Woods, Albert v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-4069

ALBERT WOODS,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, OFFICER MAKOWSKI,

Chicago Police Officer #16971, OFFICER

ALANIS, Chicago Police Officer #5001,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern

Division.

No. 98 C 7092--Charles R. Norgle, Sr., Judge.

Argued September 13, 2000--Decided DECEMBER 8, 2000

Before Flaum, Chief Judge, and Bauer, and

Kanne, Circuit Judges.

BAUER, Circuit Judge. Plaintiff-

Appellant Albert Woods appeals from the

order of the United States District Court

for the Northern District of Illinois,

Eastern Division, granting summary

judgment to defendants-appellees

Makowski, Alanis, and the City of

Chicago. For the reasons set forth below,

we affirm.

BACKGROUND

Albert Woods was arrested at his place

of employment for misdemeanor assault.

After the charges against him were

dropped, Woods filed an action under 42

U.S.C. sec. 1983 against the City of

Chicago and Chicago police officers

Makowski and Alanis, asserting violations

of his Fourth Amendment rights. In his

complaint, Woods contended that the

officers acted unreasonably in arresting

him without a warrant for misdemeanor

assault one day after Gabriel Flores (the

putative assault victim) signed a

criminal complaint against him. He also

asserted that the officers acted in

accordance with a policy of the City of

Chicago authorizing its police officers

to make a full custodial arrest for a

misdemeanor that did not involve a breach

of the peace and that had not been

committed in the officers’ presence. The

officers moved to dismiss Woods’

complaint against them under Fed. R. Civ.

P. 12(b)(6), arguing that Flores’ report

of the assault to the police (which Woods

had referenced in his complaint) gave

them probable cause to arrest Woods, and

that arrests supported by probable cause

are reasonable under the Fourth Amendment

subject to a "rare exception" not

applicable in Woods’ case. The City moved

to dismiss on similar grounds, arguing

that even if Woods could show that the

City had a municipal "policy" authorizing

warrantless arrests for misdemeanors not

involving a breach of the peace and not

committed in an officer’s presence, such

a policy would not be unconstitutional as

applied to Woods’ arrest, which was

authorized by state law and based on

probable cause.

Woods filed a memorandum opposing the

City’s motion to dismiss, arguing that

his complaint did not demonstrate that

the officers had probable cause to arrest

him. According to Woods, the complaint

merely asserted that a citizen had walked

into a Chicago police station on July 21,

1997 and stated that on July 18, 1997 he

had been "verbally assaulted" by Woods.

Woods noted that the complaint did not

allege that this information was

communicated to the arresting officers.

Furthermore, he contended that even if

the arresting officers had been aware of

the citizen’s complaint, it did not

provide them with probable cause to

arrest because "verbal assault" is not an

offense under Illinois law.

The City and the individual defendants

jointly filed a reply. Attached to the

reply were various exhibits, including a

copy of Flores’ verified misdemeanor

complaint and a copy of the arresting

officer’s report of Woods’ arrest. The

verified misdemeanor complaint (signed

under oath by Flores) charged Woods with

aggravated assault, and stated that "on

or about 18 July ’97. . . [Woods] while

using a deadly weapon, length of a lead

pipe, did without lawful authority

produce weapon and came at victim yelling

I’m going to kill you, which placed

Gabriel Flores in reasonable apprehension

of receiving a battery." The arrest

report essentially repeated this account

of the incident, stating that,

[t]he above subject arrested for

[a]ggravated assault. On 18 July 97

victim went to truck leasing company

where offender is employed to gas up a

leased truck. At that time offender got

into a verbal arguement [sic] with victim

and produced a lead pipe and told victim

I’m going to kill you. When offender

started to approach victim, victim got

into his truck and fled the scene. R/O’s

interviewed victim who signed complainats

[sic], R/O’s went to offender’s place of

employment, placed subject under arrest

and advised subject of his rights which

he stated he understood.

The arrest report was signed under the

statement "I do solemnly, sincerely, and

truly declare and affirm that the facts

stated herein are accurate to the best of

my knowledge."

Woods moved to exclude these exhibits on

grounds that such evidentiary material

could not be considered during a motion

to dismiss. He argued that the court

could not consider the exhibits unless it

first converted the motion to dismiss

into a motion for summary judgment under

Fed. R. Civ. P. 12(b), and that such a

conversion would be inappropriate in this

case. Finally, he argued that unless the

court excluded these materials, it must

give Woods an opportunity to respond, and

that in order to do so Woods must be

allowed to depose the officers who signed

the arrest report "about the report and

about the circumstances of the signing of

the complaint" as well as "the citizen

upon whose alleged complaint plaintiff

was arrested." The court granted Woods’

motion to exclude the exhibits.

Subsequently, the court granted the

City’s motion to dismiss on the ground

that Woods had failed to state a

municipal policy, and it gave Woods leave

to file an amended complaint.

Woods filed an amended complaint which

restated his earlier claim that Flores

claimed to have been "verbally assaulted"

by Woods, and which explicitly stated

that such a claim did not supply the

officers with probable cause to arrest

Woods. The amended complaint also

reasserted that the officers violated

Woods’ Fourth Amendment rights by

arresting him without a warrant for a

misdemeanor offense not commited in their

presence and not involving a breach of

the peace pursuant to a municipal policy

authorizing such arrests. Again, the

defendants moved to dismiss, arguing that

Flores’ complaint established probable

cause./1 Woods opposed the defendants’

motion, again contending that even if the

officers had been aware of Flores’

complaint (which his complaint did not

allege), that complaint did not provide

probable cause to arrest because "verbal

assault" is not an offense under Illinois

law, which defines assault as "conduct

which places another in reasonable

apprehension of receiving a battery." 720

ILCS 5/12-1.

The court then converted the defendants’

motion to dismiss into a motion for

summary judgment, noting that the

defendants had attached "pertinent

evidentiary material" to their reply to

Woods’ memorandum in opposition to the

motion to dismiss Woods’ original

complaint. Addressing Woods’ claim that

Flores had complained merely of a "verbal

assault," the court quoted the arrest

report’s account of Flores’ complaint,

which stated that Woods had brandished a

lead pipe during the altercation and

which specifically referenced Illinois’

aggravated assault statute. The court

stated that "the misdemeanor complaint,

filed by Gabriel Flores, further

indicates that Woods committed an

aggravated assault with a deadly weapon

while threatening to kill Flores," and

that "this evidence indicates that

thearresting officers arrested Woods

based on information that Woods committed

an aggravated assault." In ordering Woods

to respond to the motion for summary

judgment, the court admonished him to

"pay particular attention" to Fed. R.

