Anthony Maniscalco v. Jay Simon

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2402
ANTHONY MANISCALCO,
Plaintiff-Appellant,
v.
JAY SIMON and JEFFREY HAUPTMAN,
Gurnee Police Officers, and MCDONALD’S
RESTAURANTS OF ILLINOIS, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 cv 0901—Robert W. Gettleman, Judge.
ARGUED JANUARY 10, 2012—DECIDED APRIL 5, 2013
Before BAUER, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. One evening in March 2007
Anthony Maniscalco hosted a birthday party for a local
politician at his restaurant in Gurnee, Illinois. When the
festivities ended, Maniscalco capped the night with two
celebratory shots of Patrón tequila and a trip to a
nearby McDonald’s, where he encountered Fidel Castro

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2 No. 11-2402
working at the drive-through window. Minutes before
Maniscalco arrived, a Gurnee police officer had stopped
at the drive-through, but not to buy food. Instead, the
officer handed Castro a note containing four num-
bers—2626—and told him to give it to his co-worker
Fernando Guzman. Castro did as he was told. The num-
bers on the note partly corresponded to Maniscalco’s
license-plate number: C112626.
Maniscalco drove up a moment later and got into a
heated argument with Guzman while paying for his
order, grabbing Guzman by the wrist and nearly pulling
him through the pay window (or so Guzman told the
police). Maniscalco released Guzman’s arm and drove
to the pick-up window. As Castro was giving him
his food, Guzman yelled at him to stop. Castro stopped,
and Maniscalco angrily drove off, getting his late-
night snack at another fast-food restaurant instead.
In the meantime the McDonald’s manager called 911,
and a dispatch went out over the police radio about the
alleged assault. It was not long before Maniscalco was
stopped and arrested for disorderly conduct and drunk
driving. The charges didn’t stick. A jury found him not
guilty of drunk driving and battery (upgraded from
the original disorderly conduct charge). Maniscalco
then sued the arresting officers and McDonald’s under
42 U.S.C. § 1983 for conspiracy to violate his Fourth
Amendment rights. He believes that Gurnee police
and McDonald’s employees were in cahoots to induce
him to breach the peace so the officers would have
a pretext to arrest him.

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No. 11-2402 3
On the defendants’ motion for summary judgment,
the district court sifted through the evidence and
found it wanting. We agree. Notwithstanding Castro’s
deposition testimony about the odd and unexplained
note, the evidence supports probable cause to arrest,
and McDonald’s cannot be liable in any event because
there is no vicarious liability under § 1983.
I. Background
At the time of these events, Anthony Maniscalco
was a restaurant entrepreneur and well-known resident
of the Village of Gurnee, a suburban community located
at the northern reach of the Chicago metropolitan area.
Maniscalco, known as “Tony,” describes himself as a
“very, very public” person in the community, “the man,
if you will, in Gurnee,” and “a voice in that town.”
His restaurant, Paisans, was “the nicest restaurant [in
the area], not just in Gurnee.” He took an active role in
local charity drives and was close to several public
officials, including the chief of police. In 2005 he ran for
a seat on the village’s board of trustees; he lost, but
only narrowly. Because he “made a stand” in the elec-
tion, and perhaps more generally because of his noto-
riety in the community, Maniscalco had some detractors
as well, or so he believes.
On the evening of March 25, 2007, Maniscalco threw a
birthday party at Paisans in honor of State Senator
Terry Link. The event appears to have doubled as a
political fund-raiser, though the record is not entirely
clear on that point. Either way, the party was apparently

