# Lyberger v. Snider

> District Court, S.D. Illinois · May 14, 2021

URL: https://www.frixlaw.com/law-library/cases/10153572

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** May 14, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10153572

## How later opinions describe it (automated extraction)

- noting that searches incident to arrest are reasonable “in order to remove any weapons [the arrestee] might seek to use” and “in order to prevent [the] concealment or destruction” of evidence (emphasis added)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

SHANE A. LYBARGER,
ANDREW W. LYBARGER, and
ROBERT E. DAILEY,

Plaintiffs, Case No. 19-cv-369-SPM

v.

SCOTT SNIDER, ANDREW
HARVARD and JAMIE JAMES,

Defendants.

MEMORANDUM AND ORDER

McGLYNN, District Judge:
Pending before the Court is a Motion for Summary Judgment (Doc. 58) filed by
Defendants Andrew Harvard (“Harvard”) and Jamie James (“James”). For the reason’s
set forth below, the Court GRANTS the Motion for Summary Judgment.
PROCEDURAL HISTORY
On April 2, 2019, plaintiffs Shane Lybarger (“Shane”), Andrew Lybarger
(“Andrew”) and Robert Dailey (“Robert”), collectively known as plaintiffs, filed their
seven-count complaint against Harvard and James, who were police officers for the City
of Centralia, Illinois and Scott Snider (“Snider”) who was a police officer for the City of
Wamac, Illinois (Doc. 1). Specifically, the allegations relate to an incident that occurred
during the evening hours of April 2, 2017 (Id.).
On June 4, 2019, Snider filed his answer, along with a motion to dismiss for
failure to state a claim (Docs. 14, 15). On June 10, 2019, Harvard and James filed their
answer and also asserted a motion to dismiss for failure to state a claim as to count VII
(Docs. 16. 17).
On June 25, 2019, a motion to amend/correct complaint was filed by all plaintiffs
(Doc. 18). On June 26, 2019, leave to file was granted and the amended complaint was
filed, making the prior motions to dismiss moot (Docs. 19, 20). The amended complaint

was virtually identical to the original complaint, but it removed Count VII, which was
the basis of the motion to dismiss. The following counts were asserted in the amended
complaint:
(I) All plaintiffs allege violation of civil rights under 42 U.S.C. §1983 for
unlawful detention against all defendants (Id. at pp. 9-10);

(II) All plaintiffs allege violation of civil rights under 42 U.S.C. § 1983 for
unlawful search against all defendants (Id. at pp. 10-11);

(III) All plaintiffs allege violation of civil rights under 42 U.S.C. §1983 for
unlawful arrest against all defendants (Id. at pp. 11-12);

(IV) Shane alleges violation of civil rights under 42 U.S.C. §1983 for unlawful
confiscation of property against Snider (Id. at pp. 12-13);

(V) Robert alleges violation of civil rights under 42 U.S.C. §1983 for unlawful
confiscation of property against Snider (Id. at pp. 14-15);

(VI) All plaintiffs allege violation of civil rights under 42 U.S.C. §1983 for
retaliation against all defendants (Id. at pp. 15-16); and,

Counts I through V are brought pursuant to the Fourth Amendment while Count
VI is brought pursuant to the First Amendment (Doc. 20). On July 2, 2019, Harvard and
James answered the amended complaint (Doc. 22). On July 3, 2019, this case was
assigned CJRA Track B and was set for final pre-trial conference on May 21, 2020 with
a presumptive jury trial month of June 2020 (Doc. 23). On July 8, 2019, Snider answered
the complaint (Doc. 24).
On December 18, 2019, a joint motion for extension of time was filed to extend
the trial date (Doc. 44). On December 19, 2019, the motion was granted and the
discovery cutoff was extended to June 5, 2020 with a dispositive motion deadline of June
23, 2020 (Doc. 45). At that same time, the final pre-trial was continued to September
10, 2020 with October 2020 being the presumptive jury month (Id.). On June 16, 2020,

