Jose Garcia v. Shawn Posewitz

                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 22-1124
JOSE GARCIA,
                                                  Plaintiff-Appellant,
                                 v.

SHAWN POSEWITZ, et al.,
                                               Defendants-Appellees.
                     ____________________

         Appeal from the United States District Court for the
                   Western District of Wisconsin.
           No. 20-cv-988-bbc — Barbara B. Crabb, Judge.
                     ____________________

    ARGUED OCTOBER 4, 2022 — DECIDED AUGUST 22, 2023
                ____________________

   Before SCUDDER, ST. EVE, and JACKSON-AKIWUMI, Circuit
Judges.
   PER CURIAM. After the district attorney’s office dropped
charges against Jose Garcia for sexually assaulting a minor, he
brought this suit for false arrest against two prosecutors from
the office and a local detective. Garcia argued that they
omitted material information from the criminal complaint
they used to support probable cause for his arrest. The district
court entered summary judgment for the defendants based on
2                                                  No. 22-1124

qualified immunity, concluding that no reasonable jury could
find that it would have been clear to a reasonable officer that
the information omitted from the complaint would have
negated probable cause. We agree and affirm.
                               I
    On August 23, 2016, Monique Cichocki called the Village
of Lake Delton Police Department in Wisconsin to report that
her 15-year-old daughter, G.C., had been the victim of a
sexual assault. Monique explained that the assault happened
a few days earlier while her family was vacationing at a resort
in the Village of Lake Delton with another family, the Garcias.
Monique reported that G.C. was sexually assaulted in one of
the resort’s pools by the other family’s father, Jose Garcia.
   Detective Shawn Posewitz followed up with Monique to
conduct an interview. According to Monique, on the day
before they left the resort, G.C. told her that Garcia assaulted
her earlier that day in the pool while horseplaying with both
families’ children. Monique said that she and her husband
were not present at the time of the incident, having already
returned to their room to prepare dinner. Monique recounted
G.C.’s report that, while G.C. and the other children were in
the pool, Garcia purposely touched her breasts. Later that
night, Monique recalled, G.C. said that Garcia had also
touched her “down there.” The families stayed at the resort
until the next afternoon.
    Monique then told Posewitz what happened after they
returned to their home in Chicago, and her statement
suggested that G.C. could not remember all the details of the
incident. Monique said that she informed her husband of their
daughter’s account and could not answer his questions about
No. 22-1124                                                  3

it, saying, “I don’t know … [M]aybe it will come back to her.”
Monique told Posewitz that she tried to help G.C. remember
by encouraging G.C.’s brother, who was also in the pool at the
time, to tell G.C. what he saw. According to Monique, when a
friend suggested that surveillance cameras might have
captured the assault on video, G.C. expressed fear that the
video would contradict what she said.
   Posewitz interviewed G.C. later that day. G.C. told him
that Garcia touched her inappropriately. She described her
location in the pool when Garcia pulled her onto his lap and
grabbed her breasts. G.C. recalled that Garcia’s daughter
began to swim toward them, so Garcia threw G.C. into the
water. About ten minutes later, Garcia pulled her onto his lap
again and rubbed her vagina over her bathing suit. G.C. told
Posewitz that the incidents lasted around two minutes each.
She said she was surprised nobody saw what happened
because Garcia’s wife was at a nearby table.
    The next day, Posewitz met with the resort’s security
director and reviewed surveillance footage of the pool area at
the time of the incident. Posewitz noted that the footage was
poor quality and inconclusive: it did not clearly show whether
Garcia and G.C. were together and thus neither supported nor
ruled out her account.
    Posewitz discussed the case with Richard Spoentgen, an
assistant district attorney. Spoentgen reviewed the police
reports and consulted with another assistant district attorney,
Linda Hoffman. Hoffman suggested that G.C. or a family
member conduct a “pretext call” with Garcia that law
enforcement would record, but no call ever took place.
4                                                 No. 22-1124