Civ. P. 11(b), and stated that: "Woods’

characterization of the altercation as a

’verbal assault’ is grossly misleading.

Further, his argument that ’nowhere in

the complaint does plaintiff allege that

any police officer had been informed that

plaintiff had engaged in conduct which

placed another in reasonable apprehension

of receiving a battery’ . . . ignores

facts and logic in a blatant attempt to

survive the motion [to] dismiss."

In Woods’ response, he argued that the

arrest report and the misdemeanor

complaint could not be considered on a

motion for summary judgment because: (1)

the defendants had not laid any

foundation for their admission, (for

example, they did not show the date or

time of the alleged interview between

Flores and the arresting officers in the

arrest report); (2) they were

unauthenticated; and (3) the police

report did not fully and fairly set out

the facts. In support of the latter

argument, Woods attached a Chicago Police

Case Report to his response, which he

relied upon for its accuracy. The case

report stated that "R/O interviewed the

victim who related to R/O that . . .

offender . . . grabbed lead pipe--told

victim to get out of the truck and said

’If I get fired over this, I’m going to

kill you.’ Victim left thinking offender

overreacting. Today’s date 21 Dec. ’97

offender told two of victim’s co-workers

(Kenny and Mike) that he was going to

’get’ victim because victim filed report.

Victim given victim information sheet.

R/O advised warrant." Woods argued that

the case report demonstrated that the

police lacked probable cause to arrest

him because it showed that Flores waited

three days to report the incident and

told the police that he left thinking

Woods was "overreacting," and because

Flores’ account of the incident showed

only that Woods had "verbally assaulted"

Flores, not that he had placed Flores in

reasonable apprehension of receiving a

battery. Woods also noted that the police

had no documentation showing that they

investigated Flores’ complaint or made

any effort to corroborate it (e.g. by

speaking to Flores’ supervisor or to

either of the two coworkers who allegedly

heard Woods’ renewed threat to "get"

Flores.) Woods asked the district court

to vacate its order converting the motion

to dismiss into a motion for summary

judgment, and in the alternative, to

postpone ruling on the motion until Woods

had a chance to depose Flores and the

officers who signed and prepared the

arrest report.

In ruling on the summary judgment

motion, the district court found that it

could properly consider the police report

and the misdemeanor complaint. Responding

to Woods’ objection that the documents

were not authenticated, the court held

that the documents were "credible and

trustworthy" because they were sworn to

under oath by the officers and by Flores,

and because they were business records

kept by the police department.

Additionally, the court found that Woods

had admitted to the accuracy of the

complaint and the arrest report by

attaching and relying on the case report,

which corroborated the account given by

the complaint and the arrest report. The

court also noted that it was examining

the records "not for their truth, but for

what the officers knew when they arrested

Woods."

Upon considering the exhibits, the court

concluded that they showed that the

officers had arrested Woods believing

that he had threatened to kill Flores

with a lead pipe, and that this alone

established probable cause. In response

to Woods’ discovery request, the court

noted that it had given Woods the

opportunity to show why it should not

accept the information in the complaint

and the arrest report as credible, and

that he had failed to do so (indeed, he

had even corroborated the documents by

submitting the case report). Moreover,

the court found that Woods had offered

absolutely no evidence that the documents

were "fraudulent, signed by mistake, or

even inaccurate," nor had he even denied

that he had threatened to kill Flores

while approaching him with a lead pipe.

Under the circumstances, the court found

that depositions would be a waste of

time, and it granted summary judgment for

the defendants without allowing Woods to

depose Flores or the officers who signed

the arrest report. This appeal followed.

DISCUSSION

I. Procedural Issues

Woods argues that, in deciding the

converted motion for summary judgment,

the district court improperly considered

the verified misdemeanor complaint and

the arrest report. He also argues that

the district court abused its discretion

in ruling on the motion without allowing

him to depose Flores and the officers who

prepared and signed the arrest report.

A district court may properly grant

summary judgment when "the record shows

that there is no genuine issue as to any

material fact and that the moving party

is entitled to judgment as a matter of

law." Whetstine v. Gates Rubber Co., 895

F.2d 388, 391-92 (7th Cir. 1990)

(citation omitted). The moving party has

the burden of establishing the lack of

such an issue. See id. at 392 (citing

Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986)).

We review a district court’s grant of

summary judgment de novo, drawing all

reasonable inferences from the record in

the light most favorable to the

nonmovant.

As a preliminary matter, we note that

the court did nothing improper in

converting the defendants’ motion to

dismiss into a motion for summary

judgment. Under Fed. R. Civ. P. 12(b), a

district court must make such a

conversion when matters outside of the

complaint are presented and not excluded

by the court. Here, the district court

initially granted Woods’ motion to strike

the defendants’ exhibits, and ruled on

the initial motion to dismiss without

considering the exhibits or anything

outside of the pleadings. Then, after

Woods filed an amended complaint and the

defendants moved again to dismiss, the

court reconsidered the previously

stricken exhibits and treated the

defendants’ new motion to dismiss as a

motion for summary judgment. Woods cites

no cases that suggest that a district

court may not consider previously

stricken exhibits in ruling on a

converted motion for summary judgment,

and we find that the district court acted

properly in doing so here.

However, Woods argues that the district

court erred in considering the arrest

report and the misdemeanor complaint in

deciding the summary judgment motion

because the reports contained

inadmissible hearsay, and because the

documents were not "affidavits" under

Fed. R. Civ. P. 56(e) and 28 U.S.C. sec.

1746. He also argues that the district

court abused its discretion in ruling on

the summary judgment motion before giving

him leave to depose Flores and the

officers who signed and prepared the

arrest report. We address these arguments

in turn.

A. Woods’ Hearsay Argument

Woods argues that the arrest report and

the misdemeanor complaint contained

inadmissible hearsay, and therefore could

not properly be considered on a motion

for summary judgment. The district court

found that the information in these

documents was credible and trustworthy

under Fed. R. Evid. 803(6) because they

were sworn to under oath by the officers

and by Flores, and because they were

business records kept by the police

department. Woods concedes that portions

of police reports that contain

information prepared by the business are

admissible as business records. For

example, Woods suggests that a properly

authenticated police report would be

admissible to show the date and time of

the arrest and the date and time that the

arrestee was released on bond. However,

Woods notes that "the business records

exception does not embrace statements

contained within a business record that

were made by one who is not a part of the

business if the embraced statements are

offered for their truth." United States

v. Vigneau, 187 F.3d 70, 75 (1st Cir.

1999). In other words, Woods argues that

statements made by third parties in an

otherwise admissible business record

cannot properly be admitted for their

truth unless they can be shown

independently to fall within a recognized

hearsay exception.

While we agree fully with this principle

of law, we find that it is not implicated

in this case and is of no help to Woods.

