Opinion · Court of Appeals for the Seventh Circuit
Sara Bridewell v. Kevin Eberle
730 F.3d 672
- Type
- Opinion
- Court
- Court of Appeals for the Seventh Circuit
- Jurisdiction
- Federal
- Date
- 2013-08-27
- Topic
- bankruptcy
holding that IIED is not a continuing wrong for statute-of-limitations purposes | holding plaintiff could not receive damages for time spent in custody on a valid sentence | holding plaintiff could not receive damages for time spent in custody on a valid sentence | affirming summary judgment in favor of defendants on malicious prosecution claim where plaintiff had pleaded guilty | holding IIED claim accrues on date of arrest | holding IIED claim accrues on date of arrest | noting absence of “any Illinois case holding that it is 1 Cheatham argues that her deposition testimony regarding conversations with the prosecutor is hearsay and, therefore, cannot be considered by the Court at summary judgment. (See Dkt. No. 103 at 8 | “[C]laim of intentional infliction of emotional distress in the course of arrest and prosecution accrues on the date of the arrest.” | “[P]robable cause is not determined in retrospect. It depends on what the police know, or reasonably believe, at the time.” | “[I]f the initial intent carries forward, so does the initial date of the claim’s accrual.” | Personal injury claims in Illinois accrue “when the victim first suffers injury and knows its cause.” | “State courts have the prerogative of innovating on common‐law subjects, but federal courts do not.” | “A prosecutor’s dismissal of a criminal charge may imply innocence, but … it does not do so when it is part of a plea bargain.” | “Federal courts asked to rule on claims arising under state law must take it as it exists.” | “[A] claim of intentional infliction of emotional distress in the course of arrest and prosecution accrues on the date of the arrest.” | “[t]he idea that failing to reverse the ongoing effects of a tort restarts the period of limitations has no support in Illinois law — or in federal law either.” | “A prosecutor’s dismissal of a criminal charge may imply innocence, but Swick added that it does not do so when it is part of a plea bargain.” | “A prosecutor’s dismissal of a criminal charge may imply innocence, but Swick added that it does not do so when it is part of a plea bargain.” | “The idea that failing to reverse the ongoing effects of a tort restarts the period of limitations has no support in Illinois law—or in federal law either.” | “The idea that failing to reverse the ongoing effects of a tort restarts the period of limitations has no support in Illinois law—or in federal law either.” | “The idea that failing to reverse the ongoing effects of a tort restarts the period of limitations has no support in Illinois law — or in federal law either.” | “Bridewell cannot receive damages for time spent in custody on a valid sentence.” | “Bridewell cannot receive damages for time spent in custody on a valid sentence.” | “Police are entitled to draw on eyewitness descriptions without being required to assume that witnesses got every detail right, or that every omission from a description must establish that the omitted fact did not occur.” | in determining probable cause, police are not required “to use the rules 12 Illinois State Police policy supposedly requires that show-ups be performed in person (instead of by photograph), and that video and audio equipment be used when practical. (Dkt. 60 at 6. | police entitled to draw on eyewitness descriptions
Citator
- Cited by
- 48 opinions
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-‐‑2738
SARA BRIDEWELL, RANDY MANUEL, and LISA RHODES,
Plaintiffs-‐‑Appellants,
v.
KEVIN EBERLE, BRIAN FORBERG, and CITY OF CHICAGO,
ILLINOIS,
Defendants-‐‑Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 C 4947 — Harry D. Leinenweber, Judge.
____________________
ARGUED APRIL 5, 2013 — DECIDED AUGUST 27, 2013
____________________
Before EASTERBROOK, Chief Judge, and FLAUM and WOOD,
Circuit Judges.
EASTERBROOK, Chief Judge. Following a hit-‐‑and-‐‑run colli-‐‑
sion, the driver of the struck vehicle took off in pursuit of the
fleeing one. Walter Chandler, who had left the scene, even-‐‑
tually turned into what appeared to be a dead-‐‑end alley; Li-‐‑
sa Rhodes pulled up behind him, blocking his exit. Rhodes
had the advantage of numbers. She was accompanied by
2 No. 12-‐‑2738
Sara Bridewell, Randy Manuel, and Anthony Watkins. All
but Watkins got out of the car and confronted Chandler.
