                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 05-1877
JOSEPH LOPEZ,
                                               Plaintiff-Appellant,
                                 v.

CITY OF CHICAGO, JENNIFER DELUCIA,
JAMES DELAFONT, DANIEL JACOBS,
and HECTOR VERGARA,
                                  Defendants-Appellees.
                     ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 01 C 1823—Samuel Der-Yeghiayan, Judge.
                          ____________
ARGUED FEBRUARY 22, 2006—DECIDED SEPTEMBER 22, 2006
                    ____________


  Before FLAUM, Chief Judge, and WILLIAMS and SYKES,
Circuit Judges.
  SYKES, Circuit Judge. Joseph Lopez was arrested by
Chicago police for a murder he did not commit. The murder
victim was a twelve-year-old boy, an innocent bystander hit
by gunfire in a drive-by shooting. Lopez was arrested
without a warrant, although with probable cause—an
eyewitness identified him as the shooter.
  Following his arrest, the individual defendants—all
detectives with the Chicago Police Department—kept Lopez
shackled to the wall of a windowless, nine-by-seven-foot
2                                               No. 05-1877

interrogation room for four days and nights while they
investigated the case. Lopez had nowhere to sleep but a
four-foot-by-ten-inch metal bench or the dirty brick floor.
The interrogation room had no toilet or sink; he had to
“scream” for the detectives to let him out to use a bathroom.
He was given only one bologna sandwich and one serving of
juice as food and drink during the entire four days and
nights he was kept in the interrogation room. The detec-
tives questioned him from time to time and made him stand
in two lineups.
  After two-and-a-half days in these conditions, Lopez
started to become disoriented and began hearing voices
telling him to confess. He ultimately gave a statement
containing a false confession that did not match the details
of the crime. On the fifth day of his detention, Lopez was
moved to the city lockup, charged, and finally taken to
court. The following day, the police investigation led
detectives to another individual who confessed to the
murder. Lopez was released the next day.
  Those were the facts the jury was entitled to believe
based on evidence Lopez presented during a seven-day trial
on his claim under 42 U.S.C. § 1983 for violation of his
constitutional rights and his supplemental state law claim
for intentional infliction of emotional distress. The detec-
tives testified differently about their treatment of Lopez
while he was in their custody, but there was no dispute that
they detained him for five days after his warrantless arrest
without taking him before a judge for a probable cause
hearing. Remarkably, after hearing this evidence, the
district court refused to submit the claims to the jury and
instead granted the defendants’ motion for judgment as a
matter of law.
  We reverse. Lopez was entitled to judgment as a matter of
law on his claim that the detectives violated his Fourth
Amendment right to a prompt judicial determination of
No. 05-1877                                                3

probable cause. See Gerstein v. Pugh, 420 U.S. 103, 125
(1975). County of Riverside v. McLaughlin, 500 U.S. 44, 56-
57 (1991), holds that if a Gerstein probable cause hearing is
not held within 48 hours of a warrantless arrest, the
government must demonstrate the existence of an emer-
gency or other extraordinary circumstance to justify its
failure to promptly present the person arrested to a judicial
officer for a probable cause determination. Here, the
defendants offered no reason for the five-day delay other
than the continuation of their investigation, but delays for
the purpose of gathering additional evidence are per se
unreasonable under McLaughlin. Id.; see also Willis v. City
of Chi., 999 F.2d 284, 288-89 (7th Cir. 1993).
  There was conflicting evidence at trial on Lopez’s treat-
ment while in the detectives’ custody, raising a jury issue
on his constitutional claim relating to the conditions of his
warrantless detention and his state law claim for inten-
tional infliction of emotional distress. The district judge
should not have taken these claims from the jury and
resolved the factual conflict himself; they are remanded for
retrial.


