Alexander, Nathan D. v. Deangelo, Joseph ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3124
NATHAN D. ALEXANDER, II, and AMY GEPFERT,
Plaintiffs-Appellants.
v.
JOSEPH DEANGELO, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:01-CV-137—William C. Lee, Judge.
____________
ARGUED JANUARY 13, 2003—DECIDED MAY 22, 2003
____________
Before POSNER, KANNE, and DIANE P. WOOD, Circuit
Judges.
POSNER, Circuit Judge. The plaintiffs appeal from the
grant of summary judgment to the defendants in a dam-
ages suit against two Fort Wayne police officers, Joseph
DeAngelo and Dan Hannaford, and the City itself. The
plaintiffs have not appealed from the dismissal of their
claim against the City, however; nor, it appears, are they
pursuing their claim against Hannaford, whom the briefs
ignore completely.
The suit was brought under 42 U.S.C. § 1983 in an Indiana
state court, charging violations of the plaintiffs’ federal civil
2 No. 02-3124
rights, and surprisingly was removed by the defendants
to federal district court. The surprise lies in the belief by
many civil rights lawyers that state courts favor the state’s
public officers. But at argument the defendants’ lawyer
explained that summary judgment is easier for a defendant
to obtain in a federal court than in an Indiana state court;
and the plaintiffs, having filed the case originally in the
state court, doubtless anticipated a benefit from doing so.
The plaintiffs are a former Fort Wayne police officer,
Nathan Alexander, and a woman, Amy Gepfert, whom
DeAngelo and several fellow officers enlisted in a sting
against Alexander. We construe the facts as favorably to
the plaintiffs as the record permits, because of its proce-
dural posture. Alexander was suspected of a variety of
frauds. Gepfert was under investigation for participation
in a cocaine offense. The officers asked Gepfert whether
she knew Alexander. She did; in fact, she had had a sexual
relationship with him, though it had ended a month
previously. They told her she was facing 40 years in pris-
on on the cocaine charge unless she agreed to help them
nail him. She asked to consult a lawyer, and although they
did not forbid her to do so they discouraged her, telling her
that they were “the attorneys.” In a second meeting with her,
three days later, they asked her whether she had ever
received money from Alexander after having sex with him,
and she said she had, once, to get her nails done. They asked
her whether she’d be willing to have oral sex with him for
money, so that they could charge him with soliciting a
prostitute. She agreed. They wired her for the encounter and
also gave her a napkin and instructed her to spit Alexan-
der’s semen into it to provide physical evidence of the sex
act. She duly performed oral sex on him in his patrol car
and asked for and received $17 to do her nails, and she
preserved the semen in the napkin and gave it to the
No. 02-3124 3
officers. Alexander was arrested and charged with various
offenses, including soliciting a prostitute, but the charges
were dropped, apparently because the state’s witnesses,
including Gepfert, refused to cooperate further. Alexander
claims that the charges were baseless, but this is very
doubtful in view of the evidence. After a hearing that
provided him with due process, the police department
fired him for his various offenses. Gepfert, who had no
criminal record, was not charged with any offense, either
prostitution or sale of cocaine. DeAngelo was not disci-
plined for his unusual investigative tactics.
We can deal quickly with Alexander’s appeal. Stings
are not illegal or even disreputable, see United States v.
Murphy, 768 F.2d 1518, 1528-29 (7th Cir. 1985); there was
reason to believe that Alexander had paid Gepfert for sex
in the past; and there was probable cause to arrest him
on the basis of the recording of his encounter with her in
the patrol car, the semen in the napkin being a gratuitous
addition to the evidence. The fact that Gepfert asked him
for money for her nails is irrelevant. Prostitutes, like
other people, seek income in order to purchase goods
and services. It is not a defense to prostitution for the
prostitute to say, “My fee is $100 and I plan to use it to
buy milk for my children.” Although there is some evi-
dence of hostility to Alexander on the part of other Fort
Wayne police officers because he is black but has had
white girlfriends, the evidence is clear that the reason the
department was out to get him was a well-founded suspi-
cion that he had engaged in a variety of illegal acts, most of
them more serious than paying for oral sex. He would not
have had sex with Gepfert had he known she was trying
to set him up for an arrest, but the fact that he was tricked
into having sex is not a defense. United States v. Simpson,
813 F.2d 1462, 1466-68 and n. 4 (9th Cir. 1987). Nothing is
more common in the investigation of victimless crimes
4 No. 02-3124
such as prostitution than to pose a police officer (or, as here,
a cooperating witness) as a prostitute. Such trickery does
not violate any constitutional right of criminals. State v.
