William Hawkins v. Rodney Mitchell

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-2533

WILLIAM K. HAWKINS,

Plaintiff-Appellant,

v.

RODNEY S. MITCHELL AND JAMES M. BOWERSOCK,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Central District of Illinois, Urbana Division.

No. 2:10-CV-2111 — Michael P. McCuskey, District Judge, and

David G. Bernthal, Magistrate Judge.

____________________

ARGUED DECEMBER 2, 2013 — DECIDED JUNE 23, 2014

____________________

Before BAUER and FLAUM, Circuit Judges, and VAN

BOKKELEN, District Judge. *

VAN BOKKELEN, District Judge. We review summary-

judgment and trial rulings on several causes of action

* Of the Northern District of Indiana, sitting by designation.

No. 13-2533 2

against police who did not claim immunity under federal or

state law. 1 The central legal doctrines are the exigency

exception to the Fourth Amendment warrant requirement,

probable cause, and the First Amendment right to consult an

attorney

I. Facts

Two police officers—Rodney Mitchell and, about two

minutes later, James Bowersock—responded to a 9-1-1 call

by Sarah Bumgarner. 2 It was late on a Saturday night in May

2008. Bumgarner had called from outside William Hawkins’s

house on a residential street in Champaign, Illinois,

reporting what the dispatcher classified as a domestic

incident. On the way to the scene, Mitchell and Bowersock

learned that Bumgarner and Hawkins had been drinking

and got into a heated argument. Hawkins was alleged to

have a history of abusiveness, but tonight’s argument was

“verbal only.” The dispatcher summarized the situation:

“Hawkins has locked [Bumgarner] out and her keys are in

the residence. [Bumgarner] just wants her keys so she can

leave.”

Upon arriving, Mitchell discovered Bumgarner outside

and shouting to Hawkins about her keys. Clothing was

scattered across the yard. Mitchell remembers Hawkins

“screaming” back to her from the porch: “I don’t have your

fucking keys!” Hawkins then stepped inside his house and

1 District Judge McCuskey made the summary-judgment rulings; the

trial rulings are Magistrate Judge Bernthal’s.

2 Bumgarner’s name later changed to Gerth.

No. 13-2533 3

slammed the door. In irreconcilable contrast, Hawkins’s

account is that he was in bed asleep when Mitchell arrived.

It is undisputed that Bumgarner verbally confirmed with

Mitchell that she was not injured; he observed no injury to

her. She said she was “sorry” for calling 9-1-1, but needed

her keys so she could leave. Bumgarner told Mitchell that

Hawkins had her keys and that he “gets violent sometimes.”

On the other hand, Bumgarner also told Mitchell directly

what she had already reported on the 9-1-1 call—her fight

with Hawkins had been “verbal only.” Bumgarner made no

allegation that Hawkins was violent or threatening on that

night.

Mitchell went to Hawkins’s door and knocked. Hawkins

opened, and, according to Mitchell, yelled “I don’t need to

talk to you!”; then attempted to close the door.But Mitchell

stuck his foot in the path of the door, which prevented

Hawkins from closing it. Mitchell entered the home.

Hawkins made clear that he wanted Mitchell gone, but

Mitchell persisted in questioning Hawkins. Hawkins then

called an attorney, with whose assistance Hawkins

confirmed from Mitchell that he did not have a warrant.

Mitchell nevertheless stayed in the house and told Hawkins

he just wanted to talk to him. Again following the attorney’s

advice, and still on the phone, Hawkins asked Mitchell

whether he was under arrest. Mitchell said Hawkins was not

under arrest and reiterated that he just wanted to talk to

Hawkins. The attorne advised Hawkins that Hawkins had

no duty to speak to the officer, that the officer had no right to

be in his house, and that Hawkins could just tell the officer

to “get the fuck out of the house.”

No. 13-2533 4

That’s what Hawkins did, several times over the course

of the encounter. For his part, Mitchell was comfortable with

Hawkins on the phone because the conversation was

allowing time for Bowersock to reach the scene.

When Bowersock did arrive, Mitchell motioned him

inside the house. Hawkins remained on the phone and

continued yelling for Mitchell to get out. (Whether Hawkins

was immediately aware of Bowersock’s presence is unclear.)

Mitchell remembers Bowersock then telling Hawkins that

the officers were investigating a 9-1-1 domestic call and that

Hawkins had to get off the phone and speak to Mitchell.

Hawkins did not obey, and instead, in Mitchell’s words,

continued to give the officers “some kind of commands.” “At

that point,” Mitchell explained, “Officer Bowersock told

[Hawkins] to get off the phone and speak with this officer, or

[he would] be arrested.” Hawkins did not comply, at which

point Bowersock told him he was under arrest. At the same

time, according to Mitchell, Bowersock grabbed Hawkins’s

left wrist and Mitchell grabbed Hawkins’s right wrist.

Hawkins then allegedly “stopped and started twisting to

resist arrest.” The three ended up struggling to the floor.

Mitchell says Hawkins continued “trying to pull his hands

inward, which is common for someone in that position to try

to keep from being arrested.” Hawkins continued to protest

what he claimed was a violation of his rights, and resisted

the officers as they escorted him out of his house and into a

police car.

