In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1575

Cynthia Williams,

Plaintiff-Appellant,

v.

Lindsey Heavener, et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 97 C 0890--David H. Coar, Judge.


Argued November 10, 1999--Decided June 28,
2000



  Before POSNER, Chief Judge, and ROVNER,
and Diane P. Wood, Circuit Judges.

  Diane P. Wood, Circuit Judge. Officer
Cynthia Williams of the Joliet Police
Department was involved in a
confrontation with five of her department
colleagues. The incident quickly led to
her arrest. Back at the station, she was
told to fill out a conduct report and
then released. Four days later, however,
she was arrested again and charged with
obstructing a police officer. Acquitted
of the obstruction charge, she claims
that all of this was malicious and based
on false allegations by her colleagues.
Almost two years later, she sued them and
the City of Joliet, alleging violations
of her constitutional rights. The
district court granted the defendants’
motion for summary judgment and we
affirm.

  This litigation began with a relatively
routine traffic stop. On August 20, 1994,
as Williams was driving behind a car in
which her two brothers (Barney and
Eugene, Jr.) and nephew (Eugene III) were
riding, Joliet police officer James
Reilly and FBI Agent Michael Skeen pulled
over her brothers’ car. The details of
what happened next are somewhat sketchy,
but it appears that Williams herself
stopped to see what the problem was and
told Eugene Jr. and Eugene III not to
interfere with Officer Reilly’s
questioning of Barney. At this point,
another Joliet squad car (and four other
officers) arrived on the scene. According
to Williams, one of these officers put
Eugene Jr. in a choke hold. In order to
keep things from escalating further,
Williams tried to keep Eugene III from
interfering with the officers’ aggressive
treatment of her brothers. Officer Reilly
then ordered Williams herself arrested.
Eugene Jr. and Eugene III were also
arrested on the charge of obstructing a
peace officer.

  Williams was taken back to the Joliet
Police Station and "unarrested" by Watch
Commander Lt. George Hernandez. Hernandez
told Williams to prepare an internal memo
detailing what had happened, and
Hernandez informed Williams that she
would be released without charge pending
an investigation by the Department’s
internal affairs unit. Pursuant to Joliet
Police Department General Order 13-2,
Hernandez then met with the other five
Joliet officers who were on the scene in
order to determine whether probable cause
existed for the arrest. Apparently
Hernandez thought not, since he decided
not to charge Williams. Instead, he told
the other five officers to prepare memos
similar to the one that Williams was to
write. Four of the five claimed that
Williams had pushed other officers during
the August 20 incident; Williams denied
this and maintained that she did not in
any way interfere with the arrests of her
brother and nephew. Based on the
officers’ memos, a warrant for Williams’
arrest was issued on August 24 (again on
the charge of obstructing a peace
officer). On February 9, 1995, Williams
was tried and acquitted in Will County
court. Almost exactly two years later, on
February 7, 1997, she filed this Section
1983 action, which alleges that both the
individual officers on the scene and the
Joliet Police Department as a whole
violated her constitutional rights.

  Williams’ sole theory against the
individual officers is that their false
accusations were part of a
maliciousprosecution that violated her
constitutional rights. Of course, it is
not enough for Williams to show that
malicious prosecution is a constitutional
tort. Because of the qualified immunity
enjoyed by officers performing official
functions, she must show that it was
clearly established at the time of the
defendants’ conduct that a prosecution
motivated by malice violated a person’s
Fourth Amendment rights. Crawford-El v.
Britton, 523 U.S. 574, 593 (1998);
Harrell v. Cook, 169 F.3d 428, 431 (7th
Cir. 1999).

  In Mahoney v. Kesery, 976 F.2d 1054,
1062 (7th Cir. 1992), we noted that
"malicious prosecution can be . . . a
step on the road to a constitutional
violation for which redress is available
under section 1983," but we added that
"the standing of malicious prosecution as
a constitutional tort is weak." Id. at
1061. Moreover, the Supreme Court held in
Albright v. Oliver, 510 U.S. 266 (1994),
that malicious prosecution does not
constitute a direct violation of the Due
Process Clause of the Fourteenth
Amendment. With the due process avenue
foreclosed, Williams instead looks to the
Fourth Amendment’s prohibition on
unreasonable searches and seizures. She
relies largely on Smart v. Board of
Trustees of the University of Illinois,
34 F.3d 432 (7th Cir. 1994), which said
(in light of Albright) that where
"malicious prosecution or abuse of
process is committed by state actors and
results in the arrest or other seizure of
the defendant, there is an infringement
of liberty, but we now know that the
defendant’s only constitutional remedy is
under the Fourth Amendment." Smart, 34
F.3d at 434.

