Herbert Williams v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3249

HERBERT WILLIAMS,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 10 C 06234 — Charles R. Norgle, Judge.

ARGUED JUNE 5, 2013 — DECIDED OCTOBER 24, 2013

Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. In the wee hours of November 18,

2009, plaintiff Herbert Williams was returning home from

work. He smelled smoke, saw that his neighbor’s house was on

fire, and went to the porch of the burning home to bang on the

door to rouse anyone who might be inside. Chicago police

officers Matthew O’Brien and Joseph Byrne also spotted the

smoke and found Williams on the porch. They soon arrested

him on suspicion of arson. A prosecutor declined to file arson

2 No. 12-3249

charges later that night. Officers O’Brien and Byrne then

charged Williams with criminal trespass, but that charge was

quickly dismissed.

Williams brought this suit against Officers O’Brien and

Byrne under 42 U.S.C. §1983 alleging false arrest in violation of

his Fourth Amendment rights and against both officers and the

City of Chicago under state law for malicious prosecution on

the trespass charge. The district court granted the defendants’

motion for summary judgment. Williams v. City of Chicago, 2012

WL 4434678 (N.D. Ill. Sept. 19, 2012). Williams appeals. We

reverse and remand for trial. Whether there was even arguable

probable cause to arrest and charge Williams depends on

disputed issues of fact. Based on Williams’s version of the

evidence, the officers had no reasonable grounds for conclud-

ing that Williams had committed arson or trespass, or that he

was anything other than a good neighbor trying to ensure his

neighbors’ safety.

I. Facts for Summary Judgment

Because we are reviewing a grant of summary judgment,

we present the facts in the light reasonably most favorable to

Williams, as the non-moving party. Good v. Univ. of Chicago

Med. Ctr., 673 F.3d 670, 673 (7th Cir. 2012). Neither we nor the

district court can resolve issues of credibility when deciding a

motion for summary judgment or an appeal from its grant.

Mullin v. Temco Machinery, Inc., ___ F.3d ___, ___, 2013 WL

5569461, at *5–6 (7th Cir. Oct. 10, 2013). Those are issues for a

jury at trial, not a court on summary judgment.

Williams came home from his job as a janitor with the

United States Postal Service at approximately 2:30 a.m. on

No. 12-3249 3

November 18, 2009. When he exited the bus near his Chicago

home, he smelled smoke. He rounded the corner and saw that

the house at 11144 South Edbrooke was on fire. Concerned that

there could be people inside the burning house, he began

banging on the front door in an attempt to rouse them. He did

not enter the burning house.

Defendant—Officers Byrne and O’Brien were in a patrol car

en route to their police station when they spotted a cloud of

smoke. O’Brien testified that he was one or two houses away

from 11144 South Edbrooke when he first noticed the flames,

which came from the rear of the house. The officers

approached the house in their patrol car and saw Williams on

the front porch, at the door.1

The officers stopped, went to the porch, and spoke with

Williams. Williams explained that it was his neighbor’s house,

he thought people might be inside, and he was banging on the

door to wake them. The officers then tried to enter the house,

but the front door was locked. Officer O’Brien kicked the door

open and the officers entered.

They found no one inside who needed to leave, but they

observed a neatly stacked pile of firewood ablaze. They also

saw burning sheets of newspaper stuffed into exposed insula-

tion in the walls. Officer O’Brien recalled seeing a burning

mattress, and he testified that the burning items were spread

1

Contrary to Williams’s version of events, the officers testified that they

observed Williams exit the front door. In light of the conflicting testimony,

the officers did not include that assertion in their Local Rule 56.1 statement

of undisputed material facts. In any event, we must accept Williams’s

version for purposes of this appeal.

4 No. 12-3249

out over each of the house’s three floors. Officer Byrne testified

that all the burning materials were on the second floor. The

officers argue on appeal that they believed the fire was likely

the result of arson—Officer O’Brien explained that his arson

determination was based on his training as a police officer and

on “common sense.” This testimony was not part of defen-

dants’ Local Rule 56.1 statement, but even if it had been, it

would not affect the outcome of this appeal. So for purposes of

argument, we will assume they believed the fire was arson.

