Petition for Writ of Certiorari — Sparing v. Village of Olympia Fields

& Court, U.S.

iLEO

Q11230 FEB 122002

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2001

EUGENE SPARING,

Petitioner,

V.

VILLAGE OF OLYMPIA FIELDS AND

JAMES KEITH,

Respondents.

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 Michigan Avenue

Suite 1850

Chicago, Illinois 60603

(312) 427-3200

Attorney for Petitioner

QUESTIONS PRESENTED

Did Payton v. New York, 445 U.S. 573 (1980),

Welsh v. Wisconsin, 466 U.S. 740 (1984), and I/Ili-

nois v. Rodriguez, 497 U.S. 177 (1990) clearly

establish for qualified immunity purposes that,

absent exigent circumstances, a police officer may

not enter a home without a warrant to make an

arrest?

When a police officer makes an arrest for an

offense for which the officer could not reasonably

believed had been committed,

May the officer establish qualified immunity in a

Section 1983 action by showing that there had

been probable cause to arrest for a ‘‘related

offense’’ without establishing that the ‘‘related

offense’’ was directed at prohibiting the same type

of conduct?

Does Rule 56 of the Federal Rules of Civil Rules

of Procedure require a party opposing a motion for

summary judgment to do more than demonstrate

the existence of disputed questions of material

fact, specifically to come forward with evidence to

support each element of his (or her) cause of

action to persuade the district court ‘‘of the merits

of the claim?’’

INDEX

OPINIONS BELOW

JURISDICTION .

CONSTITUTIONAL PROVISION AND RULE

INVOLVED ie cee ae

STATEMENT

REASONS FOR GRANTING THE

WRIT ee ee

CONCLUSION

15

TABLE OF AUTHORITIES

Alto v. City of Chicago, 863 F.Supp. 658 (N.D.Ill. 1994) .... 7

Anderson v. Creighton, 483 U.S. 635 (1987) ceccccccccccooo---... 10

Avery v. King, 110 F.3d 12 (6th Cir. 1997) ..0.0.0.00000.......... 10

Babers v. City of Tallassee,

152 F.Supp.2d 1298 (M.D.Ala. 2001) oocccecccccccccccoceceseees.. 10

Bell v. United States, 254 F.2d 82 (D.C.Cir. Cn ]

Buenrostro v. Collazo, 973 F.2d 39 (Ist Cir. 1992) woo. 6

Celotex Corp. v. Catrett, 477 U.S. 317 I 14

Collins v. United States, 289 F.2d 129 (Sth Cir. 1961) ...... 13

Daniels v. Keeter, 1999 WL 639187 (N.D.TIL. 1999) 2000000... 7

Elder v. Holloway, 510 U.S. 510 I Geet 6

Gasho v. United States, 39 F.3d 1420 (9th Cir. 1994) ....... 12

Gassner v. City of Garland, Texas, 864 F.2d 394

SS ee 12

Geidel v. City of Bradenton Beach,

56 F.Supp.2d 1359 (M.D.Fla. 1999) oooo.occcccccccesececsecoseeees. 6

Harlow v. Fitzgerald, 457 U.S. 800 (1982) cecccccccccecocoo---... 10

Hope v. Pelzer, No. 00-309,

certiorari granted January 9, 2002 oo......cccccceccccccececeeeeeeees.. 5

Howard v. Dickerson, 34 F.3d 978 (10th Cir. 1994) oo... 6

Hunter v. Bryant, 502 U.S. 224 (1991) cocccccccccececececececeeee.... 10

Illinois v. Rodriguez, 497 U.S. 1771 (1990) cecccccccccoceceoe-e. 4,6

Jones v. Owens-Corning Fiberglas Corp.,

GD F.3d 712 (4th Cir. 1995) ...ccccceccccsccesecescecencseseeeeeese.... 14

Joyce v. Town of Tewksbury, 112 F.3d 19

ES a 7

Malhotra v. Cotter & Co., 885 F.2d 1305

2 a 14

Owusu v. Grzyb, 749 F.Supp. 897 (N.D.III. 1990) ........... 4,7

Payton v. New York, 445 U.S. 573 (1980) .......ccceeeceseeeeseeeee 5

People v. Gray, 146 Ill.App.3d 714,

a ee ee I eereeintisiescsdoeceeisiiennanencniaiins 9

People v. Raby, 40 Ili.2d 392, 240 N.E.2d 595 (1968) .... 2, 7

People v. Stevens, 40 Ill.App.3d 303,

ee Re Ue Sibiaiaaeceesatisicniasinihiindinininesininninaianinie 8

Rogers v. Carter, 133 F.3d 1114 (8th Cir. 1998) ow. 6

Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001) ......... 5

Schwartz v. Coulter, 1993 WL 398578 (N.D.IIl. 1993) ........ 7 .

