Chelios, James v. Heavener, Lindsey

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-4125

JAMES CHELIOS,

Plaintiff-Appellant,

v.

LINDSEY HEAVENER, Sergeant,

DAVID L. GERDES, Police Chief,

and CITY OF JOLIET, a

Municipal Corporation,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 909—Charles R. Norgle, Sr., Judge.

____________

ARGUED DECEMBER 4, 2007—DECIDED MARCH 21, 2008

____________

Before RIPPLE, MANION and WOOD, Circuit Judges.

RIPPLE, Circuit Judge. James Chelios filed this action

under 42 U.S.C. § 1983 against Lindsey Heavener, a City

of Joliet police officer, David Gerdes, the police chief,

and the City of Joliet (collectively, the “defendants”). He

alleges that the defendants violated his Fourth and Four-

teenth Amendment rights by unlawfully arresting him

and using excessive force to effectuate the arrest. The

complaint also includes a battery claim based on Illinois

law. The district court granted the defendants’ motion for

2 No. 06-4125

summary judgment. Mr. Chelios timely filed a notice of

appeal.

For the reasons set forth in this opinion, we reverse the

judgment of the district court and remand the case for

further proceedings.

I

BACKGROUND

A.

In the early morning hours of February 20, 2005, Ser-

geant Heavener was parked at a liquor store located

one block west of Dimitri’s Bar & Grill, a business owned

by Mr. Chelios. Sergeant Heavener heard eight to ten

gunshots and believed them to have come from an area

east of his position. He then went to Dimitri’s and ordered

Mr. Chelios to shut down his business for the remainder

of the evening because the Sergeant believed that the

gunshots had been fired from Dimitri’s parking lot.

Mr. Chelios complied with Sergeant Heavener’s request;

he told the DJ to stop playing music, and he ordered his

security personnel to usher everyone out.

After closing his business, Mr. Chelios walked outside.

Many patrons had left Dimitri’s but remained outside in

the parking lot. Mr. Chelios encountered Sergeant

Heavener and explained that no shooting could have

taken place in his parking lot because he had been

standing in the vestibule of his business watching a

camera focused on the parking lot and had not seen

any shooting. Sergeant Heavener maintained that the

shooting might have occurred in the parking lot.

No. 06-4125 3

William Moton, a bouncer at Dimitri’s, approached

Mr. Chelios and told him that he should to go to another

area of the parking lot to hear what a witness was telling

another police officer. Mr. Chelios did so; he claims that

he heard a witness telling a female police officer that

the shooting had not occurred in Dimitri’s parking lot.

At this point, Mr. Chelios’ and Sergeant Heavener’s

stories diverge. According to Mr. Chelios, he asked the

female officer to inform Sergeant Heavener that the

shooting had not occurred in the parking lot. He and

Moton then began walking toward the entrance of

Dimitri’s. On the way, the two men encountered Ser-

geant Heavener, who was leaning against the building

with his arms folded and one leg resting against the

building. Mr. Chelios told Sergeant Heavener that he

should speak to the female officer regarding the wit-

ness’ statement that the shooting had not occurred in his

parking lot. According to Mr. Chelios, Sergeant Heavener

told him, “Get out of my face.” R.40 ¶ 19, at 12. Mr. Chelios

responded in kind to the officer. Mr. Chelios claims that

he and Moton then walked away from Sergeant Heavener

and toward the entrance of the bar. As the two men

walked away, Mr. Chelios claims that Sergeant Heavener

shouted several times, “If you ever walk up on me again

like that, I will lock your ass up.” Id. ¶ 22, at 12. Sergeant

Heavener followed the men.

Once they were a few feet from the entrance, Mr. Chelios

asked Sergeant Heavener, “Why don’t you leave me

alone?” R.35 ¶ 23, at 4. In response, Sergeant Heavener

said, “Did you hear me? You know what, you’re under

arrest.” Id., Ex. 2 at 83. Sergeant Heavener then put his

arms around Mr. Chelios’ neck, grabbed his shoulders

and spun Mr. Chelios around. Two other officers had

4 No. 06-4125

joined Sergeant Heavener, and Mr. Chelios claims that all

three of them jumped on him and threw him on the

ground.

Sergeant Heavener has a different account. According

to him, Mr. Chelios approached him after speaking with

the female police officer and the witness. He claims that

Mr. Chelios called him a liar and said that the police

were fabricating the entire incident. Sergeant Heavener

claims that Mr. Chelios was upset. At this point, two

patrons of the bar began to fight, and Sergeant Heavener

claims that he walked away from Mr. Chelios to control

the crowd. About five minutes later, Sergeant Heavener

claims that Mr. Chelios and Moton approached the en-

trance of Dimitri’s and came upon him. Mr. Chelios began

to yell, telling the Sergeant that the gunshots had not been

fired from his property and that he should go speak to the

female officer.

