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Date: 02-02-2018

Case Style:

Rashad B. Swanigan v. City of Chicago

Northern District of Illinois Courthouse - Chicago, Illinois

Case Number: 16-1568

Judge: Sykes

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Irene Dymkar, Enid Mendoza James Bowers, Lewis Eidson

Defendant's Attorney: Shawn William Barnett, Stacy Ann Benjamin, Liza Marie Franklin, Megan Kelly McGrath, George John Yamin, Jr.

Description: While on the lookout for a serial
bank robber, Chicago police officers misidentified Rashad
Swanigan as the perpetrator, arrested him, and detained him
for approximately 51 hours without a probable-cause hearing.
He was released when the state prosecutor decided not
to press charges, and police later found the true culprit.
2 No. 16-1568
Swanigan sued the officers involved in his arrest and detention
under 42 U.S.C. § 1983 alleging various constitutional
violations. He later filed a related suit against the City
raising Monell claims. The suits were consolidated but
maintained separate case numbers and dockets, and the
district judge stayed the Monell suit to allow the suit against
the officers to proceed on its own. A jury found for Swanigan
on a single claim—for unconstitutionally prolonging his
detention—and awarded $60,000 in damages. Swanigan then
moved to lift the stay on his suit against the City. The judge
denied the motion and dismissed the suit entirely, ruling
that Swanigan waived most of his claims and that the others
were not justiciable. We vacated the dismissal order as
premature and remanded with instructions to allow
Swanigan to amend his complaint. Swanigan v. City of
Chicago, 775 F.3d 953 (7th Cir. 2015).
With the stay lifted, Swanigan filed an amended complaint
alleging constitutional injuries stemming from three
police-department policies: (1) a “hold” policy by which the
officers kept him in custody; (2) a policy of requiring detainees
to participate in police lineups; and (3) a policy regarding
the contents of the closed case file that continued to label
him as the bank robber. The judge dismissed the Monell suit
in its entirety.
We affirm. Swanigan cannot recover twice for the prolonged
detention, and his other claims have no basis in
federal law. The Constitution has nothing to say about
unreliable police lineups that don’t taint a trial. Neither does
the Constitution address reputational harm from false or
misleading police reports. And Swanigan lacks standing to
No. 16-1568 3
pursue injunctive or declaratory relief because the challenged
policies are unlikely to harm him in the future.
I. Background
Our earlier opinion contains a more complete description
of the facts and procedural history of the case; the following
is a condensed version. After cashing checks at a Chicago
bank in August 2006, Swanigan was stopped by two Chicago
police officers looking for the “Hard Hat Bandit,” who was
known to rob banks while wearing a yellow hard hat. After
learning that Swanigan’s automobile registration was suspended,
the officers searched the car and found a knife—and
a yellow hard hat. (Swanigan kept the knife in his car to peel
produce, and the hard hat was required for his job as a
construction worker.) Thinking Swanigan was the Hard Hat
Bandit, the officers arrested him for traffic violations and
unlawful use of a weapon and took him to the police station.
Three hours into the detention, officers placed a “hold”
on Swanigan in order to keep him at the station while detectives
investigated him for a robbery linked to the Hard Hat
Bandit. While in custody the police used Swanigan as a filler
in lineups for other investigations and as the target in
lineups investigating the Hard Hat Bandit robbery. Several
witnesses identified Swanigan as the robber.
On the second full day after Swanigan’s arrest, a state
prosecutor assessed the case. She decided not to charge
Swanigan for the robbery after concluding that the identifications
were suspect. After 51 hours of detention without a
probable-cause hearing, Swanigan was released.
A month later police entered a final notation into
Swanigan’s case file: “Cleared—closed other exceptional.”
4 No. 16-1568
Swanigan contends that because the police department
assigns the cleared-closed notation to the offender’s file after
solving a crime, the designation labels him as the Hard Hat
Bandit. Although “other exceptional” conveys that he wasn’t
prosecuted, the file’s narrative account lists the reasons that
the police initially thought he was the perpetrator. And no
change was made to Swanigan’s file after the police arrested
the real Hard Hat Bandit. Swanigan contends that the case
file continues to cast suspicion on him as the Hard Hat
Bandit, giving rise to possible reputational harm and police
bias against him.
Swanigan’s first lawsuit named 20 officers and the City as
defendants and alleged nine separate constitutional and
state-law claims. Late in the litigation Swanigan tried to add
a Monell claim against the City, but the judge wouldn’t allow