                     I. Background
   Given the procedural posture of this case, we recount
the facts based on the evidence presented at trial in the
light most favorable to Lopez, the party against whom the
district court entered judgment as a matter of law. See
Zimmerman v. Chi. Bd. of Trade, 360 F.3d 612, 623 (7th
Cir. 2004) (when considering a motion for judgment as a
matter of law, a court must view the evidence in the
light most favorable to the nonmoving party and must draw
all reasonable inferences in that party’s favor). The facts
pertinent to Lopez’s duration-of-confinement claim under
Gerstein and McLaughlin are undisputed.
  On July 19, 2000, a twelve-year-old boy was shot and
killed in a drive-by shooting in Lopez’s Chicago neighbor-
4                                                No. 05-1877

hood. Based on one eyewitness’s identification, Chicago
police officers arrested Lopez without a warrant at approxi-
mately 2 p.m. on July 20. Lopez stipulated at trial that the
officers had probable cause to arrest him. The arresting
officers took him to the Chicago Police Department’s Area
5 detective headquarters where they left him in the custody
of the defendant detectives: Jennifer Delucia, James
Delafont, Daniel Jacobs, and Hector Vergara.
  Lopez was placed in a nine-by-seven-foot interrogation
room, and one of his arms was handcuffed to a metal ring
fastened to the wall about three feet off the floor. When he
asked if he could be unshackled from the wall, one of the
detectives—Lopez does not remember who—told him “no”
because he “was a murderer.” The room’s brick floor was
dirtied with gum, cigarette butts, used matches, wrappers,
and dust. Next to the wall and below the ring to which
Lopez was shackled was a metal bench that was four feet
long and ten inches wide. There was no sink, toilet, or
running water in the room. There was a small window in
the door, but it was covered over with paper so it was
impossible to see through it. The room had no clock and
Lopez did not have a watch or other timekeeping device
with him, so he could not tell how long he was in the
room or whether it was night or day. The detectives kept
Lopez shackled to the wall of this room for four days and
four nights.
   Lopez’s expert on police practices testified that a sus-
pect should be held in such an interrogation room only
for “short durations” not to exceed “eight hours.” He testi-
fied that “generally you want to—you don’t want to do it
longer than what would normally be a business day or
would normally be something somebody could tolerate for
a period of time.” He also said it would “[a]bsolutely not” be
appropriate to hold a suspect in an interrogation room for
even twenty-four hours, let alone the four days and nights
Lopez endured.
No. 05-1877                                                 5

   The detectives let Lopez out of the interrogation room
for only a few brief moments. They removed him twice to
appear in police lineups, first on the evening of July 20 and
then on the evening of July 21. At some point during his
detention, the detectives transferred Lopez to a sec-
ond interrogation room that was essentially the same as the
first. To leave the interrogation room to use the bathroom,
Lopez said he had to “scream[ ] from the top of [his] lungs”
to get the detectives’ attention in order to be let out. It is
not clear how many times Lopez asked to use the bathroom.
He implied on direct examination that it was multiple
times: “Sometimes I’d be yelling for a while. I don’t know
how long. I couldn’t time myself.” But on cross-examination
he said he thought he only asked once to use the bathroom.
At any rate, because the interrogation room lacked a sink
or running water, Lopez was unable to attend to his
personal hygiene in any way for the four days. He realized
he began to smell badly and Detective Jacobs told him he
stunk.
  Lopez had great difficulty sleeping during the four days
and nights he was shackled to the wall of the interrog-
ation room. He tried once to lie down on the brick floor to
get some sleep, but he woke up with shooting pains down
his shackled arm, which had begun to turn purplish blue,
and pain in his shoulder, hip, and knees. Lopez then sat up
on the bench and kept his shackled arm level with the
ring on the wall in order to restore proper circulation. He
gave up trying to sleep lying down and just sat on the bench
and leaned back against the wall. It seemed to Lopez that
whenever he fell asleep in that seated position, he would
bump his head on the wall and wake up. The little sleep he
got was not restful.
  For his first two-and-a-half days in the interrogation
room, no one brought Lopez anything to eat or drink. He
testified that he was able to grab a drink of water during
his trips to the bathroom. He said, “[T]he only way I could
use the bathroom or drink some water [was] if the detec-
6                                               No. 05-1877

