Petition for Writ of Certiorari — Ricci v. Village of Arlington Heights

Supreme Court. US

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

RANDALL RICCI,

Petitioner,

v.

VILLAGE OF ARLINGTON, HEIGHTS

A MUNICIPAL CORPORATION,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

KENNETH N. FLAXMAN

122 South i.lichigan Avenue

Suite 1850

Chicago, lilinois 60603

(312) 427-3200

Attorney for Petitioner

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QUESTIONS PRESENTED

1.

Does the reasonableness clause of the Fourth Amend-

ment incorporate the common law rule prohibiting war-

rantless arrests in misdemeanor cases that do not

involve a breach of the peace?

May a municipality, consistent with the reasonableness

clause of the Fourth Amendment, require its police

officers to make full custodial arrests for an alleged

violation of a fine only license ordinance "in order to

ensure compliance with the ordinance?"

INDEX

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISION

STATEMENT

REASONS FOR GRANTING THE WRIT

CONCLUSION .

TABLE OF AUTHORITIES

Barnett v. United States, $25 4.24 197 (D.C a

And ¥. United States, 116 US $15 (1886) 3

Carroll v. United States, 267 U.S. 132 (1925) consesesessensesseseusensseses 4

City of Milwaukee y. Nelson, 149 Wis.2d 434,

439 N.W.2d 562 ( cede 6

Commonwealth y. Wright, 158 Mass. 149, 33 N. E. 82 (1893) .... 7

Fisher v. Washington Metro. Area Transit Authority,

690 F.2d 1133 (4th Cir. ee 6

Gustafson v. Florida, 414 U.S. 260 (1973) comensssrsesessesnssscesesseseneees

Higbee y. City of San Diego, 911 F.24 377 9th Cir. 1990) 6

Johnson v. United States, 333 U.S. 10 (1948) cersecoceeunecesecesccsessceses §

Payton v. New York, 445 U.S. $73 (1980) __ —

People v. Edge, 406 Il. 490, 94 N.B.24 359 (1950) spumiiietiil

avvbins ¥. California, 453 U.S. 420 (1981) 3

State v. Hehman, 90 Wash 24 45, 578 P.2d $27 (1978). g

Sate ¥. Pease $31 NE2d 1207 (ind, Ct of Appeals 1988) —_ all

Thomas v. State, 614 So.2d 468 (Fla. 1993) . eo

United States v. Dionisio, 410 U.S. 1 (1973) - ont

United States v. Marion, 404 U.S. 307 (1971) .. .5

United States v. Mota, 982 F.24 1384 (9th Cir.1993) 0 6

United States v. Watson, 423 U.S. 411 (1976) < .4

Whren v. United States, 116 S.C. 1769 (1996) . =

Wilson v. Arkansas, 115 S.Ct. 1915 (1995) __ uf

2 LaFave, Search and Seizure (1996) _. 3

PETITION FOR WRIT OF CERTIORARI

Petitioner Randall Ricci respectfully prays that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Seventh Circuit entered in this

proceeding on June 20, 1997.

OPINIONS BELOW

The decision of the Court of Appeals (App. 1-9) is

reported at 116 F.3d 288. The opinion of the district court

(App. 11-19) is reported at 904 F.Supp. 828.

The jurisdiction of this Court is invoked under 28 U.S.C.

$1254: The judgment of the court of appeals (App. 10) was

2-

(App. 15.) As required by a municipal policy,” the officers

transported plaintiff to the police station where they locked

him into an interrogation room for about an hour. (App. 12.)

While plaintiff was in police custody, his spouse obtained the

business license (id.) and the ordinance charge was dismissed

at plaintiff's first court appearance. (Id.) Following the con-

clusion of the state court proceedings, petitioner brought an

action against the arresting officers and Arlington Heights

under 42 U.S.C. §1983 in the district court.

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The district court found that the arresting officers had

visited petitioner’s business “to gather evidence to put him

out of business,” (App. 14), but concluded that “the Villiage

policy requiring custodial arrests for violations of its

business-license ordinance does not offend the Fourth

Amendment.” (App. 19.)

