Jose Gonzalez v. City of Elgin

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2658

JOSE G ONZALEZ, M ARIBEL G ONZALEZ,

A NTONIO F RANCO , M ARIA G ONZALEZ,

L UIS F RANCO , and JULIO G ONZALEZ,

Plaintiffs-Appellants,

v.

C ITY OF E LGIN, M IGUEL P ANTOJA,

S HAUN S CHROEDER, T ODD P AVORIS,

H EATHER R OBINSON, D OUG N EFF,

D ANIEL M C G INLEY, and JAMES K ELLY,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 5321—Samuel Der-Yeghiayan, Judge.

A RGUED JANUARY 21, 2009—D ECIDED A UGUST 20, 2009

Before P OSNER, F LAUM, and W OOD , Circuit Judges.

W OOD , Circuit Judge. Jose Gonzalez, Maribel Gonzalez,

Antonio Franco, Maria Gonzalez, Luis Franco, and Julio

Gonzalez filed this action under 42 U.S.C. § 1983 against

2 No. 08-2658

the City of Elgin and numerous Elgin police officers. The

plaintiffs allege that the defendants violated their

Fourth Amendment rights by unlawfully arresting and

detaining them, using excessive force against them to

effectuate the arrest, and failing to intervene to prevent

the excessive use of force. The complaint also alleges

three claims based on Illinois law: one for malicious

prosecution, one against the City of Elgin based on state-

law concepts of respondeat superior, and one for indemni-

fication. The district court granted the defendants’ motion

for summary judgment, and the plaintiffs appeal to this

court.

I

A

The facts of this case are highly contested; a person

comparing the plaintiffs’ version with that of the defen-

dants would be forgiven for thinking that each was recall-

ing an entirely different event. The standard of review

governing summary judgment, however, resolves at least

one question: we must accept all facts and reasonable

inferences in the light most favorable to the non-moving

party—here, the plaintiffs. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520

F.3d 678, 685 (7th Cir. 2008); cf. Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 149-51 (2000) (address-

ing standard for motions under F ED. R. C IV. P. 50 and

noting that the substantive approach mirrors that for

Rule 56). We do not judge the credibility of the wit-

nesses, evaluate the weight of the evidence, or determine

No. 08-2658 3

the truth of the matter. The only question is whether

there is a genuine issue of fact. Anderson, 477 U.S. at 249-50.

We present the facts with this standard in mind, noting

where relevant the divergence between the plaintiffs’

and the defendants’ versions of events.

In the wee hours of October 1-2, 2005, plaintiffs were

gathered at the home of Antonio and Luis’s parents in

Elgin, Illinois. (We refer to the plaintiffs by their first

names in the remainder of this opinion, since only two

surnames are shared by the six plaintiffs.) The plaintiffs

(with the exception of Luis) were former high school

classmates now in their late twenties and early thirties.

Earlier that night, they had attended a wedding and

had decided to visit with each other after the wedding

ended. While Jose, Julio, and Antonio drank alcoholic

beverages at the wedding (the plaintiffs’ evidence

shows that Jose drank several light beers, Julio drank a

couple of beers, and Antonio drank about three beers), they

did not drink at all after the wedding ended. Neither

Maribel, Maria, nor Luis drank anything alcoholic either

at the wedding or at the subsequent gathering.

At around 4:30 a.m., as the plaintiffs were getting ready

to leave the gathering, Rodolfo Aranda came running

into the house. Earlier, Aranda had been at Luis and

Antonio’s parents’ house with the plaintiffs, but then

he, his wife, and his brother left to eat at La Rosa, a

nearby restaurant. Aranda told the group that his wife

and brother were being beaten up outside the restaurant

and that he needed help. The group followed Aranda to

the restaurant on foot, but by the time they arrived, the

4 No. 08-2658

attack on Aranda’s wife and brother was over and the

attackers had left. The defendants apparently were

alerted to the scene by Officers Pantoja and Schroeder,

who were busy with a traffic stop near the restaurant and

observed the plaintiffs moving toward the restaurant.

What occurred then differs for each plaintiff, and from

this point it is sensible to proceed one person at a time.

Furthermore, because police cameras captured at least

some of the events of the evening in question, we also

take advantage of our direct observation of the scene.

1. Jose Gonzalez

At his deposition, Jose testified that once the group

reached La Rosa, they found Aranda’s wife and brother

on the ground in the restaurant’s parking lot. Jose went

over to the brother to see whether he was all right. After

that, a group of about five people, including Antonio, Jose,

Luis, and the restaurant owner, stood talking outside the

restaurant. Officer Pantoja approached the group and

spoke with Antonio and the owner of the restaurant, and

then snapped, “Oh you know, just everybody get the

fuck out of here. Everybody gotta go.” Jose asked Officer

Pantoja why, because he thought that the plaintiffs had

done nothing wrong. Officer Pantoja responded, “I did

say for you guys to leave, to get the fuck out of here.” At

that point, Jose noticed more police cars arriving at the

restaurant, and so he grabbed Luis’s arm and said,

“Let’s walk away.”

Jose and Luis then walked out of the restaurant parking

lot onto the sidewalk and around the newly arrived police

No. 08-2658 5

vehicles; they were heading east on Villa Street toward

Luis’s parents’ house. At that point, Officer Pantoja

screamed out for another officer to arrest Jose and Luis.