   Spoentgen then drafted a criminal complaint, which
Hoffman reviewed, suggesting three minor edits (to delete an
extra word, identify the resort’s location, and consider
shortening the draft). The final complaint included some, but
not all, of the details from Posewitz’s interview with G.C. and
did not mention Monique’s interview or the surveillance
footage. Posewitz and Spoentgen signed the complaint. The
complaint was reviewed by the Circuit Court Commissioner,
who found probable cause for Garcia’s arrest. Garcia was
soon arrested. Hoffman was assigned as the prosecutor on the
case.
    At a preliminary hearing, a Wisconsin judge heard
testimony from Posewitz and determined that there was
probable cause to proceed to trial. But the trial was short-
lived. After Hoffman gave an opening statement, the judge
declared a mistrial because Hoffman mentioned that G.C. had
a learning disability, which had not been disclosed to the
defense. The district attorney’s office reassigned the case to
Spoentgen and another prosecutor. The new team moved to
dismiss the charges because the state “w[ould] not be able to
present sufficient credible evidence at trial to prove the
charged offenses.”
    Garcia then sued detective Posewitz and prosecutors
Hoffman and Spoentgen for violating his Fourth Amendment
rights by arresting and detaining him without probable cause.
See 

. He also pursued additional constitutional
and state-law claims (such as due-process violations and
malicious prosecution) that were dismissed and are not
relevant to this appeal.
   After discovery, the defendants moved for summary
judgment (Posewitz moving separately). Hoffman and
No. 22-1124                                                   5

Spoentgen argued that they had absolute immunity because
they acted only as prosecutors, and the doctrine of issue
preclusion barred relitigating whether they had probable
cause, which was an issue decided at the preliminary hearing.
All defendants argued that they had qualified immunity
because their decisions to arrest and prosecute Garcia did not
violate clearly established law.
    Garcia countered that a jury could find that the defendants
intentionally or recklessly omitted material information from
the criminal complaint that called into question the reliability
of G.C.’s account. He highlighted (1) Monique’s statement
that G.C. was afraid that the surveillance video would not
match her account; (2) the “inherently improbable” nature of
the assault, which occurred in a crowded pool, surrounded by
lifeguards, and with no apparent eyewitnesses; and (3) the
apparent inconsistency between what Monique said in her
initial report to the police (G.C. told her Garcia only touched
G.C. inappropriately once) and what G.C. said in her
interview (Garcia touched her twice, ten minutes apart).
Garcia also argued that the prosecutor-defendants were not
entitled to immunity because Hoffman made investigatory
suggestions to Posewitz, and Spoentgen acted as the
complainant for the document used to obtain a warrant.
Finally, Garcia argued that the probable-cause issue was not
precluded because, among other reasons, a lawsuit under

 is more extensive than was his preliminary
hearing, and the state judge who presided at the preliminary
hearing did not adequately justify his ruling.
   The district court entered judgment for all defendants,
concluding that they were immune from damages under the
doctrine of qualified immunity. The pertinent question,
6                                                  No. 22-1124

according to the court, was “whether a reasonable officer
could have believed plaintiff’s arrest was lawful, in light of
the clearly established right to be free from arrest without
probable cause and based on the information defendants had
at the time they prepared and signed the criminal complaint.”
Here, the court explained, a reasonable officer could believe
that there was probable cause because G.C.’s and Monique’s
accounts were largely consistent, and the defendants lacked
any indication that G.C. or Monique had a motive to lie.
Moreover, the inconsistencies identified by Garcia did not
negate probable cause: for example, G.C.’s apprehensiveness
upon learning of the surveillance footage could just as easily
reflect a fear of mistaking details rather than fabricating them,
and nothing in the record suggests that the footage was
exculpatory.
                               II
    Garcia challenges the district court’s summary-judgment
ruling. The parties’ arguments on appeal mirror those raised
in the district court. They debate whether the defendants are
immune from suit and whether the probable-cause issue is
altogether precluded by the state-court proceeding.
    As a preliminary matter, we agree with Hoffman that
Garcia waived any argument against her. Garcia does not
argue the nature or extent of Hoffman’s involvement in the
alleged constitutional violations; in fact, he does not mention
Hoffman once in the argument section of his opening brief.
Undeveloped arguments cannot preserve a claim on appeal.
Rock Hemp Corp. v. Dunn, 

, 704–05 (7th Cir. 2022).
   As for Garcia’s claims against Posewitz and Spoentgen, we
begin by addressing qualified immunity, which resolves this
No. 22-1124                                                    7

appeal. Qualified immunity protects government officials
from liability for damages unless they “violate clearly
established statutory or constitutional rights.” Harlow v.
Fitzgerald, 