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4 No. 11-2402
a success; it was well-attended and ran until about mid-
night. As things were winding down, Maniscalco
knocked back a shot of Patrón tequila. He closed
Paisans at about 1 a.m., then stopped briefly at a restau-
rant across the street and had another shot of
tequila with a friend. On the way home, he stopped at
a nearby 24-hour McDonald’s to grab a bite to eat.
Just before Maniscalco arrived, an unidentified
Gurnee police officer pulled up to the drive-through
and handed a piece of paper to Fidel Castro, a
McDonald’s employee who was working at the drive-
through pick-up window. The officer told Castro to
give the note to Fernando Guzman, another McDonald’s
employee. Castro glanced at the note but did not
examine it closely; he later testified in his deposition
that it contained the handwritten numbers 2626.
A minute or two after the officer left, Maniscalco
pulled up to the McDonald’s drive-through and ordered
a “number four” with cheese and onions and a Coke.
Guzman took his order, but apparently they had trouble
understanding each other. When Maniscalco drove
around to the pay window, where Guzman was located,
an argument erupted. What happened next is dis-
puted. Maniscalco claims that Guzman swore at him in
Spanish and refused to give him proper change. Guzman,
on the other hand, says that Maniscalco was verbally
abusive and grabbed him by the wrist, almost pulling
him through the pay window. Without receiving his
change, Maniscalco drove ahead to the pick-up window
where Castro was packaging his order. Castro started

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No. 11-2402 5
to hand Maniscalco his food, but Guzman sud-
denly yelled for him to stop. Castro stopped and
pulled the bag back through the pick-up window.
Maniscalco cursed and drove off. Guzman jotted down
Maniscalco’s license-plate number as he drove away.
Johanna Escobar, the manager of the McDonald’s,
called the police to report that one of her employees
had been grabbed and verbally berated by a customer at
the pay window. Guzman provided a description of
Maniscalco—a male of Italian descent in his 40s wearing
a dark suit—and also described the car, including
its license-plate number: C112626.
Still hungry, Maniscalco drove to the local
Steak ’n Shake, another fast-food restaurant not far
away. Meanwhile, Gurnee Police Officer Jeffrey Haupt-
man was dispatched to the McDonald’s to investigate
the incident, and the dispatcher alerted patrol officers
in the area to be on the lookout for Maniscalco’s car.
Officer Steven Olds soon spotted Maniscalco driving
nearby. Because the dispatcher had reported a possible
battery, Officer Olds called for backup and waited
until Officers Jay Simon and Dan Pacheco arrived
before initiating a traffic stop. When Maniscalco pulled
over, Officers Olds and Simon approached the car and
noted that Maniscalco exhibited signs of intoxication.
Olds recognized Maniscalco as a well-known business-
man in the community.
Officer Hauptman, meanwhile, was at the McDonald’s
taking statements from Guzman and Escobar. He and
Officer Olds spoke over the police radio and by cell phone

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6 No. 11-2402
about what to do next. Olds, who had just talked to
Maniscalco, asked Hauptman: “You know who it is,
don’t you?” Hauptman responded that it was “Tony,”
meaning Maniscalco; he later testified that this was
a guess based on the description of the suspect in the
McDonald’s assault. Olds then asked, “How come every-
body knows but me?” Apparently other patrol officers
had also guessed that the man they were looking for
was Maniscalco based on the description from the dis-
patcher. Hauptman instructed Olds to arrest Maniscalco
for battery and disorderly conduct based on the state-
ments from Guzman and Escobar.
The officers at the scene of the stop did not conduct
field sobriety tests during their roadside encounter
with Maniscalco. Instead, following Hauptman’s instruc-
tions, Olds handcuffed Maniscalco and took him into
custody. After they arrived at the police station, Officer
Simon administered sobriety tests. Maniscalco did not
do well, and when asked to take a Breathalyzer test,
he refused. Maniscalco was charged with disorderly
conduct and driving under the influence of alcohol. The
disorderly conduct charge was dismissed a few months
later when the McDonald’s employees failed to appear
in court. The charge was later reissued as a battery, and
in December 2008 a jury acquitted Maniscalco on both
the battery and drunk-driving charges.
After the criminal proceedings had come and gone,
Maniscalco brought this § 1983 suit against Officers
Hauptman and Simon, “one unknown Gurnee police
officer,” and McDonald’s Restaurants of Illinois, Inc.