a staff note indicates that discovery was still proceeding, so the pretrial and jury dates
were cancelled and the dispositive deadline was extended to August 24, 20201. On July
23, 2020, a joint motion to extend dispositive motion was filed, but there was no mention
of pre-trial conference of jury setting (Doc. 53). On that same date, the dispositive
deadline was extended until October 26, 2020 (Doc. 54). On October 5, 2020, another
joint motion for extension of time for dispositive motion deadline was filed, and granted,

extending the deadline for dispositive motions to December 18, 2020 (Docs. 55, 56).
On December 18, 2020, Harvard and James filed their motion for summary
judgment, which included exhibits A-Z (Doc. 58). On December 21, 2020, Snider filed
his motion for summary judgment and supporting memorandum of law that included
exhibits 1-9 (Docs. 59, 60). On January 22, 2021, plaintiffs filed their responses to the
motions, along with memorandums of law in opposition to motions (Docs. 61-64). On
February 5, 2021, Snider, Harvard and James filed their replies to plaintiffs’ opposition

to their motions for summary judgment. (Docs. 66, 67).
At this time, there are no pending hearings, conferences or even a trial date.

1 The COVID-19 pandemic was also prevalent during this timeframe, so most matters were automatically extended via
Administrative Order.
STATEMENT OF FACTS2
Prior to this incident, plaintiffs had watched videos on YouTube of First
Amendment Audits (“FAA”). At some point, Robert created a YouTube channel called
the “Southern Illinois Observers” where he posted videos of his observations of law
enforcement. On April 2, 2017, before going out, plaintiffs met at Shane’s house with

the intent of observing people in public, specifically law enforcement. They had a police
scanner, camcorder and cell phones with them so they could listen to activity and drive
to that location to observe. After leaving Shane’s house and driving for less than 15
minutes around Centralia, Illinois in a black Dodge Durango, plaintiffs observed a
female, later identified as Lisa Thompson (“Lisa”), driving with a young child on her lap
while holding a cell phone. Plaintiffs began following Lisa, but had no contact with her

until she parked her vehicle.
Lisa drove to her mother-in-law’s trailer located on Jana Drive in Wamac, IL.
There was one way in and one way out of Jana Drive. A sign was at the entrance, but it
is unclear if it said “No Trespassing” or “Private Property”. Once parked, Lisa got out of
her vehicle with her child and plaintiffs immediately began filming her and her young
son. A male, later determined to be Lisa’s husband, Eric Thompson, came outside to see
what was going on and Lisa passed her son to him and told him to take the child inside.

Shane told Lisa that she had been driving poorly and she replied that she was driving
her 10-month old son home from the hospital and he was sick. Shane advised that it was
still illegal and if there was an accident, her young son would die. Plaintiffs were filming

2 In an effort to mete out immaterial and irrelevant facts, this Court has prepared its own Statement of Facts based upon
the Undisputed Facts provided by the parties herein. Additionally, this statement is compiled from the depositions of the
parties, Mr. & Mrs. Thompson, as well as the video recording taken by plaintiffs that night.
this entire time and Lisa told them it was against the law, which they denied.
Commentary between Lisa and the three plaintiffs continued and escalated to where
they were shouting at each other. Thompson was 5’ 1”. Plaintiffs were all larger than
her at 5’ 11” and 325 pounds, 5’ 9” and 300 pounds and 6’ 1”, respectively.
Robert exited his vehicle and followed Thompson, because he expected a

confrontation. Robert accused Lisa of flipping out and told Shane and Andrew to keep
recording. Lisa complained that plaintiffs were recording her without her consent,
which she thought was illegal. On two occasions, Robert told Lisa that if she thought it
was illegal to videotape someone, it was “bullshit” and she was an “idiot” for believing
it. Robert also told her to call the police. Lisa asked Robert to delete the video and
admitted she had been wrong to drive with her child in her lap.

