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Ewell v. Toney

United States Court of Appeals, Seventh Circuit

April 10, 2017

Tina M. Ewell, Plaintiff-Appellant,
Eric Toney, et al., Defendants-Appellees.

          Argued December 2, 2016

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:14-cv-00931-PP - Pamela Pepper, Judge.

          Before WOOD, Chief Judge, and Easterbrook and Williams, Circuit Judges.

          WOOD, Chief Judge.

         Tina Ewell was a close friend and confidante of her sister, Eve Nance. So close, in fact, that when Nance shot and killed her husband, Ewell helped Nance dispose of his body. For this, a Wisconsin court convicted Ewell of a number of felony and misdemeanor charges in October 2016. But she is not asking us to second-guess those convic- tions. Instead, she is complaining about an aspect of the criminal investigation-namely, her initial arrest and detention immediately after the murder. During the period between her release from that detention and her indictment in the criminal case, she filed a civil rights action complaining that the detention was not supported by probable cause but was instead for the impermissible goal of building a case against her. Resolving the case before the state criminal proceeding began, the district court dismissed her suit, and this appeal followed. Because we conclude that Ewell is not entitled to damages on most of her claims, and that the defendants are entitled to qualified immunity on the rest, we affirm.


         Eve Nance shot and killed her husband, Timothy Nance, as he stood in the shower of their Fond du Lac, Wisconsin, home on November 1, 2013. Four days later, Nance reported him missing. Two detectives from the Fond du Lac Police Department, William Ledger and Matt Bobo ("the detectives"), were assigned to investigate. What follows is their account of their actions. They began by interviewing Timothy's family, his new girlfriend, and various friends, including Ewell. Some of those friends told them about the Nance couple's fraught history of threats and violence, including recent discord over Timothy's new girlfriend and his purported plan to divorce Nance. The detectives also said that a witness had noticed that the shower curtain, liner, and hooks in the Nance bathroom had been replaced after Timothy disappeared. Nance and her daughter confirmed this detail, which one of the detectives had observed independently.

         The detectives also reviewed surveillance tapes from a local store. The tapes showed Ewell and Nance buying new shower curtain liners and hooks the night Timothy went missing. On November 20, the day after they reviewed the surveillance tape, the detectives and crime lab technicians executed a search warrant at the Nance house and seized "biological specimens, " a "projectile" from the bathtub pipes, clothing, and other evidence. That same day, the detectives spoke to Ewell again. When they asked her to accompany them to the police station for further questioning, she refused. They did not take "no" for an answer: they arrested Ewell and transported her to the Fond du Lac police station sometime between 2 and 4 p.m. -approximately an hour after arresting Eve Nance.

         Ewell asserted her right to remain silent, requested counsel, and was moved to the Fond du Lac County Jail around 3:45 or 4 p.m. that same day. She spent the next two days in custody. At 4:02 p.m. on November 22, Detective Ledger signed a probable cause statement in front of a Fond du Lac County judge. In that statement, Ledger reported that he believed that Timothy Nance was murdered, that the shower curtain and liner had been used to conceal evidence of Timothy's death, and that Nance and Ewell had removed Timothy's body and concealed it in an unknown location. At 4:15 p.m., the judge, relying exclusively on Ledger's statement and accompanying affidavit, determined that probable cause existed to detain Ewell and denied Ewell bond pending a court appearance. Ewell's public defender filed a habeas corpus petition on her behalf with the Fond du Lac County Circuit Court on November 26. The following afternoon, the same judge who had found probable cause on November 22 conducted a hearing on the habeas corpus petition. At that hearing, Ewell's public defender contended that the November 22 probable cause determination had occurred after the expiration of the 48-hour period considered presumptively reasonable under County of Riverside v. McLaughlin, 500 U.S. 44 (1991), and that there had not been an initial appearance or the filing of a complaint within a reasonable time of arrest.

         The county judge agreed that the Riverside determination was outside the 48-hour window, and so the burden shifted to the state to show extraordinary circumstances. The state, the judge decided, satisfied that burden, given the activity related to the case on the court calendar. The judge stated that although Detective Ledger had contacted him earlier to sign the statement, he (the judge) could not have diligently reviewed and signed it any earlier than he did. The judge then reiterated his conclusion that probable cause existed to detain Ewell. Immediately thereafter, the court held a bond hearing and set a $50, 000 cash bond for Ewell. The court was closed from November 28 through December 1 for the Thanksgiving holiday and weekend. On December 2, 2013, the Fond du Lac County District Attorney, Eric Toney requested Ewell's release, and the state court ordered her release that same day. At that point, the state had filed no charges against her; in all, she had spent 12 days in custody.

         On August 4, 2014, Ewell filed a complaint in federal court under 42 U.S.C. § 1983, alleging that the detectives and DA Toney had arrested and held her without probable cause and had conspired to deprive her of her constitutional rights by false arrest and unlawful detention. The district court granted the defendants' motions to dismiss on January 4, 2016, finding that some of Ewell's allegations against DA Toney failed to state a claim and that he was entitled to qualified immunity on the remaining claims; that the detectives were entitled to qualified immunity because probable cause existed to arrest Ewell; and that, on the understanding that her complaint alleged a conspiracy to interfere with her civil rights in a manner prohibited by 42 U.S.C. § 1985, Ewell failed to state a claim because she had not named any private actors. Ewell filed a timely notice of appeal from the court's final judgment on January 8, 2016.

         While her appeal was pending before our court, the Fond du Lac District Attorney filed charges against Ewell on April 12, 2016. See Wisconsin v. Tina M. Ewell, Fond du Lac County Case No. 2016-CF-231. She was accused of committing four crimes: (1) felony hiding a corpse, Wis.Stat. Ann. § 940.11(2); (2) felony harboring or aiding a felony, Wis.Stat. Ann. § 946.47(1)(b); (3) misdemeanor resisting or obstructing an officer, Wis.Stat. Ann. § 946.41(1); and (4) misdemeanor failure to report a death under unusual or suspicious circumstances, Wis.Stat. Ann. § 979.01(1)(a). After those charges were filed, the detectives moved this court to stay the appellate proceedings in her civil rights case, arguing that Younger abstention was appropriate. We denied that motion and invited the detectives to address Younger in their responsive brief. On October 28, 2016, prior to oral arguments before our court, a state jury found Ewell guilty of the first three counts. (The prosecutor had dismissed the fourth count a few days earlier.) The detectives again asked us to dismiss the proceedings, this time on the basis of both Younger abstention and the bar established in Heck v. Humphrey, 512 U.S. 477 (1994). We ordered this motion to be taken with the case for resolution after oral argument. On December 8, 2016-six days after we heard oral argument on her appeal-the state court sentenced Ewell to two years' imprisonment.


         Simultaneous state and federal court cases relating to the same events pose important questions relating to federal-state comity. These are not jurisdictional questions, but the defendants have properly raised ...

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