Jason R. Mucha v. Jutiki Jackson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3619
JASON R. M UCHA,
Plaintiff-Appellee,
v.
JUTIKI JACKSON , et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:14-cv-00303-LA — Lynn Adelman, Judge.
____________________
A RGUED A PRIL 22, 2015 — DECIDED M AY 27, 2015
____________________
Before POSNER and KANNE, Circuit Judges, and DARRAH ,
District Judge.*
POSNER , Circuit Judge. The plaintiff charged two Milwau-
kee police officers (a captain and a lieutenant) with having
detained him without a warrant or other justification, in vio-
lation of the Fourth Amendment as made applicable to state
* Hon. John W. Darrah of the Northern District of Illinois, sitting by des-
ignation.

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2 No. 14-3619
action by interpretation of the Fourteenth Amendment and
in turn to acts of individual state officers by 42 U.S.C. § 1983.
There are other defendants and other charges, but the only
issue presented by this appeal is whether the officers are en-
titled to qualified immunity.
The plaintiff was a Milwaukee police sergeant. In Octo-
ber 2012, having not reported to duty for seven months as a
result of stress related to his police work, he was examined
by a psychiatrist at the behest of the Milwaukee Employees’
Retirement System. The psychiatrist submitted his report of
the examination to the Director of the Retirement System on
November 5. On November 20 the Director forwarded a re-
dacted version of the report to the Milwaukee Police De-
partment (the reason for the delay is unexplained). The re-
dacted version quoted the plaintiff as saying “I have had
thoughts of suicide. I have had thoughts of suicide by cop. I
don’t want to kill myself. … I think of going to a command
staff meeting with a rifle, shooting them until they shoot me.
… I am not intending to do that. … I just can’t go back [to
work]. I can’t take a chance of them trying to get me. It could
have a real bad ending. … [I would] kill myself or them.” He
added that he had “over ten guns,” including “twenty two
rifles” (presumably he meant several .22 caliber rifles, not 22
rifles) as well as several pistols. The psychiatrist stated that
“Jason Mucha is, in a not very veiled manner, threatening to
shoot people in police command. He has a considerable
stash of firearms. Hearing this, I cannot send him back to
work. This is a public safety issue.”
The police department received the report shortly before
5 p.m. on the 20th, and that evening the two defendant offic-
ers, accompanied by members of the police department’s

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No. 14-3619 3
Tactical Enforcement Unit (another name for a SWAT team),
drove to Mucha’s home and interviewed him. He told them
that he had “dreams” or “thoughts of suicide and hurting
other people” but did not have “any intent on [sic] hurting
himself or anyone else.” The officers decided to detain him
(we don’t know whether it was their own independent deci-
sion or they were acting under orders). They handcuffed
him and drove him to the Milwaukee County Mental Health
Facility, arriving at 8:40 p.m. They signed a form which stat-
ed that Mucha “evidences behavior which constitutes a sub-
stantial probability of physical harm to self or to others,” the
evidence consisting of “specific and recent dangerous acts,
attempts, threats or omissions by the subject as observed by
me or reliably reported to me.” The treatment director at the
facility stated that Mucha was being detained because he
suffers from a mental illness called “Adjustment disorder
with disturbance of conduct and mood” and that this diag-
nosis had led the director “to conclude [that Mucha] … pos-
es a threat of danger to self or others” and to recommend
“that involuntary commitment be initiated to secure treat-
ment for the subject.”
Mucha was released from the facility three days later—
with what conditions, medications, and consequences we
have not been told. Adjustment disorder—a reaction to
stress—often is transient, although Mucha had been experi-
encing it for months. See generally Mayo Clinic, “Adjust-
ment Disorders,” www.mayoclinic.org/diseases-conditions/
adjustment-disorders/basics/symptoms/con-20031704 (visit-
ed May 26, 2015). It is not argued that the defendant officers
knew anything about adjustment disorder or were told
about it when dispatched to Mucha’s house on the strength
of the psychiatrist’s report.

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4 No. 14-3619
The officers had not obtained an arrest warrant when
they handcuffed Mucha and took him to the mental health
facility, and we’ll assume that they can be deemed to be re-
sponsible or at least partly responsible for his three-day de-
tention in the facility. They rely for their defense of qualified
immunity on Wisconsin’s emergency detention statute, Wis.
Stat. § 51.15, which authorizes police officers to take a person
to an appropriate mental health facility—without the formal-
ity of a warrant, and without having to have observed the
person engaged in criminal conduct—if they have “cause to
believe” that the person is “mentally ill” and has demon-
strated “a substantial probability of physical harm to himself
or herself as manifested by evidence of recent threats of or
attempts at suicide or serious bodily harm,” or that he’s
demonstrated “a substantial probability of physical harm to
other persons as manifested by evidence of recent homicidal
or other violent behavior on his or her part, or by evidence
that others are placed in reasonable fear of violent behavior
and serious physical harm to them, as evidenced by a recent
overt act, attempt or threat to do serious physical harm on
his or her part.”
A state law cannot preempt the Fourth Amendment, but
it can establish a standard of conduct that is consistent with
the amendment but particularized to a specific situation; for
the amendment itself is extremely terse (only 54 words in
length).
Mucha argues that the defendant officers didn’t have
probable cause to believe that he was mentally ill and posed
a danger to himself and to other police officers. The district
judge agreed, but we are not persuaded by his reasoning.
Mucha was a police officer, so obviously knew how to kill

