Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 C 1958-Suzanne B. Conlon, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
ARGUED SEPTEMBER 13, 2010-
Before EASTERBROOK, Chief Judge, and POSNER and TINDER, Circuit Judges.
Plaintiff-Appellant Wayne Jackson brought a Fourth Amendment claim against Defendant-Appellee Joe Dortha Parker for false arrest pursuant to 42 U.S.C. § 1983. He claimed that Parker, a Chicago police officer, did not have probable cause to arrest him for driving under the influence and various other minor traffic violations. Jackson presented evidence that Parker framed him for DUI by falsifying the results of his field sobriety tests as part of an ongoing scheme of making phony DUI arrests to obtain increased overtime pay. The district court granted summary judgment in favor of Parker, based in part on its finding that there was probable cause to arrest Jackson for driving a prohibited vehicle on Lake Shore Drive in violation of a city ordinance. The court correctly determined that a finding of probable cause bars Jackson's false arrest claim even if Parker did not have probable cause to arrest Jackson for a DUI and even though Jackson was not ultimately charged with driving a prohibited vehicle. Recognizing the weakness of his false arrest claim, Jackson re-structures his argument on appeal to assert that he was unreasonably detained in violation of the Fourth Amendment because of the alleged DUI frame-up. Jackson forfeited this argument by not raising it below and accordingly, we affirm the district court's grant of summary judgment in favor of Parker.
While on duty, Officer Parker observed Jackson's vehicle, a Chevrolet Silverado pickup truck, driving southbound on Lake Shore Drive on May 10, 2006, around 3:30 p.m. Jackson's vehicle had "B Truck" license plates, as opposed to passenger-type plates. Parker testified that he noticed Jackson's vehicle was prohibited from Lake Shore Drive under Chicago Municipal Code,Ill. § 9-72-020, which makes it unlawful to operate "any vehicle upon any boulevard . . . when such vehicle is designed primarily for carrying freight or other goods and merchandise" subject to an exception not at issue here. Chi., Ill., Mun. Code § 9-72-020(b). Parker also testified that he observed Jackson make an illegal lane change in violation of Chicago Municipal Code § 9-12-050, which makes it "unlawful for the driver of any vehicle to fail or refuse to keep his vehicle within the designated boundaries of any . . . lane except when lawfully passing another vehicle." Id. § 9-12-050(b). Parker testified that he saw Jackson abruptly move his vehicle twice from the right to the left lane of Lake Shore Drive and then back again.
Parker executed a traffic stop, approached Jackson, and informed him that he was prohibited from operating his truck on Lake Shore Drive. When Parker asked Jackson if he was aware that he was not supposed to be on Lake Shore Drive, Jackson said "yes." Parker further observed that Jackson's windshield had a crack, an alleged violation of Chicago Municipal Code § 9-40-170, which makes it "unlawful for any person to drive . . . on any roadway any vehicle . . . which is in such unsafe condition as to endanger any person or property . . . or is not equipped with . . . equipment in proper condition . . . as required in the traffic code . . . ." Id. § 9-40-170.
After allegedly observing that Jackson had pinpointed pupils, bloodshot eyes, a flush complexion, and slurred speech, Parker asked Jackson if he had been drinking and Jackson said "no." Jackson testified that in the twenty-four hour period before being pulled over, he had not consumed any alcohol or drugs. Parker ad- ministered several roadside field sobriety tests and reported that Jackson failed each test. Parker arrested Jackson and took him to the police station, where he administered a breathalyzer test. Jackson testified that he blew into the machine in accordance with Parker's instructions, but Parker manipulated the test to make it appear that Jackson refused to submit to the test. Parker, on the other hand, claimed that Jackson attempted to circumvent the test. Jackson was detained at the police station until his release at approximately 3:00 the next morning.