Rhodes reached into Chandler’s car and took the key. Before
long, Bridewell yelled that Chandler had a gun and the three
moved off. A shot rang out. The horn of Chandler’s car be-‐‑
gan to sound; his head was pressing the button. Minutes lat-‐‑
er two men were seen in the alley; they may have been Ma-‐‑
nuel and Watkins, but perhaps not. A witness, who saw one
of these two carrying a gun, heard two more shots.
These men left and police arrived. Bridewell and Rhodes
approached the police and told them that Chandler had shot
at them. (They did not know his name yet, but we use names
to simplify the story.) Two detectives, Kevin Eberle and Bri-‐‑
an Forberg, found Chandler dead, with a gun near his hand.
They concluded that he had been shot three times. They also
learned from the witness that two men had accompanied
Rhodes and Bridewell, something they had not volunteered.
They took Bridewell and Rhodes into custody, then located
and arrested Manuel and Watkins.
After extended interrogation, both Rhodes and Watkins
told the police that Bridewell had shot Chandler. (Manuel
invoked his rights under Miranda and was not questioned
further.) Bridewell was charged with murder. She was al-‐‑
ready under indictment for possession of cocaine with intent
to distribute. Rhodes, Manuel, and Watkins were released.
After three years in custody, Bridewell pleaded guilty to
a reduced drug charge (possession only) and was sentenced
to time served; prosecutors dismissed the murder charge by
filing a nolle prosequi. More than a year earlier, Bridewell,
Rhodes, and Manuel had filed this suit against Eberle, Forb-‐‑
erg, and the City of Chicago under 42 U.S.C. §1983
, contend-‐‑ No. 12-‐‑2738 3 ing that their arrests were unlawful. None of the plaintiffs contended that the interrogations had been coercive or oth-‐‑ erwise improper, though Bridewell raises this subject indi-‐‑ rectly under state law (we return to the issue at pages 7–8). Bridewell added three claims unique to her: that the police took longer than the fourth amendment allows to present her to a judge, that the murder charge constituted malicious prosecution, and that the defendants tortiously caused her to suffer emotional distress. The district judge granted sum-‐‑ mary judgment to all three defendants on all four claims.2012 U.S. Dist. LEXIS 88671
(N.D. Ill. June 27, 2012).
The district court found that Eberle and Forberg had
probable cause to believe that Bridewell, Rhodes, and Ma-‐‑
nuel either shot Chandler or aided the killer. Police found a
dead body and learned from the witness plus Bridewell and
Rhodes that Chandler had been pursued, trapped, and con-‐‑
fronted by people who were angry with him. Multiple shots
were heard. The witness saw Bridewell and her companions
run away. One inference was that one or more of them had
shot Chandler. It was not the only possible inference. Per-‐‑
haps the two men who came to the alley later had fired the
fatal shots and were strangers to the quartet. Perhaps Chan-‐‑
dler shot himself, intentionally or by accident when trying to
harm or scare his pursuers. The police thought this unlikely;
they saw three holes in Chandler’s head, implying that at
least two of the shots had been fired by someone else.
A medical examination revealed only two holes, made by
a single bullet. But probable cause is not determined by ret-‐‑
rospect. It depends on what the police know, or reasonably
believe, at the time. And probable cause is a standard, not a
rule. See Illinois v. Gates, 462 U.S. 213
(1983). When facts sup-‐‑ 4 No. 12-‐‑2738 port a “fair probability” that a suspect has committed a crime, probable cause to arrest exists.462 U.S. at 238
. The Court described a “commonsense, practical” inquiry,462 U.S. at 230
, into the question whether the circumstances “warrant suspicion” justifying detention.462 U.S. at 235
. The
district judge thought that this standard had been met; we
do too.