Jose turned and responded by asking, “Arrest who?” An

officer then grabbed him around the neck from behind

before other officers ran at him. The officers punched

and kicked him for a few minutes before pushing him to

the ground and kicking him some more. The officers

then pepper-sprayed Jose, and they finally handcuffed

him. The officers left Jose in this state on the ground on

his knees for approximately five minutes, during which

time Jose’s wife, Maribel, spoke to him, asking him

whether he was okay and telling him to stop cursing

because it would “make it worse.” Jose’s testimony was

corroborated by a number of the defendants’ depositions.

Jose was charged with mob action and resisting a peace

officer; the prosecutor later dismissed the mob action

charge and reduced the resisting charge to misdemeanor

disorderly conduct.

The defendants offer a markedly different account of

this scene—one that a jury might believe, but not one

that we can accept for purposes of summary judgment

review. We outline it here (just as we do for the other

plaintiffs below) simply to show the wide gap between

the two sides’ stories. The defendants assert that once

Officer Pantoja asked the plaintiffs to leave the restaurant

parking area, Jose began yelling, arguing, and swearing

at Officer Pantoja. Officer Pantoja recalled that Jose

was agitated, smelled of alcohol, had clenched fists, and

poked him in the chest. Officer Pantoja said that he

(Pantoja) then displayed his pepper-spray but did not use

6 No. 08-2658

it. Instead, he told Jose that he was going to be put

under arrest for refusing to leave the restaurant. The

defendants then asserted that Officer Pantoja informed

the newly arrived Officer Pavoris that Jose was to be

arrested, and Officer Pantoja, along with Officer

Schroeder, began to place a struggling Jose under arrest.

By this account, Officer Neff soon arrived on the scene

and ran to assist Officers Pantoja and Schroeder in Jose’s

arrest. The defendants stated that Jose then accidentally

fell over a low rise fence, and only when he continued

to struggle did officers pepper-spray him in order to

place him in handcuffs.

Both parties believe that the video from squad car 857

(“Video 857”) supports their version of events. That video

starts at 4:55:42 a.m. on October 2, 2005. (All times re-

corded on the cameras were in the morning; we therefore

omit the designation “a.m.” from this point onward.)

Initially, it shows the squad car parked at the side of a

road. The car begins to move at 4:56:30, and reaches

speeds of up to 79 miles per hour before coming to a stop

at 4:58:00 by the side of a road. Once the squad car

comes to a stop, it shows a group of people calmly

walking down the street, showing no apparent agitation.

While the quality of the video is not particularly clear, it

appears to show, at approximately 4:58:15, a man in a

white shirt, presumably Jose (though this is just an infer-

ence we are drawing) being tackled by a police officer.

The video then shows that a number of police officers

converge on Jose, punching and kicking him while he

remains bent over in a defensive position. Jose then falls

No. 08-2658 7

to the ground and when he gets up, hands held in what

seems to be a “surrender position,” an officer tackles

him to the ground and grabs him by the neck, pushing

on him. The officer remains straddled over Jose, holding

onto him until 4:59:54, when the officer seems to hand-

cuff him and then leave him alone on the ground. Jose

remains alone on the ground while police officers

calmly walk around the restaurant parking lot until

approximately 5:02:15, when a number of officers gather

around him. Jose is picked up by an officer at 5:02:37 and

is walked to the police van positioned directly in front

of squad car 857.

2. Maribel Gonzalez

Maribel testified that when the plaintiffs reached the

restaurant, she observed a group of customers outside the

doors, along with Aranda’s wife and the owner of the

restaurant. Maribel estimated that there were no more

than ten people in the group. Maribel walked over to the

group to console Aranda’s wife, and it was at that point

that Officer Pantoja asked the group to disperse and leave

the premises. Maribel then left the scene with three

others and started walking away from the restaurant

down Villa Street. As they left, Officer Pantoja and

another officer followed them, repeatedly telling them,

“Get the f’ing out of here,” and using other foul lan-

guage. At that point a number of squad cars pulled up near

where they were walking, and all of a sudden an officer

grabbed Jose around the neck from behind. A number of

officers converged on him, punching and kicking him,

8 No. 08-2658

while Maribel, along with others, asked the officers to stop

and questioned why they were hitting Jose.

During Jose’s beating, Maribel told the officers, “I think

you guys have the wrong people,” thinking that the

officers thought her group was responsible for beating

Aranda’s wife and brother. When the officers picked Jose

up off the ground, Maribel followed them saying, “You

guys, we didn’t do anything,” and asking, “Why are you

guys arresting us?” When the officer took Jose to the

back of the police van, she asked the officer where he was

taking Jose. In response, another officer, later identified

as Officer McGinley, turned and punched her in the

stomach with his flashlight. According to Maribel, Officer

McGinley never said a word to her before hitting her

with his flashlight. It was only after he hit her that he

spoke to her, calling her a “fucking bitch” as he pulled her

away from the police van by her hair and pushed her

down, face first, onto the hood of a police car. Maribel

was then arrested and taken to the police station with

Jose where Officer McGinley charged her with mob

action and obstructing a police officer. Officer McGinley

later admitted that the complaints were never sworn

in accordance with police department policy, and that

he never actually saw Maribel fighting.