Bowersock’s recollection of those events is substantially

the same as Mitchell’s. When asked what Hawkins said after

Bowersock told him he was under arrest, Bowersock

recalled:

No. 13-2533 5

He did make a response. I believe it was something

to the effect that he wasn’t – or he hadn’t done

anything wrong, that this was his house and

basically for us to get out of his house. He then

tensed up and started to pull away, at which time

we attempted to maintain control of him. Forward

momentum had started and all three of us had gone

to the floor.

At 11:46 p.m., about five minutes after Mitchell arrived

and about three minutes after Bowersock arrived, they

reported Hawkins in their custody. The state filed charges

against Hawkins, but later dropped them.

II. Procedural History

Hawkins sued the officers for the arrest and the allegedly

excessive force they used in making it. He claims he needed

surgery to remove a cyst from above his left eye where he

was injured by the officers, as well as psychiatric counseling

for the traumatic encounter. The case proceeded in the

district court to the filing of cross-motions for summary

judgment with six counts of an amended complaint pending.

Count I was for “Illegal Seizure,” alleging that the

officers “illegally seized and effected a custodial arrest of the

plaintiff without probable cause for such arrest and without

a judicial warrant.” Count II was for excessive force. Count

III claimed “Arrest in Retaliation for Speech,” on the theory

that Mitchell and Bowersock arrested Hawkins in retaliation

for exercising a First Amendment right to speak to an

attorney and asserting his Fourth Amendment right to

privacy in his home. In Count IV, Hawkins sued for battery

under Illinois common law. Count V was for “Wilful and

No. 13-2533 6

Wanton Misconduct.” Count VI, titled “False

Imprisonment/Locomotion,” was based on the allegations

that the Defendants, “through a show of force and their law-

given authority,” prevented Hawkins from telephoning with

his attorney and forced him “to leave hi own home under

threat of force and bodily injury.”

Though Hawkins’s amended complaint invokes the

Illinois Constitution in Counts I, II, and III, and the Illinois

Civil Rights Act of 2006 in Counts III, V, and VI, he has not

relied on those laws in this Court. The only sources of rights

that Hawkins persists in claiming were violated are as

follows for the remaining counts, with the trial-court

disposition in the right column:

Summary

Fourth

I. Illegal Seizure judgment for

Amendment

defendants

Fourth Defense

II. Excessive Force

Amendment verdict at trial

Summary

III. Arrest in

First Amendment judgment for

Retaliation for Speech

defendants

Illinois common Defense

IV. Batter

law verdict at trial

V. Wilful and Wanton Illinois common Defense

Misconduct law verdict at trial

Summary

VI. False Imprisonment Illinois common

judgment for

/ Locomotion law

defendants

No. 13-2533 7

The district court paired Counts I and VI under the

heading “False Arrest Claims” in its summary-judgment

order and addressed them as one. See Hawkins v. Mitchell,

909 F. Supp. 2d 1011, 1020–24 (C.D. Ill. 2012). Relying in part

on Hawkins’s failure to object to the magistrate judge’s

ruling in dismissing a claim for trespass that “Defendants

could lawfully enter Plaintiff’s home to help Plaintiff’s

girlfriend, who asked for assistance to collect her

belongings,” the court concluded the officers’ entry into

Hawkins’s home did not violate his constitutional rights. Id.

at 1022. The district court stated further, “when Defendants

entered the home, they attempted to get information from

Plaintiff about the situation and Plaintiff refused to provide

any information.” Id. at 1023. In the view of the district court,

that gave the officers “probable cause to arrest Plaintiff for

either theft of Sarah’s keys or disorderly conduct.” Id. The

district court quoted Padula v. Leimbach, 656 F.3d 595, 601

(7th Cir. 2011): “‘Probable cause is an absolute defense to a

wrongful arrest claim asserted under [42 U.S.C.] § 1983

against police officers.’” Hawkins, 909 F. Supp. 2d at 1022.

Summary judgment was thus granted against Hawkins on

Counts I and VI.

The district court further rejected Hawkins’s contention

that he had a First Amendment right to consult his attorney

during the encounter and therefore threw out Count III, as

well. Id. at 1024.

The summary-judgment order addressed Count V, for

wilful and wanton misconduct, by recognizing that no such

stand-alone cause of action exists under Illinois law. Counts

IV and V were read “together to allege common law battery

claims which avoid the application of the Illinois Tort

No. 13-2533 8

Immunity Act.” Id. at 1025. On appeal, Hawkins has adopted

this view, referring to Counts IV and V collectively as

“wilful and wanton battery.” (Appellant’s Br. 36.

Hawkins proceeded to trial on his wilful-and-wanton-

battery and excessiv-force claims (Counts II, IV, and V).

There, the magistrate judge instructed the jury that “[t]he

lawfulness of Defendants’ entry into Plaintiff’s home or his

arrest [was] not at issue.” Nonetheless, defense counsel

emphasized in closing argument that his clients had the

right to be in Hawkins’s home. The argument focused on

circumstances that tended to suggest that arresting Hawkins

was lawful. All the jurors needed to find, defense counsel

argued, was that “[t]he officers did their job. Bill Hawkins …

mistakenly told them that they had to leave his home.” The

jury decided in favor of the officers on both claims.

