Tony A. Berger v. Wood County

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 22, 2023
Decided April 10, 2023*
Before
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2582
TONY A. BERGER,
Plaintiff-Appellant,
v.
WOOD COUNTY, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 21-cv-454-wmc
William M. Conley,
Judge.
O R D E R
* We have agreed to decide the case without oral argument because the briefs and record
adequately present the facts and legal arguments, and oral argument would not significantly aid the
court. FED . R. A PP. P. 34(a)(2)(C). Berger's complaint names the “Wood County Sheriff’s Department” as a
defendant, but that is not a suable entity, so we have adjusted the caption accordingly. See Whiting v.
Marathon Cnty. Sheriff’s Dep’t, 382 F.3d 700, 704 (7th Cir. 2004).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

-- 1 of 6 --

No. 22-2582 Page 2
Wood County deputy sheriffs arrested Tony Berger after a 911 call from his
girlfriend reporting that he was armed and threatening people. After the State dropped
the case against him, Berger sued those involved in his arrest and prosecution, alleging
that they had violated his Fourth, Sixth, and Fourteenth Amendment rights. The district
court entered summary judgment for the defendants. We affirm.
We construe the facts and draw all reasonable inferences in Berger’s favor.
See Indianapolis Airport Auth. v. Travelers Prop. Cas. Co., 849 F.3d 355, 361 (7th Cir. 2017).
And we may consider “irrefutable facts” preserved by the body-camera footage of this
incident. See Dockery v. Blackburn, 911 F.3d 458, 461 (7th Cir. 2018).
In May 2020, Wood County sheriff’s deputies responded to a 911 call from
Berger’s then-girlfriend, who told them that she and her son were hiding outside after
Berger, who was armed with a gun, had threatened to harm two of her acquaintances in
a nearby town. She also stated that Berger had threatened her and her son. Law
enforcement arrived and located Berger’s girlfriend and son outside; she told them that
Berger had choked her. Police officers then established a safety perimeter around
Berger’s property. Deputy Brandon Christianson spoke with Berger by cellphone and
asked to meet with Berger. Berger said he had been drinking and was in bed, but
shortly thereafter walked outside with his hands up, inviting police to “come on over.”
After searching Berger for weapons, Christianson spoke with him outside. Berger
admitted that he was angry with two people who had threatened him: he had told them
by phone that he was going to “kick” their “ass[es].” Berger stated that he had gone to
his truck but decided not to leave because he had been drinking. He denied bringing a
gun to the truck but confirmed that he had guns in the house. Berger also told
Christianson that his girlfriend, who had lived with him for five years, had kicked him
in the face when he tried to kiss her, so he had “shoved her back on the couch.”
Berger then invited the deputies inside and offered to show them his guns, but
Christianson said they should keep talking in the living room. Berger again stated that
he “slam[med]” his girlfriend “back against the pillow,” and he admitted that he told
her that if the people he was angry with came to their home, he would “put a bullet in
them.” But he denied choking his girlfriend, stating he had “pushed” her head back.
Christianson then spoke with Berger’s girlfriend, who told him that during an
argument Berger had choked her hard enough that she could not breathe and thought

-- 2 of 6 --

No. 22-2582 Page 3
she was going to pass out. She also said that while Berger was in the bedroom, she had
heard him threatening her acquaintances on the phone and loading a gun, which he
later put down in the kitchen.
Deputy Eric Marten spoke separately with her son, who stated that when he
came to investigate Berger yelling at his mother, he saw Berger choking her on the
ground; when he asked Berger what he was doing, Berger backed off. He said he then
heard Berger go into the back bedroom and threaten to shoot the acquaintances and
saw Berger leave the house with a pistol and start his truck.
Christianson told Berger he was arresting him for strangulation and being armed
while intoxicated. Christianson then asked Berger’s girlfriend if she had access to
Berger’s guns. She replied, “we can go look,” and walked to the back bedroom with
officers and her son, who identified the pistol in Berger’s closet and magazines on the
dresser. Christianson took the pistol, a holster, and two magazines. Berger’s girlfriend
was present the entire time and did not object to Christianson’s taking the items.
The State charged Berger with strangulation and suffocation, disorderly conduct,
and intoxicated use of a firearm, each with a domestic abuse enhancer. See WIS . S TAT .
§§ 940.235(1), 968.075, 941.20(1)(b), 947.01. At Berger’s preliminary hearing, the circuit
court found probable cause to believe that he had committed a felony, and he was
bound over for further proceedings.
The charges were eventually dismissed after Berger’s girlfriend declined to
cooperate with the prosecution. Berger also submitted allegedly exculpatory
documents: an email and victim impact statement from his girlfriend denying that she
had consented to any search or seizure, and an affidavit from her brother asserting that
she and her son agreed to lie about the choking to have Berger arrested.
Berger then brought this suit under 42 U.S.C. § 1983 against the Wood County
Sheriff’s Department, deputies Christianson and Marten, the prosecutor, and the district
attorney’s office. He alleged that they violated his Fourth Amendment rights by
unlawfully detaining and arresting him, searching his home, and taking his gun; his
Sixth Amendment right to a speedy trial; and his Fourteenth Amendment due-process
rights by maliciously prosecuting him.

