Mary Ann Tikalsky, Plaintiff-appellant, v. City of Chicago, et al., Defendants-appellees, 687 F.2d 175 (7th Cir. 1982)

On the morning of February 15, 1978, Mary Ann Tikalsky rushed, coatless, out of the Greater Grand Boulevard Mental Health Center, where she was employed as a city social worker, and began berating two Chicago policemen who were ticketing her car. Miss Tikalsky's wrath had been stirred by two circumstances: on the snowbound streets around her office parking of any kind-legal or illegal-was hard to find; and she thought the police department was exhibiting more zeal writing parking tickets than it had shown the week before investigating a robbery in which she had been the victim. Miss Tikalsky's outburst cost her dearly.

She was arrested for disorderly conduct and taken to the Second District Police Station at 51st Street and Wentworth Avenue. There a female detention aide subjected her to a visual strip search. First Miss Tikalsky had to bare her body from the waist up; then she had to lower her slacks and underwear, squat and bend from the waist several times, and alternately face toward and away from the matron. After the search Miss Tikalsky was kept in the women's detention center. Although she had money with her, she did not know that she could post bond. She remained in the detention area for four hours, until a friend arrived and paid the $35 bond. On March 3, 1978, Miss Tikalsky was tried and acquitted on the disorderly conduct charge.

These events generated a Section 1983 suit. Count I of the complaint as amended charged the arresting officers with false arrest and malicious prosecution; Count II charged one of the arresting officers with the use of excessive force and the other with failure to intervene; Count III charged the City of Chicago, the police chief, his subordinates, the watch commanders at the Wentworth Avenue station, the arresting officers, and the matron with equal protection, privacy, and Fourth Amendment violations based on the strip search. After a ten-day trial in December 1980, the jury awarded Miss Tikalsky damages of $30,000 against the City of Chicago and Second District Watch Commander Norman Schmiedeknecht. The verdict was not broken down by counts and defendants, but the parties agree that it must have been based on the strip-search count. There is no telling which constitutional right the jury thought the strip search infringed.

The City and Norman Schmiedeknecht presented the following post-trial motion on January 8, 1982 (Tikalsky App. 9-10):

1. Defendants seek a judgment notwithstanding the verdict pursuant to Rule 50 of the Federal Rules of Civil Procedure for the following reasons:

(a) As a matter of law the searching policy utilized in lockup facilities was constitutional. Bell v. Wolfish, (441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447) * * *.

(b) When all the evidence is viewed in a light most favorable to the plaintiff, it still overwhelmingly favors these defendants and no other verdict than one in defendants' favor can stand.

2. In the alternative, defendants seek a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure for the following reasons:

(a) The issue of the constitutionality of the searching policy utilized in the lockup facilities is a question of law and should not have been submitted to the jury.

3. In the alternative, the judgment against Norman Schmiedeknecht is illogical and erroneous with respect to the verdicts against the remaining individuals and a judgment notwithstanding the verdict should be entered.

In her January 26, 1981, memorandum in opposition to the defendants' motion, Miss Tikalsky met head-on the contention that Bell v. Wolfish put the City's strip-search policy beyond challenge. One of the cases she relied on was People v. Seymour, 80 Ill.App.3d 221, 35 Ill.Dec. 241, 398 N.E.2d 1191 (1st Dist. 1979) (henceforth Seymour I). However, in the two-week interval between the filing of her memorandum and the filing of the defendants' reply, the Illinois Supreme Court reversed that case, 84 Ill. 2d 24, 48 Ill.Dec. 548, 416 N.E.2d 1070 (February 3, 1981) (henceforth Seymour II). The defendants' reply memorandum placed great emphasis on the Illinois Supreme Court decision.

On February 20, 1981, Judge Perry granted the City's motion for a new trial and entered a judgment n.o.v. in favor of Norman Schmiedeknecht.¹  The correctness of the judgment n.o.v. is not an issue in this appeal. In justification of his new-trial ruling, the district judge wrote:

The court * * * finds * * * that a new trial for defendant City of Chicago should be granted on the basis that the jury was incorrectly informed by the court as to what the law was, and this fact might very well have contributed to the jury's finding against the City of Chicago. * * * The court gave to the jury certain instructions that might have confused the jurors,-particularly plaintiff's Instruction Number 41, which the court gave on the authority of People v. Seymour, 80 Ill.App.3d 221 (35 Ill.Dec. 241, 398 N.E.2d 1191) (1st Dist. 1979), which has since been reversed (on February 3, 1981) by a unanimous Illinois Supreme Court save for Justice Simon, who did not participate in the consideration or decision of the case for the reason that he wrote, while on the lower court, the opinion that was reversed.² 