Hawkins now asks us to reverse the summary-judgment

order and jury verdicts against him, grant summary

judgment in his favor on Counts I through VI, and remand

for a trial on damages.

No. 13-2533 9

III. Discussion 3

A. Standard of Review for Counts I, III, and VI

Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law,” Fed. R. Civ. P. 56(a), but only

then. E.g., Brooks v. City of Aurora, 653 F.3d 478, 483 (7th Cir.

2011). The review of a grant of summary judgment is de novo,

with all reasonable inferences of fact drawn against

summary judgment. Id.

B. Count I: Illegal Seizure

We differ from the district court in that we find it

necessary to analyze Count I separately from Count VI,

which was for false imprisonment. It is true that Count I

includes the theory that the arrest was illegal because the

officers lacked probable cause. In this respect, the law on

3 When, as here, police officers are sued under 42 U.S.C. § 1983 for

allegedly violating constitutional rights, qualified immunity often proves

to be the decisive rule of law. Cf. Pearson v. Callahan, 555 U.S. 223, 236

(2009) (allowing courts to dispose of claims against public officials for

violating constitutional rights without considering whether a right was

violated, by determining that it was in any event not “clearly

established”). This opinion does not address qualified immunity in

substance, however, because Mitchell and Bowersock did not discuss it

on appeal. And, while “[w]e can ‘affirm on any ground supported in the

record, so long as that ground was adequately addressed in the district

court and the nonmoving party had an opportunity to contest the

issue,’” Thayer v. Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012) (quoting

Peretz v. Sims, 662 F.3d 478, 480 (7th Cir. 2011)), the officers’ briefing in

the district court did not ensure the fulfillment of those criteria with

respect to qualified immunity.

No. 13-2533 10

Count I is very similar to the law on Count VI. 4 But three

features of Count I, considered together, lead us to construe

it to encompass the additional theory that the officers

violated the Fourth Amendment, regardless of probable

cause, by arresting Hawkins in his home without a warrant.

First, the amended complaint refers to Count I as a claim for

“illegal seizure,” rather than false arrest. Second, Count I

incorporates the preceding paragraphs of the amended

complaint, which allege that the arrest occurred in a private

residence. And third, Count I avers that the arrest was

warrantless. 5 Count VI does not involve this theory of

liability.

The officers’ defense to Count I on appeal is that Mitchell

could force his way inside the home in the name of

preventing a serious injury or “questioning [Hawkins] about

the situation.” Having thus lawfully entered the home, the

officers contend, they could arrest Hawkins upon probable

cause to arrest for any offense. According to this view, and

contrary to Hawkins’s position, the lack of a warrant and in-

home location did not mean the offense for which the

officers had probable cause to arrest had to be more serious.

4 Very similar, but not necessarily identical in the abstract. For a

constitutional claim asserted under 42 U.S.C. § 1983, such as Count I, the

doctrine of qualified immunity generally would be in play, unless the

public-official defendants waive or forfeit the defense. In contrast, for a

claim grounded in Illinois law, such as Count VI, Illinois’s Local

Governmental and Governmental Employees Tort Immunity Act would

typically be under consideration instead.

5 The amended complaint does not support the interpretation of Count I

that Hawkins implied in his appellate briefs, which is that Count I was a

claim for merely entering his home unconstitutionally.

No. 13-2533 11

Hawkins’s arguments likewise depend on the

constitutionality of the initial entry of his home.

Construing the magistrate judge’s unchallenged ruling

that “Defendants could lawfully enter Plaintiff’s home” as

limited to the trespass count that is not before us, we believe

we may address the merits of Count I, including the

lawfulness of the officers’ home entry, and do so here.

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated … .” U.S. Const. amend.

IV. “[P]hysical entry of the home is the chief evil” that this

constitutional guarantee targets. United States v. United States

District Court for the E. Dist. of Mich., S. Div., 407 U.S. 297, 313

(1972). “At the very core stands the right of a man to retreat

into his own home and there be free from unreasonable

governmental intrusion.” Silverman v. United States, 365 U.S.

505, 511 (1961). So it is “a ‘basic principle of Fourth

Amendment law’ that searches and seizures inside a home

without a warrant are presumptively unreasonable.” Payton

v. New York, 445 U.S. 573, 586 (1980) (quoting Coolidge v. New

Hampshire, 403 U.S. 443, 477 (1971)). The Amendment

“prohibits the police from making a warrantless and

nonconsensual entry into a suspect’s home in order to make

a routine … arrest,” even for a felony, and even with

probable cause. Id. at 576 (emphasis added).

What about circumstances that are not routine?

“[B]ecause the ultimate touchstone of the Fourth

Amendment is ‘reasonableness,’ the warrant requirement is

subject to certain exceptions,” Brigham City v. Stuart, 547 U.S.

