court then must examine the O'Quinn's acts to see whether they caused an infringement of constitutionally protected rights. Gonzalez gave his statement approximately twenty-four hours after his arrest. The act of coercion Gonzalez singles out in the complaint as unconstitutional is the deprivation of food between his arrest and the giving of his statement. Under the facts here, however, O'Quinn had Gonzalez in custody for only two relatively brief periods during those twenty-four hours. He had custody of Gonzalez for an hour or two following Gonzalez's arrest at 4:00 p.m. and then again the next morning between 10 o'clock and the completion of the lineup sometime that afternoon. Altogether, Gonzalez was in O'Quinn's custody for at most eight hours. The issue therefore is whether O'Quinn's failure to feed Gonzalez during those eight hours violated Gonzalez's constitutional rights.
Before addressing this issue, it is necessary to identify exactly which constitutional right is involved in Gonzalez's claim. The Fourth Amendment protects arrestees while the Fourteenth Amendment is the principal source of protection for pretrial detainees (i.e., suspects who have been charged). Courts have had some difficulty, however, in determining when Fourth Amendment protection ends and when Fourteenth Amendment protection takes over in claims arising from acts occurring between the time of a suspect's arrest and the time he is charged. See Jones v. Chicago, 856 F.2d 985, 994 (7th Cir. 1988). In Jones v. County of DuPage, 700 F. Supp. 965, 972 (N.D.Ill. 1988), this court held that an individual arrested without a warrant remains an arrestee until he is brought before a judicial officer for a probable cause determination. Under this analysis, claims regarding the conditions of detention prior to the probable cause hearing are judged by the reasonableness standard of the Fourth Amendment.
The Seventh Circuit, however, implicitly rejected this view in Wilkins v. May, 872 F.2d 190 (7th Cir. 1989), cert. denied, 493 U.S. 1026, 110 S. Ct. 733, 107 L. Ed. 2d 752 (1990), a case involving a show of force to extract a confession. Wilkins held that the Fourth Amendment protection against unreasonable seizures lasts only until such time as the arrestee "has been securely placed in custody." Id. at 193. Thus, under Wilkins, use of force during an interrogation is analyzed as a question of substantive due process under the Fourteenth Amendment.
The relevant liberty is not freedom from unlawful interrogations but freedom from severe bodily or mental harm inflicted in the course of an interrogation. We do not undertake to specify a particular threshold, a task that may well exceed our powers of articulation. But it is a high threshold, and to cross it Wilkins and plaintiffs like him must show misconduct that a reasonable person would find so beyond the norm of proper police procedure as to shock the conscience, and that is calculated to induce not merely momentary fear or anxiety, but severe mental suffering.