Sheely v. Town of Plymouth, 191 F.3d 15 (ist Cir. 1999) ... 9

Signorile By and Through Signorile v. City of New York,

OST FSempp. 40S GEDDY... UDDS) areseccarcncssorcsscrcsanseassncsases 6

State v. Saunders, 339 So.2d 641 (Fla. 1976) ...................06 8

Steagald v. United States, 451 U.S. 204 (1981) 0.0... 6

Tavery v. United States, 32 F.3d 1423 (10th Cir. 1994) .... 14

- Trejo v. Perez, 693 F.2d 482 (Sth Cir. 1982) ....... eee 10

United States v. Atkinson, 450 F.2d 835 (Sth Cir. 1971) ... 11

United States v. Martinez, 465 F.2d 79 (2d Cir. 1972) ...... 11

United States v. Rambo, 789 F.2d 1289 (8th Cir. 1986) .... 10

Welsh v. Wisconsin, 466 U.S. 740 (1984) ........ccce eee 4,6

Whren v. United States, 517 U.S. 806 (1996) ...... litadiaadilaed 11

Wilson v. Layne, 526 U.S. 603 (1999) wu... teccsessssreeeees 5

Wolf v. Buss (America) Inc., 77 F.3d 914

UIE Semets TROUT ckssinsilnanicteteiicinbnceniaisicinatbidibiesndaieniansnatcticsiaditangiinn 15

Fe Ie SD dsviisiniiisitstasninehintenbipaiiiabiniinitinaandinaediitndiannn 3,8

Fe Ee RO ccisinnecninsnitltnintiinnsininsiiiciaebiiiisianiiiiianiotinat y a

Fae Re DEE. cctcsccninrsinentenininnthscienisinibinidiinudiniapaaiasiaine 9

x

PETITION FOR WRIT OF CERTIORARI

Petitioner 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 September 19, 2001.

OPINIONS BELOW

The decision of the Court of Appeals (App. 1-15) is

reported at 266 F.3d 684. The opinion of the district

court (App.18-37) is reported at 77 F.Supp.2d 891.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. §1254: The judgment of the court of appeals

was entered on September 19, 2001. (App. 16.)

Petitioner’s timely petition for rehearing and suggestion

for rehearing en banc was denied on November 14,

2001. (App. 17.)

CONSTITUTIONAL PROVISION AND RULE INVOLVED

This case involves the Fourth Amendment to the

Constitution of the United States and Rule 56 of the

Federal Rules of Civil Procedure.

STATEMENT

On July 23, 1996, a man named David Smith

reported to respondent police officer James Keith, a pol-

ice office employed by Olympia Fields, Illinois, that

Smith’s former employee Thomas Sanfratello had

entered Smith’s office without permission and removed

files. Smith also reported that Sanfratello had forged

Smith’s name on two checks.

Smith provided Keith with copies of the two

checks; each check was payable to Sanfratello and bore

Smith’s forged signature. Smith also told Keith that

Sanfratello’s unlawful presence had been observed by

petitioner Eugene Sparing.

x

Keith contacted petitioner om August 13, 1996.

Petitioner told Keith that he had observed Sanfratello in

Smith's office on July 9, 1996 at approximately 2:30

a.m. Keith then spoke with Sanfratello, who admitted

that he had forged Smith’s name on the checks, but

stated that he had done so because Smith owed him

money. Sanfratello also denied any trespass or theft of

files. Keith accepted this explanation and focused his

investigation on whether petitioner had given him false

information.

By August 15, 1996, respondent Keith had con-

cluded that petitioner had committed an offense by sup-

plying false information to a police officer. That day,

respondent went to petitioner’s residence and knocked on

the door. When petitioner came to the door and

identified himself, but was still inside of his dwelling,

Keith told petitioner that he was under arrest. Petitioner

asked Keith if he had a warrant; Keith answered that he

did not need a warrant. Petitioner then walked away

from the door into his residence; Keith opened the front

door, followed petitioner into the dwelling and placed

petitioner under arrest for ‘‘obstructing a peace officer’’

on the charge that petitioner had ‘‘supplied false infor-

mation that would have led to a false arrest.”’

The Illinois statute that defines obstructing a peace

officer, 720 ILCS 5/31-1(a), had been authoritatively

construed in People v. Raby, 40 Ill.2d 392, 240 N.E.2d

595 (1968) to require ‘‘some physical act or exertion.”’

Petitioner had not committed any such act and the crimi-

nal charge against petitioner was dismissed on the

prosecution’s motion on February 4, 1997.

=

After dismissal of the criminal charges, petitioner

filed this action under 42 U.S.C. §1983, asserting that he

had been arrested without probable cause and that Keith

had unlawfully entered petitioner’s home without a war-

rant to make the arrest. Petitioner also invoked the dis-

trict court’s supplemental jurisdiction to advance a state

tort claim for malicious prosecution against Keith and

his employer, respondent Olympia Fields, Illinois.

