Smith, Michael B. v. Lamz, Douglas

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-2130

MICHAEL B. SMITH,

Plaintiff-Appellant,

v.

DOUGLAS LAMZ and the VILLAGE OF ALGONQUIN,

a municipal corporation,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 00-C-50074—Philip G. Reinhard, Judge.

____________

ARGUED DECEMBER 9, 2002—DECIDED MARCH 5, 2003

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Before BAUER, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge. When Michael B. Smith arrived

at the offices of the Algonquin Dental Associates to col-

lect donations for police unions and other organizations,

he was arrested for the crime of impersonating a po-

lice officer, a felony under Illinois law. The charges

were subsequently dropped, and Smith sued the Village

of Algonquin and the arresting officer, Douglas Lamz,

under 42 U.S.C. § 1983 and applicable state law alleging

malicious prosecution. Lamz and the Village moved for

summary judgment and the district court granted the

defendant’s motion. Smith appeals. Because the uncon-

2 No. 02-2130

tested facts establish that Smith’s arrest was supported

by probable cause, we affirm.

Before we relate the operative facts, we resolve

Smith’s procedural challenge. He argues that the district

court abused its discretion in deeming admitted for pur-

poses of summary judgment all the facts set forth in the

defendants’ statement of material facts. We have consid-

ered Smith’s numerous attacks on this decision, and find

them all unavailing.

Under Local Rule 56.1, the defendants, as movants

for summary judgment, were required to submit in sup-

port of their summary-judgment motion a statement of

material facts, comprised of short numbered paragraphs

with citations to admissible evidence,1 which they did.

In his response materials, Smith was required to re-

spond particularly to each numbered paragraph and, in

the case of disagreement, provide citations to supporting

evidentiary material. Moreover, should there have been

any additional facts, not set forth in the movant’s pa-

pers, which required denial of the defendant’s motion,

1

Local Rule 56.1(a) provides

Moving Party. With each motion for summary judgment . . .

the moving party shall serve and file—

...

(3) a statement of material facts as to which the moving

party contends there is no genuine issue and that entitle

the moving party to judgment as a matter of law . . . .

The statement referred to in (3) shall consist of short num-

bered paragraphs, including within each paragraph spe-

cific references to the affidavits, parts of the record, and

other supporting materials relied upon to support the facts

set forth in that paragraph. Failure to submit such a state-

ment constitutes grounds for denial of the motion.

N.D. ILL. L.R. 56.1(a).

No. 02-2130 3

Smith was required to submit his own concise state-

ment, supported by citations to the record.2 Smith admit-

tedly did not follow this mandatory procedure. He chose

instead—for the court’s convenience—to discuss in his

brief only the “two or three dispositive issues” of the

case, ignoring the remainder of the defendants’ state-

ment (see Smith App. Br. at 19-20). In doing so, he failed

in his obligation to respond with particularity to the

statement of material facts submitted by the defen-

dants. Additionally, Smith sought to support his factual

disagreements by affixing to his brief assorted material,

totaling over one hundred pages. But with his concern for

2

Local Rule 56.1(b) provides

Opposing Party. Each party opposing a motion [for summary

judgment] shall serve and file—

...

(3) a concise response to the movant’s statement that

shall contain:

(A) a response to each numbered paragraph in the

moving party’s statement, including, in the case

of any disagreement, specific references to the

affidavits, parts of the record, and other support-

ing materials relied upon, and

(B) a statement, consisting of short numbered

paragraphs, of any additional facts that require

the denial of summary judgment, including refer-

ences to the affidavits, parts of the record, and

other supporting materials relied upon. All material

facts set forth in the statement required of the

moving party will be deemed to be admitted unless

controverted by the statement of the opposing party.

N.D. ILL. L.R. 56.1(b); see also Brasic v. Heinemann’s Bakeries,

Inc., 121 F.3d 281, 286 (7th Cir. 1997) (finding the nonmoving

party’s response must contain “appropriate specific references

to the record”).

4 No. 02-2130

the court’s convenience apparently waning, Smith did

not provide the court with appropriate citations to any

of it (nor did he ensure that he attached only admis-

sible evidence). Here, he has failed in his obligation to

support controverted or additional facts with citations to

admissible evidence.

Local Rule 56.1’s enforcement provision provides that

when a responding party’s statement fails to controvert

the facts as set forth in the moving party’s statement in

the manner dictated by the rule, those facts shall be

deemed admitted for purposes of the motion. N.D. ILL.

