                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                                Submitted May 13, 2016 *
                                 Decided June 14, 2016

                                         Before

                             MICHAEL S. KANNE, Circuit Judge

                             DIANE S. SYKES, Circuit Judge

                             DAVID F. HAMILTON, Circuit Judge

No. 15-2894                                     Appeal from the
                                                United States District Court
EDDIE TOWNSEND                                  for the Northern District of Indiana,
     Plaintiff-Appellant,                       Fort Wayne Division.

      v.                                        No. 1:13cv315

MATTHEW B. WILSON, et al.,                      Susan L. Collins,
    Defendants-Appellees.                       Magistrate Judge.


                                       ORDER

        Eddie Townsend sued the City of Fort Wayne, Indiana, and several city police
officers after he was arrested (but not prosecuted) for driving while intoxicated. He
claimed that the officers did not have probable cause to arrest him or to file a criminal
complaint, and he sought damages under both 42 U.S.C. § 1983 and state tort law. The
district court (a magistrate judge presiding by consent) granted summary judgment for
the defendants on all claims. We affirm.


      *
         After examining the briefs and record, we have concluded that oral argument
is unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP.
P. 34(a)(2)(C).
No. 15-2894                                                                         Page 2

       The following facts are undisputed unless otherwise noted. In August 2012
Townsend was involved in a traffic accident. Officer Matthew Wilson responded to the
scene, and two witnesses told him that Townsend had driven past very quickly, [had
run] a red light, and [had] hit another car. The driver of that car suggested to Officer
Wilson—in the officer’s words—that he should “check Mr. Townsend because he might
be intoxicated.” By Officer Wilson’s account, Townsend’s eyes were red, his breath
smelled moderately of alcohol, and his speech was slurred. In contrast Townsend swears
that he did not consume any alcohol that day and did not exhibit any of the physical
symptoms described by Officer Wilson. The officer administered a portable breath test
(“PBT”), which registered a blood-alcohol concentration of 0.12%, above Indiana’s legal
limit of 0.08%.

        Two other Fort Wayne police officers then helped cuff Townsend and seat him in
a squad car. Once at the jail, Officer Richard Page, a certified breath-test operator, read
Townsend the Indiana Implied Consent Notice, and Townsend agreed to take a chemical
test. Protocol required a 20-minute wait before that test could be administered, and
during that lull, Townsend was given three field-sobriety tests, one of which he failed.
Townsend then submitted to the chemical breath test. That test registered an “invalid”
result, but instead of waiting another 20 minutes before retesting—as mandated by state
regulations—Officer Page repeated the test after just 6 minutes. This second test
registered an “incomplete” result.

       Officer Wilson then completed an “Affidavit for Probable Cause.” He said he
thought Townsend had been driving while intoxicated based on his observations that
Townsend needed support and staggered when walking, was swaying, had red eyes,
slurred his speech and mumbled, was argumentative, and had a moderate odor of
alcohol on his breath. (Again, Townsend denies that he displayed any of these signs of
intoxication while interacting with Officer Wilson.) Wilson also checked the box
indicating that Townsend had refused to take a breath test, which resulted in the
immediate suspension of Townsend’s license. Townsend was jailed overnight and
released the next morning after posting bond.

       Three days after Townsend’s release, a state judge concluded that there was
probable cause to believe that he had operated a vehicle while intoxicated in a manner
that endangered a person, see IND. CODE § 9-30-5-2(b), and he was charged by
information with that misdemeanor offense. Townsend then sought to have his driver’s
license reinstated by asking a judge to review Officer Wilson’s representation that he
had refused to take a breath test. At an evidentiary hearing, Officer Page testified about
No. 15-2894                                                                         Page 3

the two chemical breath tests he had administered. Page opined that Townsend had not
blown into the device properly, but he admitted that by waiting only 6 minutes before
giving the second test instead of the required 20, he did not follow the State’s guidelines
for administering chemical breath tests. This admission prompted the judge to reinstate
Townsend’s license. Afterward the DWI charge was dismissed, and Townsend admitted
only that he had run a red light. See id. § 9-21-3-7.

        In September 2013, about a year after he was taken into custody and a month after
the criminal proceedings had ended, Townsend filed a Notice of Claim under the
Indiana Tort Claims Act. He also filed this action (which the defendants removed from
state to federal court). Relying on federal law, Townsend claimed that Officer Wilson
had lacked probable cause to administer the PBT or to arrest him and that both Wilson
and Officer Page had engaged in a malicious prosecution. (Another federal claim against
these officers and two other police officers has been abandoned on appeal.) Townsend
also claimed that Wilson, Page, and the City were liable under state law for false arrest,
false imprisonment, malicious prosecution, and negligence. The defendants moved for
summary judgment, arguing that they were entitled to qualified immunity on the
federal claims and that the state claims were either untimely or barred by the Indiana
Tort Claims Act.

