Holmes, Darius v. Village Hoffman

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-2759

DARIUS HOLMES,

Plaintiff-Appellant,

v.

VILLAGE OF HOFFMAN ESTATES and

OFFICER MATTHEW TEIPEL, Star No. 279,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division

No. 05 C 2775—Charles R. Norgle, Sr., Judge.

____________

ARGUED JANUARY 18, 2007—DECIDED DECEMBER 26, 2007

____________

Before BAUER, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. After a jury acquitted plaintiff

Darius Holmes of charges that he committed a battery

upon police officers Martin Piatek and Matthew Teipel and

resisted Teipel’s efforts to arrest him, Holmes filed suit

against the officers and their municipal employers under

42 U.S.C. § 1983 claiming false arrest and the use of

excessive force, in violation of his rights under the

Fourth and Fourteenth Amendments, and malicious

prosecution in violation of Illinois law. Holmes settled his

claims against Piatek and the Village of Streamwood,

Illinois, which employed Piatek. The district court entered

2 No. 06-2759

summary judgment against Holmes on the remaining

claims against Teipel and his employer, the Village of

Hoffman Estates, Illinois, prompting Holmes to appeal.

Because the undisputed facts demonstrate that Teipel

had probable cause to believe that Holmes had committed

a battery on Piatek, we affirm the grant of summary

judgment as to Holmes’s claim for false arrest. However,

we conclude that disputes of material fact exist as to

Holmes’s malicious prosecution claim as well as his

excessive force claim, and for that reason we reverse

the grant of summary judgment as to those claims.

I.

Late in the evening of June 4, 2003, Detective Piatek, a

tactical officer with the special operations unit of the

Streamwood police force, was patrolling convenience

stores, liquor stores, and gas stations following a series

of armed robberies of such establishments in Streamwood

and other nearby suburbs northwest of Chicago. Between

11:30 and midnight, Piatek drove by a strip mall contain-

ing a 7-Eleven store that had been robbed earlier that

same day and on another recent occasion. Piatek noticed

an occupied car parked outside the store with its motor

and lights off. Holmes, the driver of the car, was talking

on a cell phone. His friend, Vonnell Landfair, was sitting

next to him in the passenger seat. As Piatek pulled into

the parking lot of the strip mall and drove slowly past the

vehicle, he observed that it was occupied by two African-

American males, one of whom (Landfair) was thin and the

other of whom (Holmes) had a more stocky build. Piatek

would later testify that he decided to investigate the car

and its occupants because he believed the occupants

matched the description of the individuals who had

robbed the 7-Eleven. But there is some question about

whether his belief was accurate as to the race of the two

No. 06-2759 3

suspects. A report concerning one of the robberies origi-

nally indicated that the perpetrators were white, although

the report was subsequently revised to indicate they

were black; a report concerning a second robbery indi-

cated that one of the perpetrators was Hispanic. The

robbers had worn ski masks, thereby limiting the avail-

able information about their appearance.

After he reported by radio that he was investigating

a suspicious automobile, Piatek approached the vehicle

and asked its driver, Holmes, to produce his driver’s

license. Holmes responded by asking Piatek who he was

and why he needed to see Holmes’s driver’s license. Piatek

was driving an unmarked car and was dressed in civilian

clothing and so, according to Holmes, he did not realize

that Piatek was a police officer. The parties dispute

whether Piatek identified himself as such to Holmes.

They also dispute the manner in which both Piatek and

Holmes behaved during their initial dialogue. Holmes

represents that he was polite and cooperative whereas

Piatek was foul-mouthed and confrontational; the defen-

dants have indicated that just the opposite was true.

At this point, Piatek asked Holmes to step out of his car.

Holmes complied with the request. But, according to

Piatek, once Holmes was out of the car, he assumed a

combative stance which, coupled with his alleged belliger-

ence, caused Piatek to be concerned for his safety. Piatek

decided to pat Holmes down to verify that he was not

armed, and he advised Holmes of his intent. Piatek turned

Holmes around, so that he was facing his car, and placed

him against the car in order to frisk him.

By this time, Teipel had arrived on the scene and joined

Piatek on the driver’s side of Holmes’s car. Teipel, an

officer with the Hoffman Estates police department, had

been completing a traffic stop at a gasoline station directly

across the street from the strip mall when he heard

4 No. 06-2759

Piatek’s radio report concerning a suspicious vehicle. In

accord with a custom of providing backup to neighboring

police personnel during late-night encounters, Teipel drove

his car over to the mall in order to assist Piatek. The

parties have given significantly divergent accounts of

what occurred following Teipel’s arrival. For later refer-

ence, we separately recount each of the versions Holmes,

Piatek, and Teipel have given, focusing on the points most

pertinent to Holmes’s claims. Of course, it is Holmes’s

version that we must credit given the obligation we have

at this stage in the proceedings to construe the facts

favorably to him. E.g., Payne v. Pauley, 337 F.3d 767, 773

(7th Cir. 2003).

Holmes gives the following account of events: He was

cooperating with Piatek and was passively facing his car

when Teipel arrived on the scene. As Teipel walked toward

the driver’s side of Holmes’s car, Piatek said to Teipel, “We

have ourselves a smart ass here.” Teipel responded, “Oh,

yeah?”, walked up to Holmes, and slammed Holmes’s

head hard against the roof his car. Teipel instructed

Holmes’s passenger, Landfair, who was still seated in the

car, to look away. Teipel then grabbed Holmes’s left arm

while Piatek held his right harm. Piatek, after whispering

in Holmes’s ear that he was going to hurt Holmes, exe-

cuted a wristlock on his right hand and arm. A wristlock

is a compliance technique that police officers sometimes

use to subdue uncooperative individuals. The technique

involves bending the wrist back toward the forearm,

causing the individual to experience pressure and pain.