After discovery, respondents moved for summary

judgment, arguing that Keith had arrested petitioner on

probable cause to believe that petitioner had obstructed a

peace officer or, alternatively, that petitioner had com-

mitted the ‘‘related offense’’ of disorderly conduct under

720 ILCS 5/26-(a)(4) by having made a false police

report. Respondents also argued that the warrantless

entry to petitioner's home had been lawful and sought

dismissal of the state law malicious prosecution claim on

the grou. that the prosecution had been based on prob-

able cause. Respondents’ motion for summary judgment

did not place in issue whether the prosecutor’s decision

to dismiss the criminal charges satisfied the ‘‘dismissal

on grounds of innocence’’ element of a malicious

prosecution claim.

The district court agreed with petitioner that there

had not been probable cause to arrest for obstructing a

peace officer (Appendix 28), but held that ‘‘Sparing’s

conduct, as known to Keith at the time of the arrest, is

sufficiently related to disorderly conduct to support his

arrest."" (Appendix 29.) The district court concluded

that the entry into petitioner's home had been lawful

because petitioner had acquiesced in respondent’s state-

ment that he did not need a warrant. (Appendix 34.)

The district court reasoned that petitioner’s state law

YP

malicious prosecution claim was barred because there

had been probable cause to arrest on the ‘‘related

offense,’’ (Appendix 35), and because petitioner had

failed to show that the state criminal charges had been

resolved in his favor. (App. 36.)

On petitioner’s appeal, the Seventh Circuit agreed

that petitioner could not have been lawfully arrested for

obstructing a peace officer (App. 12 n.7), but upheld the

finding of probable cause to arrest on the ground that

there had been enough evidence to arrest petitioner for

disorderly conduct. (App. 12-13.) The court of appeals

concluded that respondent had unlawfully entered

petitioner’s home to make the warrantless arrest (App.

6-11), but held_that the officer was entitled to qualified

immunity because ‘‘the law surrounding Fourth Amend-

ment ‘doorway arrest’ questions, particularly on the facts

of this case, was not sufficiently settled or defined at the

time of the arrest.” (App. 11.) The court of appeals

held that probable cause to arrest for a ‘‘related offense’

did not bar a malicious prosecution claim, but upheld the

dismissal of that claim because petitioner had not come

forward with evidence to show that the criminal case had

been ‘‘terminated in a matter indicative of the innocence

of the accused.’” (App. 14.)

In his timely petition for rehearing, petitioner

pointed out that the law surrounding a warrantless entry

into a home to make an arrest for a misdemeanor had

been clearly established by the decisions of this Court in

Welsh v. Wisconsin, 466 U.S. 740 (1984) and Illinois v.

Rodriguez, 497 U.S. 177, 181 (1990), and that a district

judge in Illinois had reached this precise conclusion ten

years before in Owusu v. Grzyb, 749 F.Supp. 897

(N.D.Ill. 1990). Petitioner also pointed out that

= =

respondents had not placed in issue in their summary

judgment motion the question of whether the criminal

prosecution had been terminated in a matter indicative of

petitioner's innocence. Petitioner argued that the rule

adopted in the panel opinion — that a plaintiff opposing

a motion for summary judgment must come forward

with evidence to prove each and every element of his (or

her) claim, even when the defendant had not raised any

issue about particular elements in his summary judgment

motion, was an unwarranted departure from the accepted

and ordinary procedure set out in Rule 56 of the Federal

Rules of Civil Procedure. Rehearing was denied without

opinion.

REASONS FOR GRANTING THE WRIT

he

This case presents a question similar to that before

the Court in Hope v. Pelzer, No. 00-309, certiorari

granted January 9, 2002, order granting certiorari

amended January 29, 2002.

A police officer is entitled to qualified immunity in

an action under 42 U.S.C. §1983 unless ‘‘the right

allegedly violated [has been] defined at the appropriate

level of specificity.”’ Saucier v. Katz, 533 U.S. 194, 121

S.Ct. 2151, 2156 (2001), quoting Wilson v. Layne, 526

U.S. 603, 615 (1999).

In Payton v. New York, 445 U.S. 573 (1980), the

Court set out a bright line rule that absent a warrant or

exigent circumstances, police officers may not enter a

person’s home to make an arrest: ‘‘In terms that apply

equally to seizures of property and to seizures of per-

sons, the Fourth Amendment has drawn a firm line at the

* o

entrance to the house. Absent exigent circumstances,

that threshold may not reasonably be crossed without a

warrant.” Id. at 590. The Court reaffirmed this rule in

Steagald v. United States, 451 U.S. 204, 211-12 (1981),

Welsh v. Wisconsin, 466 U.S. 740 (1984), and Illinois v.

Rodriguez, 497 U.S. 177 (1990). The Court adverted to

this rule in Elder v. Holloway, 510 U.S. 510 (1994),

when it approvingly referred to the district court’s con-

clusion ‘‘Had the arrest occurred inside the house, that

court recognized, clear law would come into play: absent

exigent circumstances, an arrest warrant would have

been required.’’ Id. at 512.

The Courts of Appeals for the First, Eighth and

Tenth Circuits have concluded that Payton and its pro-

geny clearly establish that a police officer may not law-

fully enter a home to make an arrest unless the officer

has a warrant or there are exigent circumstances Buen-

rostro v. Collazo, 973 F.2d 39, 43 (1st Cir. 1992);

Rogers v. Carter, 133 F.3d 1114, 1118-19 (8th Cir.