There was no dispute in the district court about what
Eberle and Forberg knew or reasonably believed at the time.
Plaintiffs contend that a jury should make an independent
assessment of probable cause, no matter how things ap-‐‑
peared to the officers at the scene. They observe that the
witness who heard shots and saw plaintiffs run away did
not tell the officers that plaintiffs had fired guns; perhaps a
jury would treat this as reducing the likelihood that any of
the plaintiffs shot Chandler (or assisted the shooter). Similar-‐‑
ly, plaintiffs contend, a jury might attach significance to the
fact that Chandler was very drunk; this might make it more
likely that he shot himself accidentally. Plaintiffs’ position is
wrong for at least two reasons.
First, it proceeds as if the police had to use the rules for
summary judgment and draw inferences in favor of the sus-‐‑
pects. They don’t. See, e.g., Gramenos v. Jewel Companies, Inc.,
797 F.2d 432
(7th Cir. 1986); Askew v. Chicago,440 F.3d 894
(7th Cir. 2006). The summary-‐‑judgment rules affect what
knowledge the district court can impute to the police, not
whether a given set of facts supplies probable cause. And in
this suit there is no dispute about what the police knew (or
inferred, albeit incorrectly, from the condition of Chandler’s
head). Chandler’s head was a mess; a single bullet fired from
close range (as this one was) can cause extensive damage.
No. 12-‐‑2738 5
Plaintiffs do not deny that it was reasonable for the detec-‐‑
tives to have thought that Chandler had been hit with mul-‐‑
tiple rounds. And the police did not know how much alco-‐‑
hol was in Chandler’s blood; he was dead when they ar-‐‑
rived, and his blood alcohol was tested only after plaintiffs
were in custody. Whether the known facts add up to proba-‐‑
ble cause is a legal question for the judge, not a subject on
which jurors are entitled to form their own opinions.
Second, the contention that, if the witness did not relate
seeing any of the group fire a gun, then they cannot have
done so, treats memory as if it were a movie made by a well-‐‑
positioned camera. Yet things happen without being seen. A
witness may not have a clear view of an entire alley. The fo-‐‑
cus of vision is fairly small; events in the periphery regularly
are missed. And memory often does not record unexpected
or unusual events. See Christopher Chabris & Daniel Si-‐‑
mons, The Invisible Gorilla: How Our Intuitions Deceive Us
(2010) (describing findings of psychological research). Police
are entitled to draw on eyewitness descriptions without be-‐‑
ing required to assume that witnesses got every detail right,
or that every omission from a description must establish that
the omitted fact did not occur.
Now we take up the three claims advanced by Bridewell
alone, starting with her contention that the police waited too
long to present her to a court. County of Riverside v. McLaugh-‐‑
lin, 500 U.S. 44
(1991), holds that the fourth amendment al-‐‑ lows no more than 48 hours for the police to get a magis-‐‑ trate’s approval of a suspect’s continued detention. The de-‐‑ lay for Bridewell was 63 hours, and she maintains that this entitles her to damages. The district judge held otherwise, ruling that because Bridewell is a member of the class in 6 No. 12-‐‑2738 Dunn v. Chicago,231 F.R.D. 267
(N.D. Ill. 2005), which dealt
(in a settlement) with Chicago’s repeated violation of River-‐‑
side’s rule, her exclusive remedy comes through that litiga-‐‑
tion.
We need not decide whether Bridewell has adequately
demonstrated that her claim differs from the one resolved in
Dunn, because she cannot show injury. The state judge con-‐‑
cluded that probable cause existed to find that she had shot
Chandler and ordered her to be held—and also revoked her
bail on the drug-‐‑distribution charge. The Supreme Court ob-‐‑
served in Riverside that the reason for requiring suspects in
custody to be taken before a magistrate promptly is to en-‐‑
sure that detention based on “incorrect or unfounded suspi-‐‑
cion” is short-‐‑lived, 500 U.S. at 52
, and that persons properly
arrested but entitled to bail can be released promptly. Events
showed that Bridewell had been arrested properly and was
not entitled to release on bail. If the police had complied
with Riverside, she would have learned these things a little
sooner but would have remained in jail. This means that she
was not injured by the delay.
