January 7, 2016
from the United States District Court for the Eastern
District of Wisconsin. No. 14-C-224 - William C. Griesbach,
Easterbrook, Manion, and Sykes, Circuit Judges.
Leaver was arrested in Montana on a Wisconsin warrant for
theft by lessee after he failed to return a rental car to
Hertz Rent-A-Car in Appleton, Wisconsin. He spent more than
two months in a Montana jail before being extradited to
Wisconsin. The theft charge was eventually dropped.
then filed this suit under 42 U.S.C. § 1983 alleging
that the investigating officer, Sergeant Gary Shortess of the
Outagamie County Sheriff's Department, intentionally or
recklessly omitted certain exculpatory information from his
police reports that would have defeated probable cause for
the charge and accompanying warrant. The district court
granted summary judgment for Shortess.
affirm. No evidence suggests that Shortess was personally
aware of the information Leaver claims was wrongly omitted
from the police reports. And even if he was aware of
it, qualified immunity applies. It's not clear that the
information would have negated probable cause.
saga of Leaver's arrest and extradition begins in August
2010 in Appleton, Wisconsin, where Leaver was then living in
a motel. On August 2 Leaver's parked car was struck by a
driver who was insured by West Bend Mutual Insurance Company.
West Bend covered Leaver's loss and agreed to pay for a
rental car from Hertz. That same day Leaver went to
Hertz's Appleton office, signed a rental agreement,
loaded all his belongings into a rented 2010 Toyota Camry,
and set off westward, leaving the state. He wound up in
Montana. There he stayed.
rental contract, however, provided that the Camry was due
back to Hertz Appleton on August 12. At Leaver's request,
and with West Bend's consent, Hertz extended the return
date to August 16. That date came and went, but Leaver did
not return the car. When he still hadn't returned the car
by August 18, Hertz reported it stolen.
John Drews of the Outagamie County Sheriff's Department
took the initial theft report from Hertz. He learned that
Leaver had designated Sam Carrier, his roommate in Appleton,
as his contact person. Drews contacted Carrier, who said he
had last spoken to Leaver on August 9 or 10. Cartier also
explained that Leaver had packed all his belongings in the
rental car and was possibly headed for California. Cartier
gave Drews the last contact information he had for Leaver-a
phone number for a Motel 6 in Montana. Drews called the
number but Leaver had already checked out. With no further
leads on either Leaver or the car, Drews directed the
communications center in the Outagamie County Sheriff's
Department to enter the car into the stolen-vehicle registry
and send an alert to the Montana Highway Patrol to be on the
lookout for the missing Camry.
September 10 Sergeant Shortess picked up the investigative
trail when the Sheriff's Department received a teletype
that the stolen Camry had been located, undamaged, in
Montana. Shortess reviewed Drews's report and the
statement he had taken from the complaining witness at Hertz
Appleton. He also looked at the rental agreement, which
showed that Leaver had a Michigan driver's license.
Shortess called the Michigan State Police looking for contact
information for Leaver or anything else that might assist in
locating him or a family member. This inquiry turned up
nothing. Based on what he then knew, Shortess concluded that
he had enough to refer the matter to the Outagamie County
District Attorney for a theft charge. He prepared a report to
that effect, listing that day's date-September 10,
2010-as the date the car was recovered in Montana.
matter stalled for six months. Then on March 16, 2011, an
Outagamie County Assistant District Attorney filed a criminal
complaint charging Leaver with theft by lessee. See
Wis. Stat. § 943.20(1)(e). An arrest warrant was issued
that same day, though many weeks would pass before Leaver was
located and arrested.
maintains that he was entitled to keep the Camry for up to 62
days and return it to any Hertz location in the country. He
points to the following clause in the rental agreement:
"This vehicle must be returned to Appleton, WI on
08/12/10 at 16:42 or a higher rate and/or inter city fee will
apply. Minimum keep: 1 rental day. Maximum keep: 62 days
@26.99/day." But a separate section entitled
"Return" also states: "You must return the car
to Hertz by the due date specified on the rental record, or
sooner if demanded by Hertz." Adding to the confusion,