the amendment. So he filed a new freestanding Monell action
against the City, which was promptly consolidated with the
first suit and stayed pending the disposition of the claims
against the officers. Partial summary judgment narrowed the
scope of the litigation, and a jury eventually found that the
officers had probable cause to arrest Swanigan at the bank
but that they unconstitutionally prolonged his detention. See
County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (holding
that a detention lasting longer than 48 hours without a
judicial determination of probable cause is presumptively
unreasonable under the Fourth Amendment). In the end,
seven officers were held liable for the unduly long detention.
The jury awarded $60,000 in compensatory damages.
In the related Monell suit against the City, Swanigan alleged
constitutional injuries arising from nine separate
policies. After our remand, Swanigan trimmed his complaint
No. 16-1568 5
in light of the jury’s verdict. The amended version centered
on the police department’s hold policy, its lineup policy, and
its policy regarding cleared-closed case reports. The City
moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. The judge granted the
motion, and the case now returns to us for further review.
II. Discussion
We review the judge’s dismissal order de novo.1 Roake v.
Forest Pres. Dist. of Cook Cty., 849 F.3d 342, 345 (7th Cir. 2017).
Questions of standing are appropriately addressed via a
motion to dismiss under Rule 12(b)(1) for lack of subjectmatter
jurisdiction. Berger v. NCAA, 843 F.3d 285, 289 (7th
Cir. 2016). A case is properly dismissed under Rule 12(b)(6)
if the complaint does not “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007).
Section 1983 provides a claim against a person acting under
color of law who deprives another of a federal right.
42 U.S.C. § 1983. A municipality is subject to § 1983 liability
if one of its policies caused the plaintiff’s harm. Monell v.
Dep’t of Soc. Servs. of New York, 436 U.S. 658 (1978).
1 We reject Swanigan’s contention that the judge abused her discretion by
taking judicial notice of the facts recited in our first Swanigan opinion.
Our factual narrative rested on the trial record, and Swanigan doesn’t
dispute any part of it. If “the finding taken from the prior proceeding is
not subject to reasonable dispute, then the court has satisfied the evidentiary
criteri[on] for judicial notice.” Gen. Elec. Capital Corp. v. Lease
Resolution Corp., 128 F.3d 1074, 1082 (7th Cir. 1997) (quotation marks
6 No. 16-1568
A. Hold Policy
Federal common law prevents § 1983 plaintiffs from recovering
twice for the same injury. Janusz v. City of Chicago,
832 F.3d 770, 774 & n.1 (7th Cir. 2016). That means Swanigan
cannot recover from the City for the prolonged detention
because he was compensated for that constitutional violation
in his suit against the officers.
Attempting to evade the double-recovery rule, Swanigan
contends that his detention occurred in three distinct stages:
(1) the arrest; (2) the three hours at the police station before
the hold was issued; and (3) the two days at the station after
the hold was placed. Because the seven officers found liable
for the detention each arrived during the third stage,
Swanigan argues that he hasn’t been compensated for the
arrest and first three hours.
That argument falls flat. First, a jury found that the officers
lawfully arrested Swanigan, and the City can’t be liable
“based on the actions of one of its officers when in fact the
jury has concluded that the officer inflicted no constitutional
harm.” City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986);
see also Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d 293, 305
(7th Cir. 2010) (observing that a municipality cannot be
found liable under Monell when “such a finding would
create an inconsistent verdict”) (emphasis omitted).
The City isn’t liable for the first three hours at the station
either. Swanigan cannot carve out particular hours from his
detention as separately compensable. He faced a single
detention, not multiple detentions, and he’s entitled to only
one recovery though different constitutional theories support
liability and different officers were involved. See Bosco
No. 16-1568 7
v. Serhant, 836 F.2d 271, 281 (7th Cir. 1987) (“[O]nce the
plaintiff has been fully compensated for his injuries by one
or more of the tortfeasors, he may not thereafter recover any
additional compensation from any of the remaining tortfeasors.”)
(quotation marks omitted).
Moreover, even if Swanigan could split the detention into
separate segments, he’d still encounter two problems. First,
nothing suggests that the City’s hold policy caused the
prehold detention. That’s fatal: In a Monell case, “[t]he central
question is always whether an official policy … caused the
constitutional deprivation.” Glisson v. Ind. Dep’t of Corr.,
849 F.3d 372, 379 (7th Cir. 2017). Second, McLaughlin establishes
that detentions lasting less than 48 hours are presumptively
lawful and cannot be challenged on the basis of the