398, 403 (2006), which are few, “‘specifically established,’”

and “‘well-delineated’” to accommodate those extraordinary

No. 13-2533 12

situations where “the needs of law enforcement [are] so

compelling that warrantless search is objectively

reasonable.” Mincey v. Arizona, 437 U.S. 385, 390, 394 (1978)

(quoting Katz v. United States, 389 U.S. 347, 357 (1967) and

citing McDonald v. United States, 335 U.S. 451, 456 (1948)).

This entails the doctrine of exigent circumstances, which

“exist when there is a compelling need for official action and

no time to secure a warrant, such as when an officer must

enter premises to render emergency assistance to an injured

occupant or to protect an occupant from imminent injury.”

United States v. Venters, 539 F.3d 801, 807 (7th Cir. 2008)

(quotation marks and citations omitted). The “need ‘to

prevent the imminent destruction of evidence’” is another

recognized exigency, Kentucky v. King, 131 S.Ct. 1849, 1856

(2011) (quoting Stuart, 547 U.S. at 403), albeit one that

depends on the gravity of the crime under investigation.

Welsh v. Wisconsin, 466 U.S. 740, 753 (1984); see also Sutterfield

v. City of Milwaukee, No. 12-2272, — F.3d —, 2014 WL

1853080, at *12 (7th Cir. May 9, 2014) (identifying other

exigencies).

Analysis of the reasonableness of police officers’ exigency

determination is entirely objective; it considers only what

they reasonably should have known at the time of their

warrantless home entry. Venters, 539 F.3d at 807.

As the above discussion suggests, warrantless in-home

arrests are especially suspect “when the underlying offense

for which there is probable cause to arrest is relatively

minor.” Welsh, 466 U.S. at 750. In such an instance, the

“presumption of unreasonableness is difficult to rebut”; ”the

government usually should be allowed to make such arrests

only with a warrant issued upon probable cause by a neutral

No. 13-2533 13

and detached magistrate.” Id. (footnote omitted). This Court

has read Welsh, 466 U.S. at 752–54, to hold “that, at a

minimum, exigent circumstances do not exist when the

underlying offense is minor, typically a misdemeanor.”

Reardon v. Wroan, 811 F.2d 1025, 1028 (7th Cir. 1987) (per

curiam).

A Fourth Amendment “seizure” of a person occurs

“whenever a police officer ‘by means of physical force or

show of authority … in some way restrain[s] the liberty of a

citizen.’” Acevedo v. Canterbury, 457 F.3d 721, 725 (7th Cir.

2006) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)).

Where, as here, the seizure involves the use of physical

force, a seizure occurs whenever “an officer restrains the

freedom of a person to walk away,” Tennessee v. Garner, 471

U.S. 1, 7 (1985), such as by the “laying on of hands or [other]

application of physical force to restrain movement, even …

unsuccessful[ly],” California v. Hodari D., 499 U.S. 621, 626

(1991). (Of course, seizure of a person without physical

contact is also possible—the officer must make a “show of

authority” that a reasonable person would understand to

mean that she is not “free to leave,” and she must submit to

that show of authority. See id. at 626–27.)

We return to the two purposes Mitchell and Bowersock

have offered as substitutes for a warrant: the need to prevent

imminent serious injury, see, e.g., Stuart, 547 U.S. at 404

(recognizing this as an exigency), and “the purpose of

questioning [Hawkins] about the situation.” (See Appellees’

Br. 13–17.) Exigency case law makes clear that the latter,

which amounts to ordinary investigation of possible crime,

does not qualify. See, e.g., Venters, 539 F.3d at 807 (situation

must present a “compelling need for official action [with no]

No. 13-2533 14

time to secure a warrant”). And the facts, even as given by

the officers, simply do not support the conclusion that the

challenged arrest (or home entry) was necessary to prevent

imminent serious injury.

Mitchell and Bowersock arrived at a disorderly scene, to

be sure, having been told that Hawkins had some history of

abusing Bumgarner and that he “gets violent sometimes.”

One could see that a couple was in a drunken spat, and

clothing was strewn around the front yard. But the officers

were also advised that no physical attack had occurred that

night. Bumgarner told them she wasn’t hurt, which Mitchell

visually confirmed was true. Bumgarner even went as far as

to say “she was sorry for calling” 9-1-1. Rather than express

a need for protection from an immediate threat to her safety,

Bumgarner said: “Mr. Hawkins has my keys and I just want

them back so I can leave.” She was outside; Hawkins was

inside; and there was no basis to believe that anyone but the

police had a weapon.

This is not to say that Mitchell was unreasonable to

knock on the door to investigate Hawkins from a publicly

accessible area. On the contrary, attempting to initiate a

consensual conversation was commendable. And police are

allowed to act upon exigencies of their own making, so long

as their conduct in creating the exigency was “reasonable”

under the Fourth Amendment. Kentucky v. King, 131 S. Ct. at

1858.