Sergeant Heavener claims that Mr. Chelios was agitated

and had his finger pointed at the Sergeant’s face. The

Sergeant describes Mr. Chelios as being right up in his

face. According to Sergeant Heavener, Mr. Chelios poked

him in the chin with his outstretched finger. After the

alleged contact, Moton intervened and pulled Mr. Chelios

away. At this point, Sergeant Heavener ordered, “Get

back here.” R.31, Ex. A at 14. Mr. Chelios and Moton,

however, continued to walk away. Sergeant Heavener

then yelled, “I’m going to lock your ass up.” R.40 ¶ 22,

at 12. Sergeant Heavener followed the two men and

claims that Moton put himself between the Sergeant and

Mr. Chelios. Sergeant Heavener told Mr. Chelios that he

was under arrest and ordered Moton not to interfere.

Moton immediately stepped away. Mr. Chelios then

attempted to open the door to Dimitri’s; Sergeant Heavener

No. 06-4125 5

grabbed his right shoulder and informed him again that

he was under arrest. Mr. Chelios dropped to his knees;

Sergeant Heavener also fell to the ground. Sergeant Heav-

ener handcuffed Mr. Chelios and transported him to the

Joliet Police Department.

The State of Illinois filed a criminal complaint against

Mr. Chelios in Illinois Circuit Court. The complaint

charged Mr. Chelios with battery, a class A misdemeanor.

Mr. Chelios was acquitted of the charge.1 R.1 ¶¶ 23-28;

R.15 ¶¶ 23-27.

B.

In the district court, the defendants moved for sum-

mary judgment with respect to the section 1983 counts

that allege unlawful arrest and excessive force on the

part of Sergeant Heavener and the assault and battery

count asserted against Sergeant Heavener and the City of

Joliet.2 During a hearing on the summary judgment motion,

the district court and Mr. Chelios’ counsel engaged in

the following colloquy:

The Court: So here in this case it’s the flipside where

according to the arresting officer in a

statement under oath, his deposition,

1

This appeal therefore is not barred under Heck v. Humphrey,

512 U.S. 477 (1994).

2

Prior to the defendants’ summary judgment motion, the

district court granted Police Chief Gerdes’ and the City of

Joliet’s motion to dismiss Mr. Chelios’ malicious prosecution

claim as well as his claim under Monell v. Department of Social

Services, 436 U.S. 658 (1978). R.21.

6 No. 06-4125

that is what Chelios did. And so in terms

of probable cause, given the nature of the

circumstances, that is sufficient to con-

stitute probable cause.

Counsel: Well, your Honor, I mean, that’s taking

only the officer’s version. I mean, that

would be—

The Court: Well, with probable cause, one doesn’t

consider the ultimate defense to the

case. It’s whether there was a probabil-

ity of criminality in this case. And the

probability of criminality is that an Illi-

nois crime had just been committed

under these circumstances.

Counsel: Your Honor, Mr. Chelios denies he ever

touched Sergeant Heavener. That’s a

material fact. In order to have aggravated

battery, to have assault, you had to have

a threat of battery or you had to actually

have a battery. Chelios denies he ever

touched him.

The Court: No. You have to have probable cause,

the probability that an assault occurred,

a probability—

Counsel: Correct.

The Court: —of disorderly conduct, and the proba-

bility of a battery, which would become

an aggravated battery in Illinois if it

were upon a police officer.

Counsel: Your Honor, but that’s only if Chelios

agreed that he did what Sergeant

No. 06-4125 7

Heavener says he did. But under the

facts as James Chelios says they oc-

curred, I don’t see how there was

any battery. I think a jury could easily

find there was no battery and that there

was a false arrest.

The Court: That there was no probable cause for

arrest?

Counsel: To believe that there was a battery, cor-

rect, Your Honor.

The Court: No probability of criminality under

these circumstances?

Counsel: Under James Chelios’ version of what

occurred, yes, Your Honor.

R.72 at 6-7.

The district court granted the defendants’ summary

judgment motion in all respects. In its opinion, the court

explained that it was taking the “undisputed facts from

the parties’ Local Rule 56.1 Statements and [that it had]

note[d] disputed facts within the text.” R.60 at 1 n.1.3

In setting forth the facts, the court stated:

According to Heavener, Chelios walked around the

corner of the building and began to yell at Heavener.

Chelios pointed his finger in Heavener’s face, and

eventually poked him in the chin. Heavener describes

Chelios as being “right up in my face.” As soon as

Chelios poked Heavener, William Molton [sic] . . .

interceded and pulled Chelios away.

3

The district court’s opinion also is available at Chelios v.

Heavener, No. 06 C 909, 2006 WL 3147717 (N.D. Ill. Oct. 31, 2006).

8 No. 06-4125

Id. at 3. The opinion does not note that the parties dispute

whether Mr. Chelios poked Sergeant Heavener in the

chin. Nor did the court grant Sergeant Heavener’s request,

in his response to Mr. Chelios’ statement of facts, that

this fact be stricken from the record for failure to comply

with the local rules.