Eric also tried to get plaintiffs to leave and told them they were on private
property, but they continued to record. Lisa told them she was calling the police and
Robert said it was good and she should. Lisa is heard speaking with dispatch and telling
them she needs a man removed off of her property. She told dispatch she did not know
the man, but he refused to leave. She said she was driving with her son on her lap which
she admitted was illegal, but said the man was standing on her property recording her
even after she asked him to leave. Dispatch is then heard requesting Officer Snider to

respond for a male subject removal.
Before Snider arrived, Robert asked Shane if his “livestream” was ready. Andrew
is heard offering his phone charger. Andrew mentioned that the area was marked
“private”, but he did not know if Jana Road was a road or not and Robert responded that
it was not Lisa’s road. Andrew commented that it might be a private road, but Robert
again said that it was certainly not Lisa’s road. Andrew indicated that Robert did go
right up in her driveway, and someone just replied, “Oh well”.
Office Snider of the Wamac Police Department responded to the scene and Lisa
spoke briefly with him. At this point, Robert tells Shane and Andrew they can roll up
the car windows because they did not have to answer any questions. When Snider tries

to ask what is happening, Robert interrupts and asks for his name. Snider provides his
name, and when asked, his badge number as well. Snider asked to see identification two
times, with the second leading to an argument from plaintiffs about why he needed them
and what crime they were suspected of committing. At no time, did plaintiffs provide
any identification. Snider explained he was investigating Lisa’s call about a suspicious
person and advised that he contacted Centralia Police Department for assistance.

Plaintiffs continued to argue with Snider about what had happened, and he advised
they were obstructing his investigation.
Officer Harvard with the Centralia Police Department arrived on scene and
attempted to speak with plaintiffs; however, Robert interrupted and asked if they were
free to go. Harvard advised it was Snider’s decision because it was his investigation.
Snider indicated that he had not yet been able to interview Mrs. Thompson and
confirmed that plaintiffs were being detained.

Officer James with the Centralia Police Department next arrived on scene and
met with Snider, Harvard and Lisa who stated that she did not know plaintiffs and that
they were videotaping her and her child and refused to leave. The plaintiffs were in
and/or near their vehicle and could not hear Lisa speaking with the officers.
As the defendants approached plaintiffs’ vehicle, Robert reminded Shane and
Andrew that they did not have to answer any more questions because they have already
told their story multiple times. Robert asked Andrew and Shane if the car doors were
locked. James told plaintiffs that he did not want to arrest them and Shane responded
that they could not arrest him. Robert asked about the crime they were suspected of

committing and James tried to explain about disorderly conduct, but plaintiffs cut him
off. James tried to explain Lisa’s version of events, but Shane demanded that the Illinois
State Police be contacted. When James refused to contact the state police, Shane said
that he would contact them. James then informed them that they were under arrest and
Snider confirmed the arrest was for disorderly conduct and obstruction of justice. Lisa
pressed charges and provided a statement, as did Shane and Andrew. Criminal charges

were brought, but an order of nolle prosequi was entered.
LEGAL STANDARD
The court shall grant summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055 (7th Cir. 2014) (quoting
Fed. R. Civ. P. 56(a)). Once the moving party has set forth the basis for summary
judgment, the burden then shifts to the nonmoving party who must go beyond mere

allegations and offer specific facts showing that there is a genuine issue of fact for trial.
Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Stated another
way, the nonmoving party must offer more than “[c]onclusory allegations, unsupported
by specific facts,” to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d
767 (7th Cir. 2003) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990)).
In determining whether a genuine issue of fact exists, the Court must view the
evidence and draw all reasonable inferences in favor of the party opposing the motion.
Bennington v. Caterpillar Inc., 275 F.3d 654 (7th Cir. 2001); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986). However, no issue remains for trial “unless there is
sufficient evidence favoring the non-moving party for a jury to return a verdict for that

party”. See Faas v. Sears, Roebuck & Co., 532 F.3d 633 (7th Cir. 2008). The nonmovant
cannot simply rely on its pleadings; the nonmovant must present admissible evidence
that sufficiently shows the existence of each element of its case on which it will bear the
burden of proof at trial. Midwest Imports, Ltd. v. Coval, 71 F.3d 1311 (7th Cir. 1995)
(citing Serfecz v. Jewel Food Stores, 67 F.3d 591 (7th Cir. 1995); Greater Rockford Energy
and Technology Corp. v. Shell Oil Co., 998 F.2d 391 (7th Cir. 1993)).