What’s more, Bridewell cannot receive damages for time
spent in custody on a valid sentence. See Ramos v. Chicago,
716 F.3d 1013
, 1019–20 (7th Cir. 2013). She received credit,
against her sentence for possessing cocaine, for every hour
she spent in custody following her arrest on the charge of
murder. Defendants pointed this out in their appellate brief,
and Bridewell’s reply brief ignores the subject. The reply
brief does maintain that Manuel and Rhodes are entitled to
damages for unreasonably long detention short of 48 hours,
but the opening brief does not make any such contention—
and it does not appear to have been advanced in the district
No. 12-‐‑2738 7
court either, where only Bridewell sought damages for ex-‐‑
cessive delay.
Bridewell next contends that she is a victim of malicious
prosecution. Like the district judge, we put to one side the
question whether Eberle, Forberg, or the City of Chicago can
be amerced on account of charges filed by the State’s Attor-‐‑
ney of Cook County, an official of a different public body.
See Ramos, 716 F.3d at 1019–20. The tort of malicious prose-‐‑
cution under Illinois law includes among its elements a
demonstration that the assertedly wrongful prosecution
terminated in the plaintiff’s favor in a manner implying in-‐‑
nocence. See, e.g., Swick v. Liautaud, 169 Ill. 2d 504
, 512–13
(1996). A prosecutor’s dismissal of a criminal charge may
imply innocence, but Swick added that it does not do so
when it is part of a plea bargain. Bridewell struck a plea bar-‐‑
gain, and the district judge concluded that this forecloses a
malicious-‐‑prosecution claim.
Bridewell contends that although dismissal as part of a
bargain usually fails to imply innocence, it did so in her situ-‐‑
ation because the prosecutor was certain to abandon the
murder charge eventually no matter what happened to the
drug charge. She tells us that the evidence was weak—that
Rhodes and Watkins implicated her only because of improp-‐‑
er interrogation, that her hands tested negative for gunshot
residue (though the test was not performed until after she
had washed her hands), that her DNA and fingerprints were
not found on the gun, and that Chandler’s death from one
shot fired at close range is best understood as suicide rather
than murder. Yet the medical examiner classified the death
as homicide initially and after a reexamination, and Bride-‐‑
well was in position to have shot Chandler from less than a
8 No. 12-‐‑2738
foot away and dropped the gun into the car. Rhodes and
Watkins had no reason to make false charges against Bride-‐‑
well; Rhodes is Bridewell’s sister, and there is no suggestion
of bad blood between them.
We therefore cannot say that the murder charge was
doomed from the outset—and, more to the point, we could
not find any Illinois case holding that it is proper to look
past the form of a plea bargain to inquire what would have
happened had a compromise not been reached. Federal
courts asked to rule on claims arising under state law must
take it as it exists. State courts have the prerogative of inno-‐‑
vating on common-‐‑law subjects, but federal courts do not.
Bridewell could have filed this suit in state court but chose a
federal forum and did not ask the district judge to relinquish
supplemental jurisdiction, 28 U.S.C. §1367
(c)(3), after resolv-‐‑
ing her two claims under federal law.
Bridewell asserts that a memo in the prosecutor’s files
shows that dismissal of the murder charge was inevitable
because the evidence was weak. The Assistant State’s Attor-‐‑
ney who wrote the memo concluded that the failure of police
to obtain DNA from the gun, and to test Bridewell’s hands
for residue before she washed them, undermined the
strength of the evidence. This assistant also was skeptical of
Rhodes’s accusation against Bridewell, observing that the
video of the interrogation showed that the officer had been
“cross-‐‑examining” Rhodes for about four hours before she
told the officer that Bridewell had shot Chandler. Yet convic-‐‑
tions have been obtained on weaker evidence (Rhodes was
an eyewitness, after all)—and, in the end, the assistant’s
doubts about the strength of the prosecution’s case can not
overcome the absence of any Illinois authority for the propo-‐‑
No. 12-‐‑2738 9
sition that the dismissal of charges in an apparent plea bar-‐‑
gain implies the defendant’s innocence.