When the officers left the burning house, they saw Williams

in front of the house across the street, which was his own

house. They approached and asked Williams for identification.

Williams provided a state identification card and other cards

issued by the United States Postal Service and the Veterans of

Foreign Wars. Officer O’Brien then put Williams in handcuffs

and the officers put him in their patrol car. Williams’s mother

and a neighbor both tried to intercede on his behalf. The

neighbor told the officers that Williams “had nothing to do

with” the fire. After the officers placed Williams in their patrol

car, Officer O’Brien ran a criminal background check on

Williams and found no prior arrests for arson.

The officers then drove Williams to the police station and

placed him in an interrogation room. Detective Janice Govern

of the Bomb and Arson section of the Chicago Police Depart-

ment investigated the fire and questioned Williams. Detective

Govern did not notice an unusual smell when she was ques-

tioning him. Williams repeated what he had told Officers

Byrne and O’Brien: he was a janitor for the Postal Service. He

never went inside 11144 South Edbrooke, but he was banging

on the front door to warn anyone who might have been asleep

No. 12-3249 5

in the house. In other words, he was a Good Samaritan doing

exactly what any concerned neighbor would do.

Detective Govern inspected the inside of the house at 11144

South Edbrooke and concluded that the home was unoccupied.

She confirmed this with the owner of the house, Carl Branigan,

who told Detective Govern that he and his family had recently

moved out. Branigan did not say that he wanted to sign a

criminal complaint against Williams.

Detective Govern finished her investigation and concluded

that a chemical accelerant was not used to start the fire. Govern

Dep. at 38. Detective Govern’s report said nothing about

whether Williams smelled of gasoline, and she testified that if

Officers Byrne or O’Brien had told her that Williams had

smelled of gasoline, she would have included that fact in her

report. Id. at 29–32. The arrest report prepared by Officers

O’Brien and Byrne also said nothing about Williams smelling

of gasoline when they arrested him. See O’Brien Dep. at 93–96;

Byrne Dep. at 62–63.2

2

After the fact, though, both officers claimed they recalled smelling

gasoline when they were in Williams’s presence. O’Brien Dep. at 92; Byrne

Dep. at 51. Officer O’Brien testified that he noticed the smell of gasoline

while he was inside Williams’s house. O’Brien Dep. at 92. Officer Byrne

testified that he first smelled gasoline when he and Williams were in the

patrol car. Byrne Dep. at 51. The defendants did not designate this evidence

as part of their Local Rule 56.1 statement of material undisputed facts, and

there is certainly room for reasonable dispute on the matter. Despite the

failure to raise this evidence in the district court, the defendants included

these matters in their brief on appeal. In any event, the discrepancies on

these late reports of a supposedly incriminating aroma only tend to add to

(continued...)

6 No. 12-3249

Detective Govern provided the information gleaned from

her investigation to Assistant State’s Attorney Jennifer Sexton,

but she did not recommend that Williams be charged with

arson. ASA Sexton’s notes from that conversation contain the

following narrative:

the officers observed [Williams] coming from the

front door. [Williams] stopped officers to notify

them of fire. Officers entered the residence to check

for victims and found small piles of wood in the

back room of the second floor on fire. Officers

observed newspaper shoved into the walls of the

residence. [Williams] was then placed into custody.

Fire investigators related the fire was arson and that

there were three points of origin. Building is a

residence but had not been occupied for over two

weeks. No injuries and no one in residence at the

time of the fire. Owners of building notified.

Sexton Dep. at 10–11. ASA Sexton declined to approve an

arson charge against Williams. In her deposition, she explained

that her decision was likely based on a lack of information

about the victim and the absence of eyewitnesses who saw

Williams start the fire. Detective Govern and ASA Sexton did

not discuss whether to charge Williams with criminal trespass

to a residence.

Detective Govern told Officers O’Brien and Byrne that the

prosecutor had rejected an arson charge against Williams.

2

(...continued)

the circumstantial evidence of deception and malice, as discussed below.

No. 12-3249 7

Officers O’Brien and Byrne then signed a charge of criminal

trespass against Williams, which occurs when a person

“without authority … knowingly enters or remains within any

residence … .” 720 Ill. Comp. Stat. 5/19-4(a)(1), (b)(1) (Class A

misdemeanor). The evidence from the three officers conflicts in

important ways as to how the charging decision was made.