The court of appeals affirmed, holding that a municipality

may require full custodial arrests for violation of a fine only

business license ordinance to “prevent{] Ricci from continu-

ing to violate a law" (App. 7) and “in order to ensure compli-

ance with the ordinance and in order to complete the neces-

Sary paperwork.” (Id.) In the view of the Seventh Circuit,

petitoner could not complain about the reasonableness of his

arrest because “a neutral magistrate following Illinois law

would surely have issued a warrant in this case."

The Court has yet to decide on whether the common law

rule prohibiting warrantless arrests in misdemeanor cases that

do not involve a breach of the peace is part of the reasonab-

less requirement of the Fourth Amendment. As Mr. Justice

Stevens noted in Robbins v. California, 453 U.S. 420 (1981)

(dissenting opinion), “the Court has not directly considered

ths -mestion whether ‘there are come constitutional limits

upon the use of “custodial arrests" as the means for invoking

the criminal process when relatively minor offenses are

involved.’** 453 U.S. at 450 n.11.

A warrantless arrest “is a species of seizure required by

the [Fourth] Amendment to be reasonable." Payton v. New

York, 445 U.S. 573, 585 (1980). Although the Court has

4. Quoting 2 W. LaFave, Search and Seizure, §5.2, p. 290 (1978).

held that a warrantless arrest in a public place is constitution-

ally reasonable if the arresting officer has probable cause to

believe the suspect is a felon, United States v. Watson, 423

U.S. 411, (1976), the Court has not considered whether the

common Jaw rule permitting warrantless arrests for mis-

demeanors only "to suppress breaches of the peace."° is part

of the reasonableness calculus.

In his concurring opinion in Gustafson v. Florida, 414

U.S. 260 (1973), Mr. Justice Stewart observed that “[iJt

seems to me that a persuasive claim might have been made

in this case that the custodial arrest of the petitioner for a

minor traffic offense violated his rights under the Fourth and

Fourteenth Amendments.” 414 U.S. at 266-67 (concurring

opinion). The motorist in Gustafson, however, had conceded

the reasonableness of his custodial arrest for a minor motor

vehicle violation.

Justice Stewart’s concerns in Gustafson are rooted in the

common law rule that, without a warrant, a police officer

could not make an arrest for a non-felony offense unless the

offense involved a breach of the peace. 2 LaFave, Search

and Seizure (1996), §5.1(b), p. 13. A peace officer at com-

mon law had “no power of arresting without a warrant except

when a breach of the peace has been committed in his pres-

ence or there is reasonable ground for supposing that a

breach of peace is about to be committed or renewed in his

presence." Halsbury’s Laws of England, vol. 9, part. Ill,

612, cited in Carroll v. United States, 267 U.S. 132, 156

(1925),

s. Carroll v. United States, 267 U.S. 132, 156-57 (1925), citing 1

Stephen, History of Criminal Law, 193.

oMe

Respondent’s munici iring custodial arrests

for violation of its as wen ty i. ordinance is not

intended to suppress any breach of the peace; rather, as the

Seventh Circuit observed, respondent requires full custodial

arrests “in order to ensure compliance with the ordinance and

in order to complete the necessary paperwork" (App. 7.)

Vesting a police officer with the power to make a w

ud —

proms agli ensure compliance” is a step to a police

pan Pg power to make arrests to “ensure compliance"

the arresting officer the prosecutor and judge in a

summary oy for an alleged violation of a fine-only

ea broad and unregulated power undercuts the

renee diet ype 1 Amendmen t of preserving “one of the most

tal distinctions between our form of government,

where officers act under the law, and the police state where

they are the . ,

1 O48) law." Johnson v. United States, 333 U.S. 10, 17

The central purpose of the Fourth Amendment was

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ce earn vested by “general warrants: that placed

berty of every man in the hands of every petty officer.”

