Mustafa, Anna v. City of Chicago ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2101
ANNA MUSTAFA,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03-C-6799—Robert W. Gettleman, Judge.
____________
ARGUED JANUARY 4, 2006—DECIDED MARCH 23, 2006
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Before POSNER, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Anna Mustafa sued the
defendant police officers for false arrest and violation of her
civil rights following an incident at Chicago’s O’Hare
Airport. The district court granted summary judgment in
favor of the defendants because it found that there was
probable cause to arrest Mustafa, and even in the absence
of probable cause, the defendants were protected by quali-
fied immunity. Because we agree with the district court
that the defendant officers acted upon probable cause and,
in any event, acted within the scope of their immunity, we
reject Mustafa’s argument that summary judgment was
improperly granted and affirm the ruling of the district
court.
2 No. 05-2101
I. BACKGROUND
Anna Mustafa is a 56-year-old American citizen of
Palestinian descent and Muslim faith. On December 28,
2001, just three months after the attacks of September 11,
Mustafa received word that her father had died in Israel.
That afternoon, Mustafa arrived at the Swissair ticket
counter at O’Hare, intending to fly to Tel Aviv by way
of Zurich, Switzerland to attend her father’s funeral.
Mustafa was accompanied to the counter by nineteen
members of her immediate family. Mustafa ordered a
“Muslim” meal for the flight. Moments later, the Swissair
clerk took Mustafa to a bomb-detection machine to have her
two pieces of luggage inspected for weapons. Mustafa
suspected that this was an instance of discriminatory
religious or ethnic profiling. Following the inspection,
Mustafa complained about her treatment to a Swissair
manager, Muhammad Qadeer, who offered to escort her to
the gate because the screening was complete. During this
exchange, Mustafa was screaming and the area was
crowded. Mustafa realized that security personnel had
failed to inspect her purse. She did not realize that carry-on
bags would be screened at another checkpoint, and she was
concerned that if Swissair later realized it had not checked
the purse, she would be delayed and miss her flight.
Mustafa tried to point out that her purse had not been
inspected, saying, “You already checked my luggage. Maybe
I have a bomb in my purse. Nobody has checked that.” In
response to the word “bomb,” an employee working at a
nearby United Airlines counter began to yell that she had
heard the “B-word” and that security should be called.
Another manager, Mauricio Penaranda, called the police to
report an “unruly” passenger saying the word “bomb.”
Within two to three minutes, defendant Officer Susan
Schober arrived and observed what she later described as
a “commotion.” Qadeer informed her that Mustafa had
No. 05-2101 3
made a statement like “Maybe I have a bomb in my purse.”
Officer Schober, Qadeer, Mustafa, and one of Mustafa’s
sons, Murad Mustafa, spent 20 to 30 minutes in conversa-
tion that focused on calming Mustafa down so that she
could get on the flight to Zurich. Following this conversa-
tion, defendants Sergeant Gawlik and Officer Burke arrived
and asked Officer Schober if she had checked Mustafa’s
purse. Since the answer was no, the two new officers
checked the purse, shouting abusively at Mustafa. Sergeant
Gawlik placed Mustafa under arrest. Mustafa, her son
Murad, and Sergeant Gawlik engaged in a screaming
argument during which Sergeant Gawlik insulted Mustafa’s
family and made a racist reference to the September 11
terrorist attacks three months earlier. Mustafa spent two
days in jail before being released on $50,000 bond; she
missed her father’s funeral. Mustafa was indicted on a
charge of Felony Disorderly Conduct—Bomb Threat pursu-
ant to 720 ILL. COMP. STAT. 5/26-1(a)(3), but acquitted
following a bench trial.1
After Mustafa was acquitted, she filed the instant suit
against the City of Chicago and four police officers, which
originally contained seven counts. A number of claims,
including all those stated against the city, were dismissed.
The defendant police officers moved for summary judg-
ment on the surviving counts, false arrest and violation
of Mustafa’s right to equal protection under the law pursu-
ant to 18 U.S.C. § 1983. The district court granted summary
1
The statute under which Mustafa was charged applies to any
person who “Transmits or causes to be transmitted in any man-
ner to another a false alarm to the effect that a bomb . . . is
concealed in such place that its explosion or release would
endanger human life, knowing at the time of such transmis-
sion that there is no reasonable ground for believing that such
bomb . . . is concealed in such place.” 720 ILL. COMP. STAT. 5/26-
1(a)(3).
4 No. 05-2101
judgment for the defendants on both counts. This appeal
followed.