The wristlock caused Holmes to cry out that Piatek was

hurting him. Piatek replied, “I know.” While this was

occurring, Teipel continued to hold Holmes’s left arm

behind his back. Piatek then released the wristlock and

said to Teipel, “He hit me. Take him down.” But according

to Holmes, at no time during his encounter with Piatek

and Teipel did he strike, push, or resist either of the

No. 06-2759 5

officers. After Piatek made this remark to Teipel, the

officers threw Holmes to the ground. A smug Piatek told

Holmes that he was on the ground because he had been

“smart” with the officers; he also advised Holmes that

he was under arrest. Teipel handcuffed Holmes and

pressed his knee against Holmes’s face and kept it there.

Holmes advised Teipel that he needed to go to the hospital.

Teipel told him to “shut up” and that the only place he

was going to was jail. Holmes told Teipel repeatedly that

Teipel was hurting him, but each time Holmes said this,

Teipel would grind his knee into Holmes’s face. This

happened more than five times, according to Holmes,

resulting in a gash or cut above Holmes’s right eye in

addition to swelling and redness on the left side of his face.

Holmes ultimately was taken to the police station, where

he was booked and released on bond. Upon his release, he

sought treatment for the injuries to his wrist and face.

His wrist was placed in a soft cast, he was given oint-

ment for the abrasions to his face, prescribed a pain

reliever, and he was advised to have a specialist check his

wrist. No stitches were required, and Holmes later could

not recall whether he ever filled the prescription for the

pain medication. He did follow up with a physician about

his injured arm who advised him that some of the tissues

in his wrist had been torn and that he should not use

the arm for several weeks.

Teipel gives a much different account of what occurred

after Holmes exited his car: Like Piatek, Teipel testified

that he believed that Holmes and his passenger matched

the description of the two individuals wanted in connection

with the recent armed robberies. Teipel observed Holmes

step out of the car, turn around, and place his hands on

the roof of the car as Piatek prepared to pat him down. But

in the midst of the pat-down, Holmes pushed himself

off the car, turned in order to face the two officers, and

then shoved both of them. Piatek then advised Holmes

6 No. 06-2759

that he was under arrest for battery and took hold of

Holmes’s right wrist. Teipel grabbed Holmes’s left wrist

and, as Holmes began to struggle, placed his own hand

against Holmes’s upper back, pushed Holmes against his

car, and told Holmes to stop resisting arrest. But when

Piatek attempted to place handcuffs on Holmes, Holmes

pushed himself backward and caused all three men to

fall to the ground. There, while Holmes continued to

struggle, the officers managed to secure him in handcuffs.

Teipel placed his knees against Holmes’s back and shoul-

der in order to help secure him. Teipel never heard Holmes

cry out in pain, and he denied that he and Piatek had

thrown Holmes to the ground.

Piatek’s recitation of events conforms more closely,

although not precisely, with Teipel’s version: Once Holmes

was facing his car and Piatek began to pat him down,

Holmes either flailed his arms backwards and/or pushed

himself backward off of the car and tried to shove both

Piatek and Teipel (who by now had joined the encounter)

out of the way. Piatek advised Holmes that he was under

arrest for battery and ordered Holmes to put his hands

behind his back. Holmes refused. Piatek and Teipel then

grabbed Holmes’s arms, and Teipel pushed him against

the vehicle. As he did so, Holmes remarked that the

officers could not hurt him because he worked out

every day. Piatek then applied a wristlock to Holmes’s

right arm in an effort to subdue him. When Piatek applied

the wristlock, Holmes pushed himself backward away

from his car, causing all three men to fall to the ground.

While on the ground, both officers struggled to get

Holmes’s hands behind his back so that he could be

handcuffed. Piatek once again performed a wristlock, this

time on Holmes’s left arm. Teipel managed to handcuff

Holmes, who finally stopped struggling. Additional officers

arrived on the scene, and Holmes was placed in a squad

car and taken to the Streamwood police station. Landfair,

No. 06-2759 7

Holmes’s passenger, was patted down and released from

the scene after his identification was checked and verified.

Based on misdemeanor criminal complaints prepared

over the two officers’ signatures,1 Holmes was prosecuted

in the Circuit Court of Cook County for committing a

battery upon both Piatek and Teipel and resisting the

efforts of both officers to arrest him. A jury acquitted

Holmes of the battery charges and also of the charge that

he resisted Teipel’s attempt to arrest him. The jury

was unable to reach a verdict as to the charge that

Holmes had resisted Piatek’s attempt to arrest him, and

the court declared a mistrial as to that charge.

Following his victory in state court, Holmes filed this

lawsuit pursuant to 42 U.S.C. § 1983. Holmes alleged that

Piatek and Teipel were liable to him for false arrest

and for using excessive force, in violation of his Fourth

and Fourteenth Amendment right to be free from unrea-

sonable seizures, and that the officers and their municipal

employers also were liable for malicious prosecution under

Illinois law. After the defendants answered the complaint,

the parties completed discovery and submitted their

pretrial order in anticipation of trial. Holmes settled

with Piatek and the Village of Streamwood shortly be-

fore the scheduled trial date, leaving Teipel and the

Village of Hoffman Estates as the two defendants facing

trial.

Surprisingly, it was on the date that the district court

had set for trial that the court held what amounted to

its first status hearing in the case. Early on in the litiga-

tion, the court unilaterally had scheduled a trial date and

1

Piatek signed his own name to the charges that Holmes had

committed a battery upon Piatek and resisted his efforts to arrest

Holmes, and, with Teipel’s permission, he signed Teipel’s name

to the two companion charges involving Teipel.

8 No. 06-2759

then denied (by mail) an agreed motion to re-set that date.