On Mr. Chelios’ unlawful arrest claim, the court deter-

mined that Sergeant Heavener had probable cause to arrest

Mr. Chelios because of the alleged contact. The court

explained that this conduct constituted an aggravated

battery under Illinois law. It further determined that

Sergeant Heavener had probable cause to arrest Mr.

Chelios for resisting arrest. In the court’s view, Mr. Chelios

“attempted to resist arrest when he grabbed hold of the

front door to Dimitri’s, and tried to inhibit Heavener

from taking him into custody. It took three officers, includ-

ing Heavener, to finally subdue and handcuff Chelios.”

Id. at 18.

The district court also granted the defendants’ sum-

mary judgment on Mr. Chelios’ excessive force claim. It

believed that Sergeant Heavener and the two other

officers acted reasonably when they arrested Mr. Chelios.

The court found no evidence to suggest that the amount

of force that the officers used was excessive. The court

noted that Mr. Chelios had poked Sergeant Heavener in

the chin, that he had yelled at the Sergeant at close

range, that Mr. Chelios was accompanied by Moton,

that Sergeant Heavener had responded to a report of

gunshots fired near Dimitri’s and that there was a fight

between two individuals occurring at the same time. The

court believed that, “[g]iven these circumstances, along

with the fact that Chelios had acted hostile and comba-

tive to Heavener, the proper amount of force was used

No. 06-4125 9

to control the situation.” Id. at 20.4

II

DISCUSSION

This court reviews de novo a grant of summary judg-

ment. Hurst-Rosche Eng’rs, Inc. v. Commercial Union Credit

Ins. Co., 51 F.3d 1336, 1341 (7th Cir. 1995). All facts and

reasonable inferences must be construed in favor of the

nonmoving party, here, Mr. Chelios. Magin v. Monsanto

Co., 420 F.3d 679, 686 (7th Cir. 2005). We do not evaluate

the weight of the evidence, judge the credibility of wit-

nesses or determine the ultimate truth of the matter; rather,

we determine whether there exists a genuine issue of

triable fact. Anderson v. Liberty Lobby, 477 U.S. 242, 249-50

(1986). Summary judgment is proper if “the pleadings,

depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, 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.” Magin, 420 F.3d at 686 (citing Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The

moving party bears the initial burden of demonstrating

that these requirements have been met; it may discharge

this responsibility by showing “that there is an absence

of evidence to support the nonmoving party’s case.”

Celotex, 477 U.S. at 323. To overcome a motion for sum-

mary judgment, the nonmoving party must come forward

with specific facts demonstrating that there is a genuine

4

The court explained that it was unnecessary to engage in an

analysis of qualified immunity because it determined that

Sergeant Heavener had acted reasonably.

10 No. 06-4125

issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). The existence of a mere

scintilla of evidence, however, is insufficient to fulfill

this requirement. Anderson, 477 U.S. at 251-52. The

nonmoving party must show that there is evidence upon

which a jury reasonably could find for him. Id.

A. Unlawful Arrest Claim

Probable cause is an absolute defense to a claim of

wrongful arrest asserted under section 1983 against police

officers. Wagner v. Washington County, 493 F.3d 833, 836

(7th Cir. 2007) (per curiam); Potts v. City of Lafayette,

121 F.3d 1106, 1113 (7th Cir. 1997). A police officer has

probable cause to arrest “if, at the time of the arrest, the

‘facts and circumstances within the officer’s knowledge . . .

are sufficient to warrant a prudent person, or one of

reasonable caution, in believing, in the circumstances

shown, that the suspect has committed, is committing,

or is about to commit an offense.’ ” Wagner, 493 F.3d at

836 (quoting Michigan v. DeFillippo, 443 U.S. 31, 37

(1979) (alteration in original)); see also Beck v. Ohio, 379 U.S.

89, 90 (1964); Maxwell v. City of Indianapolis, 998 F.2d 431,

434 (7th Cir. 1993). In determining whether an officer

had probable cause, the court steps into the shoes of a

reasonable person in the position of the officer. Mustafa

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

that we “evaluate[] probable cause ‘not on the facts as an

omniscient observer would perceive them,’ but rather ‘as

they would have appeared to a reasonable person in the

position of the arresting officer’ ” (quoting Kelley v. Myler,

149 F.3d 641, 646 (7th Cir. 2000))). The probable cause

determination must be made by a jury “if there is room

for a difference of opinion concerning the facts or the

No. 06-4125 11

reasonable inferences to be drawn from them.” Maxwell,

998 F.2d at 434 (explaining that, “[i]f the underlying facts

supporting the probable cause determination are not in

dispute, the court can decide whether probable cause

exists”).

1.

Whether Mr. Chelios poked Sergeant Heavener in the

chin is a critical fact to the section 1983 wrongful arrest

claim. If Mr. Chelios made contact with Sergeant Heavener,

then Sergeant Heavener had probable cause to arrest him

for having committed an aggravated battery under

Illinois law. See 720 Ill. Comp. Stat. 5/12-3 (defining battery

as the intentional or knowing “physical contact of an

insulting or provoking nature” without legal justification),

5/12-4(b)(18) (elevating to aggravated status a battery

committed against a police officer). If Mr. Chelios did not

make contact with Sergeant Heavener, however, Ser-

geant Heavener could not have had probable cause to

arrest Mr. Chelios for aggravated battery.