The defendants offered little evidence about Maribel’s

role in the incident. In essence, they testified that she

was arguing with Officer Schroeder and trying to

obstruct Officer McGinley’s motions. Again, both

parties claim that Video 857 supports their version of

events. With respect to the arrest of Maribel, Video

No. 08-2658 9

857 shows officers leading Jose to the back of the police

van, followed closely by Maribel, who is visibly dis-

tressed. Maribel appears to be questioning the officers

repeatedly, but it is not possible to see whether the

officers replied, and the video has no sound track. At no

point does Maribel touch either of those officers. As

Maribel is standing next to the two officers who are

putting Jose in the van, Officer McGinley walks over to

Maribel and positions his body between her and the

other officers. Officer McGinley appears first to press

the end of his flashlight lightly against Maribel to keep

her at arm’s length. Then, moments later, he jabs her

violently in the stomach with the flashlight and shoves

her with great force out of the street and up onto the

curb; this occurs at 5:03:57. Maribel is then led out of

view of Video 857.

Notably, Officer McGinley was fired as a result of this

incident. In his police incident report, Officer McGinley

failed to disclose any use of force against Maribel. Sergeant

James Barnes of the Elgin Police Department Internal

Affairs testified that McGinley lied about not touching

Maribel. At his termination hearing, McGinley persisted

with his story that he did not touch Maribel, but wit-

nesses agreed that Video 857 clearly showed that he did

push Maribel. McGinley’s discharge was upheld by an

arbitrator.

3. Luis Franco, Jr.

Luis testified that, when the group reached the restau-

rant, he walked over to some customers, including Aran-

10 No. 08-2658

da’s wife, who were standing outside. As Luis was

talking to Aranda’s wife, Officer Pantoja was aggres-

sively telling everyone to leave. Luis and Jose left the

restaurant parking lot together; while they were walking,

Luis heard an officer call out for Jose to be arrested. The

officers then converged on Jose and began beating him;

Luis was yelling at the officers to stop. At that point Luis’s

wife, who is not a party to this suit, told him to leave

immediately; Luis and his wife then crossed the street

and began walking down the footpath away from the

restaurant. They stopped only when they heard an

officer yell out for Luis to be arrested. Luis told his wife

to keep walking. The next thing he knew, he was

knocked to the ground by an officer, later identified as

Officer Neff. Officer Neff asked a nearby civilian to

guard Luis; Luis was not handcuffed immediately.

After a while, two or three officers came over to Luis

and handcuffed him. One of the officers then picked up

a police hat that was lying on the ground near Luis,

called him a “fucking thief,” and threw the hat in his

face. Luis recalled that he was then picked up from

behind and slammed into the hood of a car before

being put into the back of a police car. Luis was later

charged with one count of mob action on the basis of

Officer Pantoja’s signed complaint. Officer Pantoja, how-

ever, later admitted that he did not see Luis engage in

any illegal conduct, and the charge was dismissed.

The defendants’ account of Luis’s arrest is thin on

detail. They said that Officer Neff saw Luis leaving the

restaurant. Neff ran after him because Neff earlier had

No. 08-2658 11

observed Luis in a crowd that was pushing and shoving

officers to prevent the arrest of Jose. Officer Neff “caught

up to Luis,” observed a police hat in his hand, asked

him why he had the cap, and told him to get on the

ground. Officer Neff then left Luis and returned to

the restaurant. Other officers later handcuffed Luis

and placed him in a squad car.

Again, squad car videos shed some light on what actu-

ally occurred. The video from squad car 862 (“Video

862”) shows a man and a woman (apparently Luis and his

wife) walking across Ramona Avenue away from La Rosa.

Luis and his wife are both wearing white tops and are

walking down a footpath on Villa Street away from the

scene of Jose’s arrest; they first appear on the video at

4:59:30. Approximately 20 seconds later, an officer (pre-

sumably Officer Neff), is visible in Videos 862 and 857

jogging across Ramona Avenue toward the retreating

couple. At 4:59:53, Video 862 shows Luis turn to face

Officer Neff while his wife continues to walk away.

Moments later Officer Neff reaches Luis. At 5:00:01,

both videos show Officer Neff standing in front of Luis

pointing toward the ground. Officer Neff shoves Luis

forcefully to the ground, where he remains for some time.

An arriving police truck pulls up, blocking much of the

view from squad cars 862 and 857 at 5:00:41. Less than

a minute later, however, both videos show Officer Neff

jogging back across the street to the restaurant parking lot.

Video 857 shows him standing there talking to people

for about one minute. In the meantime, Video 862 depicts

yet another police car pulling up on Villa Street near

12 No. 08-2658

the spot where Luis had been shoved to the ground.

At 5:01:30 the police car shines its search light in the

direction of Luis and an officer exits the vehicle. Shortly

thereafter, Officer Neff is seen jogging across Ramona

Avenue for a second time. At 5:02:41, Luis is led to the

adjacent police car. Following a 30-second period where

Luis and the officers are next to the car but it is difficult

to see what is going on, Luis is put into the back seat of

the vehicle. Seconds later, three officers can be seen

crossing back over the street toward La Rosa.