Boyd v. United States, 116 U.S 616, 625 (1886), quoting the

remarks of James Otis. This is precisely the result of the

rule adopted by the Seventh Circuit in this case which

authorizes police to make full custodial arrests "to ensure

friends." United States v. Marion, 404 U.S. 307

: » 320 (1971

An arrest made solely ‘Wo comme compllenss wih te

ordinance” flouts core principles of the Fourth Amendment.

The federal courts of appeals which have considered this

issue have reached conflicting results. In United States v.

Mota, 982 F.2d 1384 (9th Cir.1993) the defendants had been

arrested for selling hot corn-on-the-cob from a shopping cart

without a required license; the Ninth Circuit held that the

reasonableness standard of the Fourth Amendment did not

permit a full custodial arrest for this fine only offense. Id. at

1389.

Three years before Mota, another panel of the Ninth Cir-

cuit stated as black latter law the proposition that an arrest

without warrant may be made for “any offense." (emphasis

in original) Higbee v. City of San Diego, 911 F.2d 377, 379

n.2 (9th Cir. 1990) (cited by the court below at App. 6). The

Fourth Circuit has likewise held that full custodial arrests are

permissible under the Fourth Amendment for violation of

fine-only ordinance violations which do not involve a beach

of the peace. Fisher v. Washington Metro. Area Transit

Authority, 690 F.2d 1133, 1139 n. 6 (4th Cir. 1982).

The state courts have reached varying answers to this

question. For example, in Illinois, a municipality may

authorize its police officers to make full custodial arrests for

violation of an ordinance punishable by fine only. People v.

Edge, 406 Ill. 490, 94 N.E.2d 359, 363 (1950). The same

rule is followed in Wisconsin. City of Milwaukee v. Nelson,

149 Wis.2d 434, 439 N.W.2d 562, 570 (1989)

In Indiana, custodial arrests are not permitted for viola-

tion of fine only offenses. State v. Pease 531 N.E.2d 1207,

1212 (ind. Ct. of Appeals 1988). Police in Florida may not

make custodial arrests for violation of an ordinance requiring

that all bicycles be equipped with gongs. Thomas v. State,

614 §o.2d 470-71 (Fla. 1993). See also Barnett v.

United States, A.2d 197, 199 (D.C. 1987) (no custodial

arrest for “walking so as to create a hazard"); State v. Heh-

man, 90 Wash.2d 45, 578 P.2d 527, 529 (1978) (no custodial

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arrest for minor traffic violation). Commonwealth vy. Wright

158 Mass. 149, 33 N. E. 82 (1893) ial arrest

. . (no custodial

unlawful possession of undersized lobster). be.

arrest are relevant to the Fourth pee ga .

Arkansas, 115 S.Ct. 1915 (1995), especially to questions of

a bleness. Whren v. United States, 116 S.Ct. 1769

77 (1996). Certiorari should be granted in this case to

resolve the important and undecided question of whether the

common law rule prohibiting warrantless arrests in mis-

demeanor cases that do not involve a breach of the peace is

part of the reaso :

ment. nableness requirement of the Fourth Amend-

CONCLUSION

It is therefore respectfull : sl

writ of certiorari should be gr that the petition for

September, 1997

KENNETH N. FLAXMAN

122 South Michigan Avenue

Suite 1850

Chicago, Illinois 60603

Attorney for Petitioner

‘_-.

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IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 96-2229

RANDALL RICCI,

Plainsiff-Appellans,

v.

VILLAGE OF ARLINGTON, HEIGHTS

A MUNICIPAL CORPORATION,

WHOWELL and JEROME LEONARD

Defendants-Appellees.

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have the requisite business license, and thus the misdemeanor

was committed in the officers’ presence. Finally, the district

court declined to apply Justice Stewart’s suggestion,

expressed in a concurrence, that a custodial arrest for a

misdemeanor--in that case a minor traffic offense--might

violate a person’s rights under the Fourth and Fourteenth

Amendments. See Gustafson v. Florida, 414 U.S. 260, 266

(1973) (Stewart, J., concurring). The district court noted that

that the iS Committing or has commi

tted an offense.”