Mr. Chelios emphasizes that the parties dispute whether

he ever made any contact with Sergeant Heavener.

Mr. Chelios points to his statement of additional facts filed

under Northern District of Illinois Local Rule 56.1, which

states: “Before his arrest, C[helios] never physically

touched Heavener.” R.35 ¶ 26, at 4 (citing Ex. 1 at 87, 122,

124, 141, 167; Ex. 2 at 39-40, 78, 96).5 These citations refer

5

In their memorandum filed in response to Mr. Chelios’

statement of facts, the defendants stated: “The material fact

asserted is not supported by [e]xhibit 1, pages 87, 122, 124, 141

(continued...)

12 No. 06-4125

to transcripts of testimony given at Mr. Chelios’ criminal

trial for battery, which indicate that at no point did

Mr. Chelios make contact—with his outstretched finger

or otherwise—with Sergeant Heavener. For example,

Mr. Chelios testified:

Q. Did you at any time from the time you saw Ser-

geant Heavener up here, and even after until you

got to the door, did you make any contact with

Sergeant Heavener?

A. Not at all, sir.

Q. Did you ever touch him with your finger on the

chin?

A. Not at all.

R.35, Ex. 2 at 78. Another witness at the criminal trial also

testified6:

Q. When he’s—from the time that he did that, from

the time that he got to the point where he was

arrested, did you ever see Mr. Chelios make any

contact with Officer Heavener—

5

(...continued)

or 167. In further response, the defendants’ [sic] deny the

material fact . . . .” R.40 ¶ 26, at 13. The defendants are cor-

rect that these particular pages of exhibit 1 do not support the

fact. These pages set forth Sergeant Heavener’s testimony, and

it seems that Mr. Chelios’ attorney included them in order to

show the contrast between Sergeant Heavener’s testimony

and Mr. Chelios’ testimony. The other cited pages (exhibit 2,

pages 39-40, 78, 96) do support the fact.

6

Presumably, this testimony was given by Moton, the bouncer

who worked for Mr. Chelios. The transcript, however, does

not identify the name of the witness.

No. 06-4125 13

A. No sir.

Q. —of a physical nature?

A. No, sir.

Q. Did he ever touch his chin?

A. No, sir, I was—

Q. Did he ever wave his finger and strike him in the

chin?

A No, sir. I was with him all the time. . . .

Q. Did you ever see Jim touch Officer Heavener

on—or tap him on the chin?

A. No, sir, not at all.

Id. at 39-40.

In response, the defendants submit that the statement

of facts that Mr. Chelios filed with the district court

was defective in its entirety and therefore that the court

had only one set of facts before it in ruling on the sum-

mary judgment motion. In support of this contention,

the defendants claim that certain numbered facts are

not supported by supporting materials and that other

numbered facts are not concise statements.

Federal Rule of Civil Procedure 83(a)(1) authorizes

each district court to make rules governing its practice.

These local rules streamline litigation and save litigants,

lawyers and courts time and effort. Given the often daunt-

ing nature of motions for summary judgment, we have

“emphasized the importance of local rules and have

consistently and repeatedly upheld a district court’s

discretion to require strict compliance with its local rules.”

Koszola v. Bd. of Educ., 385 F.3d 1104, 1109 (7th Cir. 2004)

14 No. 06-4125

(internal quotation marks and citation omitted); Smith v.

Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (holding that “a

failure to respond by the nonmovant as mandated by

the local rules results in an admission”).

As we have already mentioned, the district court

stated that Mr. Chelios poked Sergeant Heavener in the

chin but did not note that the parties dispute this fact. The

court did not strike for noncompliance Mr. Chelios’ Local

Rule 56.1 statement of facts in its entirety; nor did the

court strike any of Mr. Chelios’ responses to the defen-

dants’ statement of facts or any particular additional

fact. Nothing in the court’s opinion or in the transcript of

the summary judgment hearing indicates that the court was

dissatisfied with Mr. Chelios’ submissions under the local

rules. Indeed, the court explained that it was taking the

disputed facts from the “parties’ Local Rule

56.1 Statements” and that it would note disputed facts

within the text. R.60 at 1 n.1. Despite discussing the

differences between Mr. Chelios’ and Sergeant Heavener’s

account of the facts relating to the excessive force claim,

the court did not acknowledge that Mr. Chelios main-

tained that he never made physical contact with Sergeant

Heavener. We therefore cannot accept the defendants’

contention that the district court implicitly rejected

Mr. Chelios’ entire statement of facts. District courts have

the discretion to require strict compliance with the local

rules, but we shall not presume that a party’s entire

statement of facts was stricken when there is no ruling

to that effect. Cf. Cichon v. Exelon Generation Co., 401 F.3d

803, 808-10 (7th Cir. 2005) (upholding a district court’s

decision to strike a party’s statement of facts where the

district court made an explicit ruling).