1998); Howard v. Dickerson, 34 F.3d 978 (10th Cir.

1994). District courts within the Second and Eleventh

Circuits have reached the same result. Signorile By and

Through Signoriie v. City of New York, 887 F.Supp. 403,

412 (E.D.N.Y. 1995); Geidel v. City of Bradenton

Beach, 56 F.Supp.2d 1359, 1366 (M.D.Fla. 1999). The

Seventh Circuit reached the contrary conclusion in this

case.

In the view of the Seventh Circuit, Payton did not

speak to the fact situation of this case, where a police

officer, lacking any type of warrant and in the absence of

any exigency, knocks on the door of a suspect’s home

and then enters the closed front door to arrest the

suspect. The court below did not explain its reasoning,

5

other than to cite to a factually dissimilar decision, Joyce

v. Town of Tewksbury, 112 F.3d 19 (1st Cir. 1997),

where the arresting officers had an arrest warrant and

entered a suspect’s home in “‘hot pursuit.’’ Id. at 22-23.

Before the decision of the Seventh Circuit in this

case, and before respondent entered petitioner’s home to

make the warrantless arrest, several district judges within

the Seventh Circuit had concluded that Payton clearly

established that police officers may not, without a war-

rant or some exigency, enter a. dwelling to make an

arrest. Owusu v. Grzyb, 749 F.Supp. 897 (N.D.IIL.

1990); Schwartz v. Coulter, 1993 WL 398578 (N.D.IIl.

1993); Alto v. City of Chicago, 863 F.Supp. 658, 661

(N.D.Ill. 1994); Daniels v. Keeter, 1999-WL 639187

(N.D.Ill. 1999) The demand for factual specificity that

underlies the decision of the Seventh Circuit in this case

vests the clearly incompetent law enforcement officer

with immunity when he (or she) violates clearly esta-

blished constitutional rights and undercuts the remedy

intended in 42 U.S.C. §1983.

Respondent Keith arrested and charged petitioner

with a non-existent offense.! Even though the charge

1. Keith arrested and charged petitioner with ‘‘obstructing a

peace officer’’ in violation of 720 ILCS 5/31-1 by

“‘supplying false information that would have led-to a

false arrest.’” The statute, however, had been

authoritatively construed by the Illinois Supreme Court to

require ‘‘physical obstruction,’’ People v. Raby, 40 Ill.2d

392, 240 N.E.2d 595 (1968), and both the district court

(App. 28) and the court of appeals (App. 12 n.7) agreed

that a reasonable police officer could not have believed

was dismissed by the prosecution, the Seventh Circuit

held that respondent was entitled to qualified immunity

because he had probable cause to arrest petitioner for the

‘related offense’’ of disorderly conduct. (App. 12-13.)

Before the decision of the Seventh Circuit, there

was no published decision of any court applying the Illi-

nois disorderly conduct statute to making a false state-

ment to a police officer.” The sole case relied on by the

court of appeals involved a report that a crime had been

committed.” Illinois has not enacted a ‘‘false statement’’

that petitioner had committed this offense.

2. Under 720 ILCS 5/26-(a)(4), a person commits disorderly

conduct when he knowingly

(4) Transmits in any manner to any peace officer

...@ report to the effect that an offense has been

committed, knowing that at the time of such

transmission that there is no reasonable ground for

believing that such an offense has been committed.

(emphasis supplied)

A similar provision was limited by the Florida Supreme

Court to situations involving ‘‘a false statement

knowingly uttered which creates a clear and present

danger of harm to others.’’ State v. Saunders, 339 So.2d

641, 644 (Fla. 1976).

3. In People v. Stevens, 40 Ill.App.3d 303, 352 N.E.2d 352

(1976), the defendant told the police that ‘‘$450 had been

taken from him at gunpoint and that he had followed the

man who had robbed him to the apartment next to where

he and the officer were standing.’’ 40 Ill.App.3d at 304,

352 N.E.2d at 353. The defendant then pointed out the

alleged robber to the police, who made an arrest. The

defendant admitted that he had falsely reported the

robbery and was subsequently charged with disorderly

statute like 18 U.S.C. §1001, but provides criminal sanc-

tions for making a false statement to a police officer

only when information had been provided with the

“intent to prevent the apprehension or obstruct the

prosecution or defense of any person.’’ 720 ILCS 5/31-

4; People v. Gray, 146 Ill.App.3d 714, 496 N.E.2d 1269

(1986).

As applied by the Seventh Circuit, the ‘‘related

offense’’ doctrine adds an Alice in Wonderland dimen-

sion to qualified immunity by permitting a creative advo-

cate to concoct a qualified immunity defense for a police

officer who has knowingly violated the law. The con-

trary rule, as explained by the First Circuit in Sheely v.