II. ANALYSIS
A. There was probable cause to arrest Mustafa.
We review a district court’s grant of summary judgment
de novo, viewing the facts in the light most favorable to the
non-moving party. McCoy v. Gilbert, 270 F.3d 503, 508 (7th
Cir. 2001). Probable cause to arrest is an absolute defense
to any claim under Section 1983 against police officers for
wrongful arrest, false imprisonment, or malicious prosecu-
tion. Potts v. City of Lafayette, 121 F.3d 1106, 1113 (7th Cir.
1997). This is so even where the defendant officers allegedly
acted upon a malicious motive (such as the racism that
Mustafa suggests motivated the defendants here). Simmons
v. Pryor, 26 F.3d 650, 654 (7th Cir. 1993), citing Fernandez
v. Perez, 937 F.2d 368, 371 (7th Cir. 1991).
Police officers have probable cause to arrest an individual
when “the facts and circumstances within their knowledge
and of which they have reasonably trustworthy information
are sufficient to warrant a prudent person in believing that
the suspect had committed” an offense. Kelley v. Myler, 149
F.3d 641, 646 (7th Cir. 1998). The court evaluates probable
cause “not on the facts as an omniscient observer would
perceive them,” but rather “as they would have appeared to
a reasonable person in the position of the arresting officer.”
Id.; see also Woods v. City of Chicago, 234 F.3d 979, 987 (7th
Cir. 2000).
Here, there were at least two separate facts that could
have led a reasonable person to believe that a crime had
been committed. First, the earliest arriving officer, Officer
Schober, observed “commotion” and “agitation” in progress,
with Mustafa at its center, at a crowded ticket counter at an
international airport. See 720 ILL. COMP. STAT. 5/26-1(a)(1)
No. 05-2101 5
(“A person commits disorderly conduct when he knowingly
does any act in such an unreasonable manner as to alarm
or disturb another and to provoke a breach of the peace”).
Second, Qadeer, the Swissair manager, told the officers that
the plaintiff had said, “Maybe I have a bomb.” Once a
reasonably credible witness informs an officer that a
suspect has committed a crime, the police have probable
cause to arrest the suspect. Id.; Kelley, 149 F.3d at 647.
Qadeer’s apparent credibility as a manager of Swissair
at O’Hare has not been questioned here. Therefore, based
on the undisputed facts, a prudent person might have
believed that Mustafa committed the crime of making a
false bomb threat.
Mustafa makes much of the fact that Qadeer never
actually believed that Mustafa had a bomb in her purse.
This argument misapprehends the focus of our review of the
circumstances surrounding her arrest. The existence of
probable cause does not depend on the actual truth of the
complaint. Woods, 234 F.3d at 987. The officers were
entitled to take Qadeer at his word as to Mustafa’s actions.
Furthermore, the statute under which Mustafa was later
charged applies categorically to all false bomb threats;
it contains no element limiting its application to cred-
ible bomb threats or to those threats that convince the
listener. 720 ILL. COMP. STAT. 5/26-1(a)(3).
Likewise, the fact that Mustafa’s statement was
phrased conditionally, prefaced by the word “maybe,” is
irrelevant under the plain language of the statute, which
forbids any “false alarm to the effect that a bomb . . . is
concealed.” Id. Particularly in light of the time and place of
the event, which occurred in an international airport three
months after the September 11 attacks, and the under-
standable sensitivity of air travelers and airport security
personnel at that time, it was reasonable for the officers to
conclude that Mustafa had committed disorderly conduct by
stating that she might have a bomb in her purse.
6 No. 05-2101
Finally, Mustafa erroneously suggests that the defendant
officers were derelict in their duty to investigate
the circumstances surrounding the incident before arresting
her. But police officers have no duty to investi-
gate extenuating circumstances or search for exculpatory
evidence once probable cause has been established via
the accusation of a credible witness. Anderer v. Jones,
385 F.3d 1043, 1049 (7th Cir. 2004). They may simply
arrest the accused suspect.
B. The defendants were protected by qualified
immunity.
Even if we were to find that there was insufficient
probable cause to justify Mustafa’s arrest, the doctrine of
qualified immunity would nonetheless ensure a ruling in
favor of the defendants. Qualified immunity protects
officers performing discretionary functions from civil
liability so long as their conduct does not violate clearly
established statutory or constitutional rights that a reason-
able person would know about. See Saucier v. Katz, 533 U.S.
194, 201 (2001). A plaintiff seeking to defeat this defense in
a Section 1983 action must show, first, that the plaintiff’s
rights were violated. Id. Second, the plaintiff must show
that the law concerning the plaintiff’s asserted right was
clearly established at the time the challenged conduct
occurred. Id. Finally, the court must determine whether a
reasonably competent official would know that the conduct
was unlawful in the situation he confronted. Id. Here,
Mustafa certainly had a right to be free from an arrest that
lacked probable cause, and that right is clearly established,
so the only remaining question is whether a reasonable
officer could believe that it was lawful to arrest Mustafa.