Because there is a dispute as to whether Mr. Chelios

ever made physical contact with Sergeant Heavener, the

No. 06-4125 15

district court erred in ruling, as a matter of law,

that Sergeant Heavener had probable cause to arrest

Mr. Chelios for aggravated battery under Illinois law. Such

a ruling could be supported only if the facts and all reason-

able inferences were construed against Mr. Chelios, a

methodology that contravenes well-established sum-

mary judgment standards. See Magin, 420 F.3d at 686

(requiring that the facts and all reasonable inferences

must be construed in favor of the nonmoving party); see

also Anderson, 477 U.S. at 249-50 (explaining that a court

may not evaluate the weight of the evidence, judge the

credibility of witnesses or determine the ultimate truth

of the matter); see also Payne v. Pauley, 337 F.3d 767, 770

(7th Cir. 2003) (“As we have said many times, summary

judgment cannot be used to resolve swearing contests

between litigants.”).

2.

The district court also determined that Sergeant

Heavener had probable cause to arrest Mr. Chelios for

resisting arrest when he reached to open the front door

of his business and thereby tried to inhibit Sergeant

Heavener from taking him into custody. Under Illinois law,

a person is not authorized to resist an arrest even if the

arrest is unlawful. See 720 Ill. Comp. Stat. 5/7-7. Under

Mr. Chelios’ version of the facts, however, he in no

way resisted Sergeant Heavener after the Sergeant grabbed

and tackled him with the assistance of two other officers.

He maintains that Sergeant Heavener never told him to

“get back here” or ordered him not to go inside his busi-

ness; nor had Sergeant Heavener asked Mr. Chelios for

assistance in connection with the investigation of the

shooting.

16 No. 06-4125

According to Mr. Chelios, Sergeant Heavener followed

him and Moton after they had their second encounter.

Once they were a few feet from the business entrance,

Mr. Chelios asked Sergeant Heavener, “Why don’t you

leave me alone?” R.35 ¶ 23, at 4. In response, Sergeant

Heavener said, “Did you hear me? You know what,

you’re under arrest.” Id., Ex. 2 at 83. Sergeant Heavener

then put his arms around Mr. Chelios’ neck, grabbed his

shoulders and spun Mr. Chelios around. Two other officers

joined Sergeant Heavener, and Mr. Chelios claims that all

three of them jumped on him and threw him on the

ground. Mr. Chelios, as he portrays the facts, was arrested

unlawfully when Sergeant Heavener grabbed him,7 told

him that he was under arrest and tackled him to the

ground. He therefore had no opportunity to resist the

arrest.8

B. Excessive Force Claim

The force used to effect an arrest must be objectively

“reasonable” under the Fourth Amendment. Abdullahi v.

7

For purposes of the Fourth Amendment, “a person is

‘seized’ . . . when, by means of physical force . . . his freedom of

movement is restrained.” United States v. Mendenhall, 446 U.S.

544, 553 (1980).

8

We further note that, under Mr. Chelios’ version of the facts,

Sergeant Heavener did not have probable cause to arrest

Mr. Chelios for resisting or obstructing a peace officer. See 720

Ill. Comp. Stat. 5/31-1(a); see also Payne v. Pauley, 337 F.3d 767,

776 (7th Cir. 2003) (explaining that, under Illinois law, the

resistance or obstruction “must be physical; mere argument

will not suffice”).

No. 06-4125 17

City of Madison, 423 F.3d 763, 768 (7th Cir. 2005). To deter-

mine whether the force used to effect an arrest was rea-

sonable the courts must engage in a “careful balanc[ing] of

the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the countervailing

governmental interests at stake.” Morfin v. City of E. Chi-

cago, 349 F.3d 989, 1004 (7th Cir. 2003) (quoting Tennessee

v. Garner, 471 U.S. 1, 8 (1985)). Proper application of this

balancing test “requires careful attention to the facts and

circumstances of each particular case, including the

severity of the crime at issue, whether the suspect poses

an immediate threat to the safety of the officers or others,

and whether he is actively resisting arrest or attempting

to evade arrest by flight.” Id. at 1004-05 (citing Bell v.

Wolfish, 441 U.S. 520, 559 (1979)). The reasonableness

standard also recognizes that “police officers are often

forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the

amount of force that is necessary in a particular situation.”

Graham v. Connor, 490 U.S. 386, 396-97 (1989). In sum, an

officer’s “use of force is unconstitutional if, ‘judging from

the totality of the circumstances at the time of the arrest,

the officer used greater force than was reasonably neces-

sary to make the arrest.’ ” Payne, 337 F.3d at 778 (quoting

Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987)).