725 ILCS 5/107-2(1)(c). The Illinois law does not differen:

uate offenses punishable by fine only and offenses

Cites ;

Cir. ave Poany denied, 481 U.S. 1028 (1987),

law rule as stated in Gramenos. That is, Ricci committed the

argues, full custodial arrest is not reasonable under the

Fourth Amendment. But the common law rule has been

relaxed to include arrests for offenses other than breaches of

the peace. Higbee, 911 F.2d at 379 n.2 (arrest for operating a

1. In addition to Gramenos, Ricci cites Commonwealth v. Wright,

68 Riess. 200, 99 TA. OS CEN. to Gat come, Oe Gam

was afrested without a warrant for the misdemeanor offense

fine-only offense. Second, the parties agree that there was

statutory authority in the instant case allowing the officers to

arrest Ricci for violating a Village ordinance.

“peep show"). See also, Fisher, 690 F.2d at 1139 n.6 (arrest

for eating on a train). The rationale for allowing warrantless

arrests for breaches of the peace was to promptly suppress

breaches of the peace. Here the arrest served a similar pur-

pose. The arrest prevented Ricci from continuing to violate a

law he had been admittedly violating for some time.

No variation of the common law rule requires that we

consider the severity of the punishment in deciding if the

arrest was reasonable. Nor, as the district court noted, has the

Supreme Court adopted an interpretation of reasonableness

under the Fourth Amendment that would require this Court to

consider the permitted punishment in determining whether an

arrest was reasonable. Nonetheless, we note that Ricci was

accumulating fine liability at a rate between $5 and $500 per

day during the period of violation, which he admitted had

been going on for an extended period of time. See Village of

Arlington Heights Code of Ordinances, section 9-201 ("Any

person violating this section shall be fined not less than Five

Dollars ($5.00) nor more than Five Hundred Dollars

($500.00) for each offense. A separate offense shall be

deemed committed on each day during or on which a viola-

tion occurs or continues.") By the time he was arrested, Ricci

was facing a potential fine of tens of thousands of dollars. He

admitted to the officers that he was currently violating the

statute. The officers held him for only one hour, the length of

time it took to process the paperwork associated with the

arrest. We cannot call such an arrest unreasonable for Fourth

Amendment purposes. The Village of Arlington Heights was

entitled to arrest Ricci in order to ensure compliance with the

ordinance and in order to complete the necessary paperwork.

Moreover, we decline to set a per se rule for deciding the

reasonableness of an arrest for Fourth Amendment purposes.

Such an approach conflicts with the Supreme Court’s analysis

in Whren v. United States, 116 S.Ct. 1769 (1996). In general,

every Fourth Amendment case, because it tums upon a rea-

sonableness determination, involves a balancing of all

relevant factors. Whren, 116 S.Ct at 1776-77. Thus, we

must consider the unique facts of each case in order to make

that determination. It is true that, with rare exceptions, “the

result of that balancing is not in doubt where the search or

seizure is based upon probable cause. . . . Where probable

cause has existed, the only cases in which we have found it

necessary actually to perform the conducted in an extraordi-

nary manner, unusually harmful to an individual’s privacy or

even physical interests." Id. That does not change the indivi-

dualized assessment we make in each case. But Ricci’s

arrest, which was based on probable cause, is not one of

those extraordinary cases that require us to conduct a balanc-

ing analysis.

Two final points: first, at oral argument, Ricci attempted

to recast his argument as one based on the warrant clause of

the Fourth Amendment, rather than on the reasonableness

clause. Ricci contended at oral argument that no neutral mag-

istrate would have issued a warrant in this case. Ricci

waived this argument by not raising it in his brief and we

therefore need not address it. United States v. Beltran, 109

F.3d 365, 371 (7th Cir. 1997) (argument raised for the first

time at oral argument waived for purposes of appeal); United

States v. Shorter, 54 F.3d 1248, 1256 n.19 (7th Cir. 1995),

cert. denied, 116 S.Ct. 250 (1995) (argument not raised in

brief is deemed waived). Second, Ricci raised a parade of

horribles in his reply brief, speculating that under the same

rationales proffered by the Village, a municipality could, with

impunity, require the use of leg irons, shackles and handcuffs

1. In fact, Ricci conceded at oral argument that had a warrant been

issued in this case, the arrest would have been reasonable under

the Fourth Amendment. Such a concession eviscerates Ricci’s

reasonableness argument. Further, a neutral magistrate following

Illinois law would surely have issued a warrant in this case.