As the district court noted, the

defendants offered the statements in the

arrest report and the verified criminal

complaint describing the details of the

alleged altercation between Woods and

Flores not for their truth, but to show

the effect that the statements had on the

officers. Because the officers asserted

the defense of qualified immunity, Woods

had the burden at trial to prove that the

police lacked probable cause to arrest

him. See Sorenson v. Ferrie, 134 F.3d

325, 330 (5th Cir. 1998); see generally

Eversole v. Steele, 59 F.3d 710, 717-18

(7th Cir. 1995). The determination of

whether an arresting officer has probable

cause to arrest an alleged offender turns

on whether a reasonable person in the

officer’s position would have probable

cause to believe that an offense has been

committed. This inquiry, in turn, depends

upon whether the facts and circumstances

communicated to the arresting officer at

the time of the arrest would warrant a

reasonable officer in holding such a

belief. The defendants correctly note

that "so long as a reasonably credible

witness or victim informs the police that

someone has committed . . . a crime, the

officers have probable cause to place the

alleged culprit under arrest . . ."

Jenkins v. Keating, 147 F.3d 577, 585

(7th Cir. 1998), and that once such a

reasonably credible complaint has been

made, the existence of probable cause to

arrest does not depend upon the actual

truth of the complaint. See Kelley v.

Myler, 149 F.3d 641, 647 (7th Cir. 1998)

("Probable cause does not depend on the

witness turning out to have been right;

it’s what the police know, not whether

they know the truth that matters."). In

this case, the defendants offered the

information conveyed to the police by

Flores and memorialized in the

misdemeanor complaint and arrest report

not to show that Woods had actually

performed the conduct as reported in

those documents, but rather to show that

they had probable cause to arrest Woods

based upon the information communicated

to them by Flores. The district court

considered the statements strictly to

determine the effect that they would have

upon the arresting officers when

communicated to them by a presumptively

reliable citizen. Thus, the district

court did not run afoul of the

prohibition on hearsay by considering

these documents for this limited purpose.

B. Woods’ "affidavit" argument

Woods also argues that the district

court should not have considered the

arrest report and the misdemeanor

complaint because they did not qualify as

admissible "affidavits" under 28 U.S.C.

sec. 1746 and Fed. R. Civ. P. 56(e). Rule

56(e) authorizes parties to submit

affidavits supporting or opposing a

motion for summary judgment, but it

specifically mandates that such

affidavits "shall be made on personal

knowledge, shall set forth such facts as

would be admissible in evidence, and

shall show affirmatively that the affiant

is competent to testify to the matters

stated therein." Moreover, 28 U.S.C. sec.

1746 provides, in relevant part, that

"[w]herever, under any law of the United

States or under any rule . . . made

pursuant to law, any matter is required

or permitted to be supported . . . by .

. . affidavit, such matter may, with like

force and effect, be supported . . . by

the unsworn declaration, certificate,

verification, or statement, in writing of

such person which is subscribed by him,

as true under penalty of perjury . . ."

(emphasis added). Woods contends that the

misdemeanor complaint and the arrest

report were not "affidavits" as

contemplated by 28 U.S.C. sec. 1746

because, while they were purportedly

sworn by Flores and officer Makowski

(respectively), neither document

contained the "penalty of perjury"

language as required by that section.

Moreover, Woods maintains that even if

officer Makowski’s signed declaration on

the arrest report were sufficient to

transform that document into an

"affidavit," the report would still be

inadmissible under Fed. R. Civ. P. 56(e)

because it contained statements made by

Flores regarding matters not within

Makowski’s personal knowledge.

Woods’ arguments are unpersuasive.

First, while Fed. R. Civ. P. 56(e) allows

a party to submit affidavits in support

of its summary judgment motion, it does

not require that all supporting material

be submitted in affidavit form. See Fed.

R. Civ. P. 56(b) (permitting a party to

move for summary judgment "with or

without supporting affidavits"); Celotex,

477 U.S. at 323 (1986). Sworn testimony

is not the only basis on which summary

judgment may be granted; rather, "’the

court may consider any material that

would be admissible or usable at trial,’"

Aguilera v. Cook County Police & Corrs.

Merit Bd., 760 F.2d 844, 849 (7th Cir.

1985) (citation omitted), including

properly authenticated and admissible

documents or exhibits. See Martz v. Union

Labor Life Ins. Co., 757 F.2d 135, 138

(7th Cir. 1985). Therefore, the district

court was entitled to consider the arrest

report and the misdemeanor complaint even

if they were not admissible as

"affidavits," under 28 U.S.C. sec. 1746

or Fed. R. Civ. P. 56(e), so long as

those documents were properly

authenticated and were otherwise

admissible.

The district court found the documents

admissible as a business record under

Fed. R. Evid. 803(6). To be admissible as

a business record, a document must have

sufficient indicia of trustworthiness to

be considered reliable. See Saks Int’l,

Inc. v. M/V "Export Champion," 817 F.2d

1011, 1013 (2d Cir. 1987). Normally, to

demonstrate such trustworthiness and

reliability at the summary judgment

stage, the party seeking to offer the

business record must attach an affidavit

sworn to by a person who would be

qualified to introduce the record as

evidence at trial, for example, a

custodian or anyone qualified to speak

from personal knowledge that the

documents were admissible business

records. See Federal Deposit Ins. Corp.

v. Patel, 46 F.3d 482, 484 (5th Cir.

1995); see also Martz, 757 F.2d at 138

("When a party seeks to offer evidence

through other exhibits, they must be

identified by affidavit or otherwise made

admissible in evidence."). However, under

the rather peculiar circumstances of this

case, we feel that the district court did

not abuse its discretion in admitting the

arrest report and the misdemeanor

complaint as business records without

requiring the defendants to authenticate

them by affidavit.

Woods attached a Chicago Police Case

Report to his response to the defendants’

motion for summary judgment, and he

relied on the case report for its

accuracy both in his original response

before the district court and in his

appellate brief presented to this Court.