Thereafter, with the exception of one or two minor proce-

dural motions, the parties proceeded toward trial without

the intervention or oversight of the court. None of the

defendants elected to file a motion for summary judg-

ment. When the scheduled trial date arrived, the parties

appeared before the court ready for trial. But the court

announced that it would not proceed with the trial until

it had first explored the question whether there had been

probable cause to arrest Holmes. Taking the hint, the

defendants sought and obtained the court’s leave to file a

motion for partial summary judgment on that issue.

The district court subsequently entered summary

judgment against Holmes on his false arrest and malicious

prosecution claims, concluding that Holmes’s arrest and

prosecution were supported by probable cause to be-

lieve that Holmes had committed a crime. The court was

satisfied that Piatek, on spotting Holmes’s car parked

near the 7-Eleven, had reasonable grounds on which to

suspect that Holmes might be engaged in criminal activity.

R. 59 at 6. That reasonable suspicion supported Piatek’s

decision to question Holmes, and to demand that Holmes

step out of his car and submit to a pat-down to ensure

Piatek’s safety during the investigative encounter. Id.; see

Terry v. Ohio, 392 U.S. 1, 20-22, 27, 88 S. Ct. 1868, 1879-

80, 1883 (1968). It also supported Piatek’s and Teipel’s

subsequent effort to handcuff Holmes, which the court

viewed as “ ‘appropriate to accomplish the purposes of an

investigatory stop.’ ” R. 59 at 6-7 (quoting Tom v. Voida,

963 F.2d 952, 958 (7th Cir. 1992)); see United States v.

Askew, 403 F.3d 496, 506-07 (7th Cir. 2005). Crediting the

criminal complaints that Piatek and Teipel lodged against

Holmes, along with Teipel’s arrest report, the court went

on to state that while the two officers were attempting

to place handcuffs on Holmes, Holmes had pushed the

officers away from him. R. 59 at 8-9 (citing Exs. C, D, G,

No. 06-2759 9

and H to Plaintiff ’s Statement of Material Facts (R. 50-4,

50-5, 50-8, 50-9)) and 11 (citing Teipel’s arrest report

(R. 50-2 at 23, 24)). The court reasoned that Holmes’s

conduct in shoving the officers supplied them with proba-

ble cause to arrest him for both battery and resisting

arrest. Id. at 8-9. This defeated Holmes’s false arrest

claim against Teipel and also defeated his malicious

prosecution claim against Teipel and the Village of

Hoffman Estates. Id. at 8-9, 11.

At the court’s instruction, the parties then briefed the

remaining claim for excessive force, and on review of their

memoranda, the court entered summary judgment against

Holmes on that claim as well. The court accepted the

notion that Teipel had employed some force in his encoun-

ter. Specifically, the court assumed that it was he rather

than Piatek who had applied a wristlock to Holmes—

although no party has alleged that Teipel did this. R. 75 at

7. Rather, Holmes has averred that Teipel helped to hold

him while Piatek applied the wristlock; he has also

asserted that Teipel himself engaged in separate acts of

force, including slamming Holmes’s head against the

roof of his car and grinding his knee into Holmes’s face.

In any case, the court found that the level of force Teipel

had employed was objectively reasonable. When Teipel

arrived on the scene, the court reasoned, Holmes was

already out of his car and Piatek was attempting to subdue

him. Teipel, aware of the recent string of robberies,

believed that Holmes fit the description of one of the

robbers. The court went on to note that Piatek told Teipel

that Holmes had hit him. And Holmes himself may have

said that he lifted weights every day and that the officers

could not hurt him, although, in the court’s view, this

remark did not materially alter the facts of the case. Id. at

5-6. Under these circumstances, the court reasoned, it

was objectively reasonable for Teipel to apply a wristlock

to Holmes’s arm. “When Holmes resisted and threatened

the officers, a greater amount of force was required, to

10 No. 06-2759

ensure both officer[s’] safety, and that the situation did not

escalate.” Id. at 7. The court did not address Holmes’s

allegations that Teipel had slammed his head down on the

roof of his car or that, once the officers had Holmes on the

ground, Teipel had ground his knee into Holmes’s face.

II.

With Piatek out of the case, Holmes does not challenge

the district court’s determination that Piatek had rea-

sonable suspicion to approach and detain Holmes for

questioning pursuant to Terry and, in conjunction with

that stop, to frisk him in furtherance of the officer’s safety.

Holmes Br. at 4. So we may set that issue aside and

assume that Piatek lawfully detained Holmes for ques-

tioning and subjected him to a pat-down. The focus of

Holmes’s appeal is on what took place after that point in

the encounter, with the arrival of Teipel. We must decide

whether the undisputed facts establish that Teipel had

probable cause to arrest Holmes and that he (and via

respondeat superior, his municipal employer, the Village

of Hoffman Estates) had a legitimate basis on which to

initiate charges against him. We must also decide whether

any force that Teipel may have employed in seizing

Holmes was, as the district court concluded, objectively

reasonable.

A police officer has probable cause to arrest an individ-

ual when the facts and circumstances that are known to

him reasonably support a belief that the individual has

committed, is committing, or is about to be commit a

crime. E.g., Wagner v. Washington County, 493 F.3d 833,

836 (7th Cir. 2007) (per curiam); United States v. Parra,

402 F.3d 752, 763-64 (7th Cir. 2005). Probable cause

requires more than a bare suspicion of criminal activity,

but it does not require evidence sufficient to support a

conviction. Woods v. City of Chicago, 234 F.3d 979, 996

No. 06-2759 11

(7th Cir. 2000) (quoting United States v. Burrell, 963 F.2d

976, 986 (7th Cir. 1992)). Probable cause is assessed

objectively: a court looks at the conclusions that the

arresting officer reasonably might have drawn from the

information known to him rather than his subjective

reasons for making the arrest. Devenpeck v. Alford, 543

U.S. 146, 153, 125 S. Ct. 588, 593-94 (2004); Whren v.