4. Antonio Franco

Antonio testified that when he arrived at La Rosa he

walked up to the small group of people who were

standing with Aranda’s wife and began to speak with

the owner. When Antonio saw that Jose was being

punched, hit, and kicked by a number of police officers,

he quickly walked over and told the officers that Jose

and the others had done nothing wrong. After he made

that comment, one of the officers turned and punched

him in the face. Antonio is unsure whether the officer

used a fist or an object. The punch knocked him to the

ground, at which point the officer fell on top of him

and grabbed at his clothes to pull him back up. At the

same time another officer was pulling at him from

behind and dragging him on the ground. Yet another

officer pepper-sprayed Antonio as he was being dragged

along the ground. Once he was pulled upright, the

officers continued to punch him; he was also pepper-

sprayed a second time.

No. 08-2658 13

Antonio recalls hearing his father’s voice asking the

police to stop, as well as the police swearing and cursing

at him. Antonio was then handcuffed and pushed to his

knees; at that point, as he remembers, he was again

beaten in the face and head while handcuffed. A more

senior officer soon arrived on the scene and ordered

that Antonio be taken to the hospital. Antonio was

never told that he was under arrest. He was charged

with resisting a police officer, mob action, and battery;

the state later dropped all charges.

According to the defendants, Antonio ran to the scene

of Jose’s “arrest” and “made repeated physical contact”

with the police officers while they attempted to arrest Jose.

The defendants claim that Officer Pavoris attempted to

place Antonio under arrest, that Officer Pavoris advised

Antonio that he was under arrest, and that Antonio

resisted Officer Pavoris’s effort to handcuff him and

place him under arrest, backing away, generally being

defiant, and asking, “Why?” and “How come?” The

defendants claim that Officer Schroeder then gave

Antonio several “controlled strikes to achieve com-

pliance in handcuffing” him, after which Antonio “fell

down face forward to the ground” and was pepper-

sprayed and handcuffed by Officer Pavoris. When

Sergeant Kelly arrived, the defendants say, he ordered

that Antonio be taken to the hospital.

Most of these events were captured on Video 857. It

begins when a man, later identified as Antonio, jogs

toward the melee surrounding Jose and into the view of

camera 857, at 4:58:28. Video 857 then shows Antonio

14 No. 08-2658

getting into the middle of the fight and a police officer

punching his head and falling to the ground on top of

him, seemingly continuing to punch him. Officers then

continue to kick and punch Antonio until he is face

down on the ground. Antonio is pulled out of the view

of camera 857 at 4:58:42.

5. Julio Gonzalez

Julio testified that when he arrived at La Rosa he

walked straight over to talk to the restaurant owner,

who was standing with customers near the entrance. After

Julio had been talking with the owner for a short time,

Officer Pantoja walked over and told the group that

they needed to move. Julio testified that he understood

Officer Pantoja to be asking them to move aside, rather

than off the premises, and so he and the owner moved

a little away from where they were originally standing

and continued their conversation. A number of officers

then arrived en masse, and one officer ran over to Julio

and pepper-sprayed him, without warning, in the face.

Julio claims that he heard the restaurant owner tell the

police, “You guys got the wrong guys,” and ask,

“[W]hy are you spraying him?” The owner then helped

Julio inside the restaurant to wash the spray off.

When Julio went back outside, he saw officers

assaulting Antonio and walked over, with his hands in

his pockets, and told the police, “[Y]ou guys got the

wrong guys.” One of the officers pushed him away with

an object, either a baton or flashlight, and so he turned

and walked away, over to where the restaurant owner

No. 08-2658 15

was standing. At that point, without warning, an officer

grabbed Julio’s hands and held them behind his back

and pepper-sprayed him in the face. Julio was then

handcuffed and his feet were swept out from under him

so that he fell to the ground. Julio then asked an officer

why this was happening, at which point he was told to

“shut up” and pepper-sprayed for a third time. Julio

ended up in the back of the police van. Julio was never

told that he was under arrest, and he never tried to resist

the officers. Julio was charged with mob action and

resisting a peace officer; like the others, these charges

were later dismissed.

The defendants again tell a different story. They say

that Officer Pavoris administered pepper spray to Julio

because Julio ran at Officer Pavoris while he attempted to

place Antonio under arrest and because Julio questioned

the officers arresting Antonio. Julio was pepper-sprayed

a second time, according to the defendants, because he

attempted to obstruct Officer Robinson’s arrest of Maria

by “repeatedly . . . approach[ing] the area where Officer

Robinson was attempting to handcuff Maria, despite

instructions from Officer Neff to keep back.” The defen-

dants assert that at no point was Julio “struck” by any

police officer.

Neither party points to any video evidence of Julio’s

arrest. From the parties’ versions of events, however, one

might infer that Julio appears briefly on Video 857; at

4:58:36 we see a man walk towards the officers who

are beating Antonio. This man is forcefully pushed back

by an officer, and then disappears from view.