tives that were working on my case were there. If not, I had
to wait.” Lopez testified that he became disoriented and
began to hear voices in his head at some point after he was
brought back from the second police lineup, about a day and
a half into his detention. He told the jury:
    I couldn’t even put my ideas in place. I couldn’t even
    think straight. And every time I would, like, say some-
    thing, I would tell myself man, you know, I didn’t shoot
    that little boy and then a voice will click in and say
    yeah, you did shoot him. . . . It was just some voice that
    was coming from the back of my head just kept telling
    me yeah, you did shoot him. So after awhile me fighting
    against that voice, it just came true. I was like you
    know what, I started to believe that I did shoot [him].
    . . . I was sitting there for a while and after me crying
    so much and trying to put thoughts all together, which
    wasn’t even going together, I was sitting looking at the
    wall and I would feel like the wall was like coming in
    closer. And as I would feel it, it looked like it was
    coming in closer to me.
Lopez told the jury that by this point in his detention he
could no longer think rationally and that “[his] mind was
nowhere near [his] head.” About 60 hours into his deten-
tion, Lopez gave a statement to Detectives Jacobs and
Delafont in which he falsely confessed to having shot the
twelve-year-old boy.
  The details of Lopez’s confession did not match the
forensic evidence from the crime scene, and shortly thereaf-
ter Detective Jacobs returned to the interrogation room and
angrily called Lopez a liar. The detective told Lopez he did
not deserve to be a father—Lopez’s girlfriend was preg-
nant—and suggested that his girlfriend should get an
abortion. Lopez retracted his confession and told Jacobs
that he had not shot anyone. One of the detectives then
brought Lopez a bologna sandwich and some juice; accord-
No. 05-1877                                                       7

ing to Lopez, it was the only food he received during his
four-day stay. The detectives testified that they fed Lopez
regularly by purchasing fast food with their own money, but
they produced no receipts or other record of these purchases
and there are no police documents indicating Lopez was fed
in this manner.
  On July 24, four days into Lopez’s detention, an assistant
state’s attorney approved murder charges against him and
he was transferred to the city lockup. There, Lopez was
placed in a cell with a padded bunk for sleeping, a toilet,
and a sink. He also received a meal that he recalls as a hot
bologna sandwich, french fries, and a soda. All indications
are that Lopez was fed regularly once he moved to the
lockup.
  Lopez appeared before a judge for arraignment and a
probable cause hearing on July 25, five days after his
warrantless arrest. The police continued to investigate the
killing, and leads pointed to another individual, Miguel
Figueroa, as the shooter. On July 26 Figueroa confessed to
the murder. The state’s attorney’s office dropped the
charges against Lopez and he was released on July 27.
  Lopez sued the City of Chicago and the four detectives
pursuant to 42 U.S.C. § 1983 alleging they had subjected
him to an unconstitutional detention—because of the
conditions he was subjected to and the extended duration of
the detention in light of the warrantless arrest—in violation
of the Fourth and Fourteenth Amendments.1 He also



1
  Lopez sued the City of Chicago under Monell v. Department of
Social Services, 436 U.S. 658 (1978), alleging the City had a policy
or practice of detaining persons arrested without a warrant
beyond McLaughlin’s 48-hour time period for a probable cause
hearing. Lopez obtained affidavits from fourteen warrantless
detainees who were held in interrogation rooms by Chicago police
for multiple days, in violation of McLaughlin, shackled, deprived
                                                      (continued...)
8                                                     No. 05-1877

asserted a state law claim for intentional infliction of
emotional distress. The case was tried to a jury, which
heard seven days of evidence. At the close of the evi-
dence, both sides moved for judgment as a matter of law
pursuant to FED. R. CIV. P. 50. The defendants moved for
judgment as a matter of law on all claims, and Lopez moved
for judgment on his constitutional claim relating to the
duration of his detention.
  The district court denied Lopez’s motion and granted
judgment for the defendants on the duration-of-detention
claim, concluding that extraordinary circumstances justified
the five-day delay in presenting Lopez to a judicial officer
for a probable cause hearing. The judge held that because
the police were “actively attempting to solve a crime”
involving the “heinous” shooting of “an innocent twelve-year
old boy,” and because Lopez had lied to police about his
identity when he was arrested and gave “false alibis” and a
false confession during detention, the detectives were
justified in delaying his presentment for a probable cause
hearing so they could continue their investigation.
  Regarding Lopez’s claim relating to the conditions of his
detention, the parties had agreed during trial that the
Fourth Amendment’s “objectively unreasonable” standard
applied to the detectives’ conduct and submitted jury
instructions reflecting that standard. The district judge
disagreed. He concluded that the evidence would have to