Officer O’Brien recalled that Detective Govern instructed him

to charge Williams with criminal trespass. O’Brien Dep. at 129.

His testimony, however, was contradicted by Detective

Govern, who denied instructing the officers to charge Wil-

liams, and by Officer Byrne who recalled that he and Officer

O’Brien jointly decided to go ahead and charge Williams.

Govern Dep. at 63; Byrne Dep. at 67.

The district court’s treatment of this factual issue was

erroneous, and it highlights some procedural complications in

this appeal. The district court wrote: “After Detective Govern

told the Officers that Williams could not be charged with

arson, the Officers had a conversation and decided, with

Detective Govern’s approval, to charge Williams with criminal

trespass to residence, a Class A misdemeanor.” Williams, 2012

WL 4434678, at *2. The defendants’ motion for summary

judgment and Local Rule 56.1 Statement did not present this

evidence or claim the facts were undisputed. Williams’s Local

Rule 56.1 Statement also did not cite this evidence. The district

court was not prohibited from examining all of the evidence

filed on the motion for summary judgment, of course, but

when its exploration of that evidence went beyond what the

parties had cited, the risk of error increased.

We have often explained that district courts may not grant

summary judgment on grounds not argued by the moving

8 No. 12-3249

party, at least not without giving notice so that the non-moving

party has a full opportunity to present relevant evidence and

argument. E.g., Pactiv Corp. v. Rupert, 724 F.3d 999, 1001 (7th

Cir. 2013); see generally Celotex Corp. v. Catrett, 477 U.S. 317,

326 (1986) (“district courts are widely acknowledged to possess

the power to enter summary judgments sua sponte, so long as

the losing party was on notice that she had to come forward

with all of her evidence”). This general principle applies to

matters of fact as well as to matters of law. Pactiv Corp., 724

F.3d at 1001, citing Fed. R. Civ. P. 56(f) (making explicit that a

district court may “consider summary judgment on its own

after identifying for the parties material facts that may not be

genuinely in dispute” “after giving notice and a reasonable time to

respond”) (emphasis added). It is not appropriate to grant

summary judgment based on facts the moving party did not

rely on, at least without giving the losing party advance notice

and an opportunity to be heard.

We assume that the district court, in stating as a fact that

Detective Govern had approved the criminal trespass charge,

was referring to Officer O’Brien’s testimony that Detective

Govern instructed the officers to charge Williams. As can

happen often when a court ventures beyond the parties’

arguments, as it is entitled to do, the court apparently over-

looked the conflicting evidence from Detective Govern. At this

point, in any event, we must give plaintiff Williams the benefit

of the conflicting evidence and reasonable inferences. We must

assume for now that the officers filed the criminal trespass

charge without any instruction, approval, or advice from

Detective Govern.

No. 12-3249 9

When Williams was told of the charge, he told Officer

O’Brien he was a “liar” for saying that he saw Williams exiting

the house at 11144 South Edbrooke. Williams Dep. at 37.

Officer Byrne “tried to calm [him] down” by explaining to

Williams, “just calm down, you’re being charged with tres-

passing, but if you—this will most likely get thrown out. All

you have to do is show up for court.” Id. Williams thought that

Officer Byrne was playing the role of “good guy” to Officer

O’Brien’s “bad cop.” The next month, Williams appeared in

court to contest the criminal trespass to a residence charge. The

court indeed dismissed the charge. This suit followed.

II. False Arrest

We consider first Williams’s constitutional claim, deciding

whether the undisputed facts showed probable cause to arrest

Williams and then whether the undisputed facts show that the

officers are entitled to a defense of qualified immunity.

A. Probable Cause to Arrest

To prevail on his constitutional claim for false arrest,

Williams must show there was no probable cause for his arrest.

See Williams v. Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007);

Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006)

(“Probable cause to arrest is an absolute defense to any claim

under Section 1983 against police officers for wrongful ar-

rest[.]”). Probable cause exists if “at the time of the arrest, the

facts and circumstances within the officer’s knowledge … are

sufficient to warrant a prudent person, or one of reasonable

caution, in believing, in the circumstances shown, that the

suspect has committed, is committing, or is about to commit an

offense.” Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir.

