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Nettles-Bey v. Williams

United States Court of Appeals, Seventh Circuit

April 14, 2016

JULIAN T. NETTLES-BEY, Plaintiff-Appellee,
v.
PHILIP WILLIAMS and BRODERICK BURKE, Defendants-Appellants

         Argued March 29, 2016.

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 C 8022 -- Joan B. Gottschall, Judge.

         For JULIAN T. NETTLES-BEY, Plaintiff - Appellee: Richard Daniel Harris, Barry Horwitz, Attorneys, GREENBERG TRAURIG, LLP, Chicago, IL.

         For PHILIP WILLIAMS, Officer, BRODERICK BURKE, Officer, Defendants - Appellants: Dominick L. Lanzito, Attorney, Jennifer L. Turiello, Attorney, PETERSON, JOHNSON & MURRAY - CHICAGO LLC, Chicago, IL.

         Before FLAUM, EASTERBROOK, and SYKES, Circuit Judges.

          OPINION

         Easterbrook, Circuit Judge.

         Adherents to the Moorish Science Temple change their surnames to include " -Bey" or " -El" . Julian Nettles-Bey was born with that surname and does not hold Moorish beliefs. He contends in this suit under 42 U.S.C. § 1983 that two police officers in South Holland, Il-linois, assumed from his name that he is a Moor and on that account arrested him for trespassing, when they would not have arrested a Christian or an atheist. He maintains that of-ficial action based on a belief (accurate or not) about a per-son's religion violates the Free Exercise Clause of the First Amendment, applied to the states through the Equal Protec-tion Clause of the Fourteenth Amendment. The district court denied the arresting officers' motion for summary judgment, see (N.D.Ill. Aug. 4, 2015), and they immediately appealed.

         The case is still live in the district court, while 28 U.S.C. § 1291 requires litigants to wait for final decisions before ap-pealing. The Supreme Court held in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that an order rejecting a defense of qualified immunity is final in the sense that it conclusively rejects a defendant's claim of a right not to be tried, and the arresting officers have invoked this principle. But the Supreme Court has also held that an appeal under Mitchell is limited to a contention that doubt about legal doctrine forecloses an award of damages. The idea behind qualified immunity is that public employees who act in the shadow of legal uncer-tainty should not be required to pay damages if judges later resolve that uncertainty against the public actors. See, e.g., Reichle v. Howards, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012). But when the ar-gument concerns what the record shows about the facts, ra-ther than whether legal uncertainty dogs public officials who try to cope with particular situations, the appeal must await the fully final decision. Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Debates about material facts must be resolved at trial, for public officials no less than other litigants.

         The district judge thought that this suit presents a triable issue not because of any doubt about the law--the judge deemed it clearly established that an officer may not arrest someone believed to hold one set of religious beliefs, when in otherwise-identical circumstances the officer would not have arrested a person holding a different set of beliefs--but because of doubt about what reasonable jurors would infer about why the officers acted as they did.

         Nettles-Bey, who lives in Knoxville, travels around the country to assist African-American youths. He usually stays with the people who invite him to come. Sabeel El-Bey invit-ed Nettles-Bey to South Holland and offered accommoda-tions in what El-Bey described as his house, at 84 Woodland Drive. El-Bey gave Nettles-Bey a garage-door opener and told him to use the door between house and garage. Nettles-Bey took the invitation and found Felicia Mohammad, whom he had already met, staying in the house.

         What Nettles-Bey did not know is that El-Bey was lying. He was a squatter at 84 Woodland Drive and had no lawful interest in the house. Adolph Clark, the owner of the proper-ty, does not live there, but he happened to stop by while Nettles-Bey was present and called the police, reporting the trespass. On arriving, officers Williams and Burke discov-ered not only Nettles-Bey's name but also some literature referring to Moorish Science.

         Here is where stories, and potential inferences, diverge. The officers contend that they take into custody anyone who is the subject of a trespass complaint, so they arrested Net-tles-Bey as a matter of routine when he could not show any ownership interest or an invitation by Clark--neither of which Nettles-Bey has ever claimed to have. For his part, Nettles-Bey says that the arresting officers, and others at the stationhouse, remarked on his status as a Moor (ignoring his denials) and congratulated themselves on rounding up an-other member of that troublesome sect, which they strongly implied they were trying to drive out of South Holland. The subject of Nettles-Bey's religious beliefs, and Moors' insou-ciance toward property rights, also came up at his trial for criminal trespass, injected by the arresting officers. (Nettles-Bey was acquitted, but that does not affect, one way or an-other, the constitutional propriety of his arrest. See Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007).) The district court's opinion adds many additional details.

         After canvassing the evidence that would be admissible at a civil trial, the district court concluded that a reasonable jury could rule either for, or against, Nettles-Bey on the cen-tral issue: Whether the arresting officers would have arrest-ed him had they believed him to be a Christian or otherwise not to hold Moorish beliefs. If the answer is yes, the district court concluded, then the officers did not violate the Consti-tution (for they had probable cause to believe that Nettles-Bey was trespassing); but if the answer is no, then the offic-ers violated his clearly established rights under the First Amendment. That's why the court denied defendants' mo-tion for summary judgment--though it did end the case against the Village, which does not have a policy of treating Moors worse than other faiths.

         In contesting this ruling on appeal, the officers do not contend that there is an open issue of constitutional law about whether public officials may hold a person's religion against him when deciding whether to make an arrest. Nor do they contend that there is an unsettled issue about whether making an error in determining a person's religion permits an arrest, even though acting on the basis of correct information would be forbidden. Cf. Heffernan v. Paterson, No. 14-1280 (argued in the Supreme Court on January 19 and posing the question whether a demotion because of a person's incorrectly perceived political beliefs violates the First Amendment). What they maintain is that the district judge misunderstood the facts. They insist ...


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