Tookes, 699 P.2d 983, 985-86 (Haw. 1985); State v. Putnam, 639
P.2d 858, 860, 862 (Wash. App. 1982).
Coercing Gepfert to have sex with Alexander, if that is
the proper characterization of what happened here, is a
more serious matter. But even if that violated her rights,
it would not help him; he cannot complain about an in-
fringement of the constitutional rights of another person.
United States v. Payner, 447 U.S. 727, 737 n. 9 (1980); United
States v. Noriega, 117 F.3d 1206, 1213-15 (11th Cir. 1997);
United States v. Santana, 6 F.3d 1, 8-9 (1st Cir. 1993). Since,
however, she is also a plaintiff, we must consider whether
her rights were violated.
There is much debate in the briefs over whether “outra-
geous” police conduct, as Gepfert characterizes her treat-
ment by the police, can ever in and of itself, that is, by vir-
tue of its sheer outrageousness, be deemed a violation of
a person’s rights under the due process clause of the Fifth
or Fourteenth Amendments. The debate echoes cases in
which outrageous police behavior is interposed as a de-
fense to a criminal prosecution. Some circuits continue
to recognize the existence of such a defense, at least as
a theoretical possibility. United States v. Nolan-Cooper, 155
F.3d 221, 224, 230 (3d Cir. 1998); United States v. Gaviria, 116
F.3d 1498, 1533-34 (D.C. Cir. 1997) (per curiam); United
States v. Santana, supra, 6 F.3d at 3-8. Yet as the last of these
opinions points out, “the doctrine is moribund; in prac-
tice, courts have rejected its application with almost monot-
onous regularity.” Id. at 4. We flatly rejected the doctrine
in United States v. Boyd, 55 F.3d 239, 241-42 (7th Cir. 1995);
see also United States v. Tucker, 28 F.3d 1420, 1426-28 (6th
Cir. 1994), because the concept of outrageous police con-
duct is hopelessly nebulous and subjective and because
No. 02-3124 5
the fact that the police misbehave is not a sensible ground
for letting a guilty criminal walk.
Gepfert’s claim, however, can be cut loose from the
“outrageous” police conduct cases and reconceptualized
as a charge of battery committed under color of state law
and therefore actionable under the due process clause of
the Fourteenth Amendment after all. The liberty protected
by that clause includes bodily integrity, see Cruzan v.
Director, Missouri Dep’t of Health, 497 U.S. 261, 278-79 (1990),
and cases cited there; United States v. Husband, 226 F.3d
626, 632 (7th Cir. 2000), and is infringed by a serious, as
distinct from a nominal or trivial, battery. Wudtke v. Davel,
128 F.3d 1057, 1062-63 (7th Cir. 1997); Bennett v. Pippin, 74
F.3d 578, 583-84, 589 (5th Cir. 1996); Stoneking v. Bradford
Area School District, 882 F.2d 720, 722, 726 (3d Cir. 1989). The
qualification is important. Because any offensive touching
(unless consented to, which removes the offense) is a
battery, Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)
(Friendly, J.), most batteries are too trivial to amount to
deprivations of liberty. Cameron v. IRS, 773 F.2d 126, 129
(7th Cir. 1985); Askew v. Millerd, 191 F.3d 953, 958 (8th Cir.
1999); Luciano v. Galindo, 944 F.2d 261, 264 (5th Cir. 1991);
Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859
F.2d 929, 948-49 (D.C. Cir. 1988); Hernandez v. Lattimore, 612
F.2d 61, 67 (2d Cir. 1979); Johnson v. Glick, supra, 481 F.2d at
1033; cf. County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8
(1998). Rape, however, is not only a battery, Paul v.
Montesino, 535 So. 2d 6, 7 (La. App. 1988); United National
Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d 105, 108
(2d Cir. 1993), but a very serious battery, and a rape com-
mitted under color of state law is therefore actionable under
42 U.S.C. § 1983 as a deprivation of liberty without due
process of law. Wudtke v. Davel, supra, 128 F.3d at 1063; Jones
v. Wellham, 104 F.3d 620, 622, 628 (4th Cir. 1997); Rogers
v. City of Little Rock, 152 F.3d 790, 793-96, 798 (8th Cir. 1998).
6 No. 02-3124
Sex procured by threats that the threatener has no legal
right to make is a common form of rape, see, e.g., People v.