Miss Tikalsky has appealed the district court's grant of a new trial on both substantive and procedural grounds.³  She maintains that the district court abused its discretion in ordering a new trial based on error that was at most harmless.⁴  She also contends that the district judge erred in granting the motion for reasons that were not apparent on its face, without affording her notice and a hearing before he did so.⁵  Because we agree with the first contention, we need not reach the second. We reverse the grant of a new trial and remand to the district court with instructions to reinstate the jury verdict.

* We begin with an examination of the Seymour cases, because they were central to the district judge's decision. Seymour was arrested for unlawful use of a weapon, a bondable misdemeanor in Illinois. He was indicted, however, for possession of cocaine. The issue was whether the cocaine had to be suppressed because it had been discovered during an improper strip search. The trial court granted Seymour's motion to suppress; the appellate court affirmed; and the Supreme Court reversed.

The appellate court reasoned that misdemeanor arrestees, like Seymour, must be informed orally of their right to post bond. 80 Ill.App.3d at 228, 35 Ill.Dec. 241, 398 N.E.2d 1191. If Seymour could post bond, there was no need to put him into a lockup. He could be detained in less restrictive quarters while the police completed their investigation. Id. at 229, 35 Ill.Dec. 241, 398 N.E.2d 1191. Since the search was the result of police failure to tell Seymour that he could post bond, the cocaine it revealed was properly suppressed. Id. An independent basis for invalidating the search was that it was unreasonable under Article I, Section 6 of the Illinois Constitution:⁶  "when the defendant is charged only with a misdemeanor and may gain his release immediately, his modesty and privacy must be made inviolate." Id. at 230, 35 Ill.Dec. 241, 398 N.E.2d 1191.

The Illinois Supreme Court rejected Seymour I's per se rule. There is no statutory requirement that misdemeanor arrestees be informed orally that they may post bond-written notification is enough. 84 Ill. 2d at 31, 48 Ill.Dec. 548, 416 N.E.2d 1070. On the facts of the case, Seymour could properly be detained for a considerable time while the police investigated his previous felony conviction, an event which might upgrade the weapons offense for which he was arrested from a misdemeanor to a Class 3 felony. Id. at 32, 48 Ill.Dec. 548, 416 N.E.2d 1070. During the detention, Seymour could be placed in the lockup; hence he could also be strip-searched for security reasons. Id. at 38-39, 48 Ill.Dec. 548, 416 N.E.2d 1070. Moreover, he could also have been searched as an incident of his arrest, and under the circumstances the search incident to arrest could have been a strip search. Id. at 38, 40-41, 48 Ill.Dec. 548, 416 N.E.2d 1070.⁷ 

It is apparent that Seymour II precludes reliance on the rule of Seymour I-i.e., that a strip search is per se unreasonable unless a misdemeanor arrestee has been told that he can post bond and fails to do so. It is also apparent that Seymour II does not authorize strip searches in all circumstances.

II

We review the district judge's grant of a new trial here only for abuse of discretion. Hahn v. Becker, 588 F.2d 768, 771 (7th Cir. 1979). But Rule 61 of the Federal Rules of Civil Procedure (quoted in note 4 supra) sets some boundaries on that discretion by requiring that the error or defect upon which the grant of new trial is based be such that it "affect(s) the substantial rights of the parties." Cf. Juneau Square Corp. v. First Wisconsin National Bank, 624 F.2d 798, 807 (7th Cir. 1980), certiorari denied, 449 U.S. 1013, 101 S. Ct. 571, 66 L. Ed. 2d 472.

The question then is whether the district judge exceeded his discretion in deciding that the per se rule of Seymour I played a sufficiently important role in the trial of Miss Tikalsky's suit to warrant starting over again. Although Judge Perry was understandably nonplussed at the news that the case had been reversed, a review of the record convinces us that he overestimated its importance.

It appears that Miss Tikalsky's lawyers adverted to Seymour I four times, never in the presence of the jury.⁸ 

(1) It was cited in the plaintiff's pretrial memorandum. Tr. 36.

(2) It was mentioned as one of several reasons that a 1965 photograph of contraband obtained from strip searches of female arrestees should not be admitted in evidence. The proffer of the photograph, the colloquy about its evidentiary value, and the judge's decision to admit it all took place out of the jury's presence. Tr. 32-38.