-- 3 of 6 --

No. 22-2582 Page 4
The district court dismissed the claims against the prosecutor as barred by
absolute prosecutorial immunity, see Imbler v. Pachtman, 424 U.S. 409, 427 (1976), and
against the district attorney’s office because it is a division of the state, see WIS . STAT .
§ 978.01(1); Ameritech Corp. v. McCann, 403 F.3d 908, 910 (7th Cir. 2005), and thus not a
suable entity under § 1983, see Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989).
The parties cross-moved for summary judgment, and the district court entered
judgment for the defendants. First, the court concluded that the Sheriff’s Department
was not a suable entity, and Berger’s allegations did not support a municipal-liability
claim against the county. Next, the court concluded that the deputies had probable
cause to arrest Berger. Finally, the court determined the search of the home and seizure
of the gun were valid because Berger’s girlfriend consented to them. Berger appeals.
As a threshold matter, the defendants argue that Berger’s brief does not comply
with Federal Rule of Appellate Procedure 28(a) because it does not cite authorities or
make more than “a generalized assertion of error.” Anderson v. Hardman, 241 F.3d 544,
545 (7th Cir. 2001). While Berger’s brief is cursory, we prefer to decide cases on the
merits and can do so here. See Atkins v. Gilbert, 52 F.4th 359, 361 (7th Cir. 2022).
On appeal, Berger re-argues that there was no probable cause to arrest him and
that the search of his home and seizure of his gun were unlawful. We review de novo
the district court’s entry of summary judgment. Indianapolis Airport Auth., 849 F.3d
at 361.
Summary judgment was appropriate on Berger’s claims against the deputies
because Berger’s arrest was supported by probable cause, an absolute defense to false
arrest and false imprisonment claims. See Abbott v. Sangamon County, 705 F.3d 706,
713–14 (7th Cir. 2013). Probable cause exists if, considering the totality of the
circumstances “at the time of the arrest,” a reasonable officer would have believed that
Berger had committed a crime. See id. at 714 (emphasis added). Thus, what happened
after the arrest—including Berger’s girlfriend’s recantation and her brother’s letter—is
irrelevant to our review. See Wheeler v. Lawson, 539 F.3d 629, 637 (7th Cir. 2008).
Berger was arrested for strangulation and suffocation, which occurs when
someone “intentionally impedes the normal breathing or circulation of blood by
applying pressure on the throat or neck” of another. W IS . STAT . § 940.235(1). Berger’s
girlfriend told Christianson that when Berger choked her, she could not breathe, and

-- 4 of 6 --

No. 22-2582 Page 5
she thought she was going to pass out. Her son independently stated that he witnessed
the choking. A report from one “reasonably credible witness or victim” can establish
probable cause. Matthews v. City of East St. Louis, 675 F.3d 703, 706 (7th Cir. 2012). The
deputies arresting Berger had a witness and a victim and reasonably believed they were
telling the truth, especially as Berger himself corroborated many of their statements. No
further investigation was required at this stage. See id. at 707. Berger argues that the
district court wrongly relied on hearsay to support probable cause, but it relied on the
statements to show the effect they had on the deputies, not for their truth. See Woods v.
City of Chicago, 234 F.3d 979, 986 (7th Cir. 2000). Because there was probable cause to
arrest Berger for strangulation and suffocation, we need not consider the other offenses.
See, e.g., Lyberger v. Snider, 42 F.4th 807, 812–13 (7th Cir. 2022).
We similarly agree with the district court that the search of Berger’s home and
seizure of his gun were valid under the Fourth Amendment. A third party’s voluntary
consent to a search or seizure eliminates the need for a warrant, as long as the party has
authority to consent. See United States v. Ryerson, 545 F.3d 483, 487 (7th Cir. 2008); United
States v. Vines, 9 F.4th 500, 509 (7th Cir. 2021), cert. denied, 142 S. Ct. 385 (2021). Berger
does not argue that his girlfriend—who had lived in the house for five years at the time
of the arrest and had joint access to the property—lacked authority to consent to the
search or seizure. See, e.g., Ryerson, 545 F.3d at 487 (third party who lived in home with
child for ten months and kept belongings there had authority to consent). And her
statement to officers that, “we can go look,” followed by her escorting them into the
bedroom and watching without objection while they searched, established that the
consent was voluntary. See United States v. Villegas, 388 F.3d 317, 324–25 (7th Cir. 2004).
Summary judgment was also appropriate on Berger’s claims against the
Department. In the district court, Berger did not articulate a basis for imposing
municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978).
Indeed, he did not identify an unconstitutional policy or custom or provide “evidence
of a prior pattern of similar constitutional violations.” See Dean v. Wexford Health
Sources, Inc., 18 F.4th 214, 234 (7th Cir. 2021). Although Berger now seeks to present
evidence showing an alleged pattern of corruption, he may not do so for the first time
on appeal. See Henderson v. Wilkie, 966 F.3d 530, 539 (7th Cir. 2020).
Finally, to the extent Berger attempts to reassert claims about his prosecution, the
district court properly ruled that prosecutorial immunity blocked those claims against
the prosecutor. See Imbler, 424 U.S. at 427.

-- 5 of 6 --

No. 22-2582 Page 6
We have considered Berger’s other arguments, but none merits discussion.
AFFIRMED

-- 6 of 6 --