10 No. 12-3249

2009), quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). “It

is a fluid concept that relies on 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). To make this

determination, we must “step[ ] into the shoes of a reasonable

person in the position of the officer[,]” Wheeler v. Lawson, 539

F.3d 629, 634 (7th Cir. 2008), considering the facts known to the

officer at the time. Carmichael v. Village of Palatine, 605 F.3d 451,

457 (7th Cir. 2010). In deciding this question of law as part of

a motion for summary judgment, however, we must give the

non-moving party the benefit of conflicts in the evidence about

what the officers actually knew at the time.

Based on the version of the evidence most favorable to

plaintiff Williams, the defendant officers did not have probable

cause to believe that he was committing or had committed a

crime on November 18, 2009. When they arrived on the scene,

Williams was on the porch of a burning house, banging on the

door to rouse anyone inside. His presence on the porch,

without more, should not have led these officers to conclude

that he had committed a crime. “Clearly physical proximity to

a suspected crime, without other indicia of … involvement, is

insufficient to support a finding of probable cause.” United

States v. Ingrao, 897 F.2d 860, 863 (7th Cir. 1990); see also United

States v. Richards, 719 F.3d 746, 757 (7th Cir. 2013) (noting that

it is a “well-settled proposition” that “mere proximity to

suspected criminal activity does not, without more, generate

probable cause”); United States v. Bohman, 683 F.3d 861, 864 (7th

Cir. 2012) (“A mere suspicion of illegal activity at a particular

place is not enough to transfer that suspicion to anyone who

leaves that property.”) (citation omitted). The officers observed

No. 12-3249 11

no other circumstances that could have reasonably indicated

that Williams was involved in a crime. His mere presence was

not sufficient to support a finding of probable cause to arrest

him for arson or criminal trespass, and on Williams’s version

of the evidence that’s all the officers had.

The officers argue that their observations of the fire gave

them a reasonable suspicion that the fire had been intentionally

set, which in turn supplied probable cause to arrest Williams

for arson. (As noted above, the defendants’ Local Rule 56.1

Statement oddly did not assert that they believed the fire had

been caused by arson, but we will assume as much for pur-

poses of the argument.) Once they had broken down the front

door, the officers observed either two or three separate fires,

including a pile of wood that had been arranged in a “campfire

fashion.”

The problem is that regardless of what the officers reason-

ably believed about how the fire might have started, they did

not observe anything indicating that Williams was involved.

We must assume they had seen Williams only outside the

burning house and outside the locked front door. Williams

identified himself to the officers without hesitation or deceit as

a neighbor who smelled smoke, found its source, and was on

the porch to bang on the door to rouse anyone inside. The

officers had no factual basis for thinking Williams was an

arsonist rather than a Good Samaritan.

The defendants argue that “where a fire is intentionally set

and only one person appears to have been in a position to start

the fire, it is reasonable to conclude that person is responsible,”

but the cases they cite in support involved facts that simply are

12 No. 12-3249

not comparable in terms of facts indicating who was responsi-

ble for the fire. See Def. Br. at 16, citing People v. Lawson,

549 N.E.2d 1006, 1008 (Ill. App. 1990) (defendant’s confession

of arson was independently corroborated; fire was set in a

maximum security cell in prison, all combustible materials in

cell had been placed in one corner and set alight, and defen-

dant was the sole occupant), and Sherrod v. Illinois, 50 Ill. Ct. Cl.

23, 31, 41 (Ill. Ct. Cl. 1997) (crediting arson investigator’s

conclusion that arson fire in a locked apartment was set by the

mentally disturbed person who was the only occupant of the

apartment, but concluding that state was not negligent in

failing to commit that person involuntarily). In this case,

Williams was present but was outside the locked and burning

house. His mere presence was not enough to provide probable

cause. If Williams’s mere presence outside the burning house

were enough to arrest someone for arson, imagine the disin-

centives for neighbors to help each other.