1
   (...continued)
of food and sleep, and otherwise treated in the same manner as
Lopez. The City then entered a Monell waiver consenting to entry
of judgment against it in the event “the finder of fact in this case
finds that any City of Chicago employee violated Plaintiff ’s rights
under the Constitution.” On the basis of this waiver, the City
moved to bar evidence of the other detainees’ treatment, and the
district court granted the motion.
No. 05-1877                                                 9

establish the detectives acted with deliberate indiffer-
ence—a standard from the Eighth Amendment and due
process contexts—not merely that they acted in an objec-
tively unreasonable manner. The judge concluded that
“none of the evidence introduced at trial indicates that
Defendant officers” were deliberately indifferent; “at best,”
the judge held, “the Defendant officers were negligent.” On
this basis the court entered judgment for the defendants on
this claim.
  Similarly, the district judge thought the evidence was
insufficient to support Lopez’s intentional infliction of
emotional distress claim because the detectives’ conduct
“was at best negligent conduct.” The court entered judg-
ment as a matter of law for the defendants on this claim
as well. Lopez appealed.


                      II. Discussion
  We review de novo the district court’s decision to grant
judgment as a matter of law. Mendenhall v. Mueller
Streamline Co., 419 F.3d 686, 692 (7th Cir. 2005). A court
may enter judgment as a matter of law only if “a party has
been fully heard on an issue and there is no legally suffi-
cient evidentiary basis for a reasonable jury to find for that
party on that issue.” FED. R. CIV. P. 50(a)(1). When ruling
on a Rule 50 motion, a court must view the evi-
dence presented at trial in the light most favorable to the
nonmoving party and draw all reasonable inferences in that
party’s favor. See Davis v. Wis. Dep’t of Corr., 445 F.3d 971,
975 (7th Cir. 2006).


A. Unconstitutional Conditions of Confinement
  As we have noted, during trial the parties agreed that the
Fourth Amendment governed Lopez’s claim that the
detectives subjected him to unconstitutional conditions
10                                               No. 05-1877

and treatment during his warrantless detention. The
district judge thought otherwise and evaluated Lopez’s
unconstitutional conditions claim using the more demand-
ing “deliberate indifference” standard applicable to con-
victed prisoners’ claims of cruel and unusual punishment
under the Eighth Amendment and similar claims of pretrial
detainees under the Fourteenth Amendment. See, e.g.,
Johnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006)
(deliberate indifference requires a culpable state of mind
such as ignoring a known risk of harm; it “is more than
negligence and approaches intentional wrongdoing”)
(quotation marks and citation omitted); Hart v. Sheahan,
396 F.3d 887, 891 (7th Cir. 2005) (convicted prisoners’
challenge to conditions of confinement governed by the
Eighth Amendment, “which has been interpreted to require
proof that the convicts’ custodians were deliberately
indifferent to a serious hazard created by those conditions”);
Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir. 2003)
(Fourteenth Amendment’s due process standard as applica-
ble to claims of pretrial detainees is the same “deliberate
indifference” standard of the Eighth Amendment). The
district court’s application of the deliberate indifference
standard made things more difficult for Lopez; the Fourth
Amendment requires only proof that the defendants’
conduct was objectively unreasonable under the circum-
stances. Abdullahi v. City of Madison, 423 F.3d 763, 768
(7th Cir. 2005).
  The district court should have analyzed the detectives’
conduct under the Fourth Amendment and its “objectively
unreasonable” standard. The Fourth Amendment protects
against unreasonable seizures; an arrest is a seizure, and
the Fourth Amendment affords persons who are ar-
rested the further, distinct right to a judicial determination
of probable cause “as a prerequisite to extended restraint of
liberty following arrest.” Gerstein, 420 U.S. at 114. The
judicial determination of probable cause may be made
No. 05-1877                                               11