In deciding this issue, the district court did not view

the facts in the light most favorable to Mr. Chelios. When

viewed in that light, a jury reasonably could find that the

force that Sergeant Heavener and the two other officers

used in arresting Mr. Chelios was unreasonable. According

to Mr. Chelios, Sergeant Heavener never told him that

he was under arrest and never ordered him not to go inside

the bar. Instead, after Mr. Chelios said, “Why don’t you

18 No. 06-4125

leave me alone,” R.35 ¶ 23, at 4, Sergeant Heavener said,

“Did you hear me? You know what, you’re under arrest,”

id., Ex. 2 at 83. Sergeant Heavener immediately put his

arms around Mr. Chelios’ neck, grabbed his shoulders,

spun Mr. Chelios around and then two other officers

and Sergeant Heavener tackled Mr. Chelios. Under this

version of the facts, Mr. Chelios had not committed any

crime, had not presented any sort of threat to Sergeant

Heavener or any third parties and had not attempted to

flee or evade arrest.

In Morfin, there was a dispute as to whether the plaintiff

had been interfering with the police’s investigation of voter

machine tampering on election day. According to the

plaintiff’s version of the facts, he had been “grabbed” by

two police officers who “twisted his arms, shoved him

against the wall and took him to the floor.” Morfin, 349

F.3d at 993. Until that point, the plaintiff “had not resisted

any police action and informed the officers, ‘I’m going

peacefully, you don’t have to put handcuffs on me.’ ” Id.

After he said that, the plaintiff “crossed his arms on his

chest to prevent the officers from handcuffing him.” Id. The

district court held that the officer’s use of force was reason-

able and granted summary judgment in favor of

the officers. We reversed. We held that,

viewing the record in the light most favorable to [the

plaintiff], a jury could reach the opposite conclusion.

According to [the plaintiff and another witness], [the

plaintiff] did not pose a threat to the officers—he

was docile and cooperative. Furthermore, [the plaintiff]

did not resist arrest in any way prior to the officers’ use

of excessive force. [The plaintiff] testified that [two

officers] grabbed him, twisted his arm, shoved him

toward the wall and took him to the floor. To this

No. 06-4125 19

point, [the plaintiff] had not resisted any police ac-

tion . . . . It was only after the officers took [the plain-

tiff] to the floor that [he] crossed his arms on his

chest to prevent the officers from handcuffing him. If

a jury were to credit [the plaintiff’s] version of events

over that of the arresting officers, it could conclude

that there was no reason for the officers to exert such

force on [him].

Id. at 1005.

Under Mr. Chelios’ version of the facts, he neither had

committed a crime nor had threatened Sergeant Heavener

or his fellow officers. Although we might not use the

terms “docile and cooperative” to describe Mr. Chelios,

even under his version of the facts (he told Sergeant

Heavener to leave him alone), a jury certainly could find

that his conduct in no way warranted being tackled by

three officers.

The district court emphasized the chaotic nature of the

circumstances that night as well as Mr. Chelios’ failure

to proffer any evidence showing that he had suffered

injury as a result of the arrest.9 Respectfully, we believe that

this analysis is flawed. Both parties’ versions of the facts

undercut the district court’s description of the scene as

9

The court stated:

Heavener was responding to a report of shots fired at or

around Dimitri’s bar, and there was another fight between

two females occurring at the same time. Given these

circumstances, along with the fact that Chelios had acted

hostile and combative to Heavener, the proper amount of

force was used to control the situation.

R.60 at 9.

20 No. 06-4125

being chaotic at the time that Mr. Chelios was arrested.

When Mr. Chelios encountered Sergeant Heavener in

the confrontation that led to the arrest, the parties agree

that Sergeant Heavener was leaning against the building

with his arms folded and one leg resting against the

building. The inference from this fact—an inference to

which Mr. Chelios is entitled given the posture of this

case—is that, by the time that Mr. Chelios was arrested, the

situation had calmed down substantially. Moreover, the

scene’s chaotic nature has little bearing on the threat that

Mr. Chelios posed to Sergeant Heavener or other officers.

None of the officers suspected that Mr. Chelios had

perpetrated the shooting, that he had been connected

in any way to the shooting or that he was armed. Indeed,

Mr. Chelios had cooperated with the police; he closed

down his business and ordered his patrons out of the bar.

Mr. Chelios’ failure to proffer evidence showing the

severity of his injuries also does not warrant summary

dismissal. Although injury is a relevant factor in deter-

mining whether an officer used excessive force, an exces-

sive force claim does not require any particular degree of

injury. See Holmes v. Vill. of Hoffman Estates, 511 F.3d 673,

687 (7th Cir. 2007) (“That [a plaintiff’s] injuries may

have been minor does not militate against a finding of

excessive force.”); McNair v. Coffey, 279 F.3d 463, 468 (7th

Cir. 2002) (Cudahy, J., concurring) (“Physical injury is not

a necessary element of a claim for excessive force.”);

Lanigan v. Vill. of E. Hazel Crest, Ill., 110 F.3d 467, 471 n.3

(7th Cir. 1997); Rambo v. Daley, 68 F.3d 203, 207 (7th Cir.