What about arresting Williams for criminal trespass? The

defendants argue that “the same facts that reasonably led

Officers O’Brien and Byrne to believe Williams had committed

arson would also lead a reasonable person to believe he had

committed criminal trespass to a residence.” Def. Br. 19. We

disagree. Criminal trespass requires that a person enter or

remain without authority. Assuming Williams’s version of the

facts, the officers had no indication that he had been inside.

The officers had no reasonable basis to believe Williams had

committed arson, and this unreasonable belief cannot be

bootstrapped into a reasonable belief that Williams had

committed criminal trespass.

No. 12-3249 13

The district court considered the criminal trespass question

as part of the malicious prosecution claim and concluded that

even if the officers had not seen Williams exiting the burning

house, a mistaken belief that he had “was not unreasonable

under the circumstances.” Williams, 2012 WL 4434678, at *5.

This conclusion departed from the standard that governs

summary judgment motions. On this point, the court gave the

moving parties, not the non-moving party, the benefit of

conflicts in the evidence and the choice among conflicting

inferences. Based on the conflicting evidence, it would also be

reasonable to conclude that Williams has been telling the truth

and that the officers were lying, not just honestly mistaken,

about whether they saw him coming out of the locked house.

Based on Williams’s evidence, none of the circumstances of

the fire supported a reasonable belief that he had committed

either arson or criminal trespass. Williams has offered suffi-

cient evidence from which a jury could conclude that Officer

O’Brien and Officer Byrne arrested him without probable

cause.

B. Qualified Immunity

The individual officers argue that they are entitled to

qualified immunity on the false arrest claim because, even if

probable cause was lacking, a reasonable officer could have

believed there was probable cause to arrest Williams. The

district court did not reach the defense. We hold that the

officers are not entitled to qualified immunity on summary

judgment.

Qualified immunity “protects government officials from

liability for civil damages insofar as their conduct does not

14 No. 12-3249

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks

omitted). In evaluating qualified immunity, the court asks two

questions: (1) whether the facts, taken in the light most

favorable to the plaintiff, make out a violation of a constitu-

tional right, and (2) whether that constitutional right was

clearly established at the time of the alleged violation. Id. at

232.

We have already answered the first question in the affirma-

tive. The facts in this case, taken in the light most favorable to

Williams, show a violation of his constitutional right to be free

from arrest without probable cause. We move on to the second

question, which is similar to but distinct from the first. See

Abbott v. Sangamon County, 705 F.3d 706, 715 (7th Cir. 2013)

(distinguishing question of existence of probable cause on the

merits of constitutional violation from question of arguable

probable cause on question of whether right was clearly

established). Because this is a false arrest claim, the second

question can be framed as “whether a reasonable officer could

have mistakenly believed that probable cause existed.” See

Fleming v. Livingston County, 674 F.3d 874, 878 (7th Cir. 2012),

quoting Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998).

This concept is often called “arguable probable cause,” see

Thayer v. Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012), and it is

sufficient to grant qualified immunity to officers who reason-

ably but mistakenly believed they had probable cause to arrest.

See Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).

Viewing the evidence in the light most favorable to Wil-

liams, we do not find room for a reasonable mistake by the

No. 12-3249 15

officers about whether they had probable cause to arrest

Williams. The defendants argue that the officers reasonably

concluded that the fire had been set intentionally. We can

assume that is true, but the argument misses the mark. The

question is not whether the fire was arson but whether it was

reasonable to arrest Williams for arson. On this point, the

defendants have only Williams’s presence on the porch. And

as explained above, it is and was well established that mere

presence is not enough for probable cause. When asked,

Williams freely identified himself and explained he was there

trying to rouse any occupants in the locked and burning home.

For purposes of summary judgment, we must assume there

was no indication that Williams had been inside the home, let

alone that he had set the fire. Based on those factual assump-

tions, there was no basis for reasonable minds to differ on

whether there was probable cause to arrest Williams. On this

record, these officers are not entitled to summary judgment on

the defense of qualified immunity.