United States, 517 U.S. 806, 812-13, 116 S. Ct. 1769, 1774

(1996). In making that assessment, the court must con-

sider the facts as they reasonably appeared to the arrest-

ing officer, seeing what he saw, hearing what he heard,

and so forth. Wagner, 493 F.3d at 836; Parra, 402 F.3d

at 764. A police officer may of course exercise common

sense and draw upon his training and experience in

evaluating the totality of the circumstances confronting

him, and a court must likewise make allowance for such

judgments in deciding what the arresting officer reason-

ably might have concluded about the facts. See United

States v. Reed, 443 F.3d 600, 603 (7th Cir.), cert. denied,

127 S. Ct. 183 (2006). If the officer had probable cause to

believe that the person he arrested was involved in

criminal activity, then a Fourth Amendment claim for

false arrest is foreclosed. Morfin v. City of E. Chicago,

349 F.3d 989, 997 (7th Cir. 2003) (coll. cases).

Based on facts that Holmes does not dispute, we con-

clude that Teipel had probable cause to arrest Holmes

for battery. Our conclusion does not rest on the version of

the facts underpinning the district court’s analysis. The

district court asserted that Holmes had pushed Piatek and

Teipel while the two officers were attempting to secure

Holmes in handcuffs in furtherance of the Terry stop. R. 59

at 8-9. In this respect, the court assumed the truth of the

officers’ criminal complaints against Holmes along with

Teipel’s arrest report. Holmes’s act of pushing the two

officers, the court concluded, supplied Teipel as well as

Piatek probable cause to arrest Holmes for both battery

12 No. 06-2759

and resisting arrest. Id. at 8-9, 11. But Holmes, like the

officers, has personal knowledge of what occurred during

the encounter, and he unequivocally denies that he struck,

pushed, or resisted either officer. We are obliged to accept

Holmes’s version of events on summary judgment. See

Payne, 337 F.3d at 773. The defendants, recognizing the

problem with the district court’s analysis, posit an alter-

nate basis for the arrest. They contend that Teipel had

probable cause to arrest Holmes for battery once Piatek

told Teipel that Holmes had struck him. We agree.

When Piatek told Teipel, “He (meaning Holmes) hit me.

Take him down.”, he gave Teipel reason to believe that

Holmes had broken the law by committing a battery on

Piatek. See 720 ILCS 5/12-3. In making a decision to arrest

someone for criminal conduct that he did not witness, a

police officer may rely on information provided to him by

the victim or by an eyewitness to the crime that the officer

reasonably believes is telling the truth. Pasiewicz v. Lake

County Forest Preserve Dist., 270 F.3d 520, 524 (7th Cir.

2001); Gramenos v. Jewel Cos., 797 F.2d 432, 439 (7th Cir.

1986). “So long as a reasonably credible witness or victim

informs the police that someone has committed, or is

committing, 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). Fellow law

enforcement personnel are among the witnesses whose

accounts the arresting officer may rely upon. See Spiegel

v. Cortese, 196 F.3d 717, 726 (7th Cir. 1999); see also

United States v. Ellis, 499 F.3d 686, 690 (7th Cir. 2007);

Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006).

Having just arrived on the scene, Teipel was entitled to

rely on Piatek’s statement as to what had already occurred

and to make an arrest on that basis.

Holmes contends that there is a factual dispute as to

whether Piatek actually made this statement to Teipel, but

No. 06-2759 13

the record does not bear him out on this point. Holmes

himself testified that Piatek made the statement. R. 50-10

at 15 (Holmes Dep. at 54). It is true, as Holmes points out,

that neither Piatek nor Teipel testified to this state-

ment at Holmes’s criminal trial or in their depositions or

wrote of it in their arrest reports and post-arrest memo-

randa. But this does not mean that the fact of the state-

ment is disputed; on the contrary, neither of the two

officers ever denied Holmes’s recollection on this point.

More to the point, in response to Teipel’s statement of

undisputed facts below, Holmes admitted that Piatek

made this statement, R. 49 ¶ 18; indeed, he included

Piatek’s statement in his own additional statement of

undisputed facts, R. 48 ¶ 20. He is in no position now to

contend that the district court should have ignored his

own admission that Piatek’s statement was an undis-

puted fact. See Tobey v. Extel/JWP, Inc., 985 F.2d 330, 333

(7th Cir. 1993).

The lack of evidence that Teipel heard Piatek’s state-

ment is no barrier to summary judgment, as Holmes next

argues. Piatek was speaking to Teipel when he made the

statement, so it is reasonable to infer that Teipel heard

what Piatek said. Nothing in the record suggests that

Teipel, who was standing right next to Piatek when he

made the statement, might have been unable to hear the

statement. Indeed, by Holmes’s account, immediately

after Piatek told Teipel that Holmes had hit him and to

“[t]ake him down,” Teipel joined Piatek in throwing

Holmes to the ground. R. 48 ¶ 20. The natural (and

reasonable) inference is that Teipel heard the statement.

Holmes’s final contention, that Teipel knew (or should

have realized) that Piatek was lying, lacks record support.