before the arrest (in the form of an arrest warrant) or
promptly after the arrest, at a probable cause hearing
(sometimes called a Gerstein hearing). But whether the
arresting officer opts to obtain a warrant in advance or
present a person arrested without a warrant for a prompt
after-the-fact Gerstein hearing, the Fourth Amendment
requires a judicial determination of probable cause. See
Haywood v. City of Chi., 378 F.3d 714, 717 (7th Cir. 2004)
(even though warrantless arrest was “clearly” supported
by probable cause, Fourth Amendment required a prob-
able cause hearing before a judicial officer).
  McLaughlin established a general rule that persons
arrested without a warrant must receive a judicial determi-
nation of probable cause within 48 hours. McLaughlin, 500
U.S. at 56-57. (We will have more to say on the McLaughlin
issue later.) Because Lopez was arrested without a warrant
and had not yet been presented for a probable cause
hearing, the Fourth Amendment should have been applied
to his claim relating to the treatment and conditions he
endured during his four days and nights in warrantless
detention. Although his claim does not challenge the
existence of probable cause, our cases hold that the Gerstein
probable cause hearing is the event that terminates the
Fourth Amendment’s applicability following a warrantless
arrest.
  Accordingly, we have held that “the Fourth Amendment
governs the period of confinement between arrest without
a warrant and the preliminary hearing at which a determi-
nation of probable cause is made, while due process regu-
lates the period of confinement after the initial determina-
tion of probable cause.” Villanova v. Abrams, 972 F.2d 792,
797 (7th Cir. 1992); see also Brokaw v. Mercer County, 235
F.3d 1000, 1018 n.14 (7th Cir. 2000) (after a probable cause
hearing the Fourth Amendment no longer applies); Luck v.
Rovenstine, 168 F.3d 323, 326 (7th Cir. 1999) (Fourth
Amendment applies before the probable cause hearing and
12                                              No. 05-1877

Due Process Clause applies after); Reed v. City of Chi., 77
F.3d 1049, 1052 (7th Cir. 1996) (the “seizure” of an arrestee
ends after the probable cause hearing). Our cases thus
establish that the protections of the Fourth Amendment
apply at arrest and through the Gerstein probable cause
hearing, due process principles govern a pretrial detainee’s
conditions of confinement after the judicial determination
of probable cause, and the Eighth Amendment applies
following conviction.
  Although the defendants agreed in the district court
that the Fourth Amendment’s “objectively unreasonable”
standard should apply, they have changed their tune on
appeal. They now agree with the district court and argue
that the claim is governed by the due process analysis
applicable to claims of pretrial detainees, which borrows
from the Eighth Amendment’s “deliberate indifference”
standard, applicable to conditions-of-confinement claims
by convicted prisoners. See Cavalieri, 321 F.3d at 620. They
cite Wilkins v. May, 872 F.2d 190, 193-95 (7th Cir. 1989),
but their reliance on that case is misplaced. Although
Wilkins held that the period between arrest and charge falls
under the rubric of due process rather than the Fourth
Amendment, later cases, cited above, have limited Wilkins
in light of Gerstein and McLaughlin. In particular,
Villanova specifically recognized the tension between this
court’s holding in Wilkins and the Gerstein/McLaughlin
line of cases, which apply the Fourth Amendment’s reason-
ableness standard to the deprivation of liberty suffered by
a warrantless arrestee. Villanova, 972 F.2d at 797.
Villanova held that the conflict in the cases “can be recon-
ciled” by applying the Fourth Amendment to the period
between a warrantless arrest and the judicial probable
cause determination and the principles of due process to
confinement after probable cause has been judicially
determined. Id.
  The defendants cite Bell v. Wolfish, 441 U.S. 520, 535
(1979), for the proposition that the Fourth Amendment does
No. 05-1877                                               13

not apply to pretrial detainees. But Bell concerned “persons
who have been charged with a crime but who have not yet
been tried on the charge”—that is, pretrial detainees for
whom a judicial determination of probable cause has
already been made. Id. at 523. That the Fourth Amendment
does not apply to postarraignment detention does not make
its protections inapplicable to the period between Lopez’s
arrest and his probable cause hearing. Bell is inapposite.
  Lopez’s trial evidence, if credited by the jury, was more
than adequate to support a finding that the detectives’
conduct was objectively unreasonable under the circum-
stances. Indeed, this case should not have been taken from
the jury even if the more burdensome standard of deliberate
indifference applied. The defendants concede on appeal that
the district court should have permitted the jury to consider
Lopez’s claim insofar as it alleged that shackling him to the
wall of the interrogation room for four days and nights
violated his constitutional rights. The jury should have been
permitted to consider the totality of Lopez’s evidence, not
just the evidence of shackling. Lopez presented evidence
that he was deprived of food, drink, and sleep during the
four days and nights he spent shackled to the wall of the
interrogation room, and was forced to yell for an extended
period of time before being let out to use the bathroom. The
defendants argue there is no evidence Lopez ever asked for
food or drink or soiled himself. This is an argument for a
jury, not a reviewing court.
  If Lopez’s version of events is believed, common sense
alone would justify a conclusion that the detectives’ conduct
was objectively unreasonable; when the fact finder’s task is
to decide whether an act or omission is objectively unrea-
sonable, reliance upon common sense is particularly
appropriate. See United States v. Sharpe, 470 U.S. 675, 685
(1985) (“Much as a ‘bright line’ rule would be desirable, in
evaluating whether an investigative detention is unreason-
able, common sense and ordinary human experience must
14                                               No. 05-1877