The case report recapitulated Flores’

account of the altercation as presented

in the arrest report and the misdemeanor

complaint in each of its essential

details. By submitting and relying upon

the case report, Woods conceded the

accuracy of the documents that the

defendants sought to introduce. This

situation is strikingly similar to the

situation that the First Circuit

confronted in Cerqueira v. Cerqueira, 828

F.2d 863 (1st Cir. 1987). In that case,

the plaintiff sued the legal titleholder

to a fishing boat, seeking recovery for

injuries he sustained while he was

working on the boat. The defendant moved

for summary judgment on the grounds that

he was not the owner of the boat and was

therefore not liable for the plaintiff’s

injuries. The defendant tried to show

that he was not the owner of the boat by,

inter alia, attaching an exhibit to his

legal memorandum supporting his motion

for summary judgment. The exhibit was

purportedly an unsigned draft of an

agreement between the parties prepared by

the plaintiff’s lawyer for use in an

earlier case between them, and it showed

that the plaintiff had bought the boat

and that the defendant held title for the

plaintiff because the plaintiff was not a

U.S. citizen. In his appellate brief, the

plaintiff conceded that he had drafted

the document as a proposed resolution of

the earlier case. While the court noted

that "technically speaking, [the

defendant] should have introduced his

exhibits into the record through

affidavits, not as exhibits to a

memorandum of law . . .," it held that

given the plaintiff’s concession, it was

appropriate for the district court to

have considered the exhibit in ruling on

the motion for summary judgment. Id. at

865. The court reasoned that there was

"no point in remanding this case to

permit [the defendant] to file an

affidavit stating the very thing that

[the plaintiff] has conceded, namely,

that the document is what it purports to

be." Id.

We find this reasoning persuasive and

applicable to the facts of this case. By

submitting the case report and relying on

it, Woods has conceded that Flores made

out a complaint against him to the

Chicago Police, and that in that

complaint Flores alleged that Woods had

threatened to kill him while wielding a

lead pipe. Since these are exactly the

facts that the defendants sought to prove

through the arrest report and the

misdemeanor complaint, we conclude that

Woods cannot reasonably question the

reliability of those documents. Requiring

authenticating affidavits in this case

would be an empty formality, and the

district court did not abuse its

discretion when it considered the

documents without such affidavits.

Moreover, even were we to hold that the

district court erred in considering the

arrest report and misdemeanor complaint

absent a certifying affidavit or some

other traditional method of

authentication, such an error would be

harmless in this case. Rule 56(c)

provides that summary judgment shall be

granted if, among other documents, "[the]

admissions on file . . . show that there

is no genuine issue as to any material

fact and that the moving party is

entitled to a judgment as a matter of

law." An "admission" includes "anything

which is in practical fact an admission"

Cerqueira, 828 F.2d at 865 (citation

omitted), including statements made in a

brief presented to the district court,

see United States v. One Heckler-Koch

Rifle, 629 F.2d 1250, 1253 (7th Cir.

1980). Woods submitted the case report to

the district court, and he relied on its

account of the complaint that Flores gave

to the police in his response to the

defendants’ summary judgment motion. As a

practical matter, this amounted to an

admission of the facts presented in the

case report, and the district court was

entitled to consider the facts admitted

in ruling on the defendants’ summary

judgment motion. By continuing to rely on

the case report and subsequently failing

to offer any evidence to rebut its

account of Flores’ complaint, Woods left

the district court free to grant summary

judgment upon consideration of the facts

admitted by Woods alone and without even

considering the arrest report or the

misdemeanor complaint. Thus, even if the

latter documents were inadmissible and

therefore not available for the district

court’s consideration, the court could

still properly have granted summary

judgment for the defendants. See In re

Sunset Bay Assocs. v. Eureka Fed. Sav. &

Loan Ass’n, 944 F.2d 1503, 1513-14 (9th

Cir. 1991) (holding that, once a party

had admitted that the opposing party’s

unauthenticated exhibit contains truthful

information, the court may consider the

material in that exhibit because "an

admission is, or course, admissible in

evidence"). In his reply brief, Woods

tries to avoid having some of the

damaging information in the case report

admitted against him (in particular, the

case report’s statement that the "R/O’s

interviewed the victim") by asserting

that the case report itself is unverified

and lacks the "basic foundation

predicates of date, time, place, and

persons present." However, while

unauthenticated documents generally

cannot be considered on a motion for

summary judgment, a party who submits

such a document without reservation

cannot subsequently complain because the

district court considered the contents of

the document. See Walker v. Wayne County,

Iowa, 850 F.2d 433, 435 (8th Cir. 1988).

C. Woods’ discovery request

Woods also argues that the district

court "applied an erroneous legal

standard" in refusing to permit him to

depose Flores and the arresting officers

before ruling on the defendants’ summary

judgment motion. Citing Illinois State

Employees Union v. Lewis, 473 F.2d 561

(7th Cir. 1973), Woods maintains that

summary judgment should not be entered

"until the party opposing the motion has

had a fair opportunity to conduct such

discovery as may be necessary to meet the

factual basis for the motion." See

Celotex, 477 U.S. at 326 (1986). Woods

contends that the district court

erroneously denied him this opportunity,

and that its "sua sponte" decision to

enter summary judgment was unfair and

premature. Woods’ argument is

unconvincing.

A district court’s decision to consider

a defendant’s motion for summary judgment

before allowing the plaintiff to depose

certain witness is a discovery matter

which we review for abuse of discretion.

Doty v. Illinois Central R.R. Co., 162

F.3d 460, 461 (7th Cir. 1998). Rule 56(f)

authorizes a district court to refuse to

grant a motion for summary judgment or to

continue its ruling on such a motion

pending further discovery if the

nonmovant submits an affidavit

demonstrating why it cannot yet present

facts sufficient to justify its

opposition to the motion. Fed. R. Civ. P.

56(f). While Woods did ask the district

court to postpone its ruling until he

could depose Flores and the officers, he

did not file an affidavit outlining his

reasons for needing further discovery as

contemplated by Rule 56(f). This alone

justifies affirmance of the district

court’s decision. See Wallace v. Tilley,

41 F.3d 296, 302-03 (7th Cir. 1994)

(holding that the court was precluded

from considering whether the district

court had abused its discretion in ruling

on defendant’s summary judgment motion

before allowing plaintiff to conduct

requested discovery where the plaintiff

had not filed an affidavit pursuant to

rule 56(f), and stating that "’when a

party does not avail himself of relief

under Rule 56(f), it is generally not an

abuse of discretion for the district

court to rule on the motion for summary

judgment’" (citation omitted)); see also

Jones v. Merchants Nat’l Bank & Trust

Company of Indianapolis, 42 F.3d 1054,

1060 (7th Cir. 1994); Kinney v. Indiana

Youth Ctr., 950 F.2d 462, 466 (7th Cir.

1991); Boling v. Romer, 101 F.3d 1336,

1339 n.3 (10th Cir. 1996); Burlington

Coat Factory Warehouse Corp. v. Esprit de

Corp., 769 F.2d 919, 926 (2d Cir. 1985)

(collecting cases); see also Committee

for the First Amendment v. Campbell, 962

F.2d 1517, 1522 (10th Cir. 1992) (ruling

that unverified statements in an

attorney’s memoranda of law alleging a

need for a continuance on a motion for

summary judgment pending further

discovery were insufficient as grounds

for a continuance under Rule 56(f), and

stating that "[a]dvocacy by counsel does

not suffice for evidence or fact in the

Rule 56(f) context.") (citation omitted).