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No. 14-3619 5
people with guns, which he owned in abundance. He had
told a psychiatrist that he was thinking of killing himself
and/or a number of fellow police officers. True, that was on
October 17 (or, as far as the officers knew, November 5, the
date on the report), and the police department was not noti-
fied of his frightening interview with the psychiatrist until
November 20 and he hadn’t killed himself or anyone else in
the interim. But the psychiatrist had understood Mucha to
have “threaten[ed] to shoot people in police command,” and
the fact that a month had passed without the threatened
mayhem occurring did not prove that he had recovered from
the mental illness that had precipitated his threatening
statements to the psychiatrist. The treatment director of the
mental health facility to which the police took Mucha
thought he should be committed. It would have been be-
yond irresponsible for the police to respond to Mucha’s re-
marks to them at his home by saying: “So you’ve dropped
the idea of killing yourself and other police? Great, you’re
fine, goodbye.”
A police officer is not liable for damages caused by his of-
ficial acts unless the unlawfulness of the acts is clearly estab-
lished in law. The district judge thought this test for liability
satisfied by a variety of facts, or supposed facts. One true
fact on which he relied was that the police department had
received the redacted copy of the psychiatrist’s report 15
days after the report had been written. The judge thought
that this was not “recent” within the meaning of the statute,
which requires that the police act on the basis of recent
threats, attempts, and so forth. The statute does not define
“recent,” however, and if one thinks for a moment about
how the word is used it becomes obvious that it is situation
specific. If you say you had a headache recently you’re prob-

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6 No. 14-3619
ably referring to something that happened hours or at most
days ago, but if you say that Senator Cruz recently an-
nounced that he is seeking the Republican nomination for
President in 2016 you may be referring to an event that took
place weeks or months earlier. We can assume that had
Mucha told the psychiatrist that as a teenager he had
dreamed of shooting people the dream would not have been
recent enough to justify invoking the Wisconsin emergency
detention statute. But the fact that he had told the psychia-
trist a month before the police acted that he was currently
thinking about suicide and homicide (and indeed about both
conjoined) made the dangerous thoughts still “recent” on
November 20—or at least it cannot be said that their not be-
ing recent was “clearly established.”
We also don’t understand the judge’s further determina-
tion that Mucha’s acting “rationally” when the police inter-
viewed him showed that all his bad thoughts had passed in-
to history. As he did not want to be carted off to a mental
health facility, he would not have wanted to tell the police
what he had told the psychiatrist in what he may have be-
lieved to be confidence. Most people planning murder do
not prate about it to the police.
The judge also thought that Mucha had never made
“threats.” A person to whom you say “I am thinking of kill-
ing you but I haven’t made up my mind yet” will feel threat-
ened. Remember that the psychiatrist who examined him
said that Mucha had been “threatening to shoot people” (our
emphasis).
Of suicide by cop (as by pointing a gun at a police officer
to provoke him into shooting you in self-defense) we have
had many examples in this violence-prone, gun-ridden

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No. 14-3619 7
country, and likewise many examples of mass murders cul-
minating in the murderer’s suicide. A physician at the medi-
cal facility to which Mucha was taken decided he wasn’t go-
ing to kill himself or others. But this happy outcome, if it is
happy, can’t be projected back to November 20. All that the
police knew then was that the psychiatrist who had exam-
ined Mucha in October had understood him to have been
making a threat, that someone from the Employees’ Retire-
ment System had reported the threat to the police depart-
ment, and what Mucha had told them when they inter-
viewed him. These danger signals triggered the emergency
detention statute, and so the defendant officers when they
seized Mucha and took him to the mental health facility
were complying with a statute the validity of which is not
contested. They were not violating any clearly established
law, whether constitutional or statutory, federal or state.
We need not decide whether, in the absence of the state
statute, the police would still have been deemed “reasona-
ble” in their treatment of Mucha, which is the key term in
the Fourth Amendment itself. But we imagine that they
would have been.
The judgment is reversed with instructions to dismiss the
two officer defendants from the case.

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