for misdemeanor arrests, could insist that all misdemeanor

arrestees be strip searched and subjected to full body cavity

searches, and could order police to “shoot to kill" arrestees,

regardless of the offense. Such histrionics do little for the

credibility of Ricci’s already thin arguments. "It is often pos-

sible to parade a list of horribles as to how a criminal statute

might unjustly be applied. However, the focus needs to be

how it could be properly applied in this case.” United States

v. Berry, 60 F.3d 288, 293 (7th Cir. 1995). None of these

things happened to Ricci, and indeed we might have an

entirely different case had the police acted in such a manner.

But here the police arrested Ricci based on probable cause,

brought ony the police station and locked him in an inter-

view room or an hour while they processed the necessary

paperwork. They arrested him in compliance with Illinois law

and Village ordinances. Today we also hold they did so in

conformance with the reasonableness requirement of the

Fourth Amendment. Therefore, the order of the district court

granting summary judgment in favor of the defendants is

AFFIRMED.

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 96-2229

RANDALL RICCI,

Plainsiff-Appellant,

VILLAGE OF ARLINGTON, HEIGHTS

A MUNICIPAL CORPORATION,

OME LEONARD

ANDREW WHOWELL and JER Def steintaai

for the Northern District of Ilinois, Eastern Division.

No. 94 C 7732 Elaine E. Bucklo, Judge.

(June 20, 1997]

JUDGMENT — ORAL ARGUMENT

Honorable Walter J. Cummings, Circuit Judge

Honorable Frank H. Easterbrook, Circuit Judge

Honorable Ilana D. Rovner, Circuit Judge

The judgment of the District Court is AFFIRMED, with

costs, in accordance with the decision of this court entered on

this date.

-— -

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RANDALL RICCI,

Plaintiff,

No. 94 C 7732 v.

VILLAGE OF ARLINGTON, HEIGHTS

A MUNICIPAL CORPORATION,

ANDREW WHOWELL and JEROME LEONARD

Defendants.

MEMORANDUM OPINION AND ORDER

Defendants, the Village of Arlington Heights ("the

Village") and two of its police officers, Andrew Whowell and

Jerome Lehnert, have filed a motion requesting this court to

enter summary judgment in their favor on the complaint filed

by plaintiff, Randall Ricci. For the reasons stated below, the

defendants’ motion is denied in part and granted in part.

|. Undisputed Facts

Plaintiff Randall Ricci has filed this action under 42

U.S.C. § 1983, alleging that defendants have violated his

rights guaranteed by the Fourth and Fourteenth Amendments.

Mr. Ricci makes three separate claims. First, he claims that

Officers Whowell and Lehnert engaged in a warrantless

search of his business premises.' Second, he claims that he

1. Plaintiff has incorrectly spelied Mr. Lehnert’s name in his

complaint. The correct spelling will be used in this opinion.

-12-

was arrested without probable cause. Finally, Mr. ee

alleges that the Village's policy prescribing full cust

arrests for violations of its municipal ordinance ey

business license is unconstitutional. A description 0

incident in question follows.