L.R. 56.1(b). We have consistently held that a failure

to respond by the nonmovant as mandated by the

local rules results in an admission. See, e.g., Michas v.

Health Cost Controls of Ill., Inc., 209 F.3d 687, 689 (7th Cir.

2000).

A district court is not required to “wade through

improper denials and legal argument in search of a genu-

inely disputed fact.” Bordelon v. Chicago Sch. Reform Bd.

of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). And a

mere disagreement with the movant’s asserted facts is

inadequate if made without reference to specific support-

ing material. Edward E. Gillen Co. v. City of Lake Forest,

3 F.3d 192, 196 (7th Cir. 1993). In short, “[j]udges are

not like pigs, hunting for truffles buried in briefs.”

United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.

1991). Smith’s summary-judgment materials were woe-

fully deficient in either responding adequately to the

defendants’ statement or in setting forth additional facts

with appropriate citations to the record. As such, Smith’s

purportedly good intentions aside, the district court did

not abuse its discretion in deeming admitted and only

considering the defendants’ statement of material facts.

Turning now to those facts, we learn the following: On the

morning of January 23, 1998, Detective Lamz of the

No. 02-2130 5

Algonquin Police Department received a telephone call

from Karen S. Jurasek, an employee of the Algonquin

Dental Associates, informing Lamz that she had just

received a telephone call from a man identifying him-

self as being “from the Algonquin Police Department,”

who was interested in selling her advertising space in a

soon-to-be-published magazine. Jurasek said she agreed

to make a $150 donation, and the caller was to come to

the office later that day to collect. She told Lamz, how-

ever, that her employer had decided not to contrib-

ute after all and that she needed to cancel the office’s

donation.

In response to Jurasek’s comments, Lamz told her

that Algonquin police officers do not solicit money from

residents or businesses and that no Algonquin police

officers should be collecting money in the name of the

police department. Lamz directed Jurasek to stall the

man should he come to collect the check and to contact

the police immediately upon the caller’s arrival.

The caller was, of course, Smith, who showed up at

the dental office later that day to collect. Jurasek did as

she was told, stalling Smith until the police could arrive.

Lamz came himself and questioned Smith, Jurasek, and

another dental employee, Victoria Carlson. Both Jurasek

and Carlson told Lamz that Smith had declared on the

phone and at the front window of the dentist’s office

that he was “from the Algonquin Police Department.”

As it turns out, Smith was actually employed by a

company called Triad Promotions, Inc., which had been

retained by the Metropolitan Alliance of Police Unions to

solicit donations on its behalf. Smith explained this to

Lamz, insisted that Jurasek and Carlson must have

misunderstood him, and denied identifying himself as

an Algonquin police officer.

Jurasek and Carlson, however, reiterated they were

“absolutely certain” that Smith had told them he was

6 No. 02-2130

“from the Algonquin Police Department,” and they both

wrote and signed contemporaneous statements to that

effect. In a conversation with Lamz, McHenry County

Assistant State’s Attorney Mary Lennon approved charg-

ing Smith with false impersonation of a police officer

and theft by deception. As a result, Lamz arrested Smith.

Of Smith’s remaining challenges, which attack the dis-

trict court’s decision on the merits, the only one warrant-

ing discussion is whether the district court erred in

finding that Lamz had probable cause to arrest Smith

and was therefore entitled to qualified immunity. We

begin by noting that Smith may not maintain an action

under § 1983 for malicious prosecution. Newsome v.

McCabe, 256 F.3d 747, 750-51 (7th Cir. 2001) (interpreting

the effective holding of Albright v. Oliver, 510 U.S. 266

(1994), in accordance with its narrowest ground of deci-

sion, to be that the opportunity for state-law remedies

for wrongful-prosecution claims precludes any constitu-

tional theory of the tort). Rather, the district court

was correct in treating Smith’s claim as one for unlaw-

ful arrest in violation of his Fourth Amendment rights.

Id. Under the doctrine of qualified immunity, probable

cause to arrest will defeat an unlawful-arrest claim. See

Jenkins v. Keating, 147 F.3d 577, 585 (7th Cir. 1998)

(officer has probable cause, and is therefore entitled to

qualified immunity, for arresting alleged culprit so long

as reasonably credible witness or victim informs the po-

lice that the suspect has committed a crime, even if

the arrestee is later found to be innocent).