Mitchell’s nonconsensual and warrantless home entry,

however, was unreasonable. Assume that Hawkins roared

into the night that he didn’t have Bumgarner’s keys. Assume

that he threw her clothes into the yard, deliberately locked

her out of his house, “screamed” in terror upon discovering

No. 13-2533 15

a police officer at his door, and then attempted to close the

door on the officer. There’s still no evidence that he

threatened to harm anyone physically. “[S]ociety would

recognize a person’s right to choose to close his door on and

exclude people he does not want within his home.” United

States v. Berkowitz, 927 F.2d 1376, 1387 (7th Cir. 1991). It is

“one of the most … important components of a person’s

privacy expectation in his home.” Id. So there was no

exigency before Mitchell’s nonconsensual entry.

Nor did one arise from that moment until the arrest.

Throughout the in-home encounter, Hawkins objected to the

officers’ presence repeatedly and vociferously, it’s true, but

he never threatened them. Drunk as the officers allege him

to have been, he summoned the wherewithal to call an

attorney for advice and then follow that advice assertively

but without physical aggression.

Although Mitchell’s position inside the house initially

gave Bowersock a reasonable basis to act as though he had

consent or exigency, we find that by the time of the arrest,

Bowersock, too, should have known there was neither. The

lack of weapons, threats, or physical aggression from

Hawkins left time for Bowersock to ask Mitchell why they

were inside and to recognize the absence of any possible

justification for staying. Knowing that warrantless home

entry is presumptively unreasonable, see Payton, 445 U.S. at

586, Bowersock should have taken advantage of that

opportunity. Instead, he responded to Hawkins’s

nonthreatening disobedience by telling him that if he didn’t

No. 13-2533 16

get off the phone and speak to the officers, he would be

arrested. 6

Hawkins did not submit to Bowersock’s command,

insofar as he stayed on the phone, but he also remained

nonthreatening. Each officer nevertheless proceeded to grab

one of Hawkins’s wrists, which restricted his movement

significantly, effecting an arrest. See Hodari D., 499 U.S. at

626. Because the officers lacked a warrant or consent to

enter, and have not posited a valid justifying exigency, the

in-home arrest was unconstitutional as a matter of law. See

Payton, 445 U.S. at 585–90 (prohibiting warrantless in-home

arrests under non-exigent circumstances). 7

C. Count VI: False Imprisonment

In reference to Count VI, the officers have argued only

that they had probable cause to arrest Hawkins for theft of

Bumgarner’s keys or disorderly conduct. 8 “Probable cause is

6 It is significant to this discussion that Bowersock has not sought

qualified immunity.

7 On appeal, the officers have not argued that Hawkins’s disobedience of

their commands inside the home or his alleged resistance after the wrist

grab could change the result for Count I.

Having found the officers liable for Count I as a matter of law on the

theory that they arrested him in violation of the Fourth Amendment

prohibition of non-exigent warrantless in-home arrests, we need not also

consider Count I as a false-arrest claim.

8 The officers relied on Illinois’s Local Governmental and Governmental

Employees Tort Immunity Act in the district court only with respect to

the issue of “excessive use of force,” see Appellees’ Mot. Summ. J., C.D.

Ill. CM-ECF, case no. 2:10-CV-2111, doc. 36, at 11–14, and not at all in this

Court.

No. 13-2533 17

an absolute bar to a claim of false imprisonment.” Poris v.

Lake Holiday Prop. Owners Ass’n, 983 N.E.2d 993, 1007 (Ill.

2013).

The standard for probable cause, in turn, is “fluid” and

sensitive to “the assessment of probabilities in particular

factual contexts.” Illinois v. Gates, 462 U.S. 213, 232 (1983).

Therefore, it isn’t “readily, or even usefully, reduced to a

neat set of legal rules.” Id. Nevertheless, we may explain by

way of definition that probable cause is “‘a reasonable

ground for belief of guilt’” that is “particularized with

respect to the person to be searched or seized.” Maryland v.

Pringle, 540 U.S. 366, 371 (2003) (quoting Brinegar v. United

States, 338 U.S. 160, 175 (1949) and citing Ybarra v. Illinois, 444

U.S. 85, 91 (1979)).

“The existence of probable cause … depends, in the first

instance, on the elements of the predicate criminal offense(s)

as defined by state law.” Abbott v. Sangamon County, 705 F.3d

706, 715 (7th Cir. 2013) (citing Michigan v. DeFillippo, 443 U.S.

31, 36 (1979)). It does not, however, “require the same type

of specific evidence of each element of the offense as would

be needed to support a conviction.” Adams v. Williams, 407

U.S. 143, 149 (1972); see also Spiegel v. Cortese, 196 F.3d 717,

724 n.1 (7th Cir. 1999) (explaining that officers need not

“establish probable cause as to each and every element of a

crime before they are entitled to make an arrest”).

The officers’ brief argues probable cause as follows:

Since Mitchell and Bowersock were justified in

entering the home to get information about the

situation, the facts known to them at the time,

coupled with Hawkins’s conduct, provided

No. 13-2533 18

probable cause to effectuate an arrest for either theft

of Sarah’s keys or disorderly conduct… . The trial

court relied upon ample undisputed facts to

determine probable cause existed to arrest Hawkins

for disorderly conduct … . More specifically, the

information known to Mitchell was that Sarah

requested assistance in getting her car keys from

Hawkins, and Sarah reported Hawkins had been

abusive in the past. This information provided

Mitchell with probable cause to believe Sarah

needed assistance in retrieving her keys from

plaintiff.