Town of Piymouth, 191 F.3d 15 (1st Cir. 1999), limits

the “‘related offense’’ doctrine to offenses which arise

from the same conduct and which ‘‘share similar ele-

ments’’ or are ‘‘directed generally at prohibiting the

same type of conduct.’’ Id. at 19. This Court has never

addressed the ‘‘related offense’’ doctrine; this case pro-

vides an appropriate vehicle in which to resolve the

conflict among the circuits on this important issue.*

conduct.

Unlike the report in Stevens that a robbery had been

committed, this case involves responses to an officer’s

questions about what observations In this case, the report

that a crime had been committed had been made by David

Smith; in investigating Smith’s report, respondent

telephoned petitioner and petitioner answered Keith’s

questions.

4. A similar question is presented in Williams v. Jaglowski,

petition for certiorari filed January 14, 2002.

a

+ =

Police officers are entitled to qualified immunity for

making an unlawful arrest ‘‘if a reasonable officer could

have believed that probable cause existed to arrest.”’

Hunter v. Bryant, 502 U.S. 224, 228 (1991). The focus

is on whether the officer ‘‘reasonably but mistakenly

conclude[d] that probable cause is present.’’ Anderson v.

Creighton, 483 U.S. 635, 641 (1987). The officer’s sub-

jective intent is irrelevant to qualified immunity. Harlow

v. Fitzgerald, 457 U.S. 800, 816 (1982).

Starting with Trejo v. Perez, 693 F.2d 482 (Sth Cir.

1982), the courts of appeals have permitted a police |

officer who made an unlawful arrest to obtain qualified |

immunity by showing that ‘‘the conduct that served as 7

the basis for the charge for which there was no probable

cause could, in the eyes of a similarly situated reason-

able officer, also have served as the basis for a charge

for which there was probable cause.’’ Id. at 486.

The ‘‘related offense’’ doctrine is easily applied to

situations where a prosecutor decides to file charges for

a lesser included offense. See, e.g., Avery v. King, 110

F.3d 12, 14 (6th Cir. 1997), (arrest for obstruction under

18 U.S.C. § 1501, arrestee charged with obstruction

under 18 U.S.C. §111); United States v. Rambo, 789

F.2d 1289, 1294 (8th Cir. 1986) (arrest for disorderly

conduct, charged with violation of ‘‘undesirable guest’’

statute, which is ‘“‘place specific’’ disorderly conduct);

Babers v. City of Tallassee, 152 F.Supp.2d 1298 -

(M.D.Ala. 2001) (arrest for driving under the influence

of a controlled substance, charged with driving under the

combined influence of alcohol and a controlled sub-

stance).

The ‘‘related offense’’ doctrine becomes prob-

lematic when it is used to justify a sham arrest. As

SE i Oy ee ee ee Le ee ee ke Fee ee eee en teee hag Biel

ee

initially formulated in criminal cases, the ‘‘related

offense’’ doctrine permitted the arrestee to introduce evi-

dence about the subjective intent of the arresting officers

to show that the arrest ‘‘was a sham or fraud at the

outset, really unrelated to the crime for which probable

cause to arrest was actually present to be retroactively

validated.’’ United States v. Martinez, 465 F.2d 79,

81-82 (2d Cir. 1972), quoting United States v. Atkinson,

450 F.2d 835, 838 (Sth Cir. 1971). As stated in Mills v.

Wainwright, 415 F.2d 787 (Sth Cir. 1969): ‘‘The func-

tion of the Court in this situation is to determine if the

arrest was merely a sham or fraud wholly unrelated to

the crime for which probable cause existed to arrest the

individual.’’

Whren v. United States, 517 U.S. 806 (1996), made

plain that constitutional reasonableness does not depend

‘‘on the actual motivations of the individual officers

involved.’’ 517 U.S. at 813. Thus, the question of

whether a person could have been arrested for a ‘‘related

offense’’ must be answered without consideration of the

subjective intent of the arresting officers.

The test for “‘related offense’ applied by the

Seventh Circuit in this case is whether two offenses arise

from the same conduct. Under this approach, ‘‘obstruct-

ing a peace officer’? by ‘‘supplying false information

that would have led to a false arrest’’ is ‘‘related’’ to

having committed disorderly conduct by making a false

police report. This standard for ‘‘related offense’ makes

relatedness turn on the ingenuity of the police officer’s

counsel.

.

Although broad definitions of ‘“‘related offense’’

appear in decision in other circuits,> the First Circuit

concluded after a thorough analysis that there are two

prongs to the ‘‘related offense’’ doctrine: First, the two

offenses must arise from the same conduct, and second,

the two offenses must ‘‘share similar elements’’ or be

‘‘directed generally at prohibiting the same type of con-

duct.”” Sheely v. Town of Plymouth, 191 F.3d 15, 19

(1st Cir. 1999), Id. at 19. This second prong of ‘‘related

offense’’ minimizes the likelihood that creative counsel

will concoct a qualified immunity defense for an officer

who violated the civil rights plaintiff's clearly esta-

blished rights.

The ‘‘related offense’’ rule applied in the Seventh

Circuit does not include this second prong. All that is

required for “‘related offenses’’ in the Seventh Circuit is

that the two offenses arise from the same conduct.