III. Malicious Prosecution

Williams has also sued both the officers and the city itself

under state law for malicious prosecution based on the short-

lived prosecution for criminal trespass. The elements of

malicious prosecution in Illinois are (1) commencement of

criminal proceedings by the defendants; (2) termination of that

matter in favor of the plaintiff; (3) the absence of probable

cause for the proceedings; (4) the presence of malice; and (5)

resulting damages. Gonzalez v. City of Elgin, 578 F.3d 526, 541

(7th Cir. 2009), citing Swick v. Liautaud, 662 N.E.2d 1238, 1242

(Ill. 1996). Malicious prosecution is offense—specific, so we

focus our attention on the criminal trespass charge. The

16 No. 12-3249

defendants contend that Williams’s malicious prosecution

claim fails because he cannot demonstrate an absence of

probable cause to charge him with criminal trespass and

because he cannot show malice. We address each issue in turn.

A. Probable Cause to Charge

In a malicious prosecution case, probable cause is defined

as “a state of facts that would lead a person of ordinary care

and prudence to believe or to entertain an honest and sound

suspicion that the accused committed the offense charged.”

Gauger v. Hendle, 954 N.E.2d 307, 329–30 (Ill. App. 2011)

(emphasis omitted), quoting Fabiano v. City of Palos Hills, 784

N.E.2d 258, 266 (Ill. App. 2002). “It is the state of mind of the

person commencing the prosecution that is at issue—not the

actual facts of the case or the guilt or innocence of the ac-

cused.” Sang Ken Kim v. City of Chicago, 858 N.E.2d 569, 574 (Ill.

App. 2006). Errors that are not grossly negligent do not affect

the probable cause inquiry when the complainant has an

honest belief that the accused is probably guilty of the offense.

Id. at 574–75.

Williams has offered evidence from which a jury could find

that a reasonable person standing in the shoes of these officers

could not have had “an honest and sound suspicion” that he

had “entered or remained” within 11144 South Edbrooke

without authority, as required to commit the crime of criminal

trespass. See 720 ILCS 5/19-4(a)(1). Williams testified that when

the officers arrived, he was banging on the front door of the

burning residence in an attempt to rouse anyone inside.

Williams did not enter the building. We credit Williams’s

testimony on this point for purposes of summary judgment,

No. 12-3249 17

and as explained above, Williams’s mere presence was not

sufficient to extend the officers’ arguably reasonable belief that

someone had entered the residence to commit arson into an

“honest and sound suspicion” that the someone was Williams.

Nothing about this situation suggested that Williams had

committed a crime or that he had any criminal intent. He was

exactly where anyone would want their neighbor to be—on the

porch trying to warn any occupants of the danger in the

middle of the night. A jury presented with this record could

conclude that a reasonable person would not have believed

that Williams had committed a criminal trespass.

B. Malice

The district court did not reach the question of probable

cause on the malicious prosecution claim because it found that

Williams had not offered sufficient evidence that the officers

had acted with malice, though the two questions are closely

related. We disagree with the district court’s conclusion.

“Malice” in the context of malicious prosecution means that the

officer who initiated the prosecution had “any motive other

than that of bringing a guilty party to justice.” Aleman v. Village

of Hanover Park, 662 F.3d 897, 907 (7th Cir. 2011), quoting

Carbaugh v. Peat, 189 N.E.2d 14, 19 (Ill. App. 1963). The evi-

dence in this record could reasonably suggest to a jury that

these officers charged Williams with criminal trespass not

because they believed he was guilty and wanted to bring him

to justice, but for some other reason—such as perhaps covering

up a bad arrest for arson. Again, taking the version of disputed

facts most favorable to Williams, a jury could reasonably find

that the officers concocted the trespass charge against him

18 No. 12-3249

without authority from either the homeowner or the case

detective, and that it was unsupported by probable cause.

The officers were not required to have the approval of

either the owner or the detective, of course, but a reasonable

jury could find that Officer O’Brien lied about having been told

by Detective Govern to file the charge. Moreover, after O’Brien

told Williams that he would be charged with trespass and that

he had seen Williams leaving the house (prompting Williams

to call him a liar), Officer Byrne told Williams that the charge

would “most likely get thrown out.” On this record, Byrne’s

statement is not easy to reconcile with any belief the officers

might have had that Williams had actually committed trespass.

It certainly cannot be reconciled as a matter of law. We leave

that question to the jury.