As indicated by Parker's arrest report, Jackson was arrested and charged with (1) driving under the influence of narcotics (2 counts); (2) failing to notify the Secretary of State of an address change; (3) failing to keep in lanes; and (4) driving an unsafe vehicle. Jackson was not charged with the prohibited vehicle violation, but the arrest report does indicate that Jackson was observed "operating a prohibited motor vehicle on Lake Shore Drive." Prior to trial in the Circuit Court of Cook County, the prosecutor amended the charges to eliminate the DUI counts and substituted a charge of negligent driving. After a bench trial, the court found that Jackson violated Chicago Municipal Code § 9-12-050 by engaging in improper traffic lane usage and failing to notify the Secretary of State of an address change,*fn1 but found him not guilty on the other charges. Jackson was given a diversionary sentence; he was placed under supervision and ordered to pay a $50 fine. He satisfactorily completed his supervision.
Jackson brought suit against Parker under 42 U.S.C. § 1983, asserting a Fourth Amendment violation for false arrest. Parker filed a motion for summary judgment arguing, in part, that there was probable cause to arrest Jackson for the lane change violation and prohibited vehicle violation and that probable cause to arrest is an absolute bar to a § 1983 claim for false arrest. In response, Jackson argued that Parker did not have probable cause to stop or arrest him for any traffic violation. Specifically, he presented evidence that he did not make any abrupt lane changes and never changed lanes illegally. He further denied that the vehicle he was driving was a prohibited vehicle and instead asserted that there was a genuine issue of material fact whether he was driving a vehicle that violated the ordinance. Jackson, however, did not present supporting evidence or legal argument that probable cause was lacking to arrest him for the prohibited vehicle violation. Rather, he merely asserted that Parker did not present credible or direct evidence of such a violation. Neither party addressed the unsafe vehicle charge at the district court or on appeal.
In his brief in opposition to Parker's motion for sum-mary judgment, Jackson further clarified that his complaint "makes clear that his theory of liability is false arrest for DUI." In fact, he stated, "that is the only criminal charge referenced in [the] complaint." He asserted that he passed his field sobriety test, that his speech was not slurred during his encounter with Parker, that his balance was perfect, and that he did not sway, stagger, or swagger. He stated that there was no evidence of any impairment to support an arrest for DUI and instead, Parker falsified the results and wrongfully arrested him for DUI as part of an ongoing scheme to increase his overtime pay. Jackson presented evidence showing that Parker intentionally reported false information in DUI reports in forty-nine other cases by misrepresenting that arrestees failed their field sobriety tests. Jackson also presented evidence that the Public Corruption and Financial Crimes Unit of the Special Prosecutions Bureau of the Cook County State's Attorney's Office was involved in an ongoing investigation of Parker concerning his conduct as a police officer.
The district court agreed with Parker that Jackson's false arrest claim must fail because Parker had probable cause to stop and arrest Jackson. The court determined that Jackson could not contest probable cause on the lane change violation under the principles of Heck v. Humphrey, 512 U.S. 477 (1994), because his state conviction on that charge rested on Parker's testimony that he observed Jackson make an illegal lane change. Even if Jackson's claim was not barred by Heck, the court found that there was probable cause to arrest Jackson on the prohibited vehicle violation. The court concluded that a finding of probable cause for that offense defeated Jackson's false arrest claim whether or not there was probable cause to substantiate the DUI charges. Jackson appealed.
Jackson re-structured his argument on appeal. He now asserts that Parker violated his Fourth Amendment rights by unreasonably detaining him after the initial traffic stop so he could frame Jackson for DUI. He contends that probable cause to arrest for a minor traffic offense does not immunize an officer who, after making the traffic stop, frames the motorist for a more serious crime, thereby unreasonably prolonging the seizure. Jackson points out that under Illinois law, a person ar-rested for a minor traffic offense "shall" post bail in any of three ways, one of which is "by depositing . . . a current Illinois driver's license." Ill. Sup. Ct. R. 526(a). On the other hand, a person arrested for driving under the influence cannot deposit his driver's license to obtain release, but must post a cash bail. Ill. Sup. Ct. R. 526(c). Accordingly, Jackson asserts that because of the frame-up he could not simply ...