Further, even if we were to waive Rule

56(f)’s affidavit requirement in this

case, we would still find that the

district court did not abuse its

discretion in ruling on the motion before

granting Woods leave to depose Flores and

the arresting officers. Woods offered

virtually nothing to demonstrate why the

depositions that he sought were likely to

generate any genuine issue of material

fact. Woods never denied that Flores

complained to the Chicago police that

Woods had approached him with a lead pipe

while threatening to kill him (indeed,

his submission of and reliance upon the

case report precluded him from denying

this)./2 This admission alone would be

enough to establish that the arresting

officers had probable cause to arrest

Woods (thereby entitling the officers to

summary judgment on Woods’ sec. 1983

claims), absent some evidence showing

that it should have been apparent to the

officers that Flores was incredible as a

matter of law and that the officers acted

unreasonably in relying on his complaint.

Woods never put forward any such

evidence, nor did he explain why

discovery was likely to unearth it.

Instead, Woods merely pointed to a

sentence in the case report which

indicated that Flores told the police

that he had left the scene of the

altercation with Woods thinking that

Woods was "overreacting," suggesting that

this establishes that the officers should

not have relied on Flores’ account of the

incident when arresting Woods./3

However, Flores’ comment that he thought

that Woods was "overreacting" is

completely irrelevant to the material

facts that Woods needed to contest to

defeat summary judgment; it tends to show

neither that Flores did not report Woods’

assault to the police, nor that Flores’

account of the assault was in any way

incredible. At best it shows merely that

Flores thought that Woods was

"overreacting" when he assaulted Flores,

not that Flores was overreacting by

reporting a crime to the police. Thus,

based upon the facts that Woods presented

to the district court, any claim that

Flores was incredible as a matter of law

and that the officers should not have

relied upon his complaint would have been

pure speculation. This is far too slender

a reed upon which to hang a discovery

request. See generally United States v.

All Assets and Equip. of West Side Bldg.

Corp., 58 F.3d 1181, 1190 (7th Cir.

1995).

Indeed, under the circumstances of this

case, we would most likely affirm even if

the district court had converted the

defendants’ motion to dismiss into a

motion for summary judgment and granted

the motion without giving Woods any

notice of the conversion or any

opportunity to respond to the summary

judgment motion. While the conversion of

a 12(b)(6) motion into a summary judgment

motion "should be accompanied by prior

notice and ’a reasonable opportunity to

establish the existence of material

controverted facts,’" the failure to

afford such procedure will not

necessarily mandate reversal unless "the

record discloses the existence of

unresolved material fact issues," or "the

parties represent that they would have

submitted specific controverted material

factual issues to the trial court if they

had been given the opportunity."

Milwaukee Typographical Union No. 23 v.

Newspapers, Inc., 639 F.2d 386, 391 (7th

Cir. 1981) (citation omitted). As has

been noted, Woods did not present

anything that would create a genuine

issue of material fact, nor did he point

to any specific controverted factual

issue that he would be able to present

after conducting depositions. Thus, the

court could have granted the converted

motion against Woods without notice. The

fact that the court gave Woods notice and

ample opportunity to respond and Woods

still failed to raise any genuine issue

of material fact only strengthens our

conclusion that the district court did

not abuse its discretion when it granted

the motion without allowing Woods to

depose Flores or the officers.

II. Fourth Amendment Issue

Woods argues that his warrantless arrest

for misdemeanor assault was

unconstitutional because the alleged

assault did not involve a breach of the

peace and did not occur in the presence

of the arresting officers. Woods notes

that the Supreme Court has recently

stated that "[i]n determining whether a

particular governmental action violates

[the Fourth Amendment], we inquire first

whether the action was regarded as an

unlawful search or seizure under the

common law when the Amendment was

framed." Wyoming v. Houghton, 526 U.S.

295, 299 (1999). The common law in

existence at the time of the framing of

the Fourth Amendment prohibited a peace

officer from making a warrantless arrest

for a misdemeanor unless the misdemeanor

was committed in the presence of the

arresting officer and involved a breach

of the peace. See United States v.

Watson, 423 U.S. 411, 418 (1976); Carroll

v. United States, 267 U.S. 132, 156-57

(1925); Bad Elk v. United States, 177

U.S. 529, 534-35 (1900). Relying on

Houghton, Woods maintains that the common

law rule controls the Fourth Amendment

inquiry in this case, and that therefore

his warrantless arrest for a misdemeanor

not committed in the presence of the

arresting officers violates the

Amendment. Woods further argues that the

Chicago "municipal policy" which

authorized his arrest is unconstitutional

insofar as it abrogates the common law

rule. We are not persuaded.

The Supreme Court has never held that a

police officer violates the Fourth

Amendment merely by arresting someone

without a warrant for a misdemeanor

offense which did not occur in the

officer’s presence and/or did not involve

a breach of the peace. Rather, when

determining the constitutionality of a

warrantless arrest for a criminal

offense, the Court has repeatedly focused

its inquiry on the existence of probable

cause for the arrest. See, e.g., Gerstein

v. Pugh, 420 U.S. 103, 111-12 (1975).

