Argued Oct. 8, 2013.
Lawrence V. Jackowiak, Attorney, Law Offices of Lawrence V. Jackowiak, Chicago, IL, for Plaintiff-Appellant.
Ruth F. Masters, Attorney, Oak Park, IL, for Defendant-Appellee.
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
POSNER, Circuit Judge.
Sharron Balthazar sued the City of Chicago (which we can ignore) and two of its police officers under 42 U.S.C. § 1983, charging that the two officers, and several others not charged, had conducted an unreasonable search of her apartment, in violation therefore of the Fourth Amendment, which has been made applicable to searches by state or local officers (as in this case) by interpretation of the due process clause of the Fourteenth Amendment. A jury returned a verdict for the defendant and Balthazar appeals.
She lived on the third floor of an apartment house. There were two apartments on that floor, one facing the street and the other an alley behind the building. Police had a warrant to search the apartment facing the alley for narcotics. Both apartments had rear doors about fifteen feet apart opening on a common balcony from which flights of stairs descended to the ground. Early in a fall afternoon in 2009, police, including the two defendant officers, arrived to execute the search warrant. The officers climbed the stairs to the balcony. One of them (defendant Beckman) carried a battering ram— in police lingo he was the " breach officer" on the warrant team. Beckman swung the ram at the door of the plaintiff's apartment, breaking it open. According to the plaintiff's testimony (and also that of her 14-year-old son and her sister— the son was in the apartment with his mother and her cousin; the sister came over later, allegedly to help clean up a mess created by the police), the officers entered the Balthazar apartment, screaming profanities and pointing their guns, which included " long guns" (not further defined), " face-to-face, like two inches away," at the occupants (the plaintiff, her son, and the cousin, who didn't testify, of the plaintiff's). The officers handcuffed the plaintiff and her cousin and ransacked the apartment, dumping " flour and sugar everywhere and food on the floor," opening drawers, flipping mattresses, throwing clothing, and in short turning the apartment into a " total disaster." Ten or fifteen minutes into the search another officer appeared and told the searchers they were in the wrong apartment, whereupon they all left for the other apartment on the plaintiff's floor, the one for which they had the search warrant.
That is the plaintiff's version of the facts. According to the defendants, Beckman, wanting to " get up the stairs as quickly as possible" to avoid a " potential hazard," became slightly disoriented lugging the battering ram— which weighed at least 30 pounds and possibly as much as 85 pounds— up two and a half flights of stairs (the first floor of the apartment house was a half flight of stairs above the ground). As a result he confused the two apartments on the plaintiff's floor. He was the first officer to reach the balcony but officer Murphy, the other defendant officer and the leader of the warrant team, was only about ten feet behind Beckman on the staircase and saw that Beckman was at the wrong door and shouted " wrong door, wrong door!" Too late; Beckman had started to swing the battering ram and couldn't check its momentum, though in an unsuccessful effort to avoid hitting the door he was able to lower the ram far enough that it hit just the bottom of the door. Still, the door burst open and he
saw a man inside (it must have been the cousin), as did Murphy and another officer, who was close behind him. None of the officers entered the plaintiff's apartment. They rushed immediately to the other apartment, the one designated in their warrant, and searched it after battering in the door when no one answered their demand to open the door (there turned out to be no one in that apartment).
The plaintiff's brief recites Balthazar's version of the facts as if it were Gospel, but changes gears in the argument section and says that " the undisputed facts at trial established that Defendant Beckman forcibly breached Plaintiff's back door and was able to observe inside Plaintiff's apartment without a warrant or any other legal justification. Courts have repeatedly held that viewing inside Plaintiff's apartment under these circumstances constituted a search." The argument sections of her briefs contain no reference to the version of the facts to which the plaintiff testified and which the lawyer in his opening and closing arguments urged the jury to accept: no reference to guns, handcuffs, flour and sugar on the floor, mattresses upended, etc.
We'll discuss the objections of the plaintiff's lawyer to rulings by the judge concerning the alternative factual narrative, in which the " search" is a glance sans handcuffs and guns and ransacking. But even if the objections are compelling, it would be a travesty of justice for the plaintiff to be allowed to prevail. If the police officers did not enter her apartment, terrify the occupants by pointing " long guns" at them, handcuff her and her cousin, and ransack the apartment, then her testimony that they did these things was perjured (doubtless to magnify her damages if she prevailed, as the police had already voluntarily paid for the damage to the door), because she couldn't have been innocently mistaken in testifying to these actions. In effect her counsel is telling us: " Yes, she lied, and that's why I'm going to talk just about the alternative theory, which is that Beckman, having after mistakenly broken in glanced into the apartment (how could he help doing so?) and the glance was a search." The glance-in theory is true only if the handcuff-long-gun-ransack theory is false, and if it's false that is because it's a fabrication by the plaintiff, aided and abetted by her son and sister. It couldn't be an erroneous recollection. What reasonable jury would accept a theory of liability that presupposed that the plaintiff was a perjurer?
There is every indication that it was indeed a fabrication. The only witnesses called by the plaintiff, besides herself, her son, and her sister, were the two defendants and one other officer— adverse witnesses all three of whom denied the plaintiff's tale. And the sister did not confirm the presence of flour and sugar on the kitchen floor, or the son his mother's testimony that he was so frightened by the incident that he wanted to sleep in her bed " all the time." He testified that he played basketball later that day, laughed about the event with his mom, and that within two days the incident was completely gone from his thoughts, except that he " can't believe in the police that much no more" (a remark consistent with the police having simply broken open the door by mistake). While insisting that the officers brandished " long guns," mother and son were evasive and would not testify that by " long guns" they meant rifles or shotguns rather than pistols.
Balthazar did take her son to a hospital several days after the incident, presumably for psychiatric counseling, and was billed $623 for the visit (plus the same amount for whatever counseling or other services she received from ...