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No. 11-2402 7
He alleged that the officers conspired with McDonald’s
employees to fabricate probable cause for his arrest
in violation of his right under the Fourth and Four-
teenth Amendments to be free from unreasonable seizure.
Following discovery, the defendants moved for sum-
mary judgment, and the district court granted the mo-
tion, holding that the uncontroverted evidence estab-
lished that Officers Hauptman and Simon had prob-
able cause to arrest Maniscalco for disorderly conduct
and driving under the influence of alcohol. The court ac-
knowledged Castro’s testimony about the unexplained
note from an unidentified Gurnee officer bearing
numbers corresponding to the license plate of the car
Maniscalco was driving. In the court’s view, however,
that strange encounter did not undermine the existence
of probable cause because there was “[n]o evidence,
direct or circumstantial, connect[ing] Hauptman and
Simon to that event.” Absent more, the court held, the
conspiracy theory was “pure speculation.” Without a
Fourth Amendment violation, the § 1983 claim neces-
sarily failed. As an additional ground for summary judg-
ment, the court held that the suit against McDonald’s
was improper because respondeat superior liability
is unavailable under § 1983.
II. Discussion
We review the district court’s grant of summary judg-
ment de novo, construing all facts and drawing rea-
sonable inferences in the light most favorable to
Maniscalco as the nonmoving party. Spivey v. Adaptive

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8 No. 11-2402
Mktg. LLC, 622 F.3d 816, 822 (7th Cir. 2010). To defeat
summary judgment, Maniscalco needed evidence estab-
lishing a genuine factual dispute for trial. Factual
disputes are genuine “only if there is sufficient evidence
for a reasonable jury to return a verdict in favor of the
non-moving party on the evidence presented,” and they
are material only if their resolution might change the
suit’s outcome under the governing law. Stokes v. Bd.
of Educ. of the City of Chi., 599 F.3d 617, 619 (7th Cir.
2010). Summary judgment is appropriate if no genuine
factual dispute exists and the moving party is entitled
to judgment as a matter of law. See FED. R. CIV. P. 56.
Maniscalco’s main argument on appeal is that his
evidence is sufficient to create a jury issue on his claim
that the Gurnee officers and McDonald’s employees
conspired to fabricate probable cause by inducing him
to breach the peace. Secondarily, he asks that we
overrule our cases holding that respondeat superior
liability is unavailable in a § 1983 suit against a private
employer. See, e.g., Gayton v. McCoy, 593 F.3d 610, 622
(7th Cir. 2010); Iskander v. Village of Forest Park, 690 F.2d
126, 128 (7th Cir. 1982). We agree with the district court
that the evidence easily establishes probable cause to
arrest and that Maniscalco’s conspiracy theory rests
on speculation. And we see no reason to revisit our
caselaw foreclosing respondeat superior liability in
this context.
“Probable cause is an absolute bar to a claim of
false arrest asserted under the Fourth Amendment and
section 1983.” Stokes, 599 F.3d at 622. “Whether probable

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No. 11-2402 9
cause exists depends upon the reasonable conclusion to
be drawn from the facts known to the arresting officer
at the time of the arrest.” Devenpeck v. Alford, 543 U.S.
146, 152 (2004). Thus, “an arresting officer’s state of
mind (except for the facts that he knows) is irrelevant
to the existence of probable cause.” Id. at 153. Judicial
evaluation of probable cause “keep[s] in mind that prob-
able cause is a common-sense inquiry requiring only a
probability of criminal activity; it exists whenever an
officer or a court has enough information to warrant a
prudent person to believe criminal conduct has oc-
curred.” Whitlock v. Brown, 596 F.3d 406, 411 (7th Cir.
2010). We need only evaluate the information brought
to the arresting officer’s attention and assess whether
the officer reasonably trusted that information at the
time. Whether the information actually proved to be
true is irrelevant.
The district court held that the facts known to the
officers established probable cause to arrest Maniscalco
for both disorderly conduct and driving under the influ-
ence of alcohol. As to the second of these offenses, we
disagree. Although an arrest is permissible under the
Fourth Amendment if the arresting officer had probable
cause to make the arrest for any reason, see Devenpeck,
543 U.S. at 153-54, the probable-cause inquiry depends
on “the facts known to the arresting officer at the time of
the arrest,” id. at 152 (emphasis added). “The fact that an
officer later discovers additional evidence unknown to
her at the time of the arrest . . . is irrelevant—we only
care about what the officer knew at the time the deci-
sion was made.” Reynolds v. Jamison, 488 F.3d 756, 765