As for Bridewell’s claim that Eberle and Forberg inten-‐‑
tionally inflicted emotional distress by arresting her and rec-‐‑
ommending her prosecution for murder: the district judge
dismissed this as barred by the one-‐‑year period of limita-‐‑
tions Illinois uses for claims of this sort. 745 ILCS 10/8-‐‑101.
Bridewell was arrested on September 3, 2006, and did not
sue until August 29, 2008. We held in Evans v. Chicago, 434 F.3d 916, 934
(7th Cir. 2006), that a claim of intentional inflic-‐‑
tion of emotional distress in the course of arrest and prose-‐‑
cution accrues on the date of the arrest.
Bridewell does not contend that any state court has un-‐‑
derstood the accrual time differently—Illinois applies the
standard rule that a claim accrues when the victim first suf-‐‑
fers injury and knows its cause—but insists that her claim
accrued anew every day the detectives did not tell the prose-‐‑
cutors to dismiss the indictment because the statements by
Rhodes and Watkins were unreliable and DNA evidence
was unavailable. If Bridewell is right, however, then Evans
must be wrong. The tort of intentional infliction of emotional
distress either is a continuing wrong (as she contends) or is
not (as Evans held). The idea that failing to reverse the ongo-‐‑
ing effects of a tort restarts the period of limitations has no
support in Illinois law—or in federal law either. See, e.g.,
Wallace v. Kato, 549 U.S. 384
(2007); Ledbetter v. Goodyear Tire & Rubber Co.,550 U.S. 618
(2007); National Railroad Passenger Corp. v. Morgan,536 U.S. 101
, 110–15 (2002). See also Turley v.
Rednour, No. 11-‐‑1491 (7th Cir. July 3, 2013), slip op. 16–18
(concurring opinion distinguishing three different senses of
“continuing violation”).
10 No. 12-‐‑2738
Although the detectives did not submit the gun for full
forensic testing until too late to collect DNA, and became re-‐‑
luctant to cooperate with the prosecutors once they were de-‐‑
fendants in this suit (which, recall, Bridewell filed more than
a year before the murder charge was dismissed), it is hard to
see how these events could constitute a new malicious pros-‐‑
ecution, when the prosecution was already under way. And
some of the events to which Bridewell points, such as the
lack of proper and prompt forensic testing, occurred more
than a year before she filed suit.
Even if we were to suppose that a new claim could in
principle be based on events after the initial injury, Bride-‐‑
well’s claim would fail because she does not contend that the
detectives’ ongoing failure to alert the prosecutor to the po-‐‑
tential shortcomings in the evidence was motivated by a
freshly formed intention to cause emotional distress. A truly
new claim arising from inaction requires proof of each ele-‐‑
ment of the tort on each day the supposedly new claim aris-‐‑
es. Bridewell wants to treat the (allegedly) bad intent with
which the prosecution began as extending to all later inac-‐‑
tion. Yet if the initial intent carries forward, so does the ini-‐‑
tial date of the claim’s accrual.
AFFIRMED
No. 12‐2738 11
WOOD, Circuit Judge, concurring in the judgment. I agree
with my colleagues that Officers Kevin Eberle and Brian
Forberg had probable cause to arrest each of the plaintiffs—
Sara Bridewell, Randy Manuel, and Lisa Rhodes—for the
murder of Walter Chandler. Even though the plaintiffs offer
a plausible account of the events that unfolded on September
3, 2006, their account does not detract from the objective
reasonableness of the inferences that the officers drew from
the information available to them when they arrived on the
scene. The fact that the plaintiffs, especially Rhodes, were
subjected to a grueling and humiliating 40‐hour
interrogation after their arrest is deeply disturbing. Probable
cause, however, depends on what the police knew at the
time of the arrest, not on anything that happened later. For
the same reason, the post‐arrest discovery that Chandler had
been extremely drunk at the time he died neither adds nor
detracts from the objective reasonableness of the actions of
the police.