Even if we assume, consistent with Holmes’s version of

events, that Piatek was abusive to him from the start of

the encounter and that Teipel joined in the abuse immedi-

ately upon his arrival, there is no evidence to support the

14 No. 06-2759

notion that Teipel would or should have realized that

Piatek was dissembling when he told Teipel that Holmes

had hit him. Having just joined the encounter, Teipel’s

knowledge was limited. Crediting Holmes’s own version of

the facts, Teipel knew only that Piatek was investigating

someone parked at a robbed 7-Eleven, that Piatek was

frisking him, that Piatek told him “[w]e have ourselves a

smart ass here,” and then that “he (Holmes) hit me.” R. 48

¶¶ 14-20; R. 53 ¶¶ 14-20. These facts did not give Teipel

reason to doubt Piatek’s veracity. Nor does Teipel’s own

conduct suggest that he could not rely on what Piatek told

him as a basis to arrest Holmes. Holmes, of course, has

averred that Teipel himself began to physically abuse him

almost immediately upon joining the encounter—as by

allegedly slamming Holmes’s head against the car after

Piatek told him that “[w]e have ourselves a smart ass

here.” Teipel’s alleged misconduct certainly is relevant

to the excessive force claim, which we discuss below. But

his use of force does not support the inference that he

could not or did not believe the information that Piatek

conveyed to him. It is possible for a police officer to use

excessive force to make what is otherwise a legitimate

arrest supported by probable cause. See Lenard v. Argento,

808 F.2d 1242, 1246 (7th Cir. 1987) (“False arrest and

excessive force are unrelated except in forming a sequence.

Arresting a person on probable cause does not justify

beating him up, and the beating does not invalidate the

arrest.”); see also Cortez v. McCauley, 478 F.3d 1108, 1127

(10th Cir. 2007) (en banc); Calvi v. Knox County, 470

F.3d 422, 431 (1st Cir. 2006).

Teipel thus had probable cause to arrest Holmes based

on his fellow officer’s description of what Holmes had done.

Holmes’s seizure was therefore not contrary to the Fourth

and Fourteenth Amendments. On that basis, Teipel was

entitled to summary judgment on the false arrest claim. It

does not matter that this was not the basis for summary

No. 06-2759 15

judgment articulated by the district court. Because our

review is de novo, we may affirm the judgment on any

basis that is supported by the record before us. E.g.,

Winters v. Fru-Con Inc., 498 F.3d 734, 743 (7th Cir. 2007).

Probable cause to arrest Holmes for committing a

battery on Piatek would also defeat the state-law claim for

malicious prosecution insofar as the claim might have been

based on that particular battery charge. Among the

elements that Illinois law requires a plaintiff to estab-

lish in support of a malicious prosecution claim is the

absence of probable cause for the prosecution. See, e.g.,

Ross v. Mauro Chevrolet, 861 N.E.2d 313, 319 (Ill. App. Ct.

2006). Consequently, a finding of probable cause is an

absolute bar to such a claim. E.g., Mannoia v. Farrow, 476

F.3d 453, 459 (7th Cir. 2007) (applying Illinois law);

Johnson v. Target Stores, Inc., 791 N.E.2d 1206, 1219-20

(Ill. App. Ct. 2003). Because Teipel had probable cause

to believe that Holmes had struck Piatek based on

Piatek’s statement, Teipel and Hoffman Estates could

not be held liable for initiating the prosecution of Holmes

on that charge.

However, Holmes was not prosecuted for battery against

Piatek alone. He was also tried (and acquitted) on charges

that he committed a battery on Teipel and resisted Teipel’s

efforts to arrest him; indeed, those were the two charges

that Teipel lodged against Holmes. Holmes emphasizes

that his malicious prosecution claim against Teipel and

Hoffman Estates is based solely on those latter two

charges. And those charges, because they sprang from

Holmes’s alleged actions against Teipel, were distinct from

the charge that Holmes committed a battery against

Piatek. Yet, Teipel and Hoffman Estates have assumed

that probable cause as to the charge for the alleged bat-

tery on Piatek bars the malicious prosecution claim

entirely, even to the extent that the claim is based on the

other charges for which Holmes was prosecuted. Holmes

16 No. 06-2759

contends that the assumption is incorrect. He argues, as

he did below, that because he was prosecuted on multiple

charges, the basis for each charge must be examined

separately, and if probable cause was lacking as to any

charge, the defendants still may be held liable for his

prosecution on that unsupported charge. He is correct.

As several of our sister circuits have concluded, probable

cause to believe an individual committed one crime—and

even his conviction of that crime—does not foreclose a

malicious prosecution claim for additionally prosecuting

the individual on a separate charge. See Johnson v. Knorr,

477 F.3d 75, 83-85 (3d Cir. 2007); Uboh v. Reno, 141 F.3d

1000, 1005 (11th Cir. 1998); Posr v. Doherty, 944 F.2d 91,

100 (2d Cir. 1991); see also Rivera-Marcano v. Normeat

Royal Dane Quality A/S, 998 F.2d 34, 38 (1st Cir. 1993).

In this respect, a malicious prosecution claim is treated

differently from one for false arrest: whereas probable

cause to believe that a person has committed any crime

will preclude a false arrest claim, even if the person was

arrested on additional or different charges for which there

was no probable cause, see Devenpeck v. Alford, supra,

543 U.S. at 153, 125 S. Ct. at 593-94; Pourghoraishi v.

Flying J, Inc., 449 F.3d 751, 762 (7th Cir. 2006), probable

cause as to one charge will not bar a malicious prosecution

claim based on a second, distinct charge as to which

probable cause was lacking. Johnson, 477 F.3d at 84-85.

Logic supports the distinction. An arrested individual is

no more seized when he is arrested on three grounds

rather than one; and so long as there is a reasonable

basis for the arrest, the seizure is justified on that basis

even if any other ground cited for the arrest was flawed.

See Devenpeck, 543 U.S. at 153-55, 125 S. Ct. at 594;

Johnson, 477 F.3d at 84. But when it comes to prosecution,

the number and nature of the charges matters: the accused

must investigate and prepare a defense to each charge,

and as the list of charges lengthens (along with the

No. 06-2759 17

sentence to which the accused is exposed), the cost and

psychic toll of the prosecution on the accused increase. See

id. at 84, 85; Jacob Paul Goldstein, Note, From the

Exclusionary Rule to a Constitutional Tort for Malicious

Prosecutions, 106 COLUMBIA L. REV. 643, 645 (2006)

(quoting Savile v. Roberts, 91 Eng. Rep. 1147, 1149-50

(K.B. 1698) (Holt, C.J.) (describing the various injuries

underlying a malicious prosecution claim)). At the same

time, when an officer prepares and signs a criminal

complaint, he typically will have more of an opportunity to

reflect on the nature and ramifications of the accused’s

conduct than he did in making the arrest. It is reasonable

to demand that each charge that a police officer elects to

lodge against the accused be supported by probable cause.