govern over rigid criteria.”). But the jury need not have
relied on common sense alone. Lopez’s police practices
expert testified that it would “[a]bsolutely not” be appropri-
ate to confine an arrested person in an interrogation room
for twenty-four hours, much less for four days. On this
record, the district court’s refusal to submit this claim to
the jury was unjustified; the court impermissibly weighed
the evidence and drew inferences in favor of the defendants
rather than Lopez, contrary to Rule 50’s governing stan-
dards. Lopez’s unconstitutional conditions of confinement
claim must be retried.


B. Intentional Infliction of Emotional Distress
  For similar reasons, we also reverse the judgment entered
for the defendants on Lopez’s state law claim for intentional
infliction of emotional distress. To prove this claim, Lopez
needed to establish the following: (1) that the defendants’
conduct was extreme and outrageous; (2) that they intended
their conduct to inflict severe emotional distress or knew
there was at least a high probability their conduct would
inflict such distress; and (3) that their conduct did in fact
cause him severe emotional distress. McGrath v. Fahey, 533
N.E. 2d 806, 809 (Ill. 1988). Extreme and outrageous
conduct is that which goes “beyond all bounds of decency
and [is] considered intolerable in a civilized community.”
Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001) (citing
Kolegas v. Heftel Broad. Corp., 607 N.E. 2d 201, 211 (Ill.
1992)); Campbell v. A.C. Equip. Servs. Corp., 610 N.E. 2d
745, 749 (Ill. App. Ct. 1993).
  Here again, the defendants concede on appeal that the
district court erred by refusing to let the jury consider
Lopez’s shackling allegations. They argue nonetheless that
there is no evidence from which jurors could have in-
ferred intent, at least on the matter of the extent to
which Lopez was receiving food, drink, and bathroom
No. 05-1877                                               15

access. But if the jurors believed Lopez’s evidence that he
received food and drink only once over the course of four
days and nights in custody, then they must also con-
clude the defendants lied about feeding him regularly
with fast-food purchases. It is not as if the detectives
tried to explain away Lopez’s claim by saying they all
thought someone else was giving him food. Instead, they
claimed they fed him several times. Either Lopez is lying or
the defendants are; their stories are incompatible.
  If the jurors believed Lopez’s version of events, they
rationally could have inferred that the detectives intention-
ally deprived Lopez of food and drink and deliberately
withheld bathroom access for extended periods. Lopez’s
evidence at trial essentially painted a picture of interroga-
tors subjecting a captive suspect to several days of dire
physical deprivation in order to coerce a confession. A
jury rationally could have found this conduct extreme,
outrageous, and intended to inflict severe emotional
distress.
  This is especially so because “[t]he more control which
a defendant has over the plaintiff, the more likely that
defendant’s conduct will be deemed outrageous, particularly
when the alleged conduct involves either a veiled or explicit
threat to exercise such authority or power to plaintiff’s
detriment.” McGrath, 533 N.E. 2d at 809. The detectives
exercised nearly complete control over Lopez’s ability to
move, sleep, eat, drink, and use the bathroom for the four
days and nights he spent in their custody.
  Finally, if the jurors believed Lopez’s testimony, they
rationally could have concluded that he suffered severe
emotional distress when he became disoriented and started
hearing voices telling him to confess to a murder he did not
commit. The district court should not have granted judg-
ment for the defendants on Lopez’s claim for intentional
infliction of emotional distress. The claim must be retried,
and the retrial is not limited to Lopez’s shackling evidence.
16                                               No. 05-1877