On April 19, 1994, Officers Whowell and Lehnert entered

the business premises of Rudeway Enterprises, a ~ wom

ing firm run by Mr. Ricci and located in the Village. /

Officers were there to arrest Daniel Dugo, an employee M-

Rudeway Enterprises for whom they had a warrant. Acco a

ing to Mr. Ricci, they were also there to gather evidence

put him out of business.2 Whether true or not, peo es

admit that prior to going to Rudeway, they had determ

that Rudeway did not have a Village of Arlington Heights

Whowell asked Mr. Ricci whether he had a Village business

license for Rudeway Enterprises, as required by the Arlington

Heights Village Code of Ordinances (“the Village peach

Mr. Ricci stated that he did not have a license. Because b

Ricci was operating Rudeway Enterprises without a Village

business license, he was arrested and taken to the Village

Police Department. He was held there for about an hour,

while the police performed the necessary administrative

tions, and then released on a recognizance bond.

Ricci’ Local Rule 12(N) Statement. See Local Rule 12(M);

Schule v Serfilco, 965 F.2d 516, 519 (7th Cir. 1992).

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ll. Standard of Review

Summary judgment disposes of a claim before trial in

those cases where a trial is unnecessary and will only result

in delay and expense. Ford Motor Credit Co. v. Devalk

Lincoln-Mercury, Inc., 600 F.Supp. 1547, 1549 (N.D. II1.

1985). Summary judgment is appropriate when there is no

genuine issue of material fact and the moving party is enti-

tled to judgment as a matter of law. Fed.R.Civ. P. 56(c). A

genuine issue of fact exists when a reasonable jury could

return a verdict for the non-movant. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

ill. Count I: The Search

Mr. Ricci contends that Officer Whowell engaged in an

unconstitutional search by reading his business documents on

his premises without a warrant. The only evidence that Mr.

Ricci points to in support of this claim is his statement that

he saw Officer Whowell pick up and inspect a 3X5 index

card off a desk. Mr. Ricci says the card contained informa-

tion about a client. Mr. Ricci says he saw the officer pick up

the card as they were walking toward him.

In reading his index card, the defendant officers may or

may not have conducted a “search” within the meaning of the

Fourth Amendment. To establish that a search occurred, Mr.

Ricci bears the burden of proving that he had a legitimate

expectation of privacy in the contents of the index card. See,

e.g., United States v. Myers, 46 F.3d 668, 669 (7th Cir.) ("A

search within the meaning of the Fourth Amendment occurs

only when a reasonable expectation of privacy is infringed."),

cert. denied, 116 S.Ct. 213 (1995); United States v. Duprey,

895 F.2d 303, 309 (7th Cir. 1989) ("A defendant objecting to

the search of a particular area bears the burden of proving a

legitimate expectation of privacy in the area searched."), cert.

denied, 495 U.S. 906 (1990). "A reasonable expectation of

privacy exists when '(1) the complainant exhibits an actual

ofits

subjective) expectation of privacy and, (2) the expectation is

ne society is prepared to recognize as reasonable.

United States v. Ruth, 65 F.3d 599, 604 (7th Cir. 1995)

(quoting, Myers, supra, 46 F.3d at 669).

Even if Mr. Ricci establishes that a search occurred, in

order to get more than nominal damages he must establish an

actual injury. See Memphis Community School District v. Sta-

chura, 477 U.S. 299, 308 n.12 (1986) (“[N}ominal dam-

ages... are the appropriate means of ‘vindicating’ rights

whose deprivation has not caused actual, provable injury.");

Carey v. Piphus, 435 U.S. 247 (1978) (damages may not be

for violations of due process — a

. Ricci has alleged injury resulting from hi arrest, |

= alleged any injury resulting from defendants reading his

index card. Therefore, because I rule for the defendants on

his other claims, Mr. Ricci will likely only receive nominal

at trial. Cartwright v. Stamper, 7 F.3d 106 (7th Cir.

1993)° (plaintiff alleging emotional distress from search in

violation of the Fourth Amendment received only $1 from

jury) Despite the absence of a compensable injury, however,

Cartwright, the plaintiffs did not contest the jury verdict.

. Thay ad Lovers, camten On fonh Out G0 cous bad, 620 ©

the minimal damage award, reduced the lodestar amount of

determining when a nominal damage award is de minimis. Id.