While "the Court has expressed a

preference for the use of arrest warrants

when feasible," Gerstein, 420 U.S. at

113, the Court has never elevated this

judicial preference to a per se rule

mandating warrants for all arrests

irrespective of the existence of probable

cause. See, e.g., Watson, 423 U.S. at 417

(stating that "’such a requirement would

constitute an intolerable handicap for

legitimate law enforcement’" (citation

omitted)). Indeed, in Gerstein, the court

noted that it "has never invalidated an

arrest supported by probable cause solely

because the officers failed to secure a

warrant," 420 U.S. at 113, and in the

intervening years since Gerstein it has

strayed from this principle only once,

when it imposed a warrant requirement for

arrests made in a suspect’s home. See

Payton v. New York, 445 U.S. 573, 585-86,

589-90 (1980) (holding that, absent

exigent circumstances, the Fourth

Amendment prohibits warrantless,

nonconsensual entry into a suspect’s home

in order to make a felony arrest--

notwithstanding the existence of probable

cause to arrest). Moreover, in Payton the

Court justified its departure from the

usual rule by emphasizing that the Fourth

Amendment affords citizens special

protections against government intrusions

into their homes, stating that "’physical

entry of the home is the chief evil

against which the wording of the Fourth

Amendment is directed’" (quoting United

States v. United States District Court,

407 U.S. 297, 313 (1972)) and that the

language of the Fourth Amendment

"unequivocally establishes the

proposition that ’[a]t the very core [of

the Fourth Amendment] stands the right of

a man to retreat into his own home and

there be free from unreasonable

governmental intrusion.’" Id. at 589-90

(citation omitted). No authorities cited

by either of the parties to this appeal,

nor any that we have found, expressly

require the police to obtain an arrest

warrant before lawfully arresting a

subject whom they have probable cause to

believe has committed an offense in any

instance other than an arrest in a

suspect’s home./4 Indeed, we have

concluded otherwise. See, e.g., United

States v. Fernandez-Guzman, 577 F.2d

1093, 1097 (7th Cir. 1978) ("[I]n the

area of arrests made in a public place,

an arrest warrant has never been

considered to be constitutionally

mandated even when there was opportunity

for one to be obtained.") (citing Watson,

423 U.S. 411 (1976)). Because Woods was

not arrested in his home, he cannot avail

himself of Payton’s holding, and under

the inquiry traditionally applied by the

Supreme Court, his arrest would not

violate the Fourth Amendment unless the

arresting officers lacked probable cause.

However, Woods argues that the

historical analysis employed by the Court

in Houghton changed the traditional

Fourth Amendment inquiry and imposed a

warrant requirement for all routine

misdemeanor arrests unless the

misdemeanor is committed in the presence

of the arresting officer and involved a

breach of the peace. Unfortunately for

Woods, however, Houghton did not

constitutionalize the common law rules

regarding misdemeanor arrests, nor did it

even address the reasonableness of an

arrest under the Fourth Amendment.

Houghton addressed the reasonableness of

a search, not of a seizure of the person,

and it held merely that "police officers

with probable cause to search a car may

inspect passengers’ belongings found in

the car that are capable of concealing

the object of the search." 526 U.S. at

307. Moreover, neither of the cases cited

by Houghton as authority for its

historical analysis held that the common

law rules governing misdemeanor arrests

controls the inquiry into the

"reasonableness" of a misdemeanor arrest

under the Fourth Amendment. California v.

Hodari D. looked to the common law to

determine the meaning of "seizure" under

the Fourth Amendment, not to determine

whether a given seizure was reasonable

under the Amendment. See 499 U.S. 621,

624-29 (1991). Wilson v. Arkansas ruled

that the common law "knock and announce"

rule forms a part of the Fourth Amendment

reasonableness inquiry, and that the

reasonableness of a search of a dwelling

"may depend in part on whether law

enforcement officers announced their

presence and authority prior to

entering." 514 U.S. 927, 931 (1995)

(emphasis added). Indeed, in Wilson, the

Court was careful not to reduce the

reasonableness inquiry to any inflexible,

per se rule, noting that "[t]he Fourth

Amendment’s flexible requirement of

reasonableness should not be read to

mandate a rigid rule of announcement that

ignores countervailing law enforcement

interests," and holding that "although a

search or seizure of a dwelling might be

constitutionally defective if police

officers enter without prior

announcement, law enforcement interests

may also establish the reasonableness of

an unannounced entry." Id. at 934. Thus,

neither Houghton nor the cases it relied

upon directly support Woods’ argument.

Moreover, in a case that was decided

after both Hodari and Wilson, the Court

strongly and unequivocally affirmed its

traditional view that, absent certain

extraordinary circumstances, a seizure is

reasonable under the Fourth Amendment

when it is based upon probable cause

regardless of the severity of the offense

involved. See Whren v. United States, 517

U.S. 806, 817-18 (1996). In Whren, the

Court held that a traffic stop of a

motorist by plainclothes policemen in an

unmarked car did not violate the Fourth

Amendment where the officers had probable

cause to believe that the motorist

committed a traffic violation. The

motorist argued that the stop was

unreasonable because the law enforcement

interests in investigating minor traffic

offenses were minimal and were outweighed

by the individual motorist’s right to be

free from such intrusions. In rejecting

this reasoning, the Court stated that

while it is true in principle that the

reasonableness inquiry always involves a

balancing of all relevant factors,

"[w]ith rare exceptions . . . the result

of that balancing is not in doubt where

the search or seizure is based upon

probable cause." Id. at 817. The Court

noted that "[w]here probable cause has

existed, the only cases in which we have

found it necessary actually to perform

the ’balancing’ analysis involved

searches or seizures conducted in an

extraordinary manner, unusually harmful

to an individual’s privacy or even

physical interests--such as, for example,

seizure by means of deadly force,

unannounced entry into a home, entry into

a home without a warrant, or physical

penetration of the body." Id. at 818

(citations omitted). After concluding

that the traffic stop at issue did not

"remotely qualify" as any such extreme

practice, the Court held that it was

"governed by the usual rule that probable

cause to believe the law has been broken

’outbalances’ private interest in

avoiding police contact." Id. Whren did

not directly address the question

presented here since it involved a

temporary traffic detention and not a

full custodial arrest, and since it did

not address the relationship between the

Fourth Amendment and the common law

arrest rules. However, Whren’s

unequivocally stated rationale flatly

contradicts Woods’ assertion that certain

warrantless non-felony arrests violate

the Fourth Amendment even if they are

based upon probable cause, and it

undermines any claim that the reasonable

ness of a seizure under the Fourth

Amendment depends entirely upon whether

the offense is classified as a felony or

as a misdemeanor./5

In addition, while we have never decided

whether the Fourth Amendment incorporates

the common law "in the presence" rule for

misdemeanor arrests,/6 we have held

that other aspects of the common law

standards of misdemeanor arrests are not

part of the Fourth Amendment’s

prohibition of "unreasonable" searches

and seizures. In Ricci v. Arlington

Heights, Illinois, the plaintiff brought

a sec. 1983 action against the Village of

Arlington Heights and the police officers

who had arrested him, arguing that a full

custodial arrest for the fine-only

misdemeanor offense of operating a

business without a license violated the

Fourth Amendment. See 116 F.3d 288, 288

(7th Cir. 1997). The plaintiff did not

dispute that the officers had probable

cause to believe that he was violating

the ordinance. See id. at 290. However,

the plaintiff argued that the misdemeanor

offense for which he was arrested did not

involve a breach of the peace, and that

because the common law prohibited

custodial arrests for such offenses, his

arrest was unreasonable under the Fourth

Amendment. We declined to read the

literal strictures of the common law rule

into the Fourth Amendment, and we upheld

the plaintiff’s arrest on Fourth

Amendment grounds, noting that "the

common law rule has been relaxed to

include arrests for offenses other than

breaches of the peace." Id. at 291

(citations omitted). Woods correctly

notes that Ricci is distinguishable from

his case in some key respects, because

Ricci (unlike Woods) committed his

offense in the presence of the arresting

officers, and because Ricci did not

directly address the question of whether

and under what circumstances a warrant is

constitutionally required for a non-

felony arrest./7 However, the fact

remains that we upheld a warrantless

arrest in Ricci which would not have been

permitted under framing-era common law,

and in doing so we rejected the argument

that the strict terms of the common law

rule control the inquiry into the

constitutionality of a misdemeanor

arrest. Thus, while Ricci does not

definitively refute Woods’ argument, it

directly undermines his major premise.

