William Shaw v. Milwaukee County, Wisconsin ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 4, 2022*
Decided April 4, 2022
Before
WILLIAM J. BAUER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21‐1410
WILLIAM ROBERT SHAW, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 20‐C‐1533
COUNTY OF MILWAUKEE, et al., William C. Griesbach,
Defendants‐Appellees. Judge.
ORDER
William Shaw, a state pretrial detainee, was arrested by Milwaukee police for
drug possession. He then filed a complaint in federal court, alleging that Milwaukee
County as well as the police officers, lawyers, and judge involved in his arrest conspired
to violate his rights under federal and state law. The district court dismissed Shaw’s
complaint on various immunity grounds and for failure to state a claim. We agree with
* Appellees were not served with process and are not participating in this appeal.
After examining the appellant’s brief and the record, we have concluded that the case is
appropriate for summary disposition. See FED. R. APP. P. 34(a)(2)(C).
No. 21‐1410 Page 2
the district court that several of the state actors are immune from suit and affirm the
judgment in part on that basis. But because Shaw’s criminal cases are still pending in
Wisconsin courts, we vacate the court’s judgment with respect to his remaining
damages claims and remand with instructions to stay the proceedings.
In reviewing the dismissal of Shaw’s complaint, we accept all well‐pleaded facts
as true and make all reasonable inferences in his favor. Calderone v. City of Chi., 979 F.3d
1156, 1161 (7th Cir. 2020). As Shaw describes, Milwaukee police recorded a phone call
that he had with Trina Florez, a confidential informant. Florez told Shaw to go to her
house to collect money she owed him. When Shaw arrived, however, police arrested
him without a warrant, searched him, and found heroin, cocaine, and firearms. An
officer later established probable cause for the arrest by referring to Florez’s directive to
Shaw in the recording to “come through with heroin,” as Shaw did. But in the
recording, Shaw says, Florez only mentioned the money he was to pick up. Based on
the officer’s statement, a judge found probable cause for Shaw’s arrest.
County prosecutors charged Shaw with possession of heroin, and they
introduced into evidence a transcript of the call recording. They also introduced the
transcript in another of Shaw’s criminal cases. Both cases against Shaw remain pending.
See State v. Shaw, No. 2017CF00355 (Wis. Cir. Ct., filed July 22, 2017); State v. Shaw,
No. 2017CF000769 (Wis. Cir. Ct., filed Feb. 18, 2017).
During an evidentiary hearing, the officer who filed the probable‐cause
statement admitted that the recording did not capture Shaw saying he would “come
through with heroin.” As Shaw recounts, the judge brushed aside the falsified evidence
as irrelevant and said that the veracity of the statement was for the jury to find. The
judge also tampered with the court record, Shaw says, and endorsed a practice of
fabricating evidence to sanitize unjustifiable, warrantless arrests.
Shaw brought this civil‐rights suit for damages and injunctive relief against the
officers, prosecutors, and judge involved in his criminal cases as well as his standby
public defender and Milwaukee County. See 42 U.S.C § 1983. He alleged a Fourth
Amendment claim against the officers regarding his arrest and the probable‐cause
statement; a “privacy rights” claim (under the Fourth Amendment and various
statutory protections) against the prosecutors for disclosing the call recording in court;
Fourteenth Amendment “equal rights” and “due process” claims against the
prosecutors, standby counsel, and the judge; and a “municipal liability claim” against
Milwaukee County for its alleged practice of justifying warrantless arrests with
fabricated probable‐cause statements and disclosing transcripts of private calls in court.
No. 21‐1410 Page 3
At screening, 28 U.S.C. § 1915A, the district court dismissed Shaw’s complaint
for failure to state a claim. With respect to his claims regarding the recorded call, the
court ruled that Shaw had no reasonable expectation of privacy on a call in which the
other party was an informant, so he had no claims with respect to the recording of the
call or its disclosure. As for Shaw’s false‐arrest claims, the court found that
notwithstanding the probable‐cause statement, the drugs found during the arrest
sufficed to establish probable cause. The court added that in any event, the prosecutors,
public defender, and judge must be dismissed because they cannot be sued under
§ 1983 for actions stemming from their roles in the criminal judicial process. Finally, the
court concluded that even if Shaw had alleged a constitutional claim, the court would
have abstained from resolving it because of potential interference with his ongoing state
proceedings. See Younger v. Harris, 401 U.S. 37, 43–44 (1971).
On appeal, Shaw argues that the district court mischaracterized his allegations
and failed to consider the facts in the light most favorable to him. For instance, he says,
the court misconstrued his privacy claim as challenging the officers’ recording of his
call, rather than the prosecutors’ disclosure of the recording in court. He argues that the
court wrongly discounted his allegations regarding Milwaukee’s policy of disclosing
recordings such as of his call, which he characterizes as privileged. He also faults the
court for mischaracterizing as a “state law tort claim” his allegations that Milwaukee
County had a widespread practice of fabricating probable‐cause statements to justify
warrantless arrests. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691–95 (1978).
For starters, Shaw does not engage the district court’s reasons for concluding that
he may not bring claims against the state prosecutors, judge, or standby counsel under
§ 1983. The district court properly dismissed these claims. Prosecutors and judges are
immune from damages claims stemming from their roles in the criminal judicial
process. Tobey v. Chibucos, 890 F.3d 634, 650 (7th Cir. 2018) (collecting cases). And Shaw
may not sue his standby counsel because a public defender is not a “state actor” under
§ 1983 when performing the traditional functions of counsel. Polk Cnty. v. Dodson, 454
U.S. 312, 325 (1981).
That leaves Shaw’s claims against Milwaukee County (for its alleged acceptance
of fabricated evidence to cover up unconstitutional arrests and for improper disclosure
of call recordings such as his own) and several police officers (for falsifying the
probable‐cause statement that justified his arrest). The district court dismissed these for
failure to state a claim, but that ruling was premature. Shaw’s criminal cases are still
pending, and federal courts should abstain from deciding claims that call into question
No. 21‐1410 Page 4
ongoing state proceedings. See Younger, 401 U.S. at 43–44; see also J.B. v. Woodard, 997
F.3d 714, 722 (7th Cir. 2021). Resolving the constitutionality of law enforcement’s
conduct throughout Shaw’s cases would inject this court into Wisconsin’s criminal
proceedings, offending the principles of equity, comity, and federalism that counsel
toward abstention. J.B., 997 F.3d at 722; see also SKS & Assocs. v. Dart, 619 F.3d 674, 677–
79 (7th Cir. 2010) (collecting cases). But because monetary relief is not available to him
in his defense of state criminal charges (and because his claims may become time‐
barred by the time the state prosecution has ended), the district court should have
stayed rather than dismissed Shaw’s damages claims. Gakuba v. O’Brien, 711 F.3d 751,
753 (7th Cir. 2013).
We AFFIRM the district court’s judgment as to those defendants immune from
suit under 42 U.S.C. § 1983 and as to Shaw’s claims for injunctive relief. We VACATE
the court’s dismissal of Shaw’s damages claims against the remaining defendants, and
REMAND with instructions to stay this action.