When a police officer makes an arrest for an

offense for which the officer could not reasonably

believe had been committed, the officer’s ability to argue

that he (or she) could have reasonably believed that there

had been probable cause to make an arrest for a ‘‘related

offense’ should be limited to offenses which are

directed at prohibiting the same type of conduct or for

5. See, e.g., Gassner v. City of Garland, Texas, 864 F.2d

394, 400 (Sth Cir. 1989) (two offenses are related if they

arise from the same conduct); Gasho v. United States, 39

F.3d 1420, 1428 n.4 (9th Cir. 1994) (to be ‘‘related,’’

offense must involve ‘‘the same conduct for which the

suspect was arrested’’).

th ee i

<<.

offenses that are actually charged by the prosecution.

For example, an arrest for robbery would be permissible

if the officer only had probable cause to make an arrest

for burglary. Bell v. United States, 254 F.2d 82

(D.C.Cir. 1958). But an officer should not be permitted

to rely on the ‘‘related offense’’ rule to argue that there

had been probable cause to arrest for robbery when the

actual arrest was made for ‘‘investigation of vagrancy.”’

Collins v. United States, 289 F.2d 129 (Sth Cir. 1961).

The ‘‘related offense’’ rule as articulated by the

First Circuit in Sheely strikes a much better balance than

the rule currently applied in the Seventh Circuit. The

First Circuit’s stricter ‘‘related offense’’ rule prevents

creative counsel from concocting a qualified immunity

defense for an officer who has violated the civil rights

plaintiff's clearly established rights.

The summary judgment standard applied in this

case contravenes Rule 56 of the Federal Rules of Civil

Procedure.

The Seventh Circuit upheld the grant of summary

judgment on petitioner’s malicious prosecution claim

because petitioner had not come forward with evidence

that the criminal prosecution had been resolved in his

favor on grounds of innocence. The court of appeals

answered petitioner’s argument that respondent had not

placed this question at issue in its motion for summary

judgment by holding that ‘‘[aJt summary judgment,

Sparing had an obligation to come forward with evi-

dence to support his claim and could not merely rest on

the allegations in his complaint.’’ (App. 14.) This was

the same legal standard applied by the district court, who

~ 24;

held that on a motion for summary judgment ‘‘the party

opposing the motion must present evidence that could

convince a trier of fact of the merits of the claim.”’

(App. 36) This standard is contrary to controlling deci-

sions of this Court.

Under Rule 56, the party moving for summary

judgment bears ‘‘the initial responsibility of informing

the district court of the basis for its motion’’ Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

opponent must then respond to the motion, but nothing

in Rule 56 requires the party opposing the motion for

summary judgment to prove elements of his (or her) case

that have not been placed in issue by the summary judg-

ment motion.

In Celotex, the defendant moved for summary judg-

ment arguing that the plaintiff did not have any admissi-

ble evidence ‘‘about the decedent’s exposure to

petitioner’s asbestos products.’’ 477 U.S. 323. This

motion placed on the plaintiff the burden of coming for-

ward with evidence on this particular issue.

In this case, respondents moved for summary judg-

ment on petitioner’s malicious prosecution claim by

arguing that the criminal charges had been based on

probable cause. Respondents did not raise any issue

about whether petitioner had evidence that the charges

had been resolved in his favor on grounds of innocence.

At one time, the Seventh Circuit followed the

accepted and ordinary rule that ‘“When a party moves

for summary judgment on ground A, his opponent is not

required to respond to ground B—a ground the movant

might have presented but did not.’’ Malhotra v. Cotter

& Co., 885 F.2d 1305, 1310 (7th Cir. 1989); Jones v.

a ee Se ee ee ee

3

Owens-Corning Fiberglas Corp., 69 F.3d 712, 719 n. 7

(4th Cir. 1995); Tavery v. United States, 32 F.3d 1423,

1427 n. 5 (10th Cir. 1994). The Seventh Circuit aban-

doned this rule in Wolf v. Buss (America) Inc. 77 F.3d

914, 927 (7th Cir. 1996) (Rovner, J., dissenting) and, as

reflected in this case, requires the party opposing sum-

mary judgment to come forward with evidence that

‘“‘could convince a trier of fact of the merits of the

claim.’’ (App. 36) This standard contravenes Rule 56

and should be repudiated by this Court.

CONCLUSION

It is therefore respectfully submitted that the petition

for writ of certiorari should be granted.

February, 2002

KENNETH N. FLAXMAN

122 South Michigan Avenue

Suite 1850

Chicago, Illinois 60603

Attorney for Petitioner

APPENDIX

App. |

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 00-1021

EUGENE SPARING,

Plaintiff-Appeilant,

v.

VILLAGE OF OLYMPIA FIELDS AND

JAMES KEITH,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois

No. 97 CV 5479 —Charles R. Norgle Judge.

Argued September 18, 2000—Decided September 19, 2001

Before Easterbrook, Ripple, and Williams, Circuit

Judges.