16 No. 08-2658

6. Maria Gonzalez

Maria is the final plaintiff. She testified that once she

arrived at La Rosa she, along with Antonio and Julio,

walked up to the restaurant owner, who was standing

near the door of the restaurant. She could hear other

customers telling the police to go after the people who

beat up Aranda’s wife, and she heard the police respond

by saying, “[G]et the fuck out of here.” Maria then

heard some noise and turned to see Jose being beaten up

by police officers. She walked over to the officers and,

without warning, she was pepper-sprayed. Maria then

slumped against the fence for a short time before she

noticed that Antonio, her husband, was being beaten

by the police. Maria walked up to the police and pleaded

with them to stop, saying, “We didn’t do anything. Leave

him alone.” The police responded by pepper-spraying

Maria again and then handcuffing her. Immediately after

she was cuffed, a male officer threw Maria face-first into

a nearby flowerpot. While in the flowerpot, she was hit

in the head and arms until a female officer pulled her

out by her hair; once out, she was again hit in the head.

Maria was then taken to the police station where she

repeatedly was called a “stupid bitch,” a “Mexican bitch,”

a “Mexican whore,” and “all the names you can imag-

ine.” Maria was charged with mob action, battery, and

resisting an officer; all charges were later dismissed.

As with each of the five other plaintiffs, the defendants’

version of events differs significantly from Maria’s. The

defendants contend that Maria was initially pepper-

sprayed because she kicked Officer Pavoris from behind

No. 08-2658 17

as he attempted to handcuff Antonio. They say that as

the officers were attempting to restrain her, Officer Robin-

son and Maria fell into a flower box. Because Maria

was “tensing up and flailing and kicking her feet,” Officer

Pavoris, the defendants say, was “required to administer

pepper spray to her eyes.” Eventually, Maria was placed

in the back of a police car and transported to the

police station.

No video depicts the events surrounding Maria’s actual

arrest, but a woman who may be Maria appears

briefly, starting at 4:58:31, in Video 857. The woman

enters the right-hand side of the video just after Antonio

runs toward the group of police officers beating Jose.

As she works her way into the brawl, it appears that

she may have lightly pushed a couple of the officers. At

4:58:38, she is pepper-sprayed in the face and is

seen leaning against a fence, holding her head in

pain for over a minute. The woman exits Video 857 at

4:59:49 and is not seen again.

We note that in addition to Videos 857 and 862, the

record also contains videos from squad cars 818 and 890.

These videos do not depict any of the events outside

La Rosa. Tellingly, however, throughout the relevant time

they show police officers leisurely walking around the

vicinity of the restaurant, exhibiting a palpable lack of

urgency.

B

In the district court, the defendants moved for sum-

mary judgment on all counts, and, on June 24, 2008,

18 No. 08-2658

the district court granted their motion. The court ruled

that the plaintiffs had failed to present sufficient evidence

that the events happened as they described them. With

respect to the Fourth Amendment claim based on

unlawful arrest, the district court wrote that the

defendants were “faced with [a] chaotic scene in front of

the Restaurant involving two groups, a fight, and then

a refusal by the parties to leave,” and that all plaintiffs

“approached” the officers. The district court criticized

the plaintiffs for failing “to cite to sufficient evidence

that would indicate that the crowd was not agitated . . . .

[and] that none of the people in the crowd smelled of

alcohol.” The court also said that the plaintiffs had not

“provided any lawful justification . . . to come in such

close proximity to officers attempting to arrest another

individual.” Therefore, the district court concluded, the

defendants had probable cause to arrest the plaintiffs.

Turning to the plaintiffs’ claim that the police violated

the Fourth Amendment by using excessive force in con-

nection with the arrest, the district court ruled that there

was insufficient evidence showing that the defendants

did so. Not only, the court said, was there probable cause

to arrest the plaintiffs, but the “undisputed facts clearly

show that [the defendants] used appropriate amounts

of force in light of the totality of the circumstances in-

cluding the split second decisions that [the defendants]

had to make in dealing with the agitated crowd that

they were faced with at the scene.” The court added

that because there was insufficient evidence that the

defendants used excessive force, there was also no basis

for the plaintiffs’ Fourth Amendment failure-to-intervene

claim.

No. 08-2658 19

The district court similarly dismissed the plaintiffs’ state-

law malicious prosecution claim and their claim against

the City, in which they sought to impute to the City the

tort liability of the police officers under a state-law theory

of respondeat superior. (The Supreme Court has ruled out

this kind of vicarious liability under 42 U.S.C. § 1983. See

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (citing Monell

v. New York City Dept. of Social Servs., 436 U.S. 658, 691

(1978)).) The district court held that “there is also insuffi-

cient evidence to show that [the defendants] had malice

against [the plaintiffs] as to any of the charges brought

against [the plaintiffs] . . . .” The court noted that in any

event the defendants were “entitled to qualified im-

munity for their conduct” because they “could have

reasonably believed that their conduct was within the

bounds of the law.” The district court also dismissed

the plaintiffs’ equal protection claim and denied their

motion to strike.

The plaintiffs do not pursue the equal protection theory

on appeal, nor have they said anything about a state-

law indemnification claim that the court dismissed

under Rule 12(b)(6). In addition, the plaintiffs have with-

drawn their appeal of the district court’s grant of sum-

mary judgment on Jose’s false arrest claim, and so that

issue is no longer before us.

II

A. Unlawful Arrest Claim

In order to prevail on a claim of an arrest in violation

of the Fourth Amendment, the plaintiffs must show that

20 No. 08-2658

they were arrested without probable cause; probable

cause is an absolute defense to such a claim. Williams v.

Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007). A police officer

has probable cause to arrest a person 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 com-

mitted, is committing, or is about to commit an offense.”

Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). In ascertaining

whether an officer had probable cause, the court is to

view the circumstances from the perspective of a reason-

able person in the position of the officer. Chelios, 520

F.3d at 686. The jury must determine the existence of

probable cause “ ‘if there is room for a difference of

opinion concerning the facts or the reasonable inferences

to be drawn from them.’ ” Sornberger v. City of Knoxville,

Ill., 434 F.3d 1006, 1013-14 (7th Cir. 2006) (quoting

Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir.

1993)). Only if the underlying facts claimed to support

probable cause are not in dispute may the court decide

whether probable cause exists. Maxwell, 998 F.3d at 434.

1. The Plaintiffs’ Arrests for Mob Action

All plaintiffs were arrested for mob action. The critical

question is whether the defendant officers had a rea-

sonable belief that the plaintiffs, acting together, used

either force or violence, thereby disturbing the public

peace, or, alternatively, that the defendant officers could

reasonably have believed that the plaintiffs were assem-

No. 08-2658 21

bled to do an unlawful act. See 720 ILCS 5/25-1(a)(1)

(defining mob action as “[t]he use of force or violence

disturbing the public peace by 2 or more persons acting

together and without authority of law”); 720 ILCS 5/25-

1(a)(2) (defining mob action as “[t]he assembly of 2 or

more persons to do an unlawful act”). If the plaintiffs

were not using force or violence and were not

assembling to do an unlawful act, the officers did not

have probable cause to arrest them for mob action. (Before

the district court, the plaintiffs also argued that 720 ILCS

5/25-1(a)(2) is unconstitutional, relying on Landry v.

Daley, 280 F. Supp. 938, 955 (N.D. Ill. 1968), rev’d on other

grounds sub nom. Boyle v. Landry, 401 U.S. 77 (1971). They

have abandoned this argument on appeal, and so we do

not consider it further.)

Both the district court’s decision and the defendants’

argument supporting probable cause are premised on

the factual assumption that, when police first arrived at

La Rosa, the scene was chaotic and mob-like. But this

proposition was disputed through first-hand accounts

of those who were present, as we have recounted in

detail above. In their depositions, the plaintiffs reported

that when they arrived at La Rosa, the alleged assailants

of Aranda’s wife and brother had already left. By the

time the police arrived, the plaintiffs were calmly

chatting with the restaurant owner and tending to the

two injured parties. The videos from the police vehicles

support this account. The only point at which “chaos”

is apparent on the videos is when the officers surround

the plaintiffs and appear to beat them. Indeed, one is

struck by the officers’ apparent lack of urgency on at

22 No. 08-2658

least one of the videos, which shows them resting

against cars, wandering around the scene, and pausing

to talk and laugh with one another.

In the face of the plaintiffs’ evidence (taken in the

light most favorable to them), the district court’s con-

clusion that “it is undisputed that Officers Pantoja and

Schroder [sic] arrived at a chaotic scene involving a

fight between two groups of people with others running

to intervene in the fray” is unsupportable. The evidence

on which the district court relied—the officers’ testimony

that the crowd appeared “intoxicated and agitated,”

that the crowd did not immediately disperse when in-

structed to do so, and that at least some of the plaintiffs

were visibly intoxicated—was all contested. Because

there are disputes of material fact with respect to the

elements of mob action, the district court erred in

ruling that the defendants had probable cause as a

matter of law to arrest the plaintiffs for that offense.

2. The Plaintiffs’ Arrests for Resisting or Obstructing a

Peace Officer

Antonio, Julio, Maria, and Maribel were arrested for

resisting or obstructing a peace officer. 720 ILCS 5/31-1(a)

(“A person who knowingly resists or obstructs the per-

formance by one known to the person to be a peace

officer . . . of any authorized act within his official capacity

commits a Class A misdemeanor.”). In order to support

the district court’s ruling on this point, there must be no

dispute that the facts showed that these plaintiffs know-

ingly resisted or obstructed the officers’ work.

No. 08-2658 23

Once again, in light of our detailed recitation of the

facts above, we can be relatively brief. The district court’s

finding of probable cause for the resisting and

obstructing arrests of Antonio, Julio, Maria, and Maribel

was flawed. The court thought that probable cause

existed because each of these plaintiffs approached the

defendant officers while those officers were attempting

to arrest another of the plaintiffs. But, without more

evidence, there is nothing wrong in itself with ap-

proaching a police officer. The plaintiffs do not dispute

that they approached the officers, but they say that

they were just asking the officers what was going on.

Later, they questioned why they were being arrested. As

we noted in Payne v. Pauley, “It is well settled under

Illinois law . . . that the resistance must be physical; mere

argument will not suffice.” 337 F.3d 767, 776 (7th Cir.

2003). “In fact,” we continued, “the First Amendment

protects even profanity-laden speech directed at police

officers.” Id.; see also People v. Long, 738 N.E.2d 216, 222

(Ill. App. Ct. 1st Dist. 2000) (“Merely arguing with a police

officer—even using abusive language—does not con-

stitute resisting a peace officer.”); People v. Flannigan, 267

N.E.2d 739, 741-42 (Ill. App. Ct. 5th Dist. 1971) (disrespect

for the law, antagonism, or belligerence is insufficient

to constitute resisting or obstructing a peace officer).