ANALYSIS
Counts I through III and count VI are asserted against all defendants, which
includes Harvard and James, and are all brought pursuant to 42 U.S.C. §1983, alleging
unlawful detention, unlawful search, unlawful arrest and retaliation (retaliatory
arrest), respectively (Doc. 20). Specifically, plaintiffs claim that defendants Harvard and
James had no reasonable suspicion or probable cause to detain them, search them or
arrest them. (Id.). They further claim they were engaged in constitutionally protected

conduct when they refused to comply with the officers’ requests and that there is a
causal connection between their arrest and their refusal to provide identification. Id.,
pp. 15-16).
Counts I through III are brought pursuant to the Fourth Amendment, while Count
VI is brought under the First Amendment.
A. Law
Section 1983 creates a species of tort liability for “the deprivation of any rights,
privileges, or immunities secured by the United States Constitution. Imbler v.
Pachtman, 424 U.S. 409, 417 (1976). It allows citizens whose constitutional rights have
been violated by public officials to sue in their individual capacity. Fleming v. Livingston

County, Ill, 674 F.3d 874, 878 (7th Cir. 2012). Section 1983 is not itself a font for
substantive rights; instead it acts as an instrument for vindicating federal rights
conferred elsewhere.” Spiegel v. Rabinovitz, 121 F.3d 251, 254 (7th Cir.1997).
The Fourth Amendment establishes the minimum constitutional “standards and
procedures” not just for arrest, but for “detention”. Gerstein v. Pugh, 420 U.S. 103, 111
(1975). It prohibits government officials from detaining a person in the absence of

probable cause. Id. The Fourth Amendment also protects against unreasonable seizures;
a person is seized whenever officials restrain his freedom of movement such that he is
not free to leave. Brendlin v. California, 551 U.S. 249, 254 (2007). In other words, an
arrest is a seizure of a person, so it must be reasonable under the circumstances. District
of Columbia v, Wesby, 138 S.Ct. 577, 586 (2018).
It is important to note that the Fourth Amendment does not forbid all or even
most seizures – only unreasonable ones. Torres v. Madrid, 141 S.Ct. 989 (2021). “[T]he

general rule [is] that Fourth Amendment seizures are ‘reasonable’ only if based on
probable cause to believe that the individual has committed a crime”. Manuel v. City of
Joliet, Ill., 137 S.Ct. 911, 918 (2017)(citing Bailey v. United States, 568 U.S. 186, 192
(2013).
The Fourth Amendment guarantees citizens the right to be free from
unreasonable searches. Carpenter v. U.S., 138 S.Ct. 2206, 2213 (2018). Generally a
warrant must be obtained showing reasonable grounds to conduct a search; however,
exceptions have been carved out to this general rule, including exigent circumstances
and search incident to arrest. Id. at 2222. The Supreme Court has long held that a

search incident to arrest may only include “the arrestee's person and the area ‘within
his immediate control”. Chimel v. California, 395 U.S. 752, 763 (1969). That limitation,
which continues to define the boundaries of the exception, ensures that the scope of a
search is commensurate with its purposes of protecting arresting officers and
safeguarding any evidence of the offense of arrest that an arrestee might conceal or
destroy. Arizona v. Gant, 556 U.S. 332, 339 (2009); Chimel, 395 U.S. at 763 (noting that

searches incident to arrest are reasonable “in order to remove any weapons [the
arrestee] might seek to use” and “in order to prevent [the] concealment or destruction”
of evidence (emphasis added)).
The First Amendment prohibits government officials from subjecting an
individual to retaliatory actions for engaging in a protected activity. Hartman v. Moore,
547 U.S. 250, 256, (2006). To prevail on such a claim, a plaintiff must establish a “causal
connection” between the government defendant's “retaliatory animus” and the plaintiff's