1995); Meyer v. Robinson, 992 F.2d 734, 738 (7th Cir. 1993);

Williams v. Boles, 841 F.2d 181, 183 (7th Cir. 1988); Lester, 830

F.2d at 713-14. Accordingly, taking the facts in the

light most favorable to Mr. Chelios, a jury could find that

No. 06-4125 21

Officer Heavener used excessive force when he and two

other officers tackled Mr. Chelios.

C. Qualified Immunity

The doctrine of qualified immunity shields from liability

public officials who perform discretionary duties. Belcher v.

Norton, 497 F.3d 742, 749 (7th Cir. 2007). Qualified immu-

nity shields from liability police officers “who act in ways

they reasonably believe to be lawful.” Anderson v. Creighton,

483 U.S. 635, 638-39 (1987). The defense provides “ample

room for mistaken judgments” and protects all but the

“plainly incompetent and those who knowingly violate

the law.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quot-

ing Malley v. Briggs, 475 U.S. 335, 343 (1986)); Clash v.

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

excessive force context, that the “police cannot have the

specter of a § 1983 suit hanging over their heads when

they are confronted with a dangerous fugitive, possible

escapee, or as long as their behavior falls within reasonable

limits”). Qualified immunity thus protects those officers

who make a reasonable error in determining whether

there is probable cause to arrest an individual. Anderson,

483 U.S. at 643; Belcher, 497 F.3d at 749.

The Supreme Court of the United States has articulated

a two-part test for qualified immunity: (1) whether the

facts, taken in the light most favorable to the plaintiff,

show that the defendants violated a constitutional right;

(2) whether that constitutional right was clearly estab-

lished at the time of the alleged violation. Saucier v. Katz,

533 U.S. 194, 201 (2001). A plaintiff may discharge the

burden of showing that the constitutional right was

clearly established by showing that there is “a clearly

22 No. 06-4125

analogous case establishing a right to be free from the

specific conduct at issue” or that “the conduct is so egre-

gious that no reasonable person could have believed that

it would not violate clearly established rights.” Smith v.

City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001); Saffell v.

Crews, 183 F.3d 655, 658 (7th Cir. 1999).

1.

When the facts of this case are taken in the light most

favorable to him, Mr. Chelios has shown that Sergeant

Heavener violated his constitutional rights by arresting

him without probable cause. Moreover, given that,

under his version of the facts, Mr. Chelios had not made

physical contact with Sergeant Heavener, conducted

himself in a disorderly manner or otherwise obstructed

or impeded Sergeant Heavener in his duties, we believe

that case law would have put him on notice that

Mr. Chelios had a right to be free from arrest under the

particular circumstances of this case. See, e.g., Pourghoraishi

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

that an officer did not have probable cause to arrest

where the individual “did not raise his voice, use pro-

fanity, make unreasonable noise, or otherwise engage

in any behaviors prohibited by the disorderly conduct

statute”); Payne, 337 F.3d at 775-78 (holding that similar

facts did not create probable cause to arrest for resisting

or obstructing a police officer); Morfin, 349 F.3d at 997-

1000 (same).

No. 06-4125 23

2.

With regard to his excessive force claim, Mr. Chelios

similarly may defeat Sergeant Heavener’s qualified im-

munity defense by

(1) pointing to a closely analogous case that established

a right to be free from the type of force the police

officers used on him, or (2) showing that the force was

so plainly excessive that, as an objective matter, the

police officers would have been on notice that they

were violating the Fourth Amendment.

Clash, 77 F.3d at 1048. Our prior cases indicate that “[i]t is

clear . . . that police officers do not have the right to shove,

push, or otherwise assault innocent citizens without any

provocation whatsoever.” Id. Although there are not

many cases that are closely analogous to this one, see, e.g.,

Morfin, 349 F.3d at 993 (denying summary judgment

where two officers tackled a passive, non-resisting in-

dividual), Mr. Chelios, nonetheless, may show that the

force that Sergeant Heavener used in effectuating the

arrest was so plainly excessive that a reasonable police

officer would have been on notice that such force is

violative of the Fourth Amendment.

Establishing that the use of force in a particular case

was “so plainly excessive” requires a fair amount of

factual development. Thus, “if the facts draw into ques-

tion the objective reasonableness of the police action under

the alleged circumstances, they must be developed in the

district court before a definitive ruling on the defense

can be made.” Clash, 77 F.3d at 1048. In Clash, some

passers-by had called the police because they had seen

several youngsters in a parked automobile playing with

a gun. Id. at 1046. One of the passers-by reported that

24 No. 06-4125

he had heard the child say, “if you don’t get away from

the car I’m going to blow your weed off your head.” Id.