timespan alone. 500 U.S. at 56. Some additional factor, like
animus toward the detainee, must be present to rebut the
presumption. Id. No additional factor is present here, so
even if we considered the first three hours in isolation, the
claim is doomed.
That rules out monetary relief, but Swanigan also seeks
an injunction against the hold policy. That request additionally
fails for lack of standing, which is “an essential and
unchanging part of the case-or-controversy requirement of
Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992); see U.S. CONST. art. III, § 2, cl. 1. Because an injunction
is a forward-looking remedy, a plaintiff seeking this form of
relief has standing to sue for an alleged future injury only if
“the threatened injury is ‘certainly impending,’ or there is a
‘substantial risk’ that the harm will occur.” Susan B. Anthony
List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting Clapper
v. Amnesty Int'l USA, 568 U.S. 398, 414 n.5 (2013)) (internal
8 No. 16-1568
quotation marks omitted). “[P]ast injury alone is insufficient,”
as is a threat of injury that is “merely conjectural or
hypothetical.” Simic v. City of Chicago, 851 F.3d 734, 738 (7th
Cir. 2017) (quotation marks omitted).
The injury Swanigan forecasts—he says he might be
pulled over, arrested, and again subjected to an unconstitutionally
long detention—is layered with hypothetical and
nowhere near certain. That’s particularly true because we
assume that Swanigan will conform his conduct to the
requirements of the law and avoid arrest altogether. See
O’Shea v. Littleton, 414 U.S. 488, 497 (1974). Without a showing
of “a sufficient likelihood that he will again be wronged
in a similar way, [Swanigan] is no more entitled to an injunction
than any other citizen.” City of Los Angeles v. Lyons,
461 U.S. 95, 111 (1983).2
B. Lineup Policy
During his detention, Swanigan was placed in several
lineups, and four eyewitnesses misidentified him as the
Hard Hat Bandit. His claim for damages against the City
rests on the Due Process Clause of the Fourteenth Amendment.
He alleges that the lineups were conducted improperly
and led to unreliable identifications.
This argument goes nowhere because the mistaken identifications
were never admitted in a trial. “[T]he constitutional
interest implicated in challenges to police
identification procedures is evidentiary in nature.” Alexander
2 Swanigan’s claim for declaratory relief fails for the same reason. See
Feit v. Ward, 886 F.2d 848, 857 & n.11 (7th Cir. 1989) (holding that claims
for declaratory relief, like claims for injunctive relief, require ongoing or
impending harm).
No. 16-1568 9
v. City of South Bend, 433 F.3d 550, 555 (7th Cir. 2006). Specifically,
the due-process right to a fair trial requires exclusion
of unreliable eyewitness identifications procured through
police misconduct. Perry v. New Hampshire, 565 U.S. 228, 238–
40 (2012) (synthesizing cases). But a misidentification “does
not in itself intrude upon a constitutionally protected interest.”
Manson v. Brathwaite, 432 U.S. 98, 113 n.13 (1977). In this
case Swanigan “could not possibly have been deprived of
his right to a fair trial since he was never tried.” Hensley v.
Carey, 818 F.2d 646, 649 (7th Cir. 1987).
Trying a different route, Swanigan inventively describes
his coerced participation in lineups as an unconstitutional
“seizure within a seizure.” There’s no such thing. A Fourth
Amendment seizure occurs “when there is a governmental
termination of freedom of movement through means intentionally
applied.” Scott v. Harris, 550 U.S. 372, 381 (2007)
(quotation marks omitted). Being placed in a lineup while in
custody “does not curtail a person’s freedom of action”
because he has “already lost that freedom.” Wilkins v. May,
872 F.2d 190, 194 (7th Cir. 1989). Suspects are given any
number of compulsory instructions while seized, and
Swanigan’s logic would turn each command into a new
seizure. That’s plainly wrong. A person can’t be seized while
seized any more than he can jump while jumping. He’s
either seized or not; he isn’t extra seized when forced to sit
in a police car or stand in a lineup.
C. Cleared-Closed Case Policy
Finally, Swanigan claims that the police department’s
policy regarding cleared-closed case files violates his constitutional
rights by continuing to label him as the Hard Hat
Bandit. He alleges that the policy harms him in two ways.
10 No. 16-1568
First, because the public can access the record with a Freedom
of Information Act request, he might suffer reputational
harm. Second, if he is stopped by police, even for a routine
traffic matter, the officer might use the misleading case
report against him. Swanigan grounds this claim in the Due
Process Clause and seeks damages and an injunction expunging
the record.
The City responds that the case file doesn’t actually label
Swanigan as the Hard Hat Bandit because it accurately
reports that the prosecutor declined to pursue charges based
on the unreliable identifications. This argument overlooks
the difference between “not guilty” and “innocent.” If