       The district court granted summary judgment for the defendants. The court first
reasoned that Officer Wilson had needed only reasonable suspicion, not probable cause,
to detain Townsend and administer the PBT. And there was reasonable suspicion, the
court continued, because of the eyewitness accounts given to Officer Wilson. Those same
witness statements plus the results of the PBT, the court explained, had given the officers
probable cause to take Townsend into custody for further investigation. In addition,
although acknowledging that Officer Page had administered the chemical breath tests
improperly, the district court concluded that this failure to follow protocol had not
affected the state judge’s assessment of probable cause because the results of the two
tests were not relied on in the Affidavit for Probable Cause. As a result, the judge
concluded, Townsend’s claims of false arrest, false imprisonment, and malicious
prosecution could not succeed. Finally, the judge held that under the Indiana Tort
Claims Act, the defendants were immune from liability for malicious prosecution and
negligence under state law, and that all of the state claims except for malicious
prosecution were untimely.

       On appeal Townsend challenges the grant of summary judgment as to each of his
federal and state claims against Officer Wilson, Officer Page, and the City. We begin
No. 15-2894                                                                             Page 4

with the federal claims against Officer Wilson. Townsend argues generally that Wilson
lacked probable cause to administer the PBT and arrest him. We recently concluded that
a “breathalyzer examination constitutes a search implicating the Fourth Amendment”
and “must be supported by probable cause to believe that the test will yield evidence of
a crime.” Seiser v. City of Chicago, 762 F.3d 647, 654 (7th Cir. 2014). But the PBT in this case
was administered two years before our decision, and at that time Indiana courts had
opined that the Fourth Amendment required only reasonable suspicion before a PBT
could be administered. See Indiana v. Whitney, 889 N.E.2d 823, 829 (Ind. Ct. App. 2008);
see also North Dakota v. Baxter, 863 N.W.2d 208, 212–13 (N.D. 2015); Vermont v. McGuigan,
965 A.2d 511, 515–17 (Vt. 2008). A police officer in Wilson’s position thus reasonably
would have believed that the higher threshold of probable cause was not
constitutionally required. See generally Sornberger v. City of Knoxville, 434 F.3d 1006, 1013
(7th Cir. 2006) (officer is entitled to qualified immunity if conduct would reasonably
have been thought constitutional). Additionally, an officer reasonably would have
believed that although slim evidence, Townsend’s driving, combined with the other
driver’s observation that Townsend may have been drinking, constituted reasonable
suspicion. See United States v. Rivera, 906 F.2d 319, 321 (7th Cir. 1990) (erratic driving
supported reasonable suspicion of driving while intoxicated); Bogetti v. State, 723 N.E.2d
876, 879 (Ind. Ct. App. 2000) (reasonable suspicion to stop vehicle after citizen reported
that driver “may be intoxicated”); State v. Springmier, 559 N.E.2d 319, 320–21 (Ind. Ct.
App. 1990) (reasonable suspicion to stop vehicle after 911 call reporting erratic driving
by potential drunk driver). Officer Wilson is therefore entitled to qualified immunity on
Townsend’s claim that the administration of the PBT violated the Fourth Amendment.
And once the PBT was administered, Wilson had probable cause to arrest Townsend
because the test revealed that his blood-alcohol content was over the legal limit.
See Jones v. City of Elkhart, 737 F.3d 1107, 1115 (7th Cir. 2013).

       We next turn to Townsend’s federal claim of malicious prosecution, which he
brought against both Officer Wilson and Officer Page, and conclude that the district
court properly granted summary judgment in favor of the defendants. Townsend
contended that Wilson and Page had prosecuted him based on the chemical breath tests
that Page administered in violation of Indiana’s guidelines. But Townsend was not
prosecuted because of those chemical breath tests. The Affidavit for Probable Cause
prepared by Wilson noted that the first chemical test result was invalid and did not rely
on either test result to support probable cause.

      Still, the Affidavit for Probable Cause did rely on Wilson’s disputed observations
of Townsend, and an officer who makes misstatements to a prosecutor, causing charges
No. 15-2894                                                                           Page 5

to be brought, can be liable for malicious prosecution. See Snodderly v. R.U.F.F. Drug Enf't
Task Force, 239 F.3d 892, 901 (7th Cir. 2001). Although federal court is “rarely the
appropriate forum for malicious prosecution claims,” Howlett v. Hack, 794 F.3d 721, 727
(7th Cir. 2015) (quotation marks and citation omitted), Indiana does not provide an
adequate state remedy for these claims, so they can be pursued in federal court under
the Due Process Clause, 1 Julian v. Hanna, 732 F.3d 842, 846–47 (7th Cir. 2013). To succeed
on this claim, the plaintiff must have suffered a liberty or property deprivation as a
result of legal process. See Serino v. Hensley, 735 F.3d 588, 593–94 (7th Cir. 2013); Newsome
v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001).