“subsequent injury.” Hartman, 547 U.S. at 259. The plaintiff pressing a retaliatory
arrest claim must also plead and prove the absence of probable cause for the arrest.
Nieves v. Bartlett, 139 S.Ct. 1715, 1724 (2019).
B. Defenses
1. Probable Cause
Probable cause is an absolute defense to any claim under § 1983 against police
officers for wrongful arrest, false imprisonment [unlawful detention] or malicious
prosecution. Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir.2008); Mustafa v. City of
Chicago, 442 F.3d 544 (7th Cir. 2006). Probable cause “is not a high bar”. Kaley v.
United States, 134 S.Ct. 1090, 1103 (2014). However, it is a bar to claims for retaliatory

arrest, unlawful search and unlawful detention. Gerstein, 420 U.S. at 111; Bailey, 568
U.S. at 192; Nieves, 139 S.Ct. at 1724.
Courts look to all of the facts and circumstances known to the officer at the time
of the arrest to determine whether the officer had probable cause to make an arrest.
Abbott v. Sangamon County, 705 F.3d 706, 714 (7th Cir. 2013) (emphasis added). A
probable cause determination is an objective inquiry. Whren v. United States, 517 U.S.

806, 813 (1996). It is a fluid concept that relies upon the common-sense judgment of the
officers based on the totality of the circumstances. United States v. Reed, 443 F.3d 600,
603 (7th Cir. 2006). Probable cause deals with probabilities, not hard certainties. Illinois
v. Gates, 462 U.S. 213, 231 (1983). It requires more than a hunch, but not necessarily a
finding that it was more likely than not that the arrestee was engaged in criminal
activity – the officer’s belief that the arrestee was committing a crime need only be
reasonable. Henry v. United States, 361 U.S. 98 (1959). In fact, the officer’s belief need

not be “correct or even more likely true than false, so long as it is reasonable.” Fleming,
674 F.3d at 878-879.
Retaliatory arrest cases also present a tenuous causal connection between the
defendant's alleged conduct and the plaintiff's injury. Reichle v. Howards, 566 U.S. 658,
668, (2012). Officers frequently must make “split-second judgments” when deciding
whether to arrest, and the content and manner of a suspect's speech may convey vital
information—for example, if he is “ready to cooperate” or rather “present[s] a continuing
threat.” Lozman v. City of Riviera Beach Fla, 138 S.Ct. 1945, 1953 (2018) (citing District
of Columbia v. Wesby, 138 S.Ct. 577, 587–588 (“suspect's untruthful and evasive
answers to police questioning could support probable cause”)).

2. Qualified Immunity
Officers are also afforded the extra layer of protection of qualified immunity.
Thayer v. Chiczerski, 705 F.3d 237, 247 (7th Cir. 2012). Qualified immunity is immunity
from suit rather than a mere defense to liability. Pearson, 555 U.S. at 237. It protects
public officials from liability for damages if their actions did not violate clearly
established rights of which a reasonable person would have known. Fleming, 674 F.3d

at 879 (quotations omitted).
An officer “is entitled to qualified immunity in a false-arrest case when, if there
is no probable cause, ‘a reasonable officer could have mistakenly believed that probable
cause existed’.” Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir.1998)); see also Reher
v. Vivo, 656 F.3d 772, 777 (7th Cir.2011) (granting qualified immunity to officer who
could have reasonably, but mistakenly, believed that plaintiff had committed disorderly
conduct even though the information available to the officer at the time was probably

too vague to support an arrest). “[Q]ualified immunity protects police officers who
reasonably interpret an unclear statute.” Mustafa, 442 F.3d at 549. The protection of
qualified immunity applies regardless of whether the government official's error is “a
mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”
Butz v. Economou, 438 U.S. 478, 507 (1978). When properly applied, it protects all but
the plainly incompetent or those who knowingly violate the law. Ashcroft v. Al-Kidd,
131 S.Ct. 2074, 2085 (2011)(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Police officers are allowed to make reasonable mistakes. BeVier v. Hucal, 806 F.2d
123, 126 (7th Cir. 1986). The question is whether a reasonable officer could have
believed that plaintiffs’ arrests were lawful in light of the clearly established right to be

free from arrest without probable cause and the information possessed at the time of
arrest. Id.
C. Discussion
Because the crucial point of inquiry for a probable cause determination is what
the officer knew at the time of the arrest, the Court must look into the facts of the case
from the officer’s viewpoint. See Neita v. City of Chicago, 830 F.3d 494, 497 (7th Cir.