Otherwise, police officers would be free to tack a variety

of baseless charges on to one valid charge with no risk

of being held accountable for their excess. See Posr, 944

F.2d at 100; accord, Johnson, 477 F.3d at 84.

We recognize, of course, that because the malicious

prosecution claim is one founded on state law, our obliga-

tion is to apply Illinois law and, where there are gaps in

the pertinent case law, to predict what the Illinois Su-

preme Court would hold. E.g., Rodrigue v. Olin Employees

Credit Union, 406 F.3d 434, 441 (7th Cir. 2005). We have

found no Illinois Supreme Court case that squarely

addresses whether probable cause supporting one crim-

inal charge will foreclose a malicious prosecution claim

as to one or more additional charges. However, the Illinois

Appellate Court has held that when a malicious prosecu-

tion claim is founded on a civil suit, the claim is not

foreclosed by fact that the entirety of the suit has not

yet been resolved in the plaintiff ’s favor. March v.

Cacioppo, 185 N.E.2d 397, 402 (Ill. App. Ct. 1962).

It would not be just to hold that the defendants must

be absolved from liability simply because a small part

18 No. 06-2759

of their suit might end in judgment for them, when the

far larger part, the equivalent of a separate claim,

has been decided against them, and where there is

reason to believe that this separate claim has been

prosecuted with malice and without probable cause.

Id. (emphasis ours). The March decision reflects the same

claim-by-claim (or charge-by-charge) analysis that our

sister circuits have employed. Our colleagues in the

Northern District of Illinois, in a series of decisions

addressing malicious prosecution claims sounding in

Illinois law, likewise have recognized that probable cause

(or a conviction) as to one charge will not preclude a

malicious prosecution suit based on a separate charge. See

Trusty v. McCall, No. 99 C 3992, 1999 WL 787628, at *2

(N.D. Ill. Sept. 24, 1999) (Kocoras, J.) (coll. cases). We have

no reason to doubt that the Illinois Supreme Court, if

presented with the question, would follow the same

approach.

To the extent that this court’s dictum in Penn v. Harris,

296 F.3d 573, 576-77 (7th Cir. 2002), suggests a contrary

rule, we now disavow it. The malicious prosecution claim

at issue in Penn had been brought as a federal claim under

42 U.S.C. § 1983. However, our then-recent decision

in Newsome v. McCabe, 256 F.3d 747, 750-52 (7th Cir.

2001), had held that because there is no constitutional

right not to be prosecuted without probable cause, a

plaintiff could not state a section 1983 claim simply by

showing that he was wrongly prosecuted but rather

must establish that he was deprived of a specific constitu-

tional right, such as the right to a fair trial. The plaintiff

in Penn had failed to do this, and for that reason we

concluded that his section 1983 claim was defective and

the district court had properly disposed of it on summary

judgment. 296 F.3d at 576. We noted that although

Newsome was fatal to a malicious prosecution claim under

No. 06-2759 19

section 1983, such a claim could nonetheless be pursued

under Illinois law. Id. Penn had not asserted a state-law

claim. Id. But even if he had, we went on to say, the

defendants would still have been entitled to summary

judgment on that claim. In relevant part, we reasoned that

the undisputed facts revealed there had been probable

cause to arrest Penn for disorderly conduct. Id. at 577. In

our view, probable cause to believe that Penn had engaged

in the crime of disorderly conduct foreclosed Penn’s

malicious prosecution claim, notwithstanding the fact

that Penn had neither been arrested for nor charged

with that offense. “The officers arrested Penn for battery

rather than disorderly conduct, but ‘even if probable

cause did not exist for the crime charged [battery], proof

of probable cause to arrest the plaintiff on a closely re-

lated charge [disorderly conduct] is also a defense’ to a

state law claim of malicious prosecution.” Id. (quoting

Kelley v. Myler, 149 F.3d 641, 647-48 (7th Cir. 1998)). This

portion of Penn was quite clearly unnecessary to the

result, given that Penn had not asserted a state-law claim

for malicious prosecution, and therefore amounts to a

dictum that does not bind us in this case. When it sug-

gested that probable cause as to one charge foreclosed a

malicious prosecution claim on a related charge, the court

also departed from the holdings of our sister circuits,

whose decisions it did not mention. Moreover, the passage

from Kelley v. Myler that the court relied upon did not

concern a malicious prosecution claim. The language

quoted from Kelley instead dealt exclusively with a false

arrest claim. 149 F.3d at 647-48. Although a malicious

prosecution was also at issue in Kelley, it was resolved on

an entirely different basis. See id. at 649. The court in

Penn simply assumed, without discussion, that the exis-

tence of probable cause has the same effect on a malicious

prosecution claim as it does upon a false arrest claim. For

the reasons we have discussed, that simply is not the case.

20 No. 06-2759

See also Sparing v. Village of Olympia Fields, 266 F.3d

684, 692 (7th Cir. 2001) (“We are aware of no Illinois case

that adopts the closely related offense rule, which we

apply in qualified immunity cases, in state law malicious

prosecution tort cases.”).

Consequently, although there was probable cause to

support the charge that Holmes had committed a battery

against Piatek, we must separately consider whether

there was probable cause to support the other charges for

which Holmes was prosecuted. Again, Holmes has made

clear that his malicious prosecution claim against Teipel

and Hoffman Estates is based solely on the criminal

charges that Teipel caused to be brought against him, i.e.,

the charges that he committed a battery against Teipel

and that he resisted Teipel’s attempt to arrest him.