I also agree with the majority that Bridewell’s state‐law
claims for malicious prosecution and intentional infliction of
emotional distress were properly dismissed. Nevertheless, I
find both of these to be closer calls than one might think
based on the majority’s opinion. The majority sees the dispo‐
sition of the malicious‐prosecution claim as straightforward:
the prosecution dismissed the murder charges with a nolle
prosequi motion, as part of a bargain in which Bridewell
pleaded guilty to unrelated drug and gun possession charg‐
es. In Swick v. Liautaud, 662 N.E.2d 1238
(Ill. 1996), the Su‐ preme Court of Illinois held without apparent qualification that “[t]he abandonment of the proceedings is not indicative of the innocence of the accused when the nolle prosequi is the result of an agreement or compromise with the accused, 12 No. 12‐2738 misconduct on the part of the accused for the purpose of preventing trial, mercy requested or accepted by the ac‐ cused, the institution of new criminal proceedings, or the impossibility or impracticability of bringing the accused to trial.” Id. at 1243. It is not clear, however, if the court meant to prevent the plaintiff from rebutting the inference that arises in those situations, or if it meant to create an absolute rule. Bridewell has offered evidence that she believes would rebut the inference that the dismissal of her murder charges did not signify innocence because it was part of her plea bargain. Her most important source is the note written by Assistant State’s Attorney Popielewski stating that “after consultation with the State’s Attorney … it was determined that the State could not sustain its burden of proof in this case.” But as we recently noted in Pulungan v. United States, No. 12‐2595,2013 WL 3455514
(7th Cir. July 10, 2013), a deci‐
sion that guilt has not been (or cannot be) proved beyond a
reasonable doubt is not the same as a decision that the per‐
son did not commit a crime. Id. at *2. I would therefore find
not that Bridewell was categorically barred from showing
that her nolle prosequi reflected her innocence, but instead
that she failed to overcome the contrary presumption that
arises from the plea bargain.
Bridewell’s claim for intentional infliction of emotional
distress also presents a much closer call for me than it does
for the majority. The district court thought that this claim
was time‐barred, because it understood her to be contending
that all of the offensive actions took place no later than the
day when she was charged. That date was more than one
year before she filed suit, and so if her claim was limited in
this way, it would indeed have been barred under 745 ILCS
10/8‐101 (2003). The district court rejected the possibility that
No. 12‐2738 13
her ongoing imprisonment somehow made this a continuing
wrong, relying on Evans v. City of Chi., 434 F.3d 916, 934
(7th
Cir. 2006).
I have no quarrel with the district court’s analysis, as far
as it goes. But there is more to Bridewell’s allegations: she
asserts that the police committed several allegedly tortious
actions after she was charged, and that these actions inde‐
pendently amounted to intentional infliction of emotional
distress. Specifically, she states that the detectives failed to
disclose to the prosecutors that Rhodes’s and Watkins’s
statements implicating her were coerced and false. These
were the statements elicited as a product of Rhodes’s 40‐
hour interrogation, during which the detectives threatened
her by telling her that she would never see her children
again, screamed at her, denied her bathroom breaks, subject‐
ed her to a biased polygraph examination, lied to her about
the results, and were otherwise abusive. Only after that or‐
deal did Rhodes give a statement against Bridewell, her sis‐
ter; she later repeated that statement to the grand jury. But
these events were known to the prosecutors either before her
indictment or shortly thereafter. Any claim based on them is
thus also time‐barred. Bridewell also argues that the DNA
samples gleaned from the gun that was recovered were not
sent for testing until 2009. Finally, she complains that Officer
Forberg refused to discuss her case with the prosecutors be‐
cause this civil case was pending. Even if the officers were
responsible for the late DNA testing and were uncooperative
with the prosecutors, however, those two actions are not
enough to amount to the outrageous conduct that Illinois re‐
quires for this tort. See, e.g., Duffy v. Orlan Brook Condo. Own‐
ers’ Ass’n, 981 N.E.2d 1069, 1079
(Ill. App. 2012) (“extreme and outrageous behavior requires conduct that goes beyond 14 No. 12‐2738 all possible bounds of decency, such that a reasonable per‐ son would hear the facts and be compelled to feelings of re‐ sentment and outrage”), citing Kolegas v. Heftel Broad. Corp.,607 N.E.2d 201
(Ill. 1992). I thus concur in the decision to af‐
firm the dismissal of this claim.