Williams, Circuit Judge. Eugene Sparing sued Officer

James Keith for alleged Fourth Amendment violations, stem-

ming from his arrest in his home. He also sued Keith and

the Village of Olympia Fields under the Illinois tort of mali-

cious prosecution. The Village and Keith moved for sum-

mary judgment, with Keith asserting a defense of qualified

immunity. Relying on our decision in United States v. Ber-

kowitz, 927 F.2d 1376 (7th Cir. 1991), the district court

rejected Sparing’s Fourth Amendment warrant claim. In

addition, the district court found probable cause for Sparing’s

arrest on a closely related offense and rejected Sparing’s

Fourth Amendment probable cause and state law malicious

App. 2

prosecution claims. Sparing appeals, and we affirm.

I. BACKGROUND

1.A The Facts

Sparing’s arrest arose out of an alleged scheme organ-

ized by a friend named David Smith. Smith filed a criminal

report with the Olympia Fields Police Department on July

23, 1996. In his complaint, Smith alleged that he fired Tom

Sanfratello on May 31, 1996, and that Sanfratello later stole

files from the office and forged two checks made out to him-

self. Smith also stated that on the morning of July 9, 1996,

Sparing saw Sanfratello in the office. According to Smith,

Sparing knocked on the window to get Sanfratello’s atten-

tion, but Sanfratello did not respond.

In mid-August, Officer Keith called Sparing to confirm

his part of Smith’s story. Sparing did. Keith next inter-

viewed Sanfratello, who disputed the story in several respects

but admitted to signing the checks because he was a signa-

tory on the account and was owed money by Smith. He also

admitted to taking files, but claimed to have returned them to _

Smith. Sanfratello also told Keith that he previously had a

conversation with Sparing’s secretary, Linda Parker, who told

him that she had a facsimile sent by Smith to Sparing and

that she believed that they were ‘‘up to no good.’’ Sanfratello

provided a copy of that fax to Keith; it read:

Gene

July 9, 1996 at 2:45 am observed Tom at office

copying files from computer and photocopying.

You knocked on windows and Tom ignored you.

You left and went home.

Thanks

David

Se ee peels

App. 3

The next day, Keith had a telephone conversation with

Parker. According to Keith, Parker said that after receiving

the fax from Smith, she made a copy and gave the Original to

Sparing, who replied, ‘‘Dave wants me to perjure myself.’’

The following day, Parker telephoned Keith, recounting

to him an encounter she recently had with Sparing. She said

that Sparing had contacted her to have lunch and that when

he picked her up he asked with whom she had been talking

that week. Parker initially feigned ignorance, but Sparing

persisted. He drove her by the Olympia Fields Police

Department to ‘‘refresh [her] memory,”’ and again asked with

whom she had been talking, this time informing her that a

friend of Sanfratello had already put him in the know. She

then admitted to talking with the police about the fax. Spar-

ing, according to Parker, replied, ‘‘I thought you were my

friend. How could you do this to me? Don’t you know that

this could lead to criminal charges against me?’’ Parker told

Keith that Sparing then took her back home, told her to get

out of the car and that she was fired. He also told Parker

that he was evicting her from the house she was renting from

him and taking back his van on which she was making pay-

ments. Later that day, Keith spoke with Parker again, and

she told him the same story.

After the meeting with Parker, Keith went to Sparing’s

house and knocked on the door. Sparing answered the door,

and Keith asked that he identify himself, which he did. At

that moment, Sparing was still standing inside his home

behind his closed screen door, and Keith was Standing out-

side. Keith then advised Sparing that he was under arrest.!

1. In his deposition, Keith indicated that he arrested Sparing

for obstructing a police officer, although he also had in

mind the offense of disorderly conduct.

App. 4

To which, Sparing inquired whether he had a warrant. Keith

stated that he did not, but rather that he had probable cause.

Sparing asked whether he could place something down, then

turned, and walked away from the screen door further into

his home. Keith entered the residence, taking several steps

inside. Sparing came back to Keith, and they both left the

house.

1.B District Court Proceeding

Sparing filed a lawsuit against the Village, Keith, and

Officer William Bendar, alleging vietatsons of federal civil

rights law as well as Illinois state law.” Sparing alleged in

his complaint that his arrest was in violation of the Fourth

Amendment, and he sought damages under 42 U.S.C. §1983.

Specifically, Sparing complained that Keith arrested him in

his home without a warrant and without probable cause. He

also alleged that the Village and Keith maliciously

prosecuted him in violation of Illinois tort law.

The Village and Keith moved for summary ‘ia

Keith asserted an affirmative defense of qualified immunity.

The district court held that Sparing had failed to demonstrate

a constitutional violation and that Keith was entitled to

qualified immunity. The district court concluded that the

arrest did not violate the Fourth Amendment because Sparing

acquiesced to Keith’s entry to complete an arrest announced

outside his home, and because probable cause existed for an

offense closely related to the one for which Sparing was

arrested. Having found probable cause for the arrest, the dis-

trict court also concluded that Sparing could not meet the

elements of malicious prosecution. The district court then

entered judgment in favor of the Village and Keith. This

2. Sparing voluntarily dismissed his claim against Officer

Bendar.

