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March 24, 1994

JEFFREY HVORCIK, et al., Plaintiffs,
MICHAEL SHEAHAN, Sheriff of Cook County, et al., Defendants.

The opinion of the court was delivered by: MILTON I. SHADUR

 Three of the four named plaintiffs--Jeffrey Hvorcik ("Hvorcik"), James Poloncasz ("Poloncasz") and Vincent Hedge ("Hedge") *fn1" --were arrested on the basis of invalid arrest warrants--warrants that at one time had been legitimate but, unknown to the arresting officers, had since been recalled (quashed) by the courts. Although warrants themselves are issued by the courts in the first instance, the warrant records in Cook County are maintained by the Sheriff's Office. Plaintiffs now bring this three-count class action *fn2" against Cook County Sheriff Michael Sheahan ("Sheahan" or the "Sheriff") in his official capacity, charging him with (1) illegal custodial detention ("seizure" within the meaning of the Fourth Amendment *fn3" ) in violation of their civil rights under 42 U.S.C. ยง 1983 ("Section 1983"), (2) false arrest under state law and (3) civil contempt of court, also a state law claim.

 Plaintiffs now move for summary judgment as to liability (not as to damages) on all counts pursuant to Rule 56, while Sheahan in his turn moves for summary judgment on the ground of his claimed Eleventh Amendment immunity. *fn4" For the reasons set forth in this memorandum opinion and order, plaintiffs' motions are denied as to all of the named plaintiffs but are granted as to the class, while Sheahan's motion is denied.


 Warrants issued by the Circuit Court of Cook County are tracked in three independent ways: by the Clerk of the Circuit Court, by the Illinois State Police and by the Sheriff's Department, the latter through the Sheriff's Fugitive Warrants Division ("FWD"). FWD is headquartered in the "Central Warrants Office" at 26th and California in Chicago, but it also operates offices staffed by the Sheriff's warrant clerks in all suburban districts. One of FWD's primary responsibilities is to maintain the Sheriff's Police Warrant Computer System ("SPWA"), a records repository for about 125,000 active warrants.

 Judicial orders are of course the means both for giving life to warrants and for later depriving them of such life. To process the quash and recall orders ("recall orders") after they are signed by judges, each Circuit Court Judge is assigned a deputy court clerk who works for Clerk Aurelia Pucinski ("Pucinski"). Although each courtroom is also assigned a deputy sheriff, the mission of those deputies is strictly security--they have no responsibility for the recall orders. Instead the Sheriff's Office is kept apprised of the status of outstanding warrants by the Sheriff's FWD warrant clerks assigned to the various municipal districts--it is their job to enter into the SPWA the data transmitted from the Clerk's Office. *fn5"

 That transfer of information takes place when a Clerk's Office employee places one of the four color-coded copies of the recall order in a basket for pickup by the Sheriff's people, typically within two to five days after the order is issued. *fn6" In addition, the Clerk's Office also provides the Sheriff's Office with a monthly list of recall orders entered for all non-traffic cases, and the Sheriff's Office then compares that listing to its own list of warrants reported as active on the SPWA.

 That "cross-checking" procedure has been conducted regularly since 1988. Throughout the relevant time period the task was performed by Investigator Ralph Willer ("Willer"), and P.Ex. 31 contains a compendium of his monthly reports beginning in July 1991 (D. Exs. 4 and 5 are his reports from 1990 and 1989, respectively). By cross-checking against the Clerk's list, Willer typically catches and removes from the SPWA between 49 to 100 warrants per month that, though listed as active, should have been recalled but were not for one reason or another.

 Three warrants that were not successfully purged from the system led to the arrests of Hvorcik, Poloncasz and Hedge, all in the Fourth Municipal District. Each of them was arrested when a recalled warrant (stemming from since-resolved misdemeanor charges) was incorrectly classified as active at the time that a law enforcement officer ran a computer check. This opinion later deals with the specifics of those events.