        Townsend offered no evidence that he suffered actionable harm resulting from
the filing of criminal charges by the prosecutor, before which he could not have had a
claim for malicious prosecution. See Wallace v. Kato, 549 U.S. 384, 389–90 (2007); Serino,
735 F.3d at 594–95; Wiley v. City of Chicago, 361 F.3d 994, 998 (7th Cir. 2004). Having to
appear in court to defend against charges is not an actionable deprivation of liberty.
See Cairel v. Alderden, No. 14-1711, 2016 WL 2641836, at *5 (7th Cir. May 5, 2016); Serino,
735 F.3d at 594; Alexander v. McKinney, 692 F.3d 553, 557 n.2 (7th Cir. 2012). And
Townsend did not introduce evidence of any other restrictions on his liberty; he was
released on bond the morning after his arrest and was not detained again.
See Saunders-El v. Rohde, 778 F.3d 556, 561 (7th Cir. 2015) (concluding that plaintiff who
was released on bond the day after his arrest and was acquitted could not succeed on a
claim of due-process violation based on allegation that police had fabricated evidence);
Alexander, 692 F.3d at 557 (same). Townsend did post a $750 surety bond, and we assume
that the premium was not refunded after the criminal case had ended and the bond was
released. See Smith v. City of Hammond, 388 F.3d 304, 308 (7th Cir. 2004); Lake Cnty. Clerk's
Office v. Smith, 766 N.E.2d 707, 709–10 (Ind. 2002). But we have explained that fees paid
in lieu of a cash bond are an “incidental expense” not protected by the Due Process
Clause. Albright v. Oliver, 975 F.2d 343, 347–48 (7th Cir. 1992), aff'd, 510 U.S. 266 (1994).
And in any event, because the bond amount was predetermined by a bail schedule and

       1
          Other circuits allow claims of malicious prosecution to rest on the Fourth
Amendment. See Julian v. Hanna, 732 F.3d 842, 846 (7th Cir. 2013) (citing cases). Though
we have rejected this approach, the Supreme Court has granted certiorari to address this
question. See Manuel v. City of Joliet, 590 F. App’x 641 (7th Cir. 2015), cert. granted
136 S. Ct. 890 (Jan. 15, 2016). But because Townsend was released on bond the morning
after his arrest and was not detained after charges were filed, he did not suffer a Fourth
Amendment injury that would support a claim of malicious prosecution. See Bianchi v.
McQueen, No. 14-1635, 2016 WL 1213270, at *10 n.6, *11 (7th Cir. Mar. 29, 2016).
No. 15-2894                                                                          Page 6

set before Townsend had appeared before a judge, the premium he paid was the result
of his arrest and not the allegedly false statements Officer Wilson had made in his
affidavit. See IND. CODE § 35-33-7-1(b) (allowing payment of bail before initial hearing
with judge); ALLEN COUNTY BAIL SCHEDULE (2010), http://www.in.gov/ipdc/public/
bailbonds/Allen%20County.pdf (setting $750 bail amount for operating vehicle while
intoxicated). Townsend thus lacked evidence from which a jury could infer that he
suffered constitutionally significant harm even if Wilson did mislead the prosecutor into
filing charges.

       Finally, we conclude that the district court correctly granted summary judgment
for the defendants on Townsend’s state-law claims. The Indiana Tort Claims Act
requires that notice under that statute be given within 180 days of a loss attributable to a
municipality or the municipality’s employees acting within the scope of their
employment. IND. CODE § 34-13-3-8(a); Waldrip v. Waldrip, 976 N.E.2d 102, 110 (Ind. Ct.
App. 2012). Townsend does not argue that the defendant police officers were acting
beyond the scope of their employment, and except for his claim of malicious
prosecution, the loss for Townsend’s state-law claims occurred at the time of his arrest.
See Waldrip, 976 N.E.2d at 111. But Townsend waited more than one year before
tendering the statutory notice. And as for his claim of malicious prosecution, because the
officers were acting within the scope of their employment, the City and the officers are
immune from liability. See IND. CODE § 34-13-3-3(6); Ball v. City of Indianapolis, 760 F.3d
636, 645 (7th Cir. 2014); Julian, 732 F.3d at 848–49.


                                                                               AFFIRMED.