 (1982); accord Greenpoint Tactical
Income Fund LLC v. Pettigrew, 

, 567 (7th Cir. 2022).
Once the defense is raised, the plaintiff bears the burden of
defeating it by showing that (1) the defendants violated a
constitutional right and (2) the constitutional right was clearly
established at the time of the violation. Fosnight v. Jones,

 (7th Cir. 2022).
    With respect to the first step, an official violates the Fourth
Amendment by intentionally or recklessly omitting from a
warrant application information that is material to
determining probable cause. Whitlock v. Brown, 

 (7th Cir. 2010). “[A]n omitted fact is material if its
inclusion would have negated probable cause.” 

. To
test materiality, we ask “whether a hypothetical affidavit that
included the omitted information would still establish
probable cause.” Hart v. Mannina, 

 (7th Cir.
2015) (quoting United States v. Robinson, 

(7th Cir. 2008)).
     Probable cause, in turn, exists when there is a probability
or substantial chance of criminal activity. District of Columbia
v. Wesby, 

 (2018). It is a “fluid concept” that
is judged by considering the totality of the circumstances.
Illinois v. Gates, 

, 232–33 (1983). Thus, probable
cause is “not readily, or even usefully, reduced to a neat set of
legal rules.” 

.
    Garcia points to several omissions that he deems material
to the probable-cause finding. He contends that the complaint
should have included (1) Posewitz’s conclusion that the
8                                                   No. 22-1124

surveillance footage does not show the alleged assault;
(2) inconsistencies between G.C.’s and Monique’s statements;
(3) the lack of eyewitnesses to the assault; (4) G.C.’s difficulty
recalling details of the episode (as reflected in Monique’s
statement to Posewitz); (5) G.C.’s fear (also according to
Monique) that the footage would contradict her statement;
and (6) a more thorough explanation of Monique’s behavior,
because it was “highly inconsistent” with mothers who learn
that their daughter was sexually assaulted.
    But Garcia has a high hurdle to combat a probable-cause
determination because G.C., the putative victim, identified
him as responsible. See Beauchamp v. City of Noblesville,

, 744–45 (7th Cir. 2003). An officer need not even
believe that a witness is reliable to determine that her
statement supports probable cause for an arrest because the
assessment of credibility rests with courts, not officers.
See Coleman v. City of Peoria, 

 (7th Cir. 2019).
In fact, even a recantation of a statement does not on its own
negate probable cause. See 

 And in sexual-assault cases, an
officer may find probable cause even more easily when a
witness is inconsistent or has memory problems because
these reactions are not rare among victims of such crimes.
See Beauchamp, 

.
    We need not decide whether any of the omissions were
material to probable cause, however, because regardless of
whether Posewitz and Spoentgen violated a constitutional
right, that right was not clearly established. See Whitlock,

 (courts may skip to step two of the qualified-
immunity analysis). To be “clearly established,” the right at
issue must be so “beyond debate” that any reasonable official
in the defendant’s position would know that his actions
No. 22-1124                                                   9

would violate it. Kisela v. Hughes, 

, 1152–53
(2018). And the undebatable right must be defined with
particularity. See 

 (noting that specificity is
especially important in the Fourth Amendment context); City
of Escondido v. Emmons, 

 (2019) (holding that
“the right to be free of excessive force” was defined too
generally; the court should have asked “whether clearly
established law prohibited the officers from stopping and
taking down a man in these circumstances”); Whitlock,
596 F.3d at 412–13 (holding that officers were protected by
qualified immunity because criminal-conversion law was not
sufficiently developed such that a well-trained officer would
necessarily know that defendants’ explanation for taking the
property was material).
     To meet his burden, Garcia needed to identify a
reasonably analogous case that articulated the constitutional
right at issue and applied it to a similar factual circumstance,
or he needed to show that the violation was so obvious that a
reasonable official in the defendants’ positions necessarily
would have recognized that their actions violated the
Constitution. Cibulka v. City of Madison, 

(7th Cir. 2021); Leiser v. Kloth, 

, 701–02 (7th Cir.
2019). Though a case need not be exactly on point to make a
right clearly established, see Wesby, 