 Section 1983 Claim

 Because under Illinois law Sheriff Sheahan in his official capacity is the ultimate decisionmaker in his area of Illinois' governmental structure, *fn7" the analysis of plaintiffs' Section 1983 claim begins with the familiar decision in Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690-91, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Monell, id. charted the necessary elements of such a claim as (1) a deprivation of a constitutionally protected interest (2) caused by an official policy, custom or usage of the governmental entity (accord in the context of a wrongful-warrant-based arrest, Powe v. City of Chicago, 664 F.2d 639, 643 (7th Cir. 1981)).

 1. Deprivation of a Constitutional Interest

 Even with reasonable factual inferences drawn in Sheahan's favor, the initial hurdle of showing a constitutional deprivation (in this instance impinging on Fourth and Fourteenth Amendment rights) poses no difficulty for plaintiffs. Murray v. City of Chicago, 634 F.2d 365, 366 (7th Cir. 1980) has put the matter succinctly:

It seems clear that appellant sustained a violation of constitutional rights by being arrested and detained pursuant to an invalid warrant.

 Indeed, Sheahan essentially concedes that plaintiffs have suffered a deprivation of the requisite constitutional gravity, *fn8" for his submissions focus exclusively on the second Monell prong (D. Mem. 2, 9-23). This opinion therefore turns to that issue.

 2. Official Policy, Custom or Usage

 Monell is perhaps best known for its negation of respondeat superior liability under Section 1983 (436 U.S. at 691)--for the proposition later articulated (for example) in Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986):

Monell reasoned that recovery from a municipality is limited to acts that are, properly speaking, acts "of the municipality"--that is, acts which the municipality has officially sanctioned or ordered.

 Obviously even a single decision or action by the legislative body that governs a municipality--or given the status of a sheriff under Illinois law, a single decision or action by Sheriff Sheahan himself--will meet that test for Section 1983 purposes (id.). But when a plaintiff points to the conduct of anyone farther down in the pecking order, courts have required a showing that the conduct may fairly be laid at the doorstep of the ultimately authorized decisionmaker or decisionmakers ( id. at 480-81)--hence the regular case law references to "official policy, custom or usage."

 It goes without saying that Sheriff Sheahan has not promulgated an actual directive to any officers to arrest and detain suspects on warrants that have already been recalled (see Mitchell v. Aluisi, 872 F.2d 577, 579 (4th Cir. 1989) ("There is no evidence of a policy anywhere in Prince George's County to serve invalid warrants")). Hence plaintiffs must look to the Monell -taught doctrine well summarized in McNabola v. CTA, 10 F.3d 501, 511 (7th Cir. 1993) (citations from other Courts of Appeals omitted):

In the absence of a formal policy, [plaintiff] must rely on Monell's custom or practice prong to establish a oasis for municipal liability. Monell authorizes the imposition of liability against a municipal entity "for constitutional deprivations visited pursuant to governmental 'custom' even though such custom has not received formal approval through the body's official decisionmaking channels." 436 U.S. at 690-91, 98 S. Ct. at 2036; see also Pembaur, 475 U.S. at 482 n.10, 106 S. Ct. at 1300 n.10. We explained in Cornfield [v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1326 (7th Cir. 1993)] that "a practice of unconstitutional conduct, although lacking formal approval, may provide a basis for municipal liability" if the plaintiff can establish that the policymaking authority acquiesced in a pattern of unconstitutional conduct. 991 F.2d at 1326; see also Felton v. Board of Commissioners, 5 F.3d 198, 203 (7th Cir. 1993). A municipal "custom" may be established by proof of the knowledge of policymaking officials and their acquiescence in the established practice. The longstanding or widespread nature of a particular practice would support the inference that policymaking officials "must have known about it but failed to stop it." *fn9"

 In this instance all of the claimed "customs" or "practices" are cast in terms of the Sheriff's derelictions rather than his affirmative behavior. Every factor identified by plaintiffs as causing the violations of their constitutional rights is based on an omission, a failure to take precautionary steps that would have averted the unjustified arrests: failure to conduct satisfactory cross-checks, failure to train and supervise, failure to heed the warnings of various officers concerning the deficiencies in the system, failure to provide suburban police forces with validation printouts, failure to include misdemeanors and traffic offenses among the validation procedures to clear out dead warrants.