Swanigan is correct that the record could be read as continuing
to link him to the Hard Hat Bandit robbery, a reader
could reasonably surmise that he committed the crime but
the prosecutor simply couldn’t prove it beyond a reasonable
doubt. That, of course, isn’t the truth.
Swanigan’s real problem is that the claim has no legal
anchor. The potential for public stigma isn’t cognizable as a
due-process violation because reputational harm doesn’t
deprive a person of life, liberty, or property. See Paul v.
Davis, 424 U.S. 693, 712 (1976). And it’s entirely speculative
to suggest that a police officer might use the cleared-closed
file to violate Swanigan’s rights in some unknown way in
some hypothetical future traffic stop. For these reasons,
Swanigan has neither a legal hook for this claim nor standing
to seek an injunction.
No. 16‐1568 11
HAMILTON, Circuit Judge, concurring in part and dissenting
in part. The good news for plaintiff Swanigan came several
years ago, when a jury awarded him $60,000 for the violation
of his constitutional rights by his prolonged detention after
his arrest, which had been lawful but mistaken. The issue in
this separate Monell suit is whether Swanigan should be allowed
to seek further relief in the form of additional damages
or an injunction. I agree with my colleagues that Swanigan is
not entitled to additional damages based on what has been
called the “hold past court call” policy or on his having been
included in line‐ups while he was in custody.
I also agree that Swanigan does not have standing to seek
an injunction against the “hold past court call” policy. Versions
of this policy have been under constitutional attack for
a generation. After a district judge declared the policy unconstitutional
in 1986, the city immediately rescinded the policy,
at least formally. Robinson v. City of Chicago, 868 F.2d 959, 962
(7th Cir. 1989). Yet cases involving the same practice continue,
as in Swanigan’s case. See, e.g., Lopez v. City of Chicago, 464 F.3d
711, 721–22 (7th Cir. 2006) (reversing dismissal of claim for
prolonged post‐arrest detention for investigation); Willis v.
City of Chicago, 999 F.2d 284, 288–89 (7th Cir. 1993) (affirming
finding that prolonged post‐arrest detention for investigation,
before Robinson was decided, violated Fourth Amendment),
citing County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).
Swanigan cannot obtain an injunction against future application
of the “hold past court call” policy or practice to him.
He has not shown a substantial risk that the city will apply
this policy or practice to him in the future, at least not without
relying on an “attenuated chain of inferences” that impermissibly
assumes future illegal state action. See Clapper v. Amnesty
12 No. 16‐1568
Int’l USA, 568 U.S. 398, 414 n.5 (2013); City of Los Angeles v.
Lyons, 461 U.S. 95, 105 (1983).
I respectfully dissent, however, from the decision to affirm
dismissal of Swanigan’s challenge to the “cleared‐closed case”
policy. He alleges that the Chicago Police Department maintains
a file on him that effectively—but falsely—identifies him
as the “Hard Hat Bandit.” This is not a case where the police
suspected him of those crimes but were unable to prove guilt
beyond a reasonable doubt. There is no doubt here, as my colleagues
acknowledge. Swanigan was not the Hard Hat Bandit.
In my view, he has standing to raise this claim, and on the
merits he should be allowed to proceed past the pleadings.
On this issue of standing, Swanigan can show that he is at
“substantial risk” of being harmed by the “cleared‐closed”
policy. “Substantial risk” is the correct standard. See Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (“allegation
of future injury may suffice if the threatened injury is
‘certainly impending,’ or there is a ‘“substantial risk” the
harm will occur.’”), quoting Clapper v. Amnesty Int’l USA, 568
U.S. 398, 414 n.5 (2013). On standing, the majority asserts that
“it’s entirely speculative to suggest that a police officer might
use the cleared‐closed file to violate Swanigan’s rights in some
unknown way in some hypothetical future traffic stop.” Ante
at 10. I respectfully disagree. There remains a substantial risk
that harm will befall Swanigan, and, unlike with his challenge
to the “hold past court call” practice, without having to assume
intentional wrongdoing by either Swanigan or police
To begin with, the chances that Swanigan will be subjected
to just a routine traffic stop are actually quite high. Over a period
of several years, the same is true for any random civilian
No. 16‐1568 13
driver. In just one year, police stopped more than ten percent
of all drivers nationwide. U.S. Dep’t of Justice, Bureau of Justice
Statistics, Police Behavior During Traffic and Street Stops,
2011, at 3, tbl. 1, https://www.bjs.gov/content/
pub/pdf/pbtss11.pdf. For all black drivers, that percentage
was higher, at 12.8 percent. Id. Over a five‐year period, the
chance that a given black driver will be pulled over is approximately
50 percent. (0.8725 = .504).1 Over ten years, the chance