The determination of probable cause is normally a

mixed question of law and fact, Ornelas v. United States,

517 U.S. 690, 696 (1996), but when “what happened”

questions are not at issue, the ultimate resolution of

whether probable cause existed is a question of law, which

we review de novo. Cervantes v. Jones, 188 F.3d 805,

811 (7th Cir. 1999). In order to determine whether prob-

No. 02-2130 7

able cause existed for an arrest, we ask whether, at the

time of the arrest, the facts and circumstances within

the officer’s knowledge were sufficient for the officer to

form a reasonable belief to suspect criminal activity. Qian

v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999). The officer

need only demonstrate “a probability or substantial

chance of criminal activity, not an actual showing of

such activity.” United States v. Gilbert, 45 F.3d 1163, 1166

(7th Cir. 1995) (quotations omitted). And when a po-

lice officer receives information sufficient to raise a sub-

stantial chance of criminal activity from a person

whose truthfulness he has no reason to doubt, that infor-

mation is sufficient to establish probable cause. Jenkins,

147 F.3d at 585.

Unquestionably, the facts as known to Lamz at the

time of the arrest establish that he had probable cause

to suspect Smith of criminal activity. Under Illinois

law, false personation of a peace officer occurs when “a

person . . . knowingly and falsely represents himself to

be a peace officer of any jurisdiction.” 720 ILL. COMP.

STAT. 5/32-5.1 (2003). Jurasek and Carlson informed

Lamz, both orally and in writing, that the plaintiff told

them he was “from the Algonquin Police Department.”

Arguing semantics, Smith asserts that since Lamz knew

he did not utter the words, “I am an Algonquin police

officer,” he did not commit the offense. But the arrest-

ing officer Lamz is not charged with the duty of judge

and jury at the moment of arrest, deciding whether

the statement “I am from the Algonquin Police Depart-

ment,” is ultimately sufficient to establish guilt of the

crime of impersonating an officer. See Gilbert, 45 F.3d

at 1166. Instead, the appropriate question is whether

an officer in Lamz’s position would reasonably believe

on the basis of that statement that there was “a probabil-

ity or substantial chance of criminal activity.” Id. (quota-

tions omitted). On the facts before us, that Lamz could

8 No. 02-2130

have reasonably so believed is supported not only by

Smith’s chosen words themselves, but also by the fact

that those words conveyed the impression upon the lis-

tener that he was an Algonquin police officer. Jurasek

had thought as much when speaking with Smith on the

phone: afterwards, she called the Algonquin Police De-

partment to cancel the donation. We thus conclude that

Lamz possessed probable cause on the basis of these

statements to arrest Smith for the crime of impersonat-

ing a police officer.

Smith had argued to the district court that Lamz’s

testimony regarding what Jurasek and Carlson told him

was not credible. In other words, Smith argues that

Jurasek and Carlson never told Lamz that Smith had

represented to them that he was “from the Algonquin

Police Department.” Because Smith did not controvert

this fact appropriately in his summary-judgment sub-

missions, Smith has provided no evidence to support

his allegation. But even if we could look past this pro-

cedural bar and examine the “evidence” he attempts to

introduce on this point, we would find that it would

not raise an issue of fact regarding whether Lamz had

probable cause to arrest. Smith only argues that

Jurasek and Carlson later recanted their original state-

ments in an unsworn interview with Smith’s private

investigator. Such evidence, even if properly asserted

within Smith’s brief, would still be inadmissible hear-

say.3 But more importantly, both Jurasek and Carlson

3

Conversely, Jurasek’s and Carlson’s original oral and written

statements are not hearsay. They were not introduced to prove

the truth of the matter asserted—that is, that Smith in fact

told Jurasek and Carlson he was “from the Algonquin Police

Department”—but rather to show the effect on the hearer of

Jurasek’s and Carlson’s statements, Lamz—that is, that upon

(continued...)

No. 02-2130 9

wrote and signed their own statements implicating

Smith at the time of his arrest. Armed with this contempo-

raneous documentation written by the witnesses them-

selves, the importance of Lamz’s credibility is dimin-

ished. On the basis of both Jurasek’s and Carlson’s con-

temporaneous written statements, we find that Lamz

had probable cause to suspect that Smith had committed

the offense of impersonating an officer. The district

court correctly found that he was entitled to qualified

immunity on this charge.

For the foregoing reasons, the decision of the dis-

trict court is AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

3

(...continued)

hearing Jurasek’s and Carlson’s statements, Lamz believed

that Smith had told them he was “from the Algonquin Police

Department.” See FED. R. EVID. 801(c). Smith’s statement to

Jurasek and Carlson falls within the party-admission exemp-

tion to the rule. FED. R. EVID. 801(d)(2)(A).

USCA-02-C-0072—3-5-03