Thompson, 530 N.E.2d 839, 840-42 (N.Y. 1988); People v.
Minsky, 129 Cal. Rptr. 2d 583, 584-87 (App. 2003), review
granted, 2003 WL 21005629 (Cal. Apr. 16, 2003); Gibbs v.
State, 623 So. 2d 551, 552-54 (Fla. App. 1993) (per curiam),
and this is a permissible characterization of the facts of
this case as they are disclosed by the record to date, though
a trial might cast them in a different light. On Gepfert’s
construal of the facts, she was induced by DeAngelo and his
fellow officers to perform oral sex on Alexander by their
threat to put her away for 40 years if she refused to cooper-
ate with them. Given that Gepfert had no criminal record
and never was prosecuted for the cocaine offense even
after she refused to play ball with the prosecution of Alex-
ander, and given also the effort to discourage her from
consulting a lawyer before she decided whether to partici-
pate in the sting against Alexander, the threat may have
been fraudulent. The suggestion that she was facing a prison
term of 40 years was extravagant. Because of the small
quantity of cocaine that she was alleged to have sold,
the absence of conspiracy or aggravating circumstances,
and her lack of a criminal record, she would have been
guilty only of a class B felony, see Ind. Code § 35-48-4-1(a),
for which the sentence is 10 years with a possible reduc-
tion to 6 years if there are mitigating circumstances, id. § 35-
50-2-5—as there were here.
It thus appears (always construing the facts as we must
at this stage of the litigation as favorably to the plaintiff
as the record will permit) that the police may have ob-
tained Gepfert’s consent to sex by fraud, and if so that
was a battery. Granted, not all fraudulent solicitations of
sex, even if successful in inducing sex, are actionable
as battery or punishable as rape. For example, it is not
a battery, or rape, to induce consent to sexual intercourse
by a false promise of marriage, Oberlin v. Upson, 95 N.E.
No. 02-3124 7
511, 512 (Ohio 1911); Freedman v. Superior Court, 263 Cal.
Rptr. 1, 3 (App. 1989); see also Restatement (Second) of
Torts § 892B, comment g and illustration 9 (1979), though
in some states it is the tort of breach of promise. But a
false threat of lengthy imprisonment is a form of coercion
that can vitiate consent to sex and turn the sex into bat-
tery. Cal. Penal Code § 261(a)(6); Doe v. South Carolina
State Budget & Control Board, 494 S.E.2d 469, 471 (S.C. App.
1997), aff’d, 523 S.E.2d 457 (S.C. 1999); cf. United States
v. Horton, 601 F.2d 319, 322-23 (7th Cir. 1979); Hart v.
Miller, 609 N.W.2d 138, 141-46 (S.D. 2000). That DeAngelo
did not intend to have sex with Gepfert, cf. State v. Carlson,
48 P.3d 1180, 1190-91, 1193 (Ariz. 2002); Greene v. State, 572
S.E.2d 382, 384-85 (Ga. App. 2002), that she had a prior
sexual relationship with Alexander, that she may think oral
sex no big deal (some young people nowadays do not
consider it “real” sex at all), that she did not consult a
lawyer in order to obtain a realistic assessment of her
exposure to criminal punishment, and that she did not
express indignation (compare Isabella in Measure for Mea-
sure) at being asked to engage in sex for an ulterior purpose,
are circumstances that neither singly nor in combination
constitute a defense to battery, though they may be relevant
to damages—as may, on the other side, be the fact that
Gepfert’s agreeing to act as a prostitute “got out” and
received media attention. While libel or, more nearly on
point, casting a person in a false light is not a constitu-
tional tort, if a constitutional tort is proved damages to
reputation are allowable along with the other consequential
damages traceable to the tort. Dishnow v. School District of
Rib Lake, 77 F.3d 194, 199 (7th Cir. 1996).
We want to emphasize, however, a point that we made
earlier in discussing Alexander’s claim—that the use
of trickery is an accepted tool of criminal law enforce-
ment and does not in itself give rise to liability under sec-
8 No. 02-3124
tion 1983. Trickery is the essence of the sting, and the sting
is an indispensable method for detecting certain types of
crime, such as public corruption. But there are limits to
the principle that condones deceit in law enforcement just
as there are limits to most other legal principles. For exam-
ple, although “a law-enforcement agent may ‘actively
mislead’ a defendant in order to obtain a confession, so
long as a rational decision remains possible,” United States
v. Ceballos, 302 F.3d 679, 695 (7th Cir. 2002), quoting United
States v. Rutledge, 900 F.2d 1127, 1131 (7th Cir. 1990), the
qualification “so long as a rational decision remains possi-
ble” is important and a confession induced by a false
promise of leniency—or of punishment—may be deemed
coerced and therefore inadmissible in a criminal prosecu-
tion. Johnson v. Trigg, 28 F.3d 639, 641-42 (7th Cir. 1994);
United States v. Rutledge, supra, 900 F.2d at 1130. And for
an injury inflicted in the course of coercing a suspect to
confess, damages can be sought in a suit under section 1983.