Thus, even though Mr. Ricci would be a “prevailing party” if

the jury awards him nominal damages, he would not necessarily

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Mr. Ricci’s claim may go forward; whether, by reading an

index card, the defendants executed an “unreasonable search"

within the meaning of the Fourth Amendment is a question

of fact precluding summary judgment.

IV. Count tl: Uniawful Arrest

Mr. Ricci claims that he was arrested without probable

cause, in violation of the Fourth and Fourteenth Amend-

ments. “Police officers have probable cause to make an

arrest where ‘the facts and circumstances within their

knowledge and of which they have reasonably trustworthy

information are sufficient to warrant a prudent man in believ-

ing that the suspect has committed or was committing an

offense."’ United States v. Levy, 990 F.2d 971, 973 (7th Cir.

1993) quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).

Plaintiff admits that the officers had a reasonable basis to

believe that Rudeway Enterprises did not have a Village

business license. He contends, however, that no ordinance

required him to have such a license, and he therefore com-

mitted no offense for which he could be arrested. | disagree.

Section 14-3001 of the Village Code provides that

“businesses hereinafter enumerated in Section 14-3002 shall

be licensed in accordance with the provisions of this Code.”

Section 14-3002 contains an extensive list of businesses and

includes a catch-all provision covering “{aJny and all busi-

ness enterprises not named elsewhere in this Code.”

Telemarketing is not named explicitly in the list, but does

fall within the catch- all provision. Rudeway Enterprises was

required to have a Village business license.

operating without a license. Again, | disagree. Section 9-201

of the Village Code renders “it . . . unlawful for any person

to

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of this Code without first having obtained a license for such

business.” On the day of his arrest, Mr. Ricci was operating

Rudeway Enterprises without a business license. The officers

quently arrested him. The officers had probable cause to do

so,

V. Count ili: Municipal Liability

Mr. Ricci argues that the Village policy requiring full

custodial arrests for violations of the business-license ordi-

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acknowledgment of the issue, however, the Fourth Circuit

refused to find custodial arrests for ordinance violations to be

unconstitutional. Id.

More recently, in Higbee v. City of San Diego, 911 F.2d

377 (9th Cir. 1990), the court addressed the constitutionality

of the plaintiffs’ foe Geeten o Gutta ant

regulating “peep show establishments." The plaintiffs were

sales clerks operating a peep show that did not conform to

the city’s municipal code requirements. Id. at 378. The clerks

argued that they could have been issued a field release cita-

tion rather than being taken to jail for administrative process-

ing of their arrest. Id . at 379. They sought damages under

$1983, claiming that their treatment by the police was unrea-

sonable within the meaning of the Fourth Amendment.

The court affirmed the district court’s grant of summary

judgment for the defendants. While recognizing that the pol-

ice could have used the lesser field release citation, the court

held that the Fourth Amendment did not require it.

"[P}laintiffs did not have a constitutional right to immediate

liberty once they were subjected to a lawful arrest.” Id. at

379. The court found it constitutionally permissible to detain

an arrestee for post- arrest administration, even for the mis-

demeanor offense of violating a municipal ordinance. Id.

In sum, the two federal courts to have addressed whether

full custodial arrest for a minor violation is unreasonable

under the Fourth Amendment have both held that it is not,

- 18 -

In discussing the issue, the court noted the common law

would still be reasonable. He committed his offense of

Mr. Ricci also points to a recent Supreme Court case,

ash eho oe doen See id. at 1916 (citing

Supreme cases looking at original intent of Fourth

Amendment as early as 1925). Thus the Supreme Court's

»

requirement of the fourth amendment is adopted by

the Court, we must assume that it applies alike to

all criminal offenses — without regard to severity

of permitted punishment — to allow reasonable

custodial arrests as the traditional means for invok-

I find that the Village policy requiring custodial arrests for

violations of its business-license ordinance does not offend

the Fourth Amendment.

Vi. Conclusion

For the reasons set forth above, summary judgment is

denied with respect to Count I. Summary judgment is granted

on Counts II and III.

Detec: November 7, 1995

ENTER ORDER:

Elaine E. Bucklo

United States District Judge