(Appellees’ Br. 19.)

We think probable cause “to believe Sarah needed

assistance in retrieving her keys” isn’t the point. Instead,

Count VI turns on probable cause to arrest Hawkins, either for

stealing the keys or disorderly conduct.

The claim of probable cause to arrest for theft fails.

A person commits theft when he or she knowingly:

(1) Obtains or exerts unauthorized control over

property of the owner; or

(2) Obtains by deception control over property

of the owner; or

(3) Obtains by threat control over property of

the owner; …

***

and

No. 13-2533 19

(A) Intends to deprive the owner

permanently of the use or benefit of the

property; or

(B) Knowingly uses, conceals or abandons

the property in such manner as to

deprive the owner permanently of such

use or benefit; or

(C) Uses, conceals, or abandons the property

knowing such use, concealment or

abandonment probably will deprive the

owner of such use or benefit.

720 Ill. Comp. Stat. 5/16-1(a).

The facts known at the time do little to suggest that

Hawkins had intention or knowledge of depriving

Bumgarner of her keys, even if we assume for the sake of

argument that he had control over them. Without any

accusation of theft, an intoxicated 9-1-1 caller’s mere request

for assistance in retrieving her keys from someone else’s

house, coupled with an allegation of unrelated past abuse by

that someone, does not amount to probable cause to arrest

for stealing the keys. 9

Next, we consider the disorderly-conduct theory. “A

person commits disorderly conduct when he or she

knowingly … [d]oes any act in such unreasonable manner as

9 The district court relied on only these facts, plus Hawkins’s

unwillingness to answer the police’s questions, in supporting its finding

of probable cause to arrest for theft. See Hawkins, 909 F. Supp. 2d at 1023.

The problem with holding Hawkins’s unwillingness to answer the

officers’ questions against him, however, is that the officers had no right

to be in his home in the first place.

No. 13-2533 20

to alarm or disturb another and to provoke a breach of the

peace.” 720 Ill. Comp. Stat. 5/26-1(a)(1). A “breach of the

peace” is “‘a public offense done by violence, or one causing

or likely to cause an immediate disturbance of public

order.’” Sroga v. Weiglen, 649 F.3d 604, 607 (7th Cir. 2011)

(quoting Restatement (Second) of Torts § 116 (1965)).

On the facts as given by the officers, they had probable

cause to arrest Hawkins for disorderly conduct. To an officer

in Mitchell’s position, it would have reasonably appeared

that Hawkins had been involved in the bustle that scattered

the clothes over the yard. Mitchell also testifies that Hawkins

shouted toward Bumgarner, who was outside, “I don’t have

your fucking keys!” At the time and within that vicinity,

neighbors were likely trying to sleep. If Mitchell’s account is

true, then Hawkins behaved “in such unreasonable manner

as to alarm or disturb” Bumgarner or his neighbors, and the

commotion was a “disturbance of public order.”

But Hawkins denies the yelling. He testifies that he was

in bed asleep when Mitchell knocked on his door. And as for

Hawkins and Bumgarner’s earlier argument with each other,

we do not think shouting within a private home qualifies

without more as “likely to cause an immediate disturbance

of public order.” See id. Thus, on Hawkins’s version of the

facts, the officers lacked probable cause to arrest him for

disorderly conduct. This dispute forecloses summary

judgment on Count VI. See, e.g., Payne v. Pauley, 337 F.3d 767,

770 (7th Cir. 2003) (“[S]ummary judgment cannot be used to

resolve swearing contests between litigants.”).

No. 13-2533 21

D. Count III: Arrest in Retaliation for Speech

Hawkins has also alleged that Mitchell and Bowersock

arrested him “without probable cause and without a judicial

warrant, solely in retaliation for his actions of calling an

attorney and for his assertion of his Fourth Amendment

right to privacy of his home, in violation of the United States

Constitution, First Amendment.” (Am. Compl. para. 22.)

Summary-judgment decisions on such claims involve a

burden-shifting framework. In the prima facie case, the

plaintiff must show that (1) he engaged in activity protected

by the First Amendment; (2) he suffered a deprivation likely

to deter such activity; and (3) the First Amendment activity

was at least a motivating factor in the decision to impose the

deprivation. Thayer v. Chiczewski, 705 F.3d 237, 251 (7th Cir.

2012) (citing Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir.

2012) and Greene v. Doruff, 660 F.3d 975, 977–78 (7th Cir.

2011)). 10

The district court granted summary judgment on the

ground that Hawkins had no constitutional right to consult

with an attorney under the circumstances. The opinion

explains that “the right to contact counsel would severely

hamper the ability of police officers to enforce the law.”

Hawkins, 909 F. Supp. 2d at 1024. This was the officers’

10If the plaintiff makes the prima facie showing, “‘the burden shifts to the

defendant to show that the harm would have occurred anyway.’” Thayer,

705 F.3d at 251–52 (quoting Doruff, 660 F.3d at 977). And if the defendant

does this, “the burden shifts back to the plaintiff to demonstrate that the

proffered reason was pretextual and that the real reason was retaliatory

animus.” Id. at 252.