As discussed above, Mustafa argues that it was unreason-
able to believe she had committed a crime because
her statement about a bomb was phrased as a possibility
No. 05-2101 7
rather than a fact (“maybe I have a bomb in my purse”),
because any reasonable person would have realized that she
was not serious, and because she did not actually frighten
or convince anyone that she had a real bomb. However,
even if we accepted this argument, this would not disturb
the defendants’ qualified immunity defense. As discussed
above, the Illinois statute at issue applies to implausible
and unconvincing bomb threats. See People v. Barron, 808
N.E.2d 1051, 1055 (Ill. App. Ct. 2004) (upholding the felony
disorderly conduct conviction of an individual who joked
about having a bomb in his shoe at Midway Airport,
because the statute applies to false threats “regardless of
the intention of the speaker or the effect the words have
upon the person receiving them”). At the time of the arrest,
prior to Barron, the application of the bomb threat statute
to circumstances involving jokes, sarcasm, etc., was,
perhaps, arguable; a court might theoretically read a
limitation into the statute and apply it only to credible or
convincing bomb threats. But where the law is open to
interpretation, qualified immunity protects police officers
who reasonably interpret an unclear statute. Reviewing
courts must ask “whether X is a crime under the statute
that the police arrested the plaintiff for violating. If the
answer to that question was unclear when the arrest was
made, the police are entitled to their immunity.” Northen v.
City of Chicago, 126 F.3d 1024, 1027-28 (7th Cir. 1997).
Here, the most Mustafa can plausibly claim is that the
criminality of her conditional statement was unclear; no
case clearly established that implausible threats fall outside
of its reach.
Furthermore, even if no reasonable person could have
believed that Mustafa had made a genuine bomb threat, the
officers might reasonably have believed that Mustafa had
committed the closely related offense of nonspecific disor-
derly conduct under 720 ILL. COMP. STAT. 5/26-1(a)(1),
which covers any unreasonable activity which alarms
8 No. 05-2101
or disturbs another and provokes a breach of the peace. It is
undisputed that Mustafa disturbed employees at the airport
and that a noisy confrontation ensued. Officers may arrest
individuals suspected of any crime; the fact that Mustafa
was prosecuted under only the bomb threat section of the
disorderly conduct statute does not mean that she could
only properly be arrested under that section. Thus, the
officers are protected by qualified immunity, and the
district court’s ruling in their favor is affirmed.
C. The defendant-appellees are not entitled to attor-
neys’ fees.
The defendants have moved for attorneys’ fees pursuant
to Federal Rule of Appellate Procedure 38, 42 U.S.C.
§ 1988(b), and 28 U.S.C. § 1927. Those provisions permit
the discretionary award of attorneys’ fees to the vic-
torious party where a losing party has engaged in frivo-
lous appeals or vexatiously and unreasonably prolonged
litigation. See, e.g., Meredith v. Navistar Int’l Transp. Corp.,
935 F.2d 124, 129 (7th Cir. 1991) (award of attorneys’ fees
under Fed. R. App. P. 38 unjustified where brief is not
“entirely groundless” and does not contain “blatant misrep-
resentations”); Badillo v. Cent. Steel & Wire Co., 717 F.2d
1160 (7th Cir. 1983) (prevailing defendants in civil rights
cases only entitled to attorneys’ fees under § 1988 where
plaintiff’s goal was to harass or embarrass defendant);
Riddle & Assocs. v. Kelly, 414 F.3d 832, 835-36 (7th Cir.
2005) (attorneys’ fees sanction under § 1927 appropriate
where attorney conduct is “objectively unreasonable”).
While we agree with the defendants that Mustafa should
not prevail, we do not agree that her appeal was objectively
frivolous or vexatious in the sense contemplated by these
rules and statutes. Mustafa unintentionally provoked a
security alarm, and as a result, she suffered a very unpleas-
ant interaction with the defendants that she believed was
No. 05-2101 9
unjustified and based on prejudice. In support of that
position, she put forth a reasonable legal theory that failed;
we see no abuse of the courts or the defendants in that. Nor
is there evidence that Mustafa or her attorney is the kind
of serial filer who must be deterred from clogging the courts
with junk lawsuits in the future (a policy goal of Section
1927). The motion for attorneys’ fees is denied.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court. The defendants’ motion for attorneys’ fees is
DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-23-06