2016). In this case, it was Snider who made the probable cause determination. Snider
was deposed and testified that “I made the decision for the arrest of the individuals for
obstruction if they continued not to provide I.D. based on my investigation.” (Doc. 58-7,
p. 21). He further says, “… they refused to comply with the investigation by supplying
their identification.” (Id., p. 41).
Snider was dispatched to Jana Drive. When he arrived, he observed three males
and a female, whom he presumed was the caller. Snider spoke with the female during

his investigation in an attempt to determine what happened on April 2, 2019. He also
tried to speak with the plaintiffs, but they refused to answer questions and refused to
provide identification, much less provide their names. The only information Snider had
was what was provided by Lisa Thompson. She told him that she did not know the
plaintiffs and that they followed her home and videotaped her and refused to leave her
property. Her statement raised a reasonable suspicion that a crime had occurred. We do
not know what would have happened if the plaintiffs had complied with his requests,
but their refusal was enough to sustain the officers’ subsequent actions.
It is immaterial what Snider told plaintiffs they were being arrested for because
an arrest can be supported by probable cause that the arrestee committed any crime,

regardless of the officer’s belief as to which crime was at issue. Devenpeck v. Alford, 543
U.S. 146, 153 (2004) (emphasis added). Furthermore, it is not constitutionally required
that a party be advised of the reason for his arrest when he is taken into custody. Id.
Snider may have told plaintiffs they were under arrest for obstructing his investigation
for not providing identification, but he was investigating everything that transpired
that evening, including but not limited to trespass, disorderly conduct and the

videotaping. Without the plaintiffs’ cooperation he could not determine what, if any,
crimes had been committed, but he had a reasonable suspicion that led to probable cause
that a crime had been committed that evening prior to his arrival at Jana Drive.
Although whether there is probable cause is usually a jury question, when there
is no room for a difference of opinion concerning the facts or the reasonable inferences
to be drawn from them, a court may decide the issue. Booker v. Ward, 94 F.3d 1052,
1058 (7th Cir. 1996). In this case, no reasonable juror could conclude that there was no

probable cause in this case. It is irrelevant that Nolle Prosequi orders were entered
against these plaintiffs. The officers had probable cause to detain plaintiffs during the
investigation, they had probable cause to arrest them for not cooperating in the
investigation, and they had probable cause to searched to verify they did not possess
any weapons. As such, plaintiffs’ claims against Harvard and James fail as a matter of
law.
Assuming arguendo that there was no probable cause to arrest plaintiffs, they
would be entitled to qualified immunity. Harvard and James were acting in their official
capacity on April 2, 2017. They, along with Snider, believed there was probable cause

for the arrest. If their belief was mistaken, it was reasonable to believe that probable
cause existed.
Neither Harvard nor James violated any clearly established right. They believed
they had probable cause, and if there was no probable cause, that belief was a reasonable
mistake. There is no material issue as to the facts of this case. As such, Harvard and
James are entitled to summary judgment as a matter of law.

CONCLUSION
For the reasons set forth above, the Court GRANTS the Motion for Summary
Judgment filed by Defendant Andrew Harvard and Jamie James (Doc. 58). This action
is DISMISSED with prejudice and the Clerk of Court is DIRECTED to terminate
these defendants and enter judgment accordingly.

IT IS SO ORDERED.

DATED: ________________

/s/ Stephen P. McGlynn_
STEPHEN P. McGLYNN
U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10153572. Public record. Not legal advice.