(3) Seymour I was summarized in the plaintiff's memorandum in opposition to the defendants' post-trial motion. The jury had been discharged by this time.

(4) Seymour I was cited as plaintiff's authority for Instruction Number 41, the partial text of which was read to the jury. The jury did not have access to copies of the instructions and their supporting authority during its deliberations.

Of these four instances, only the instruction could have had any influence on the jury. We therefore examine it in more detail.

Plaintiff's proposed Instruction Number 41 read as follows:

By Illinois Supreme Court rule, bond for the municipal offense of disorderly conduct is $35.00. Police officers are required to inform arrestees who have been charged with bondable offenses of their right to post bail and be released. Police officers can detain arrestees a reasonable time to complete their investigation and to fill out their arrest reports (; but during this reasonable detention police cannot incarcerate the arrestee. Because there is no justification for taking the arrestee into the lock-up, there is no need to search for contraband).

The court did not give the instruction as proposed, however. The bracketed language, which is derived directly from the reversed holding of Seymour I, was refused. The remainder of the instruction is not inconsistent with Seymour II-provided the word "inform" is not limited to oral advice but includes conveying information by written notice or poster. Thus the instruction as given does not misstate the applicable law, although it gives the jury virtually no guidance on the search issue.

Even if Instruction Number 41 were clearly wrong, the district judge's inquiry (and ours as a reviewing court) would not be at an end.

Alleged errors in jury instructions are considered in the light, not only of the instructions as a whole, but of the allegations of the complaint, the opening statement, the evidence, and the closing arguments. Beard v. Mitchell, 604 F.2d 485, 497-98 (7th Cir. 1979); Musgrave v. Union Carbide Corp., 493 F.2d 224, 231 (7th Cir. 1974) * * *. We consider all that the jury heard and * * * decide "not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues." Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1100 (5th Cir. 1973) (Wisdom, J.), cert. denied, 419 U.S. 869, 95 S. Ct. 127, 42 L. Ed. 2d 107 * * *.

Alloy International Co. v. Hoover-NSK Bearing Company, Inc., 635 F.2d 1222, 1226-1227 (7th Cir. 1980)

Under that standard, the jury verdict must be reinstated. The complaint did not mention the bondable nature of Miss Tikalsky's offense or the impropriety of putting her in the lockup. It merely alleged (amended Count III, PP 32 and 33) that the strip search was not justified on any of the traditional grounds-suspicion of concealed weapons or contraband, fear that Miss Tikalsky might escape, or fear that she might harm herself, the police, or others in the police station. The City put on extensive evidence to demonstrate the need to strip search all female arrestees-including all misdemeanants-none of which was excluded in reliance on Seymour I. Finally, the 82 instructions that were read to the jury did not allude to the Seymour I theory. Instead they presented a comprehensive and correct statement of the law the jury had to be guided by in considering the strip-search claim. For example, the jury should consider the charge as a whole, and not single out any one instruction (Pl. 1 & 4). Search incident to arrest does not require a warrant but cannot be unreasonable (Pl. 36). Reasonableness standards are applicable to all searches without a warrant, including searches incident to traffic arrests and to arrests for bondable misdemeanors (id.). In evaluating the equal protection claim, the jury should consider the City's interest in lockup security (Def. 25 & 26). A visual strip search is not necessarily violative of the constitutional rights of a detainee (Def. 29). Less than probable cause would justify such a search (Def. 30). The test of reasonableness requires a balancing of the "significant and legitimate security interests of the City against the private interest of the plaintiff" (Def. 26). Against this background, the fact that Instruction Number 41 originally contained Seymour I language, which was stricken before the instruction was read to the jury, pales into insignificance.⁹ 

But for the fortuitous timing of Seymour II, the City's post-trial motion would have been summarily-and properly-denied. Its main contentions are essentially frivolous. This is certainly not a case to be reversed for insufficient evidence, i.e., because no rational jury could have found plaintiff's case proved by a preponderance of the evidence. Nor is Bell v. Wolfish the panacea the City claims.¹⁰  If the balancing test prescribed in Wolfish¹¹  were as predestined in outcome as the City contends, a number of post-Wolfish cases would have been wrongly decided.¹² 

Finding that the jury verdict against the City of Chicago ought not to have been disturbed, we remand to the district court with directions that the verdict and the award be reinstated. Costs to appellant.