No. 13-2533 22

argument below, and they have added nothing to it on

appeal. 11

The argument is contrary to precedent. “The right to …

consult an attorney is protected by the First Amendment’s

guarantee of freedom of speech, association and petition… .

[T]he state cannot impede an individual’s ability to consult

with counsel on legal matters.” Denius v. Dunlap, 209 F.3d

944, 953–54 (7th Cir. 2000) (citing Bates v. State Bar of Ariz.,

433 U.S. 350, 376 n.32 (1977) and DeLoach v. Bevers, 922 F.2d

618, 620 (10th Cir. 1990)).

We also disagree with the officers’ possible suggestion

that Hawkins’s phone call criminally obstructed them in

performing their duties. See Appellees’ Br. 21–22 (“The

actions of Hawkins to avoid questioning by using the phone

11 Aware of Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (finding

qualified immunity, on the basis of probable cause, from a claim for

arrest in retaliation for First Amendment activity), we note that probable

cause is open to factual dispute for the reasons given in discussing

Hawkins’s false-imprisonment claim. But qualified immunity is not

available to the officers as a defense, here or on remand. None of the

reasons given by the Thayer Court for granting qualified immunity from

a claim for arrest in retaliation for First Amendment activity

notwithstanding the defendant-officers‘ failure to argue it on appeal is

present. See Thayer, 705 F.3d at 252–53; supra note 3. That is, Mitchell and

Bowersock neglected to raise qualified immunity from any cause of

action, not only here but also in the district court. And the parties have

made no “underlying arguments on appeal addressing … whether

probable cause bars First Amendment retaliatory arrest claims.” Thayer,

705 F.3d at 252. Thus, we cannot say, as the Thayer Court could, that the

defendants made the plaintiff aware of qualified immunity as an issue so

that he had an opportunity to respond. Cf. id. Finally, because Mitchell

and Bowersock left qualified immunity out of their answer to the

amended complaint, there is no reason to let them assert it upon remand.

No. 13-2533 23

to have a conversation and repeatedly yelling at the officers

certainly obstructed with a police investigation.”); 720 Ill.

Comp. Stat. 5/31-1(a) (defining resisting or obstructing a

peace officer as a misdemeanor); 720 Ill. Comp. Stat. 5/7-7

(prohibiting the use of force to resist an arrest made by a

known peace officer “even if … the arrest in fact is

unlawful”). For such obstruction, “an act of physical

resistance” is required. People v. Stoudt, 555 N.E.2d 825, 827

(Ill. App. Ct. 1990) (citing People v. Pruitt, 520 N.E.2d 1113,

1115 (Ill. App. Ct. 1988)). Neither arguing, nor refusing to

answer police, see People v. Hilgenberg, 585 N.E.2d 180, 183

(Ill. App. Ct. 1991) (“Mere refusal to answer a police officer,

in the absence of a physical act, may be deemed tantamount

to argument which is not a violation of the statute.” (citing

People v. Weathington, 411 N.E.2d 862, 863 (Ill. 1980))), nor

refraining from taking physical action ordered by police,

Stoudt, 555 N.E.2d at 827, in itself meets the standard. While

“evidence that [a] defendant repeatedly disobeyed [an]

arresting officer’s order to exit [a] vehicle” has sufficed to

sustain a conviction of obstructing a peace officer, People v.

Synnott, 811 N.E.2d 236, 241 (Ill. App. Ct. 2004), citizens

enjoy greater protection within their homes. See Hilgenberg,

585 N.E.2d at 185 (considering Fourth Amendment

implications for § 31-1(a)).

Hawkins committed no crime by calling a lawyer to help

him bring an end to an obstinate and unlawful police

presence in his home. His call was protected by the First

Amendment, see Denius, 209 F.3d at 953–54, and arrest

qualifies as a deprivation that is likely to deter First

Amendment Activity. Yet we cannot further infer as a matter

of law that the attorney phone call was a motivating factor in

No. 13-2533 24

the decision to arrest him, so that question must be

submitted to a jury.

E. Counts II, IV, and V:

Excessive Force and Wilful and Wanton Battery

As noted above, there is no challenge regarding the

district court’s submission of Counts II, IV, and V to the jury

as two claims, one for excessive force and the other for wilful

and wanton battery in violation of Illinois law. Counsel have

made no distinction between the two claims in their

arguments before this Court; we likewise treat them as one.

Hawkins claims reversible error in the district court’s

instruction to the jury that “[t]he lawfulness of Defendants’

entry into [his] home or his arrest [was] not at issue.” And he

urges that the district court’s erroneous summary-judgment

rulings prevented him from presenting to the jury his

challenges to the police’s presence within his house and the

making of his warrantless arrest there. Also, under

Hawkins’s view, the summary-judgment order enabled the

following improper arguments by defense counsel in

closing:

When an officer is asking you questions, you don’t

have the right to pick up a phone and call your

attorney. You do not have that right.

And then [the attorney] gave … some very bad

advice… . The bad advice that you don’t have to talk

to [the police officer], you don’t have to cooperate

with him, and, in fact, you can tell him to get out of

your house, it’s not true. It’s not accurate.