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10 No. 11-2402
(7th Cir. 2007). The officers did not obtain probable
cause for a drunk-driving arrest until after Maniscalco
was arrested and taken to the police station. They had
not stopped Maniscalco for erratic driving or any of
the common traffic violations that suggest impaired
driving. Indeed, this wasn’t a traffic stop in the ordinary
sense; Maniscalco was pulled over because his car and
license plate matched the description of the car driven
by a man who had just assaulted an employee at the
McDonald’s drive-through.
Moreover, although Officer Simon noted during the
stop that Maniscalco showed signs of intoxication,
it was not until later, at the police station, that he ad-
ministered field sobriety tests. Together with the other
evidence, the sobriety tests supplied probable cause to
charge Maniscalco with driving under the influence.
But what counts for our purposes are the facts known
to the arresting officers when they made the arrest. As
of that time, the Gurnee officers did not have probable
cause to arrest Maniscalco for drunk driving.
However, ample evidence of disorderly conduct
was readily available at the time of Maniscalco’s arrest.
A person commits disorderly conduct as defined by
Illinois law if he “act[s] in such unreasonable manner as
to alarm or disturb another and to provoke a breach of
the peace.” 720 ILL. COMP. STAT. 5/26-1. The Illinois Su-
preme Court has explained that the disorderly conduct
statute “is intended to guard against an invasion of the
right of others not to be molested or harassed, either
mentally or physically, without justification.” People v.

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No. 11-2402 11
Davis, 413 N.E.2d 413, 415 (Ill. 1980) (internal quotation
marks omitted). The breach-of-the-peace element re-
quires nothing more than the unreasonable harass-
ment of a single person, even in a nonpublic location. Id.
at 415-16. Whether these elements are satisfied depends
heavily on “the conduct’s unreasonableness in relation
to the surrounding circumstances.” Biddle v. Martin,
992 F.2d 673, 677 (7th Cir. 1993).
The undisputed facts establish that the officers had
probable cause to arrest Maniscalco for committing dis-
orderly conduct at the McDonald’s drive-through.
Guzman reported that Maniscalco was verbally abu-
sive and grabbed his wrist as if to pull him through
the drive-through window at the McDonald’s. Officer
Hauptman was dispatched to the scene and took a state-
ment from Guzman confirming the information re-
ported in the 911 call. Escobar, the McDonald’s manager,
corroborated Guzman’s report; she said that Maniscalco
was cursing and looked like he wanted to hurt some-
one. Moreover, Maniscalco was driving the car that
was used in the assault and matched the physical de-
scription of the suspect. Nothing more is needed for
probable cause. Victim statements like these are
ordinarily sufficient to establish probable cause to sup-
port an arrest for disorderly conduct. Reynolds, 488 F.3d
at 765.
Maniscalco concedes as much. He argues instead that
Officer Hauptman was privy to the alleged conspiracy
and thus knew that the victim statements were con-
trived. He has no evidence from which a reasonable jury