The police arrived on the scene and arrested the plaintiff

as he was coming back to his car from inside a store. Id.

at 1047. The officer handcuffed the plaintiff and then

discovered that the gun with which the children in his

car had been playing was a toy. Id. Despite this discovery,

the plaintiff alleged that the officer escorted him to a

police car and told him to get in. Id. The plaintiff told

the officer that he would not fit inside the car, and the

officer responded by shoving him into the car, making

the plaintiff’s knee pop loudly. Id. We affirmed the dis-

trict court’s denial of qualified immunity because the

“missing facts, which will be developed at trial, concern the

relationship between the shove and the harm Clash may

have presented.” Id. at 1048. In light of the factual disputes

between the parties, we explained, a trial was required

before determining whether the officer should “have

known in the circumstances presented that the shove

was ‘plainly excessive.’ ” Id.

This case similarly is susceptible to additional factual

development on both sides before a conclusion can be

reached as to whether Sergeant Heavener’s use of force was

plainly excessive. Sergeant Heavener and Mr. Chelios are

disputing most of the facts that bear on the objective

reasonableness of the officers’ use of force. The parties

dispute whether and to what degree Mr. Chelios had

become agitated and threatening in speaking to Ser-

geant Heavener, how chaotic the scene was at the time

of Mr. Chelios’ arrest, what was the exact sequence of

events leading up to the arrest and whether Mr. Chelios

had made any physical contact with Sergeant Heavener.

These factual disputes bear on the objective reasonable-

No. 06-4125 25

ness of the force used to arrest Mr. Chelios, and therefore

a trial is required before a determination can be made as

to whether Sergeant Heavener is entitled to qualified

immunity.

D. Illinois State Law Battery Claim

Lastly, Mr. Chelios contends that the district court

equated the Fourth Amendment excessive force claim

with the Illinois state law battery claim and therefore

erroneously dismissed the battery claim without any

further analysis.

Under Illinois law, battery is the “unauthorized touch-

ing” of another that “offends a reasonable sense of personal

dignity.” Cohen v. Smith, 648 N.E.2d 329, 332 (Ill. App. 1995)

(internal quotation marks and citation omitted). The

record contains facts that, if accepted by a jury, would

meet this definition. Mr. Chelios, however, must clear

another hurdle: The Illinois Tort Immunity Act shields

public employees from liability for actions committed “in

the execution or enforcement of any law unless such act

or omission constitutes willful and wanton conduct.” 745

Ill. Comp. Stat. 10/2-202; see also id. 10/1-202 (defining

“employee” as a “present or former officer”). The

Illinois courts have held that a police officer is not guilty

of willful or wanton conduct unless he acted with

“actual or deliberate intention to harm or with an utter

indifference to or conscious disregard for the safety of

others.” Breck v. Cortez, 490 N.E.2d 88, 94 (Ill. App. 1986);

see also Carter v. Chi. Police Officers, 165 F.3d 1071, 1080-81

(7th Cir. 1998). Although willful and wanton conduct

“consists of more than mere inadvertence, incompetence,

or unskillfulness,” it need not be an “intentional act;

26 No. 06-4125

rather, it may be an act committed under circumstances

exhibiting a reckless disregard for the safety of others.”

Carter, 165 F.3d at 1071. Whether an officer acted in such

fashion “is normally a question of fact to be determined

by the jury.” Stamat v. Merry, 397 N.E.2d 141, 145 (Ill.

App. 1979).

In response to the defendants’ motion for summary

judgment, Mr. Chelios submitted a transcript of Ser-

geant Heavener’s testimony from a hearing held before

the Joliet, Illinois Liquor Commission. At this hearing,

Sergeant Heavener testified:

And, yes, when he put his finger—I was actually pretty

calm until he put his finger in my face and made

contact with me. At that point, you know, I’ve got

to take action or my credibility as a police officer is

shot. I respond [to Dimitri’s Bar] every weekend. If

these people see the owner treating the police like

that, that’s going to make them think that they can

treat the police like that, and I’m going to lose my

credibility with those people, okay.

R.35, Ex. 1 at 123-24. From Sergeant Heavener’s testimony,

a jury might well conclude that his arrest and tackling of

Mr. Chelios was an intentional and calculated display of

force. This inference, combined with its acceptance of

Mr. Chelios’ version of the events that night, might lead

a jury to find, reasonably, that Sergeant Heavener acted

with “actual or deliberate intention to harm.” This factual

question certainly is a close one. Nevertheless, we must

conclude that, under Mr. Chelios’ version of the facts, he

is entitled to have a jury determine whether the Sergeant

engaged in actions for which he can be held liable under

Illinois law. Accordingly, we believe that Mr. Chelios

should be allowed to proceed with the state law battery

claim.

No. 06-4125 27

It bears emphasis that, at this stage of the litigation,

we must take the facts in the light most favorable to

Mr. Chelios and must resolve all evidentiary conflicts in

his favor. Although a factfinder ultimately may credit

Sergeant Heavener’s version of the events, we must

decide the case on the record before us.

Conclusion

For the foregoing reasons, the judgment of the district

court is reversed, and the case is remanded for further

proceedings consistent with this opinion. On remand,

Circuit Rule 36 shall apply.

REVERSED and REMANDED

USCA-02-C-0072—3-21-08