A police officer has a right to talk to him at that

point. A police officer has a right to be asking him

No. 13-2533 25

questions. A police officer has a right to demand

that he provide answers to those questions.

Well, he doesn’t have to answer the questions. But, if

he doesn’t answer the questions, he is going to be

placed under arrest. If he doesn’t cooperate, he is

going to be placed under arrest.

***

What makes the difference is the officers came in.

The officers did their job. Bill Hawkins …

mistakenly told them that they had to leave his

home. That’s all that matters here. That’s all you

have to believe.

***

[D]on’t be confused. Officer Mitchell had every right

to be inside that house.

(Trial Tr., June 13, 2013, 494:10–495:3, 499:7–12, 500:20–21.)

We review de novo whether the challenged jury

instruction “fairly and accurately summarized the law.”

Clarett v. Roberts, 657 F.3d 664, 672 (7th Cir. 2011) (citing

United States v. Quintero, 618 F.3d 746, 753 (7th Cir. 2010)).

The trial court’s decision to give the particular instruction,

however, is reviewed for abuse of discretion, id. (citing

United States v. Tavarez, 626 F.3d 902, 904 (7th Cir. 2010)), and

we will reverse “only if the instructions in their entirety so

thoroughly misled the jury that they prejudiced” Hawkins.

Id. (citing Quintero, 618 F.3d at 753).

“‘Improper remarks during a closing argument warrant

reversal of the judgment only if the remarks influenced the

jury in such a way that substantial prejudice resulted to the

No. 13-2533 26

opposing party.’“ Smith v. Hunt, 707 F.3d 803, 812 (7th Cir.

2013) (quoting Gruca v. Alpha Therapeutic Corp., 51 F.3d 638,

644 (7th Cir. 1995)).

The challenged instruction did fairly and accurately

summarize the law, in that it follows logically from this

Court’s statements that “[f]alse arrest and excessive force are

unrelated except in forming a sequence.” Lenard v. Argento,

808 F.2d 1242, 1246 (7th Cir. 1987), cited with approval by

Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 681 (7th Cir.

2007).

Turning to consider defense counsel’s summation, we

acknowledge that the jury instruction approved here implies

that no arguments concerning the lawfulness of the entry or

the mere making of an arrest could be relevant to excessive

force or battery. So if the jurors reasoned like lawyers, then

they knew from the instruction to disregard the challenged

segments of the officers’ closing. But to presume jurors to

read and analyze as lawyers do would be naïve. Cf. Maus v.

Baker, 747 F.3d 926, 927–28 (7th Cir. 2014) (recognizing that

jury instructions do not always cure prejudice). At the end of

trial, an officer of the court argued to the jurors that the

alleged fact that Mitchell and Bowersock were “doing their

job” and Hawkins’s allegedly baseless demand that the

officers leave his house were “all that matter[ed].” These

propositions, the attorney offered, were “all [jurors] had to

believe” to find in the officers’ favor. Defense counsel further

argued to the jurors that they would have to be “confused”

to question Officer Mitchell’s right to be in Hawkins’s house.

In truth, of course, the jurors would have been confused

even to be interested in whether Officer Mitchell had a right

No. 13-2533 27

to be in the house, 12 but defense counsel’s arguments

overwhelmingly misled them and the court did not

intervene specifically with regard to those arguments. And

while most of the false impressions given by the defense

summation were consistent with the law of the case at the

time, that is precisely what made it futile for Hawkins to

object. Cf. Dresser Indus., Inc., Waukesha Engine Div. v. Gradall

Co., 965 F.2d 1442, 1450 (7th Cir. 1992) (appellant “certainly

had reason to believe that it would be pointless to press its

theory further, and was permitted to wait for a final decision

on all the issues in the case before appealing the

interlocutory summary judgment decision”). As a result,

defense counsel’s quoted arguments created substantial

prejudice to Hawkins. Retrial of the excessive-force and

wilful-and-wanton-battery claims is necessary to eliminate

it.

IV. Conclusion

We REVERSE the grant of summary judgment on Counts I,

III, and VI, as well as the judgment on the jury’s verdict on

Counts II, IV, and V. As for Count I, Mitchell and Bowersock

are each liable to Hawkins as a matter of law for seizing him

in violation of the Fourth Amendment. We REMAND to the

district court for trial of both liability and damages with

respect to Counts II through VI, as well as damages for

Count I. For clarity, we note two additional points:

As regards each officer’s liability on Count III, there is

only one genuine issue of material fact: whether Hawkins’s

phone call to the attorney was a motivating factor in

12 Only excessive force and wilful-and-wanton battery were before the

jury, after all.

No. 13-2533 28

arresting Hawkins. Each officer for whom Hawkins’s phone

call to the attorney was a motivating factor in arresting

Hawkins is liable on Count III. Each officer for whom the

attorney phone call was not a motivating factor is not liable

on Count III.

The liability of both officers on Count VI depends

entirely on whether probable cause to arrest Hawkins for

disorderly conduct existed. If it did, neither officer is liable

on Count VI; if it did not, both are liable on Count VI.