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12 No. 11-2402
Castro testified in his videotaped deposition that he had 1
been ordered removed and would soon be voluntarily leaving
the country. No other witness corroborated his account of
the note.
could infer this knowledge. We assume, as we must,
that Fidel Castro is telling the truth. Still, we have our1
doubts that his testimony about the inscrutable note
from an unidentified police officer is enough to sup-
port a reasonable inference of a conspiracy against
Maniscalco among the Gurnee police and McDonald’s
employees. It was a strange occurrence, no doubt, but
even if true, it’s too tenuous by itself to support an in-
ference of a conspiracy to violate Maniscalco’s constitu-
tional rights.
The claim fails for a more fundamental reason, how-
ever—the one identified by the district court. There is
insufficient evidence connecting Officers Hauptman
and Simon to the alleged conspiracy. Maniscalco hangs
his hat on Officer Hauptman’s ability to guess his
identity based on the dispatcher’s description of the
suspect in the McDonald’s assault: a male of Italian
descent in his 40s wearing a dark suit. But Maniscalco
describes himself as a particularly prominent resident of
Gurnee, outspoken and well-known around town. He
owned the nicest restaurant in the area, had run for
public office, and was close to several village officials,
including the police chief. Hauptman, Simon, and the
other officers involved in Maniscalco’s arrest testified
in deposition that they were familiar with him prior

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No. 11-2402 13
to this incident. Under these circumstances Officer
Hauptman’s ability to guess Maniscalco’s identity is
unremarkable and cannot support a reasonable infer-
ence that he was part of a conspiracy against Maniscalco.
And there is nothing at all connecting Officer Simon
to the alleged conspiracy.
Because the officers had probable cause to arrest
Maniscalco for disorderly conduct, there was no
violation of the Fourth Amendment. As an independent
ground to uphold the summary judgment for McDon-
ald’s, vicarious liability under the doctrine of respondeat
superior is unavailable against private employers sued
under § 1983 based on the rationale of Monell. Iskander,
690 F.2d at 128 (“[J]ust as a municipal corporation is not
vicariously liable upon a theory of respondeat superior
for the constitutional torts of its employees, Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978), a private
corporation is not vicariously liable under § 1983 for
its employees’ deprivations of others’ civil rights.”).
Maniscalco asks us to revisit Iskander, but we decline
the invitation. First, aside from the unsupported allega-
tion of a conspiracy, there is no conceivable basis on
which to conclude that McDonald’s employees were
acting under color of state law, as required for liability
under § 1983; they were not acting in place of the state
performing a delegated public function. See London v.
RBS Citizens, N.A., 600 F.3d 742, 746 (7th Cir. 2010);
Johnson v. LaRabida Children’s Hosp., 372 F.3d 894, 896
(7th Cir. 2004). And although a private person may be
liable under § 1983 for conspiring with a state actor to

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14 No. 11-2402
violate the constitutional rights of another, see Dennis v.
Sparks, 449 U.S. 24, 27-28 (1980); Reynolds, 488 F.3d at 764,
here, as we have explained, the conspiracy theory is
entirely speculative.
In any event, Maniscalco has not given us a good
reason to think that our long-standing position is mis-
taken. He suggests that the Supreme Court has im-
plicitly rejected Iskander in more recent cases holding
that private parties do not necessarily enjoy the same
defenses and immunities as governmental defendants
under § 1983. See Wyatt v. Cole, 504 U.S. 158 (1992);
Tower v. Glover, 467 U.S. 914 (1984); Dennis, 449 U.S. at 28-
29. This argument confuses an affirmative basis for
liability with an immunity or defense. The doctrine of
respondeat superior is a doctrine of vicarious liability,
not a defense or immunity. Nothing the Supreme
Court said in Wyatt, Tower, or Dennis calls into question
our holding in Iskander that vicarious liability is unavail-
able in a § 1983 suit against a private employer. Indeed,
it would be inconsistent with the Supreme Court’s deci-
sion in Monell to hold otherwise. 436 U.S. at 694. Sum-
mary judgment was properly entered for McDonald’s
on this additional ground.
AFFIRMED.
4-5-13

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