Sept. 27, 2023 – A criminal defendant failed to show that a detective and a prosecutor violated a clearly established constitutional right by excluding from the complaint details that implicated the victim’s credibility, the U.S. Court of Appeals for the Seventh Circuit has ruled in Garcia v. Posewitz, No. 22-1124 (Aug. 22, 2023).
Interview with Mother
In August 2015, Monique Cichocki reported to the Village of Lake Delton Police Department that Jose Garica sexually assaulted her 15-year-old daughter, G.C. at a Wisconsin Dells resort. Detective Shawn Posewitz interviewed Monique.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
Monique told Posewitz that on the day before her family left the resort, G.C. said that Garcia assaulted her in the pool. Monique said that neither she nor her husband were present when the alleged assault occurred.
When Monique told Posewitz what happened when the family went home to Chicago, she suggested that G.C. might not be able to remember every detail of the alleged assault.
Monique said that when she suggested that surveillance cameras might have recorded the alleged assault, G.C. worried that the footage would contradict her version of the alleged assault.
Interview with Daughter
Posewitz interviewed G.C. later on the same day he interviewed Monique.
G.C. told Posewitz she was in the pool when Garcia pulled her onto his lap and grabbed her breasts.
Ten minutes later, G.C. said, Garcia once again pulled her onto his lap. This time, G.C. said, Garcia rubbed her genitals through her swimsuit.
Footage Unclear
Posewitz watched the surveillance camera footage from the resort the next day. But the quality of the footage was poor, and Posewitz couldn’t see whether Garcia and G.C. were together.
Posewitz then discussed G.C.’s case with Richard Spoentgen, an assistant district attorney. Spoentgen reviewed the police report, then drafted a criminal complaint.
The complaint included some of the details from Posewitz’s interview with G.C. but did not include details from his interview with Monique or from the surveillance footage.
Judge Declares Mistrial
A circuit court commissioner reviewed the complaint and found probable cause to arrest Garcia.
Posewitz testified at Garcia’s preliminary hearing, and a circuit court judge found that there was probable cause to proceed to trial.
But the trial judge declared a mistrial after the prosecutor mentioned that G.C. had a learning disability without first disclosing that fact to the defense.
The state then moved to dismiss the charges against Garcia.
Federal Lawsuit
Garcia sued Posewitz and Spoentgen in the U.S. District Court of the Western District of Wisconsin under 42 U.S.C. section 1983.
Garcia claimed that Posewitz and the prosecutors violated his Fourth Amendment rights by arresting and detaining him without probable cause.
The district court concluded that the defendants were entitled to qualified immunity and granted them summary judgment.
Garcia appealed.
Claims About Complaint Omissions
Garcia argued that Spoentgen violated his constitutional rights by omitting from the complaint the following:
Posewitz’s conclusion that the footage didn’t show the alleged assault;
inconsistencies between the statements of Monique and G.C.;
the fact there were no eyewitnesses to the alleged assault;
the fact that G.C. couldn’t remember details of the alleged assault;
G.C.’s worry that the footage would contradict her version of the assault; and
an explanation of Monique’s behavior, because it was inconsistent with the behavior of mothers who learn their daughters were sexually assaulted.
In a per curiam opinion issued by Judge Michael Scudder, Judge Amy St. Eve, and Judge Candace Jackson-Akiwumi, the U.S. Court of Appeals for the Seventh Circuit pointed out that the victim identified Garcia as the person who’d assaulted her.
That meant Garcia’s claims faced a “high hurdle,” because under Seventh Circuit case law, an officer isn’t required to believe the witness is reliable to determine that the witness’s statement supports probable cause for arrest. It’s up to a court, not the police, to assess the credibility of a witness.
“In fact,” the panel wrote, “even a recantation of a statement does not on its own negate probable cause … 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.”
No Analogous Case
The panel then concluded that Garcia failed to show that Posewitz and Spoentgen had violated a clearly established constitutional right – the standard for surmounting the defense of qualified immunity.
Garcia must point to a reasonably analogous case to meet that standard, the panel explained.
But Garcia failed to identify such a case, and the panel found no case that clearly established that the type of information omitted from the complaint was material to a probable cause determination.
“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,” the panel wrote.
No Need to Include All Information
The panel pointed out that there is no requirement that a warrant application include all the information gathered in a preliminary investigation.
The panel also reasoned that the omission of the fact G.C. had difficulty remembering the details of the assault was immaterial.
“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,” the panel wrote.