Moreover, several of our sister circuits

have squarely addressed Woods’ argument,

and they have uniformly held or stated

that the common law "in the presence"

rule is not part of the Fourth Amendment.

See Vargas-Badillo v. Diaz-Torres, 114

F.3d 3, 6 (1st Cir. 1997) (upholding a

grant of summary judgment for defendant

police officer on a sec. 1983 claim

alleging illegal arrest, and stating that

"[t]o date, neither the Supreme Court nor

this circuit ever has held that the

Fourth Amendment prohibits warrantless

arrests for misdemeanors not committed in

the presence of arresting officers");

United States v. Smith, 73 F.3d 1414,

1416 (6th Cir. 1996) (stating that the

requirement that a misdemeanor must have

occurred in the officer’s presence to

justify a warrantless arrest "is not

mandated by the Fourth Amendment; it is

merely a rule of the common law"); Pyles

v. Raisor, 60 F.3d 1211, 1215 (6th Cir.

1995) (rejecting a Fourth Amendment

challenge to a misdemeanor arrest when

probable cause existed, and holding that

the plaintiff’s "right as an alleged

misdemeanant to be arrested only when the

misdemeanor is committed in the presence

of the arresting officer [is] not

grounded in the federal Constitution and

will not support a sec. 1983 claim");

Fields v. City of South Houston, Texas,

922 F.2d 1183, 1189 (5th Cir. 1991)

(ruling that "[t]he United States

Constitution does not require a warrant

for misdemeanors not occurring in the

presence of the arresting officer");

Barry v. Fowler, 902 F.2d 770, 772 (9th

Cir. 1990) (ruling that "[t]he

requirement that a misdemeanor must have

occurred in the officer’s presence to

justify a warrantless arrest is not

grounded in the Fourth Amendment");

Street v. Surdyka, 492 F.2d 368, 372

(1974) (rejecting a constitutional

challenge to a warrantless misdemeanor

arrest and stating that "[w]e do not

think the fourth amendment should now be

interpreted to prohibit warrantless

arrests for misdemeanors committed

outside an officer’s presence. . . . The

fourth amendment protects individuals

from unfounded arrests by requiring

reasonable grounds to believe a crime has

been committed. The states are free to

impose greater restrictions on arrests,

but their citizens do not thereby acquire

a greater federal right"); see also Scott

v. District of Columbia, 101 F.3d 748,

754 (D.C. Cir. 1996) (noting that several

circuits agree that "the Fourth Amendment

does not incorporate the common-law

presence requirement for misdemeanor

arrests, and that no cause of action

exists under sec. 1983 unless the

arresting officer lacked probable cause

to believe a crime was committed," but

declining to decide the issue)./8

Therefore, given the weight of Supreme

Court authority on this issue, the

overwhelming consensus of the circuits,

and our similar holding in Ricci, we

reject Woods’ invitation to

constitutionalize the framing-era common

law of misdemeanor arrests and to

overturn any Illinois state or municipal

laws which abrogate it.

However, while the Fourth Amendment does

not require a warrant for a misdemeanor

arrest like the one effected here, it

does require that all warrantless arrests

be "reasonable." Payton, 445 U.S. at 585

(citations omitted). We have held that

the "reasonableness of an arrest depends

on the existence of two objective

factors: First, did the arresting

officers have probable cause to believe

that the defendant had committed or was

committing an offense. Second, was the

arresting officer authorized by state and

or municipal law to effect a custodial

arrest for the particular offense."

Ricci, 116 F.3d at 290 (quoting United

States v. Trigg, 878 F.2d 1037, 1041 (7th

Cir. 1989)). Woods’ warrantless

misdemeanor arrest was authorized by

Illinois law, see 725 ILCS 5/107-2

(1998), so in order to survive summary

judgment, Woods needed to raise a genuine

issue regarding whether the officers had

probable cause to arrest him. On the

facts presented, there can be no doubt

that Woods failed to do so.

Probable cause has been defined as

"facts and circumstances ’sufficient to

warrant a prudent man in believing that

the [suspect] had committed or was

committing an offense.’" Gerstein, 420

U.S. at 111-12 (quoting Beck v. Ohio, 379

U.S. 89, 91 (1964)); see United States v.

Rucker, 138 F.3d 697, 700 (7th Cir.

1998). The rule of probable cause is a

"practical, nontechnical conception" that

affords the "best compromise" between the

interests of individual liberty and

effective law enforcement. Illinois v.

Gates, 462 U.S. 213, 231 (1983);

Gerstein, 420 U.S. at 112 (citation

omitted). Contrary to what its name might

seem to suggest, probable cause "demands

even less than ’probability,’" United

States v. Moore, 215 F.3d 681, 685 (7th

Cir. 2000) (quoting United States v.

Burrell, 963 F.2d 976, 986 (7th Cir.

1992)); it "requires more than bare

suspicion but need not be based on

evidence sufficient to support a

conviction, nor even a showing that the

officer’s belief is more likely true than

false." Id. at 686 (citation omitted).

Applying this standard, we have

consistently held that an identification

or a report from a single, credible

victim or eyewitness can provide the

basis for probable cause. See Tangwall v.

Stuckey, 135 F.3d 510, 520 (7th Cir.

1998); Hebron, 18 F.3d at 422; Gramenos

v. Jewel Cos., Inc., 797 F.2d 432, 439

(7th Cir. 1986) (holding that a police

officer had probable cause to arrest an

alleged shoplifter based upon the

uncorroborated report of a single

security guard, and stating that "[w]hen

an officer has ’received information from

some person--normally the putative victim

or eye witness--who it seems reasonable

to believe is telling the truth,’ he has

probable cause") (citation omitted). In

this case, the evidence showed that the

arresting officers arrested Woods after

Flores made out a criminal complaint

against him, claiming that Woods had

brandished a lead pipe and threatened to

kill Flores. Woods has offered nothing to

dispute the fact that the complaint was

made, nor does he offer anything to

challenge either the accuracy or the

credibility of Flores’ description of the

incident. Woods argues that the complaint

as made by Flores, if true, establishes

only that Woods had committed a "verbal

assault," which is not a crime under

Illinois law; thus, Woods argues that

Flores’ complaint did not give the

arresting officers probable cause to

believe that Woods "had committed an

offense." However, as Woods notes, a

offender commits an assault under

Illinois law when he engages in "conduct

which places another in reasonable

apprehension of receiving a battery" 720

ILCS 5/12-1 (1998), and Woods offers

nothing which would suggest why his

wielding a lead pipe while moving towards

Flores and threatening to kill him would

not place Flores in reasonable

apprehension of receiving a battery.