Construing the facts and inferences in the light most

favorable to the plaintiffs, the facts here are also dis-

puted. The plaintiffs’ evidence, if believed by a trier of fact,

shows that the plaintiffs neither tried to run, nor did

anything more than insulate themselves from the officers’

actions. On this version of events there was no opportunity

24 No. 08-2658

for the plaintiffs to resist arrest or to impede any of the

defendant officers’ duties. It was therefore error to grant

summary judgment for the defendant officers on the

assumption that the undisputed facts demonstrated

probable cause for the arrests of Antonio, Julio, Maria, and

Maribel for resisting or obstructing a peace officer.

3. The Plaintiffs’ Arrests for Battery

Two plaintiffs, Antonio and Maria, were arrested

for battery. Under 720 ILCS 5/12-3(a), it is a battery if

a person “intentionally or knowingly without legal justifi-

cation and by any means, (1) causes bodily harm to

an individual or (2) makes physical contact of an

insulting or provoking nature with an individual.” Antonio

testified that he did not touch any of the defendant

officers. Instead, he simply spoke to them. Similarly,

Maria testified that she did not touch any officers. All

she did was ask them to stop beating Antonio, her hus-

band. These accounts are enough to create a genuine

issue of material fact; they are flatly inconsistent with

the defendant officers’ story. The parties sharply dispute

not only whether Maria and Antonio intentionally or

knowingly touched any of defendant officers, but also

whether they touched any of the defendant officers at all.

B. Excessive Force Claim

A claim that a police officer has used excessive force

in the course of an arrest, investigatory stop, or other

“seizure” of a citizen is addressed to the reasonableness

No. 08-2658 25

of the seizure, under the standards established by the

Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395

(1989); Abdullahi v. City of Madison, 423 F.3d 763, 768

(7th Cir. 2005). An officer’s use of force is unreasonable

from a constitutional point of view only if, “judging

from the totality of circumstances at the time of the

arrest, the officer used greater force than was reasonably

necessary to make the arrest.” Lester v. City of Chicago, 830

F.2d 706, 713 (7th Cir. 1987).

The reasonableness inquiry involves a “careful

balancing of the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Graham,

490 U.S. at 396 (internal quotation marks omitted).

We must give “careful attention to the facts and circum-

stances of each particular case, including the severity of

the crime at issue, whether the suspect poses an im-

mediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to

evade arrest by flight.” Id. We also bear in mind 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.” Id. at 396-97. A

factual inquiry into an excessive force claim “nearly

always requires a jury to sift through disputed factual

contentions, and to draw inferences therefrom . . . .”

Abdullahi, 423 F.3d at 773 (internal quotation marks omit-

ted).

Once again, the district court did not view the facts

that pertain to this issue in the light most favorable to

26 No. 08-2658

the plaintiffs. Our account shows that a jury could rea-

sonably find that the force used by the defendant officers

in arresting each of the six plaintiffs was unreasonable.

The plaintiffs never posed a threat to the officers, they

complied with the requests that were directed to them,

and some were never even informed that they were

under arrest. At most, one or more may have become

verbally belligerent or inadvertently made physical

contact at some point. None of the plaintiffs resisted

arrest. Tellingly, the videos show that even while the

plaintiffs were being beaten, they were not fighting back

in the way that the defendants describe. A jury could

certainly find that the plaintiffs’ conduct in no way war-

ranted the response of the officers that the plaintiffs

reported and that the video shows.

The district court thought that the undisputed facts

depicted a chaotic scene to which the defendant officers

were entitled to respond. It also may have placed some

weight on the plaintiffs’ failure to show that they had

suffered any sustained injuries as a result of the arrests.

If so, that too would have been a mistake. Whether the

scene was chaotic or mob-like is sharply disputed, both

through the plaintiffs’ testimony and the video footage

showing the officers moving slowly—almost lethargi-

cally—throughout the relevant period. Furthermore,

although evidence of injury can throw some light on

the question whether the officers used excessive force,

there is no requirement that plaintiffs show any particular

degree of injury. Chelios, 520 F.3d at 690. In any event, all

of the plaintiffs testified that they were injured, with

some plaintiffs (Antonio, for example) testifying that

they were seriously injured.

No. 08-2658 27

Taking the facts in the light most favorable to the plain-

tiffs, a jury could find that the defendant officers used

excessive force in the course of the plaintiffs’ arrest. This

requires us to address the plaintiffs’ related claim that

the officers standing by were also culpable for failing

to intervene in the beatings. The district court threw

these claims out based on its rejection of the predicate

claim of excessive force. In our view, the facts taken

in favor of the plaintiffs are also capable of supporting

a claim for failure to intervene. That theory will there-

fore be open once again on remand.

C. Qualified Immunity

Last, we address the officers’ assertion that they are

entitled to qualified immunity, even if they cannot

prevail outright on the merits. Qualified immunity shields

public officials from liability when they act in a manner

that they reasonably believe to be lawful. Anderson v.