 That omission-to-act approach to Section 1983 has been applied at the highest possible judicial level (see, e.g., City of Canton v. Harris, 489 U.S. 378, 390, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989) (failure adequately to train police officers may constitute "city policy" even if "it may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees"). City of Oklahoma City v. Tuttle, 471 U.S. 808, 822-23, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985) had earlier explained that while the term policy "generally implies a course of action consciously chosen from among various alternatives," it can also encompass a practice such as "inadequate training." But in any such case "evidence [must] be adduced which proves that the inadequacies resulted from conscious choice--that is, proof that the policymakers deliberately chose a training program which would prove inadequate" ( id. at 823).

 Drawing on that standard, our own Court of Appeals requires "a high degree of culpability" before a municipal policymaker will be held liable for a failure such as an inadequate training program ( Cornfield, 991 F.2d at 1327). Thus "deliberate indifference" to the rights of the aggrieved plaintiff has become the benchmark for such a claim (id., quoted in the next paragraph of this opinion). And of course the City of Canton approach and the "deliberate indifference" test are not limited to failure-to-train cases. But because the required proof of "deliberate indifference" may vary depending on the claimed delinquency on the defendant's part, this opinion turns to the meaning of that concept in the context of this case.

 3. Deliberate Indifference

 As just suggested, the cases teach that "deliberate indifference" can connote different states of mind in different contexts (see, e.g., Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) ("unnecessary and wanton infliction of pain" shows "deliberate indifference to serious medical needs of prisoners"); Whitley v. Albers, 475 U.S. 312, 320-21, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986) (during prison emergencies deliberate indifference involves actions taken "maliciously and sadistically for the very purpose of causing harm"). Cornfield, 991 F.2d at 1327 (quoting City of Canton, 489 U.S. at 389) has recently spoken to that subject in a manner that defines the task for this Court:

Deliberate indifference itself is an elusive standard. The Supreme Court reasoned that policymakers would be deliberately indifferent when "in light of the duties assigned to the specific. . .employees[,] the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights." In order to ensure that isolated instances of misconduct are not attributable to a generally adequate policy or training program, we require a high degree of culpability on the part of the policymaker. Coupled with a causation requirement, this standard ensures that the violation alleged is not too far removed from the policy or training challenged as inadequate. Taken together, these two considerations amount to a requirement that liability be based on a finding that the policymakers have actual or constructive notice that a particular omission that [sic] is likely to result in constitutional violations. Otherwise, we would risk creating de facto respondeat superior liability, which is contrary to Monell.

 In those terms the question is whether Sheriff Sheahan as the policymaker has had "actual or constructive notice" that the omissions asserted by plaintiffs are "likely to result in constitutional violations.

 Sheriff Sheahan shifts the thrust of that inquiry a bit by attempting to minimize the pervasiveness of instances of systemic malfunctions, thus touching off a debate about just how widespread the problem is (D. Mem. 10 says "There is no statistical evidence that arrests on invalid warrants represent a significant systemic problem. . .," while P. Mem. 9 says that arrests based on invalid warrants "have continued to occur with shocking frequency"). Although a summary judgment motion would of course be an inappropriate vehicle for resolution of factual disputes in that respect, that specific quarrel is really beside the point because a single constitutional injury can of course trigger Section 1983 liability (thus Pembaur, 475 U.S. at 478 n.6 reconfirms the teaching of City of Oklahoma City that a single application of unconstitutional policy is enough). Although the record contains unrebutted evidence indicating the endemic nature of the problem of invalid warrants and consequent invalid arrests and detentions, *fn10" what controls on this facet of the case is that no plaintiff is under any obligation to prove any injuries beyond his or her own.

 One way in which the pervasiveness of the problem (or lack of it) would be relevant could be on the Monell prohibition of respondeat superior liability--that is, the question whether Sheahan himself (as opposed to his subordinates) had actual or constructive knowledge of recurrent abuses. But that is not an issue that Sheahan has staked out--on the contrary, he has essentially conceded his awareness of the need for procedural changes. Apparently recognizing the existence of ample evidence to create constructive notice of his office's defective procedures, *fn11" Sheahan responds to the deliberate indifference accusation by contending that he has adopted policy modifications to remedy the shortcomings. Sheahan maintains that his ...

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