E.g., Wilson v. City of Chicago, 6 F.3d 1233 (7th Cir. 1993). So
fraud can, depending on its consequences, give rise to a
section 1983 claim. If Gepfert’s evidence is believed (an
essential qualification, given the procedural posture of
the case), the elements of a serious battery committed by
means of a fraud are present, and this distinguishes the
present case from one of permissible police trickery.
We also emphasize, as further marking the limits of
this opinion, that inducing a confidential informant to
engage in sex as part of a sting operation does not always
give rise to a claim under section 1983. This is so even
though it differs from the usual situation in which a con-
fidential informant or government undercover agent
commits a crime, such as buying or selling illegal drugs,
as part of a sting; for in such a case the crime is nominal;
the stinger is neither benefited nor harmed by his par-
ticipation in it. Gepfert engaged in a sexual act, and not
for pleasure. But confidential informants often agree to
No. 02-3124 9
engage in risky undercover work in exchange for leniency,
and we cannot think of any reason, especially any reason
rooted in constitutional text or doctrine, for creating a
categorical prohibition against the informant’s incurring
a cost that takes a different form from the usual risk of be-
ing beaten up or for that matter bumped off by a drug
dealer with whom one is negotiating a purchase or sale
of drugs in the hope of obtaining lenient treatment from
the government. The rub here is that Gepfert (always
assuming that she can sustain her case in a trial) was
intentionally and indeed grossly deceived about the bene-
fits and costs of the distasteful act in which she was asked
to engage.
The qualification in “intentionally and indeed grossly
deceived” deserves emphasis, however: we do not expect
law enforcement personnel to be experts in the intricacies of
the nearly unfathomable federal sentencing guidelines or
comparable intricacies in state sentencing regimes; nor do
we expect that misstatements about a specific sentence that
an accused potentially faces will routinely rise to the level
of an actionable fraud.
But we have yet to consider the defense of qualified
immunity. Although the principle that battery under color
of law is actionable under section 1983 is well established,
Rogers v. City of Little Rock, supra, 152 F.3d at 798; Jones v.
Wellham, supra, 104 F.3d at 628, a plaintiff does not defeat
the immunity defense “simply by alleging violation of
extremely abstract rights. . . . The contours of the right must
be sufficiently clear that a reasonable official would under-
stand that what he is doing violates that right. . . . [I]n the
light of pre-existing law the unlawfulness must be appar-
ent.” Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). The
police did not rape Gepfert in the ordinary sense of the term
“rape,” or for that matter cause Alexander to rape her in the
ordinary sense in which one would speak of A having
10 No. 02-3124
caused B to rape C—nor have we found any “third party”
rape cases. Characterization of DeAngelo’s action as rape
and hence battery required us to engage in a close and
perhaps not entirely intuitive analysis leading to a conclu-
sion likely to startle many police officers. Indeed, the
plaintiff’s lawyer himself barely hinted at the theory that we
have adopted.
Granted, the absence of a previous decision establish-
ing liability on the same facts is not critical; “the easiest
cases [for liability] don’t even arise.” United States v.
Lanier, 520 U.S. 259, 271 (1997); K.H. Through Murphy v.
Morgan, 914 F.2d 846, 851 (7th Cir. 1990). We said in McDon-
ald by McDonald v. Haskins, 966 F.2d 292, 295 (7th Cir. 1992),
that “it should have been obvious to Haskins that his
threat of deadly force—holding a gun to the head of a 9-
year-old and threatening to pull the trigger—was objec-
tively unreasonable given the alleged absence of any dan-
ger to Haskins or other officers at the scene and the fact
that the victim, a child, was neither a suspect nor attempt-
ing to evade the officers or posing any other threat.” This
case is just over the line from that one; for we cannot
say that it would have been obvious to the average officer
that the deceit employed in this case rose to the level of
a constitutional violation. Hence DeAngelo (and Hannaford,
if as we doubt he is still in the case) is protected from
liability.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-22-03