, Garcia
does not cite any analogous case—nor can we find one—
clearly establishing that the sort of information omitted here
is material to a probable-cause determination. Nor is a
constitutional violation otherwise obvious. If we imagine a
complaint that includes all of the information that Garcia
insists should have been included, a reasonable official might
still determine that there was probable cause to arrest him.
10                                                No. 22-1124

   First, Garcia argues that the complaint should have noted
that the surveillance footage does not show the assault. But an
official could understandably discount the significance of the
surveillance footage. Posewitz testified that he could not tell
who was captured in the footage or whether bodies were in
contact because of the poor video quality. He further testified
that children frequently err when providing time frames. For
those reasons, a reasonable official could decide that the
footage was inconclusive and immaterial to the probable-
cause determination.
    Next, Garcia argues that the complaint omitted material
inconsistencies between G.C.’s and Monique’s statements to
Posewitz. Monique said that G.C. told her of a single assault,
and G.C. said that Garcia touched her breasts in the pool and
ten minutes later touched her vagina. This inconsistency does
not obviously negate probable cause. There is no requirement
that a warrant application include all information, or even all
inconsistencies, discovered in a preliminary investigation.
See Beauchamp, 

. And an official could
reasonably believe that G.C.’s trauma resulted in memory
lapses or that she considered both assaults to have occurred
on one occasion.
    Garcia also contends that the complaint should have
mentioned that there were no eyewitnesses. Garcia deems this
fact significant because the circumstances of the alleged
assault provided for plain viewing of misbehavior (a shallow
pool and the presence of many people in the vicinity,
including lifeguards, Garcia’s wife and their children, and
G.C.’s brother). But the complaint does mention that Garcia’s
wife, his children, and G.C.’s brothers were there. A
reasonable official could assume that this presented enough
No. 22-1124                                                     11

information for the Circuit Court Commissioner to conclude
that the lack of eyewitnesses was suspicious, and therefore
any comment on it was unnecessary. It would also be
reasonable to think the statement was irrelevant. The absence
of eyewitnesses that are willing to report an assault does not
clearly undermine a victim’s story.
    Garcia argues that G.C.’s difficulty recalling details of the
episode (as reflected in Monique’s statement to Posewitz) was
a material omission. But lapses in memory are not uncommon
for victims of sexual assault. See 

 (finding it reasonable for
an officer “to not place great emphasis on the [rape] victim’s
… inability to recall the details of the crime clearly”). And
G.C.’s statement to Posewitz did not indicate any lapses in her
memory. The defendants were entitled to rely on G.C.’s
statement because “the responsibility of sorting out
conflicting testimony and assessing the credibility of putative
victims and witnesses lies with the courts.” 

    Garcia also challenges that the complaint should have
included the portion of Monique’s statement to Posewitz that
G.C. was fearful that the footage would contradict her
statement. Monique told Posewitz that G.C. asked, “What if I
make a mistake and I say something wrong and the video
camera says something different?” We agree with the district
court’s analysis of this fact: “[I]t is equally reasonable to infer
that [G.C.’s apparent nervousness] simply reflects G.C.’s
concern, given the gravity of her allegations, that she not
‘make a mistake’ about the details.” Again, this credibility
assessment is one for the courts, not officers or prosecutors.
   Finally, Garcia says that Posewitz and Spoentgen were
required to include in the complaint a more thorough
explanation of Monique’s behavior, because it was “highly
12                                                No. 22-1124

inconsistent” with a mother who learns that her daughter was
sexually assaulted. This argument does not help him. There is
no rulebook for how parents should respond in these
circumstances, so the defendants were not committing an
obvious constitutional violation by excluding details about
Monique’s behavior.
   Most critically, these omissions were offset by G.C.’s clear,
detailed, and internally consistent statement to Posewitz that
Garcia assaulted her. To be sure, the omissions are details of
the type that Garcia would be able to highlight in his defense
at a trial or in pretrial proceedings. But the question
confronting the defendants was not Garcia’s ultimate guilt;
the question was whether probable cause existed to arrest
him. And we conclude that an officer could consider each of
the above omissions and reasonably determine that probable
cause existed to arrest Garcia.
    Because Spoentgen and Posewitz are entitled to qualified
immunity, we need not discuss prosecutorial immunity or
issue preclusion.
                              III
   For the above reasons, we AFFIRM the district court’s
order entering summary judgment for the defendants.