  The defendants argue that since Smart
was decided on August 29, 1994--a mere
five days after Williams’ arrest-- the
status of malicious prosecution as a
constitutional tort actionable under
Section 1983 was not clearly established
when they acted and that they are
therefore entitled to qualified immunity.
Alternatively, they argue that even Smart
itself merely noted that the Fourteenth
Amendment is not a valid basis for a
Section 1983 suit for malicious
prosecution, rather than clearly
establishing that such conduct is
actionable under the Fourth Amendment.
  We need not resolve what, if anything,
Smart clearly established since the
parties’ emphasis on the events before
and on August 24, 1994, misses the point.
August 24 was the day when Williams was
arrested for the second time. To the
extent that she complains about the
officers’ conduct prior to and during the
time of her arrest, her complaint amounts
to an allegation of unlawful arrest, not
malicious prosecution. But since the
statute of limitations in this Section
1983 suit is the two-year Illinois
limitations period for personal injury
actions, Northen v. City of Chicago, 126
F.3d 1024, 1026 (7th Cir. 1997), her
unlawful arrest claim would be time-
barred because it was brought after
August 24, 1996. We have said many times
that a Section 1983 plaintiff may not
avoid the limitations period imposed on a
false arrest claim by recharacterizing it
as a malicious prosecution action. Sneed
v. Rybicki, 146 F.3d 478, 481 (7th Cir.
1998); Reed v. City of Chicago, 77 F.3d
1049, 1053 (7th Cir. 1996).

  As far as the officers go, that leaves
only their allegedly false trial
testimony as a basis for a malicious
prosecution claim. Several of our cases
have suggested that misconduct following
arrest can give rise to a malicious
prosecution claim against police officers
that is distinct from an unlawful arrest
theory. See, e.g., Sneed, 146 F.3d at
481; Reed, 77 F.3d at 1053-54. See also
Washington v. Summerville, 127 F.3d 552,
560-61 (7th Cir. 1997) (Rovner, J.,
concurring in part and dissenting in
part). This, however, is not such a case.
Williams’ own brief focuses exclusively
on the unlawful conduct of her police
department colleagues from August 20
through her August 24 arrest. It does not
discuss either the officers’ conduct at
the trial or the state of the law in
February 1995. Williams has thus waived
any arguments relating to this alternate
theory. International Union of Operating
Engineers v. Rabine, 161 F.3d 427, 432
(7th Cir. 1998); Ricci v. Village of
Arlington Heights, 116 F.3d 288, 292 (7th
Cir. 1997).

  Williams also seeks to hold the City of
Joliet liable for the allegedly malicious
prosecution instigated by its police
department. Here, too, the hurdle is
high, since under Monell v. Department of
Social Services of the City of New York,
436 U.S. 658 (1978), municipalities are
not vicariously liable for their
employees’ constitutional torts. Instead,
Williams must show that her arrest and
prosecution resulted from a municipal
policy of violating citizens’
constitutional rights. Id. Her first
theory is that Joliet had a policy of not
advising citizens of their rights as
required by Miranda v. Arizona, 384 U.S.
436 (1966). It is unclear precisely how,
if at all, any Miranda violation is
connected to a malicious prosecution in
which no post-arrest statement is
introduced. We need not pursue that
point, however, since Joliet Police
Department General Order 89-10 requires
that subjects of internal investigations
be advised of their rights. Other than
her own case, Williams presents no
evidence of a practice of deviating from
General Order 89-10. Ordinarily, one
incident is not sufficient to establish a
custom that can give rise to Monell
liability. Calusinski v. Kruger, 24 F.3d
931, 936 (7th Cir. 1994). Williams makes
no argument that hers is an extraordinary
case that should prompt us to depart from
this rule, so the district court was
correct to dismiss this claim.

  Williams’ other argument against Joliet
is that the city should be liable for its
failure to train its officers in the
conduct of internal investigations. City
of Canton v. Harris, 489 U.S. 378 (1989),
suggests that a failure to train can
serve as a basis for municipal liability
under Section 1983, but only if that
failure is tantamount to "deliberate
indifference" toward the constitutional
rights of citizens. Harris, 489 U.S. at
388. There is nothing whatsoever in the
record that suggests that the Joliet
Police Department was aware of a
substantial risk that its officers would
undermine one another’s constitutional
rights during the course of internal
investigations, so this claim, too, was
properly dismissed.

  Because Williams’ malicious prosecution
arguments on appeal amount to an attempt
to avoid the two-year limitations period
applicable to her Section 1983 claims and
there is no evidence that justifies
imposing liability on the City of Joliet
itself, the judgment of the district
court is Affirmed.