C. Unconstitutional Duration of Confinement
  The district court also granted judgment for the defen-
dants on Lopez’s claim that the detectives unconstitution-
ally held him in custody for more than 48 hours before
taking him before a judge for a probable cause hearing. The
defendants do not dispute that Lopez was held for five days
following his warrantless arrest before he received his
Gerstein hearing, well beyond the 48-hour general
limit established in McLaughlin. The defendants argue that
this delay is not actionable in damages under § 1983
because the 48-hour rule of McLaughlin is not a core
constitutional right but a procedural safeguard designed
to secure the Fourth Amendment right to a prompt judi-
cial determination of probable cause following a warrantless
arrest.
  McLaughlin and Gerstein, read together, foreclose this
argument. Gerstein clearly held that a prompt judicial
determination of probable cause following a warrantless
arrest is a core Fourth Amendment requirement: “the
Fourth Amendment requires a judicial determination of
probable cause as a prerequisite to extended restraint
of liberty following [warrantless] arrest.” Gerstein, 420 U.S.
at 114. McLaughlin, in turn, reiterated that “[u]nder
Gerstein, warrantless arrests are permitted[,] but persons
arrested without a warrant must promptly be brought
before a neutral magistrate for a judicial determination
of probable cause.” McLaughlin, 500 U.S. at 53. Police
may postpone a Gerstein hearing for a reasonable amount
of time in order to “cope with the everyday problems of
processing suspects through an overly burdened crim-
inal justice system.” Id. at 55. McLaughlin held that a
“judicial determination of probable cause within 48 hours of
[warrantless] arrest will, as a general matter, comply with
the promptness requirement of Gerstein.” Id. at 56. A lesser
delay might still be unconstitutional “if the ar-
rested individual can prove that his or her probable cause
No. 05-1877                                              17

determination was delayed unreasonably.” Id.; see also
Willis, 999 F.2d at 287-89. But if the delay extends beyond
48 hours, “the burden shifts to the government to demon-
strate the existence of a bona fide emergency or other
extraordinary circumstance” to justify the delay.
McLaughlin, 500 U.S. at 57; see also Haywood, 378 F.3d at
717 (“Haywood was arrested lawfully [with probable cause].
But he could not, consistent with the Fourth Amendment,
be continued in custody beyond 48 hours . . . unless a
judicial officer determined there was probable cause to
believe that he had committed a crime.”); Luck, 168 F.3d at
324.
  Lopez was thus constitutionally entitled to a prompt
probable cause determination by a judicial officer. Under
McLaughlin, “prompt” in this context usually means
“within 48 hours.” Because the detectives held Lopez
without a judicial probable cause determination beyond the
48-hour safe harbor of McLaughlin, it was their burden to
justify the delay by demonstrating the existence of an
emergency or other extraordinary circumstance. They did
not do so. The defendants wisely do not defend the rationale
supplied by the district court—that Lopez’s “lying” (alleg-
edly false alibis and what we know to be a false confession)
prolonged their investigation. McLaughlin held unequivo-
cally that delays for purposes of gathering evidence are per
se unreasonable. McLaughlin, 500 U.S. at 56; see also
Willis, 999 F.2d at 288-89. Lopez was entitled to judgment
as a matter of law on his duration-of-confinement claim.
  On remand, Lopez may recover compensatory damages for
the unlawful duration of his confinement. See Carey v.
Piphus, 435 U.S. 247, 254-55 (1978) (compensatory damages
are the norm when a plaintiff prevails on a § 1983 claim for
constitutional violations and can prove actual damages).
The defendants argue that Lopez is entitled to only nominal
damages because he stipulated there was probable cause to
arrest him. This argument is weak. Lopez presented
18                                              No. 05-1877

evidence that he suffered physical and mental injuries as a
result of his extended detention in the interrogation room.
The jury could rationally conclude that if Lopez had
received the Gerstein hearing to which he was constitution-
ally entitled, he would at least have been moved from the
interrogation room to the jail before his body and mind
deteriorated into the delusional state he described at trial.
  For the foregoing reasons, we REVERSE the judgment of
the district court and REMAND this case to the district court
for entry of judgment for Lopez on his duration-of- confine-
ment claim and for a new trial on: (1) Lopez’s unconstitu-
tional conditions of confinement claim; (2) his intentional
infliction of emotional distress claim; and (3) damages.
Circuit Rule 36 shall apply on remand.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—9-22-06
