both involved § 1983 claims in which prisoners alleged deprivations of due process. In Parratt, the petitioner's jailers lost a hobby kit he had ordered through the mail. In Daniels, the petitioner hurt himself when he slipped on a pillow that his jailers had left on the stairs. Daniels held that Parratt went too far in ruling that negligence by state actors could ever give rise to a claim for violation of due process, which historically had been interpreted to prohibit deliberate or arbitrary government conduct. Daniels, 474 U.S. at 330-31. But Daniels did not take issue with the portion of Parratt stating that a plaintiff states a claim under § 1983 by (1) alleging a constitutional deprivation (2) by a person acting under color of state law. See West, 487 U.S. at 48. Daniels simply held that in a § 1983 case predicated on a deprivation of due process, the plaintiff cannot clear the first hurdle of the prima facie case by alleging mere negligence. The Court in Daniels explicitly stated that "we need not rule out the possibility that there are other constitutional provisions that would be violated by mere lack of care in order to hold, as we do, that such conduct does not implicate the Due Process Clause of the Fourteenth Amendment." Id. at 334.
In § 1983 claims by convicted prisoners for violations of the Eighth Amendment and by pretrial detainees for violations of the Fourteenth Amendment, federal courts similarly have held that prisoners who are negligently subjected to some indignity cannot hold prison or jail officials liable under § 1983 because the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment applicable to pretrial detainees are violated only by deliberate acts or deliberate indifference to the prisoners' suffering. See Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992) (Fourteenth Amendment); Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992) (Eighth Amendment). These cases show how a court's inquiry into a § 1983 defendant's subjective state of mind is folded into the inquiry into whether the plaintiff actually has suffered a constitutional violation, and not whether state of mind is a defense to the violation, once established. See Wade v. Hegner, 804 F.2d 67, 69-70 (1986).
Therefore, this court must inquire into whether a Fourth Amendment violation requires any particular mental state on the part of the offending officer. The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. In cases involving seizures of persons, there is little doubt that a Fourth Amendment violation at least requires the officer's intentional act of terminating the person's freedom of movement. See Brower v. County of Inyo, 489 U.S. 593, 596-97, 103 L. Ed. 2d 628, 109 S. Ct. 1378 (1989) (stating that Fourth Amendment seizure occurs "only when there is a governmental termination of freedom of movement through means intentionally applied"). But this intent requirement applies to whether a seizure has occurred. For example, a police officer has not made a seizure for Fourth Amendment purposes by unintentionally crashing a squad car into the plaintiff, Apodaca v. Rio Arriba County Sheriff's Dep't, 905 F.2d 1445, 1447 (10th Cir. 1990), but an intentional crash would constitute a Fourth Amendment seizure. Adams v. St. Lucie County Sheriff's Dep't, 962 F.2d 1563, 1570 (11th Cir. 1992), rev'd on other grounds, 998 F.2d 923 (11th Cir. 1993).
Once a court determines that a Fourth Amendment "seizure" has taken place, the analysis must turn to whether the seizure was "reasonable." Pliska v. City of Stevens Point, 823 F.2d 1168, 1176 (7th Cir. 1987). The reasonableness analysis has never entailed an examination of the officer's state of mind or intent. The reasonableness of a search or seizure is judged by an objective standard, Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), or whether the officer's acts were "objectively reasonable" in light of the facts and circumstances confronting the officer. Graham v. Connor, 490 U.S. 386, 397, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). This reasonableness determination reflects "'a careful balancing of governmental and private interests.'" Soldal v. Cook County, 121 L. Ed. 2d 450, 113 S. Ct. 538, 549 (1992) (quoting New Jersey v. T.L.O., 469 U.S. 325, 341, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985)). "What matters is the intrusion on the people's security from government interference. Therefore, the right against unreasonable seizures would be no less transgressed if the seizure of the house were undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all." Soldal, 113 S. Ct. at 548 (emphasis added); see also Graham, 490 U.S. at 397 (stating in Fourth Amendment use of force case that "an officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional"). Applying Graham to a § 1983 claim alleging unlawful arrest, the Ninth Circuit held that it was error to instruct the jury that the plaintiff had to show the defendant officer specifically intended to violate the plaintiff's Fourth Amendment rights. Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir. 1992). So although a violation of the Fourth Amendment is no less a deprivation if done negligently, the question of the officer's "objective good faith" will come into play during the later stage of the analysis when the court determines whether a remedy is available for the deprivation, i.e. whether the officer may assert the defense of qualified immunity. Specht v. Jensen, 832 F.2d 1516, 1523 (10th Cir. 1987), remanded on other grounds, 853 F.2d 805 (1988) (en banc), cert. denied, 488 U.S. 1008 (1989). The officer's subjective good faith is relevant only if it concerns one of the substantive elements of the constitutional wrong, but it will always be irrelevant to the objective inquiry of qualified immunity. See Elliott v. Thomas, 937 F.2d 338, 344 (7th Cir. 1991), cert. denied, 112 S. Ct. 973 (1992).
Once a § 1983 plaintiff establishes the prima facie case, a defendant public official may plead qualified immunity as an affirmative defense. However, courts should analyze qualified immunity only after resolving the "purely legal question" of whether the plaintiff has established a violation of a constitutional right. Sivard v. Pulaski County, 17 F.3d 185, 189 (7th Cir. 1994). Qualified immunity is a judicially created doctrine that stems from the conclusion that few persons would enter public service if they would incur personal liability for their reasonable decisions. Cleveland-Perdue v. Brutsche, 881 F.2d 427, 430 (7th Cir. 1989), cert. denied, 498 U.S. 949, 112 L. Ed. 2d 331, 111 S. Ct. 368 (1990). Qualified immunity generally shields government officials from civil liability arising from their performance of discretionary functions to the extent that their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Biddle v. Martin, 992 F.2d 673, 675 (7th Cir. 1993) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). Whether an official is entitled to qualified immunity on the facts, it is a question of law for the court. Rakovich v. Wade, 850 F.2d 1180, 1201 (7th Cir.) (en banc), cert. denied, 488 U.S. 968, 102 L. Ed. 2d 534, 109 S. Ct. 497 (1988).
In this case, the parties do not dispute that Walter Edwards had a clearly established constitutional right against being detained without reasonable suspicion and being arrested without probable cause. Defendants dispute that their acts deprived Edwards of his Fourth Amendment rights and argue that even if they did, defendants are entitled to qualified immunity.
II. Cabrera's Initial Questioning of Walter Edwards
Defendants argue that when Walter Edwards was questioned near his parked car and near the bus, he was never subjected to anything more than a consensual encounter with the police. Edwards argues that the questioning constituted an investigative detention, for which the necessary reasonable articulable suspicion was lacking.
In what has become known as a Terry stop, a police officer may briefly detain a person for investigation if the officer has a "reasonable articulable suspicion" of criminal activity. Terry, 392 U.S. at 21-22. The Terry stop is a Fourth Amendment "seizure," but if the officer simply seeks a person's voluntary cooperation through noncoercive questioning, the police-citizen encounter is consensual and does not implicate the Fourth Amendment. United States v. Adebayo, 985 F.2d 1333, 1337-38 (7th Cir.), cert. denied, 113 S. Ct. 2947 (1993). In such a consensual encounter, "'the degree of suspicion that is required is zero.'" United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir. 1990) (quoting United States v. Serna-Barreto, 842 F.2d 965, 966 (7th Cir. 1988)). In determining whether a police-citizen encounter is consensual, the Seventh Circuit considers several factors:
-- whether the encounter occurred in a public or private place;