Creighton, 483 U.S. 635, 638-39 (1987). The doctrine

allows “ample room for mistaken judgments by pro-

tecting all but the plainly incompetent or those who

knowingly violate the law.” Hunter v. Bryant, 502 U.S.

224, 229 (1991) (internal quotation marks omitted). Accord-

ingly, qualified immunity is an available defense for

“officers who make a reasonable error in determining

whether there is probable cause to arrest an individual.”

Chelios, 520 F.3d at 691.

The Supreme Court has identified two key inquiries

for qualified immunity assertions: (1) whether the facts,

taken in the light most favorable to the plaintiffs, show

28 No. 08-2658

that the defendants violated a constitutional right; and

(2) whether that constitutional right was clearly estab-

lished at the time of the alleged violation. Pearson v.

Callahan, 129 S. Ct. 808, 815-16 (2009); Saucier v. Katz, 533

U.S. 194, 201 (2001). Pearson held that the court may

decide these questions in whatever order is best suited

to the case at hand. 129 S. Ct. at 818. The first question

is one of law. The second requires a broader inquiry.

Since the purpose of qualified immunity is to pro-

tect public officials from guessing about constitutional

developments at their peril, the plaintiffs have the

burden of showing that the constitutional right was clearly

established. Purtell v. Mason, 527 F.3d 615, 621 (7th Cir.

2008). They can do so by showing that there is “a clearly

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). When

the qualified immunity inquiry cannot be disentangled

from disputed facts, the issue cannot be resolved without

a trial. Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996).

We have already observed that the Fourth Amendment

is violated by a full-blown arrest that is not supported

by probable cause, and that this is what the plaintiffs

assert happened to them. We have also established that

this is what the facts show, taking them in the light most

favorable to the plaintiffs. This right has been clearly

established for a long time. We thus conclude that the

defendants are not entitled to qualified immunity on this

part of the case. See Chelios, 520 F.3d at 691 (finding that

No. 08-2658 29

defendant officer was on notice that he lacked probable

cause when the plaintiff had not made physical contact and

had not behaved in an obstructionist manner);

Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 762 (7th

Cir. 2006).

A seizure for purposes of the Fourth Amendment is

unreasonable if it is accomplished through the use of

excessive force. See, e.g., Los Angeles County, California

v. Rettele, 550 U.S. 609, 614 (2007) (“Unreasonable

actions include the use of excessive force or restraints

that cause unnecessary pain or are imposed for a pro-

longed and unnecessary period of time.”); Graham, 490

U.S. at 394. The plaintiffs have described such a seizure,

and so we move again to the second inquiry under

Pearson and Saucier: was this right clearly established at

the time these defendants acted? We ask that question

cognizant of the fact that we must assess the officers’

action in light of the particular circumstances facing

them. See Anderson, 483 U.S. at 639-40. But at this stage,

we must accept the plaintiffs’ account of those circum-

stances. In the situation the plaintiffs describe, it is clearly

established that officers may not, without provocation,

start beating, pepper-spraying, kicking, and otherwise

mistreating people standing around a restaurant parking

lot (even in the middle of the night). See Chelios, 520

F.3d at 692; Clash, 77 F.3d at 1048. The defendants are

thus not entitled to the form of qualified immunity that

protects them from suit. (Naturally, if the trier of fact

accepts the defendants’ account of the evening, they

may still prevail on the merits.)

30 No. 08-2658

D. Illinois State Law Claims

Finally, the plaintiffs argue that the district court errone-

ously dismissed their state-law malicious prosecution

claims and their state-law action against the City, seeking

to hold it vicariously liable under state law for the offi-

cers’ torts. Under Illinois law, the elements of a malicious

prosecution are (1) commencement of criminal proceedings

by the defendants; (2) termination of that matter in favor of

the plaintiffs; (3) the absence of probable cause for the

proceedings; (4) the presence of malice; and (5) resulting

damages. Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill.

1996). The record contains facts that, if accepted by a jury,

meet this definition. No one disputes that the first two

elements have been established: criminal proceedings were

commenced against all plaintiffs, and the proceedings,

with the exception of Jose’s misdemeanor charge, were

terminated in the plaintiffs’ favor. The defendants, how-

ever, assert that the prosecutor’s decision to terminate the

case through a nolle prosequi motion did not result from a

belief that the plaintiffs were innocent. Nothing in the

record, however, supports this assertion. At this stage, we

repeat, we must take the facts and inferences in the light

most favorable to the plaintiffs. Doing so, the only conclu-

sion we can reach is that the plaintiffs (other than Jose)

have demonstrated at the very least that there is an issue of

fact on this point. The same is true for the elements of

malice and damages. Finally, the district court’s

rejection of the plaintiffs’ claim against the City was

based on its assessment of the remainder of the com-

plaint: that is, since it found that the officers had com-

mitted no wrongs, there was nothing for which the

No. 08-2658 31

City might be vicariously liable. It follows from what

we have said that these state-law claims brought by

everyone except Jose against the City must also be rein-

stated on remand.

III

The theme of this opinion has been the standard for

granting summary judgment. This case happens to be

one in which the two sides have offered, and supported,

two radically different versions of the events. A trial is

necessary to resolve the case. We therefore R EVERSE the

judgment of the district court and R EMAND for further

proceedings consistent with this opinion. On remand,

Circuit Rule 36 shall apply.

8-20-09