My final reservation relates to the majority’s discussion
of Cnty. of Riverside v. McLaughlin, 500 U.S. 44
(1991). Bride‐
well complains that the police waited too long to present her
in court for a probable‐cause hearing: Riverside holds that the
hearing should have taken place within 48 hours, but Bride‐
well’s hearing did not occur until she had been detained for
63 hours. No harm, no foul, my colleagues argue: the pur‐
pose of the Riverside rule is to ensure that the innocent are
not detained any longer than is absolutely necessary.
But Riverside is concerned not only with the obviously
innocent, but also with those who might be entitled to bail.
(It is worth recalling, in this connection, that in the federal
courts, the Bail Reform Act requires the pretrial release of a
person, upon proper security, unless the judicial officer de‐
termines that the person will not show up as required or that
he will endanger others in the community. See 18 U.S.C. § 3142
(b); see also People ex rel. Hemingway v. Elrod,322 N.E.2d 837
, 840–41 (Ill. 1975) (discussing the qualified consti‐ tutional right to bail under Illinois law and noting that “the object of bail … is to make certain the defendant’s appear‐ ance in court and is not allowed or refused because of his presumed guilt or innocence”). And even a person who would not be entitled to release, as my colleagues assert Bridewell was, is entitled to the orderly procedure provided by a hearing pursuant to Gerstein v. Pugh,420 U.S. 103, 125
(1975). One could have said much the same thing about the No. 12‐2738 15 student in Carey v. Piphus,435 U.S. 247
(1978), who was sus‐ pended without due process from his public school for pos‐ session of marijuana. Rather than holding that the existence of a factual justification for the suspension and the absence of any tangible injury defeated his claim altogether, the Su‐ preme Court ruled that “if … respondents’ suspensions were justified, respondents nevertheless will be entitled to recover nominal damages not to exceed one dollar from petitioners,”id. at 267
, because “the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the mer‐ its of a claimant’s substantive assertions,”id.
In addition, Carey recognized that damages for emotional distress at‐ tributable to the deficiencies in procedure are possible, if the person can “convince the trier of fact that he actually suf‐ fered distress because of the denial of procedural due pro‐ cess itself.”Id. at 263
; see also Alston v. King,231 F.3d 383
, 386 (7th Cir. 2000); Laje v. R.E. Thomason Gen’l Hosp.,665 F.2d 724, 728
(5th Cir. 1982).
Bridewell has not explained, however, what emotional
damages apart from the natural distress flowing from her
detention she may have suffered as a result of the fifteen ex‐
tra hours that elapsed before her Gerstein hearing. With re‐
spect to the detention itself, as a practical matter she is the
beneficiary of the Dunn litigation, which dealt with the
City’s careless application of Riverside. See Dunn v. City of
Chi., 231 F.R.D. 367
(N.D. Ill. 2005). The Dunn court cut off the class definition as of the date of its order, October 5, 2005 (eleven months before the events here), but as my colleagues point out, putting nominal damages to one side, Bridewell cannot recover anything for time spent in custody that was credited to a lawful sentence. I agree with them that Manuel and Rhodes failed properly to preserve their arguments by 16 No. 12‐2738 omitting them from their opening brief. Thus, in the end there is a chance that Bridewell might be entitled to a Carey‐ like remand for nominal damages. But that is sufficiently in doubt that I will not dissent from the across‐the‐board affir‐ mance that my colleagues favor. With these reservations, I concur in the decision to affirm the judgment of the district court.