Holmes Reply Br. at 9-10. We therefore focus our atten-

tion on those two claims.

Our analysis may be brief, as it is readily apparent

that there are disputes of material fact as to the charges

that Teipel initiated. In contrast to the battery charge

involving Piatek, these two charges are based on events

that Teipel himself witnessed rather than anything

Piatek may have told Teipel. Thus, according to Teipel,

after he arrived at the scene and came to Piatek’s aid in

subduing Holmes, Holmes twice pushed himself back-

ward off of his car and against the two officers. The sec-

ond time Holmes did this, according to Teipel, it caused

both the officers and Holmes to fall to the ground. As the

officers continued their efforts to handcuff Holmes, he

continued to struggle with them, Teipel averred. If we

were to credit Teipel’s account, we have no doubt that

these facts would supply ample cause for the charges that

Holmes committed a battery on Teipel and resisted

Teipel’s attempts to arrest him. See 720 ILCS 5/12-3

(indicating that a person commits the offense of battery

when he “intentionally or knowingly without legal justifi-

No. 06-2759 21

cation and by any means . . . makes physical contact of an

insulting or provoking nature with an individual”); 720

ILCS 5/31-1(a) (indicating that a person commits the

offense of resisting a peace officer when he knowingly

resists or obstructs the performance by one he knows to

be a peace officer); Payne v. Pauley, supra, 337 F.3d at

776 (noting that resistance must be physical in nature).

However, Holmes disputes Teipel’s account and specifically

denies that he ever pushed, struck, or resisted either

Teipel or Piatek; Holmes avers that he was cooperative

at all times. Again, we must credit Holmes’s account at

this juncture. Id. at 773. Assuming that Holmes did not, in

fact, push himself back against Teipel and Piatek or

struggle with them as they attempted to place him

under arrest, Teipel would have lacked any reasonable

basis on which to believe that Holmes had committed a

battery upon the officer or resisted arrest.

For these reasons, the district court erred in granting

summary judgment to Teipel and Hoffman Estates on the

malicious prosecution claim. The existence of probable

cause to support the two charges that Teipel initiated

depends on whether Holmes actually pushed Teipel and

resisted Teipel’s attempt to arrest him. The factfinder

must resolve whether it is Holmes or Teipel who is telling

the truth in this respect.

Finally, we come to the excessive force claim. This claim,

because it arises in the context of a seizure of a free

citizen, is governed by the Fourth Amendment’s reason-

ableness standard. Graham v. Connor, 490 U.S. 386, 394-

95, 109 S. Ct. 1865, 1871 (1989); see also Brosseau v.

Haugen, 543 U.S. 194, 197, 125 S. Ct. 596, 598 (2004) (per

curiam). The force employed by a police officer is deemed

excessive if, in light of the totality of the circumstances,

it was greater than was reasonably necessary to effectuate

the seizure. Payne v. Pauley, 337 F.3d at 778 (quoting

Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir.

22 No. 06-2759

1987)). To assess the degree of force that was justified, a

court considers the severity of the crime for which the

plaintiff was being detained or arrested, whether he posed

a threat to the safety of the officers or to other persons,

and whether the plaintiff was resisting the officers and/or

attempting to flee. Graham, 490 U.S. at 396, 109 S. Ct.

at 1872. We examine the facts as they would have ap-

peared to a reasonable officer on the scene, ibid., keeping

in mind that an officer often must make a split-second

judgment based on rapidly evolving circumstances, id. at

396-97, 109 S. Ct. at 1872; Abdullahi v. City of Madison,

423 F.3d 763, 768 (7th Cir. 2005); Lawrence v. Kenosha

County, 391 F.3d 837, 843 (7th Cir. 2004).

We cannot sustain the entry of summary judgment as

to the excessive force claim on the grounds articulated

by the district court. The court assumed that the only

force Teipel allegedly had employed was a wristlock and

concluded that Teipel was justified in using this degree of

force in helping Piatek to subdue an individual whom

Teipel believed was potentially implicated in a recent

series of armed robberies. But it was Piatek, not Teipel,

whom Holmes avers applied the wristlock (although Teipel

allegedly aided Piatek by holding Holmes). Holmes attrib-

utes other uses of force to Teipel that the district court

failed to consider: Teipel allegedly slammed Holmes’s

head against the roof of his car and later ground his

knee into Holmes’s face once Holmes was on the ground.

Teipel nonetheless contends that summary judgment

was appropriate on the same key fact that we have

agreed justified Holmes’s arrest. Teipel reasons that once

Piatek told Teipel that Holmes had struck him, Teipel

was justified in believing that Holmes was combative

and that a greater degree of force was justified to subdue

Holmes and place him under arrest.

However, taking into account both the chronology that

Holmes describes, along with his averment that he did not

No. 06-2759 23

physically strike or resist the officers, we cannot say as

a matter of law that the entire range of force attributed to

Teipel was reasonable. As Holmes describes the en-

counter, Teipel applied force even before he was told that

Holmes had struck Piatek. According to Holmes, upon

Teipel’s arrival, Piatek remarked that “[w]e have ourselves

a smart ass here,” which caused Teipel to reply “Oh yeah?”

and then to slam Holmes’s head against the roof of the

car. Accepting Holmes’s version of events as true, includ-

ing Holmes’s assertion that he never resisted the officers

and was cooperative, it is difficult to conceive of a reason-

able explanation for Teipel’s conduct, and a jury could

readily conclude that Teipel used excessive force in

knocking Holmes’s head against the vehicle. Cf. Lee v.

Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002) (slamming

plaintiff ’s head against car excessive where plaintiff had

already been secured). Next, according to Holmes, Piatek

applied a wristlock to his right arm, causing him to cry

out in pain, while Teipel held his other arm. A jury could

think Teipel, by holding Holmes, helped Piatek apply

excessive and gratuitous force if we assume, as Holmes

represents, that he was not resisting the officers and

particularly if Teipel heard Piatek whisper “I’m going to

hurt you.” See Yang v. Hardin, 37 F.3d 282, 285-86 (7th

Cir. 1994). At that point, Teipel knew (or believed) only

that Piatek was investigating Holmes in connection with

recent robberies and that Holmes had been a “smart ass”

to Piatek, not that Holmes had done or said anything

manifesting resistance or the need for the officers to

employ increased force. See Payne v. Pauley, 337 F.3d at

777 (police officers are expected to be thick-skinned and to

exercise restraint in dealing with public). Proceeding

according to Holmes’s chronology, it was only after that

point that Piatek said to Teipel, “He hit me. Take him

down.” Even if we assume, based on this statement, that

Teipel reasonably concluded in light of Piatek’s state-

24 No. 06-2759

ment that more force would be necessary to control Holmes

and place him under arrest, a factfinder might con-

clude that Teipel proceeded to employ more than was

reasonably necessary. It was at that moment, according to

Holmes, that the officers threw him to the ground and

Teipel ground his knee into Holmes’s face and kept doing

so despite Holmes’s complaints. The finder of fact could

conclude that once the two officers had Holmes on the

ground and in handcuffs, there was no need for Teipel to

grind his knee into Holmes’s face, particularly if, as

Holmes testified, he was not physically resisting the

officers. See id. at 780; Lanigan v. Village of E. Hazel

Crest, Ill., 110 F.3d 467, 475 (7th Cir. 1997); Clash v.

Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996).

We have not forgotten Holmes’s alleged statement that

he worked out every day and that the officers could not

hurt him. The district court thought that this added little

to the analysis, and we agree that it does not for summary

judgment purposes. It was Piatek who attributed this

statement to Holmes. Holmes’s passenger, Landfair, also

recalled him making this statement. Holmes himself did

not recall saying anything along this line, but he allowed

that he might have, and so we may assume that he did

make the statement. What the statement meant, and in

particular, whether it could reasonably have been con-

strued as a threat or as an indicator that the officers

would have to use enhanced force in order to place

Holmes under arrest, is open to question. But even if

we assume that the statement justified a more forceful

response by Teipel and Piatek, under Holmes’s version it

would not have justified gratuitous acts akin to Teipel

grinding his knee into Holmes’s face after Holmes had

been secured in handcuffs. Consequently, the statement

does not support the grant of summary judgment in

Teipel’s favor.

No. 06-2759 25

That Holmes’s injuries may have been minor does not

militate against a finding of excessive force, as Teipel

contends. Certainly the type and severity of injuries

Holmes describes would be relevant to a determination of

the degree of force Teipel employed and whether that

force was reasonable. Meyer v. Robinson, 992 F.2d 734,

739 (7th Cir. 1993). But the fact that Holmes was not

bleeding, did not require stitches, did not require follow-up

treatment for most of his injuries, and could not recall

whether he obtained the pain medication he was pre-

scribed does not rule out the possibility that Teipel

employed force that was not reasonably necessary to

secure Holmes. A factfinder might conclude that Holmes’s

injuries were slight but nonetheless find that Teipel

employed more force than was justified. See, e.g., Lanigan,

110 F.3d at 470 n.3; Rambo v. Daley, 68 F.3d 203, 207 n.2

(7th Cir. 1995); see also Bastien v. Goddard, 279 F.3d 10,

14-15 (1st Cir. 2002) (coll. cases).

Finally, the doctrine of qualified immunity does not

support the entry of summary judgment. Qualified immu-

nity serves to protect those public officials who have

violated a constitutional right when the contours of that

right were not sufficiently clear at the time to enable a

reasonable official to know that his conduct was prohib-

ited. See Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct.

2151, 2156 (2001). At the time of Holmes’s arrest, it was

of course clearly established that a police officer may not

use excessive force in arresting an individual. Teipel

claims that he was not on notice that the types of force

Holmes alleges he employed were impermissible under

the circumstances. However, accepting as true Holmes’s

contention that he did not physically resist the officers,

we cannot say that Teipel could have reasonably

thought the types of gratuitous force Holmes has de-

scribed were justified. No reasonable officer could have

thought that it was permissible to slam Holmes’s head

26 No. 06-2759

against the car simply because his fellow officer deemed

him a “smart ass,” for example, nor could the officer have

thought it proper to continually grind his knee into the

face of an unresisting arrestee. E.g., Payne, 337 F.3d

at 780.

III.

Crediting Holmes’s version of the events culminating

in his arrest, Officer Teipel had probable cause to arrest

Holmes for committing a battery on Detective Piatek based

on Piatek’s statement that Holmes had struck him. For

that reason, we affirm the entry of summary judgment

in Teipel’s favor as to Holmes’s false arrest claim. How-

ever, issues of fact persist as to whether Holmes com-

mitted a battery upon Teipel and resisted Teipel’s efforts

to arrest him, precluding a determination as to whether

Teipel had probable cause to initiate criminal charges

against Holmes for those offenses. Accordingly, we reverse

the grant of summary judgment in favor of Teipel and

the Village of Hoffman Estates on the malicious prosecu-

tion claim. Questions of fact also remain as to the

nature and degree of force that Teipel used in arresting

Holmes. We therefore reverse the grant of summary

judgment as to Holmes’s excessive force claim. The case

is remanded for trial as to those two claims. Because the

district court, in granting summary judgment in favor

of the defendants, improperly resolved a number of

factual disputes in the defendants’ favor, Circuit Rule 36

shall apply on remand. Holmes shall recover the costs

of his appeal.

AFFIRMED IN PART, REVERSED IN PART,

and REMANDED.

No. 06-2759 27

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-26-07