Indeed, such conduct would seem to be the

paradigm case of assault as defined by

the Illinois Criminal Code, and as the

defendants note, the very case which

Woods relies upon for his claim that no

crime occurred here states that

"[w]ielding a tire iron while using

threatening words has been held an

assault." People v. Floyd, 663 N.E.2d 74,

76 (Ill. App. Ct. 1996) (citing People v.

Alexander, 350 N.E.2d 144 (Ill. App. Ct.

1976)). Thus, Flores’ complaint clearly

related the occurrence of an assault

under Illinois law.

Woods also asserts that there is no

documentation showing that the officers

attempted to corroborate Flores’

complaint in any way, for example by

speaking with Flores’ supervisor, his

coworkers, or the leasing company about

his complaint. However, police officers

have no constitutional obligation to

conduct any further investigation before

making an arrest if they have received

information from a reasonably credible

victim or eyewitness sufficient to supply

probable cause. See Gramenos, 797 F.2d at

440. This is true even if sound police

technique would have required such

further investigation. See id.; see also

Spiegel v. Cortese, 196 F.3d 717, 725

(7th Cir. 2000) ("’[t]he inquiry is

whether an officer has reasonable grounds

on which to act, not whether it was

reasonable to conduct further

investigation.’") (citation omitted).

Therefore, even if the police had relied

exclusively on Flores’ complaint in

making the arrest and had made no effort

to investigate or corroborate Flores’

version of the events, they would have

been justified in making the arrest

provided that a reasonable officer would

have found Flores’ complaint to be

reasonably credible.

In an effort to call the credibility of

Flores’ complaint into question, Woods

notes that Flores made out the complaint

three days after the alleged assault

occurred. He also points to the case

report, which, in reporting Flores’

description of the assault, states that

Flores told the officers that he left the

altercation thinking that Woods was

"overreacting." As we have already noted,

however, the case report submitted by

Woods indicated that Flores told the

police that Woods had renewed his threats

against Flores through two of Flores’

coworkers on the very day that Flores

made out his complaint. This amounts to

an apparently credible explanation for

why Flores reported the offense when he

did, and Woods offers absolutely nothing

either to rebut this explanation or to

undermine its credibility. Moreover, the

bare fact that Flores left the scene of

the altercation thinking that Woods was

overreacting does not support any reason

able inference that Flores did not take

Woods’ threats seriously, nor does it in

any way tend to diminish the credibility

of Flores’ account of the incident.

Finally, even if these facts did somehow

diminish the credibility of the complaint

that Flores made to the police, they

certainly would not render it dubious

enough to require the police to conduct a

further investigation before arresting

Woods (that is, they would not render his

report incredible as a matter of law). We

have found probable cause to arrest based

upon uncorroborated citizen complaints

which were far more questionable than was

Flores’ complaint. See Spiegel, 196 F.3d

at 724-26 (finding that the defendant

police officer had probable cause to

arrest the plaintiff even though the

victim had waited nearly a month to make

a report, and even though there were

inconsistencies in the victim’s report as

well as evidence suggesting that the

victim’s charge against the plaintiff was

retaliatory); Gerald M. v. J. Conneely,

858 F.2d 378, 380-81 (7th Cir. 1988)

(upholding district court’s grant of

summary judgment for police officer in a

sec. 1983 case, reasoning that the

uncorroborated complaint of a ten-year-

old child that his bicycle had been

stolen by two other children was

sufficient to provide the officer with

probable cause to arrest the accused

children, even though the arresting

officer knew of a long-standing grudge

between the victim’s family and the

family of the accused children). Thus,

as Woods failed to raise any material

fact calling into question the officers’

claim that they had probable cause to

arrest him, he was unable to state a

constitutional violation as required by

sec. 1983, and the defendants were

entitled to summary judgment.

CONCLUSION

For the foregoing reasons, the judgment

of the district court is AFFIRMED.

/1 The defendants also asserted the defense of

qualified immunity and argued that Woods failed

to establish a causal connection between the

alleged municipal policy and his claimed injury.

However, the district court did not address these

issues, and they are not at issue in this appeal.

/2 Woods did contend that there was no evidence that

Flores’ complaint was communicated to the partic-

ular officers who arrested him, but given that

the case report opened its narration of Flores’

complaint with the statement that "R/O inter-

viewed victim who related to R/O that. . . . "

this argument is at worse disingenuous, and is at

best pure sophistry.

/3 Woods also pointed to Flores’ delay in reporting

the incident as a possible ground for the police

to doubt his credibility. However, as the case

report indicates, Flores provided the police with

a credible explanation for the delay--namely, the

renewed threat that Woods had communicated to

Flores’ co-workers on the day that he reported

the incident. Woods does not deny that Flores

gave this explanation, nor does he suggest why it

might have been incredible.

/4 In Maryland v. Macon, which was decided five

years after Payton, the Court expressly reserved

the question of whether the Fourth Amendment

prohibits a warrantless arrest outside of the

home for the state law misdemeanor of distribu-

tion of obscene materials. See 472 U.S. 463, 471

(1985).

/5 Furthermore, even after Houghton, courts have

continued to apply the traditional "probable

cause" standard that was reaffirmed in Whren in

determining the reasonableness of an arrest. See,

e.g., United States v. Moore, 215 F.3d 681, 685

(7th Cir. 2000); Wooley v. City of Baton Rouge,

211 F.3d 913, 925 (5th Cir. 2000).

/6 In Gramenos v. Jewel Cos., Inc., we reserved the

question of whether a state statute abrogating

the common law "in the presence" rule for misde-

meanor arrests "without putting equivalent guar-

antees of reasonable conduct in its place" com-

ports with the Fourth Amendment. 797 F.2d 432,

441 (7th Cir. 1986).

/7 As Woods notes, in Ricci we held that the plain-

tiff had waived any argument under the warrant

clause. See id. at 292.

/8 Indeed, most of these courts upheld the constitu-

tionality of the warrantless misdemeanor arrests

at issue even though the arrests violated the

relevant state law which had incorporated some

variant of the common law "in the presence" rule.

Since Illinois law authorizes misdemeanor arrests

regardless of whether the offense occurred in the

presence of the arresting officer, Woods’ claim

of a Fourth Amendment violation seems even weaker

than the similar claims rejected by many of our

sister circuits.