The district court stated its conclusion on this element of

malice: “On these facts, the want of probable cause has not

been ‘clearly proved’ such that the Court must infer that the

Officers acted with malice.” Williams, 2012 WL 4434678, at *5;

see also Aguirre v. City of Chicago, 887 N.E.2d 656, 663 (Ill. App.

2008) (affirming jury verdict for plaintiffs wrongly accused and

convicted of kidnapping and murder; malice may be “inferred

from want of probable cause when the circumstances are

inconsistent with good faith by the prosecutor and where the

want of probable cause has been clearly proved”). The district

court’s phrasing of this conclusion effectively reversed the

summary judgment standard. It is well established that a jury

can infer malice from an absence of probable cause. Aguirre,

887 N.E.3d at 663; see also Rodgers v. Peoples Gas, Light & Coke

Co., 733 N.E.2d 835, 842 (Ill. App. 2000) (permitting inference

of malice to be drawn from absence of probable cause); Mack

No. 12-3249 19

v. First Security Bank of Chicago, 511 N.E.2d 714, 717 (Ill. App.

1987) (same). To defeat summary judgment, plaintiff Williams

was not required to “clearly prove” the lack of probable cause

or to come forward with evidence that would require the court

to infer malice. He was required to come forward only with

evidence that would permit a finding of no probable cause and

permit a reasonable inference of malice. Williams has done so.

He is entitled to have a jury determine whether the officers

acted with malice.

In addition, a jury hearing the discrepancies in the officers’

testimony could find that the officers lied concerning several

key points. The officers testified that they saw Williams exiting

the house. He denies it and says they must be lying. The

officers also testified that when they arrested Williams, they

smelled gasoline on his person. This information, if true,

would have been highly relevant to the grounds for Williams’s

arrest and Detective Govern’s arson investigation. Yet there is

no mention of a gasoline smell on Williams’s person in the

officers’ arrest report or in Detective Govern’s report. Detective

Govern testified that the officers did not tell her that Williams

smelled of gasoline and that she did not smell it herself when

she interviewed him. The gasoline smell seems to have

surfaced for the first time in the officers’ depositions in this

lawsuit.

The officers’ testimony is also inconsistent regarding the

decision to charge Williams with criminal trespass. Detective

Govern was the only one who spoke with the homeowner. She

testified that the owner did not state that he wished to press

charges against Williams. Officer O’Brien recalled that Detec-

tive Govern instructed him to charge Williams with criminal

20 No. 12-3249

trespass anyway. His testimony, however, was contradicted

by Detective Govern, who denied instructing the officers to

charge Williams, and also by Officer Byrne, who testified that

he and Officer O’Brien decided to charge Williams with

criminal trespass without Detective Govern’s input.

In the context of employment litigation, the law permits the

trier of fact to infer an improper motive if an employer has lied

about its motive for taking action against an employee, calling

it “pretext.” See Reeves v. Sanderson Plumbing Products, Inc., 530

U.S. 133, 146–48 (2000) (linking rule to general principle of

evidence law that factfinder is entitled to consider a party’s

dishonesty about a material fact as affirmative evidence of

guilt); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993);

Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir. 2002)

(“Pretext means a lie, specifically a phony reason for some

action.”) (internal quotation marks omitted). This principle in

employment law is drawn from the general principle of

evidence law that a trier of fact is entitled to consider a party’s

dishonesty about a material fact as affirmative evidence of

guilt. Reeves, 530 U.S. at 147, citing Wright v. West, 505 U.S. 277,

296 (1992); Reeves, 530 U.S. at 154 (Ginsburg, J., concurring).

Though the context is different, we see no reason why a

parallel inference could not reasonably be drawn here. The

district court erred in granting the defendants’ summary

judgment motion on Williams’s malicious prosecution claim.

Plaintiff Williams has offered sufficient evidence from

which a jury could find that the defendants are liable for an

unconstitutional false arrest and for malicious prosecution

under state law. The conflicting evidence presents genuine

issues of material fact that could not be resolved on summary

No. 12-3249 21

judgment. The judgment of the district court is REVERSED and

the case is REMANDED to the district court for further

proceedings consistent with this opinion.