increases to about 75 percent. (0.87210 = 0.254).2 Cf. I.N.S. v.
Cardoza‐Fonseca, 480 U.S. 421, 431 (1987) (applicant for asylum
facing ten percent chance of persecution in country of origin
would have “well‐founded fear of being persecuted” for purposes
of immigration law).
Next, consider how any traffic stop of Swanigan in Chicago
is likely to unfold as long as the false information is in
his police file. When the police carry out a traffic stop, they
are entitled to demand the driver’s identification, of course,
1 These rough calculations assume that no variable would cause certain
drivers to be pulled over more than others. I am under no illusions that
these “ideal” conditions prevail in the real world, but I doubt that any
such variables would alter these estimates so dramatically as to make
Swanigan’s risks insubstantial.
2 In Chicago, the racial disparity may be higher. According to a State of
Illinois study of traffic stop data, more than 76 percent of all traffic stops
conducted by Chicago police involve minority drivers. Illinois Dep’t of
Transp., Illinois Traffic Stop Study Statewide & Agency Reports 2015, at
146, https://idot.illinois.gov/transportation‐system/local‐transportationpartners/
law‐enforcement/illinois‐traffic‐stop‐study. Nearly half of all
traffic stops in the city involve black drivers. Id.
14 No. 16‐1568
and it is routine to check the driver’s record for active warrants,
driving history, and criminal history. Those checks are
done for important reasons, including officer safety.
If the files are checked, the officer checking Swanigan may
well be told that the police department believes he committed
a series of armed robberies. At that point, an officer’s normal
caution will give way immediately to extreme caution, putting
Swanigan at a much higher risk that any movement
might be misinterpreted as dangerous. And note that this scenario
assumes lawful and reasonable actions by both Swanigan
and a police officer. How many cases have we seen in this
country of unarmed subjects, especially men of color, being
shot and even killed by police based on hair‐trigger responses
to innocent actions? In my view, these risks for Swanigan—
today—are not speculative but substantial. He has alleged,
and should be allowed to prove, that he has standing to challenge
the “cleared‐closed case” policy as applied to him.
On the merits of this claim, Swanigan would face a challenge.
Ordinarily a civilian has no cognizable legal interest in
what police investigative files say about him. Paul v. Davis, 424
U.S. 693, 697 (1976), held that even a public accusation by the
police that a civilian was an “active shoplifter” did not violate
the due process clause of the Fourteenth Amendment. But
what Swanigan alleges here is an extreme case with substantial
risk of tangible harm not present in that case. And there is
virtually nothing to be said here for the integrity of the police
files. At this point, after the conviction of the real Hard Hat
Bandit, the police refusal to correct the files falsely labelling
Swanigan the Hard Hat Bandit is arbitrary and capricious—
and dangerous.
No. 16‐1568 15
Constitutional law (not to mention common sense) establishes
that the police are entitled to rely on such information in
their files, e.g., DeLuna v. City of Rockford, 447 F.3d 1008, 1011–
12 (7th Cir. 2006) (use of deadly force was reasonable based in
part on officer’s knowledge of suspect’s history of violence
and weapons), even if it turns out to be mistaken. See, e.g.,
Herring v. United States, 555 U.S. 135, 146 (2009) (exclusionary
rule not applicable to arrest based on mistaken information
about active warrant); Catlin v. City of Wheaton, 574 F.3d 361,
365–66 (7th Cir. 2009) (police acted reasonably in tackling man
they mistakenly believed was armed and dangerous felon
who had announced his intention to flee or fight rather than
be arrested). Note, however, that in Herring the Supreme
Court assumed that police reliance on knowingly false, or
even recklessly or systematically mistaken, information
would not be reasonable. 555 U.S. at 146.
Based on Swanigan’s allegations, it is hard to understand
how the false information that is still in his police file is the
product of anything other than knowing falsity or deliberate
indifference to the truth. Why not allow a civilian who faces
substantial risk of harm due to false police information an opportunity
to have that information corrected?
And on the other side of the scales, what harm would the
Chicago police or public suffer if the plainly false information
were corrected? Again, that information is not just unproven
or contestable—it is false. I cannot think of any harm such a
correction would cause the police, and it might well help
avoid a tragedy. I would allow Swanigan to pursue this claim
on the merits beyond the pleadings so that the courts could
address it and its potential ramifications based on real evidence
rather than allegations and theoretical arguments.

Outcome: Affirmed

Plaintiff's Experts:

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