App. 5

appeal followed.

ll. ANALYSIS

li.A Fourth Amendment and Section 1983

Sparing alleges two Fourth Amendment violations pur-

suant to section 1983 against Officer Keith. He claims that

Keith unlawfully entered his home without a warrant to

effectuate an arrest and unlawfully arrested him without

probable cause. Both claims are subject to a defense of

qualified immunity. We begin our analysis with the standard

for qualified immunity, and then we proceed to apply that

standard to each claim.

11.4.1 Qualified Immunity |

Public officials performing discretionary functions are

generally entitled to qualified immunity and are ‘‘shielded

from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”’

Wilson v. Layne, 526 U.S. 603, 609 (1999) (internal quota-

tion marks omitted) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). Qualified immunity provides *“‘ample pro-

tection to all but the plainly incompetent or those who know-

ingly violate the law.’’ Malley v. Briggs, 475 U.S. 335, 341

(1986). They are accorded this ample protection not as a

license to violate constitutional rights without recourse nor as

an excuse to turn a blind eye to the requirements of the law,

but to preserve the vigilance of those individuals vested with

the obligation to protect the public interest in the face of

ambiguity. See Hunter v. Bryant, 502 U.S. 224, 228-29

(1991); see also Malinowski v. DeLuca, 177 F.3d 623,

626-27 (7th Cir. 1999) (articulating policy reasons behind the

immunity).

When presented with a defense of qualified immunity,

courts must (1) determine whether the plaintiff has alleged

the deprivation of an actual constitutional right and (2) if so,

determine whether that right was clearly established at the

time of the alleged violation. Saucier v. Katz, 121 S. Ct.

App. 6

2151, 2156 (2001); Layne, 526 U.S. at 609; Spiegel v. Cor-

tese, 196 F.3d 717, 723 (7th Cir. 1999). Although qualified

immunity is an affirmative defense, the burden of defeating

an assertion of qualified immunity rests with the plaintiff.

Spiegel, 196 F.3d at 723; Clash v. Beatty, 77 F.3d 1045,

1047-48 (7th Cir. 1996). |

In this case, the district court, in granting summary

judgment, found that Sparing could not establish a depriva-

tion of an actual constitutional right and therefore did not

fully address the second part of the standard for qualified

immunity. We review the district court’s judgment on the

basis of qualified immunity de novo. Jones v. Watson, 106

F.3d 774, 777 (7th Cir. 1997). In determining whether a

genuine issue of material fact exists, we construe all facts in

the light most favorable to the non-moving party, and draw

all reasonable and justifiable inferences in favor of that party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

ll.A.2 Warrantiess arrest in the home—the significance of

Payton, Watson, Santana, and Berkowitz

Sparing argues that Keith entered his home without a

watrant or his consent to effectuate an arrest, which consti-

tuted an unreasonable search in violation of the Fourth

Amendment and in particular the Supreme Court’s holding in

Payton v. New York, 445 U.S. 573 (1980). Keith responds

that Sparing acquiesced to his slight entry to complete the

arrest after he announced it outside Sparing’s home, which is

consistent with Payton and indistinguishable from our hold-

ing in United States v. Berkowitz, 927 F.2d 1376 (7th Cir.

1991). For the reasons stated below, we believe that the

entry into Sparing’s home without a warrant to effectuate or

complete the arrest (although with probable cause) was

unreasonable and therefore a violation of the Fourth Amend-

ment.

Two Fourth Amendment principles set the backdrop

against which we analyze this case. First, police officers

App. 7

may constitutionally arrest an individual in a public place

(€.g., Outside) without a warrant, if they have probable cause.

United States v. Watson, 423 U.S. 411, 417-24 (1976).

Second, police officers may not constitutionally enter a home

without a warrant to effectuate an arrest, absent consent or

exigent circumstances, even if they have probable cause.

Payton, 445 U.S. at 585-90. What distinguishes these two

cases is that the latter involves an entry (i.e., a search) into

the home, a place where individuals enjoy an especially

heightened Fourth Amendment protection. See id. at 585

(‘‘[P]Jhysical entry of the home is the chief evil against which

the wording of the Fourth Amendment is directed.’’ (internal

quotation marks omitted) (quoting United States v. United

States District Court, 407 U.S. 297, 313 (1972)). The former

does not. A search of the home without a warrant is a well-

settled violation of the Fourth Amendment, and the Supreme

Court in Payton simply made clear that it is no less so when

the search is conducted in order to seize (i.e., by an arrest) a

person, rather than property. See id. at 585-88.

At first blush, then, the lines appear clear. Intrusion into

the home without a warrant ‘‘by even a fraction of an inch,”’

is too much. Kyllo v. United States, 121 S. Ct. 2038, 2045

(2001) (internal quotation marks omitted) (quoting Silverman

v. United States, 365 U.S. 505, 512 (1961)). The lines are

not so clear, however, because exactly where outside ends

-and where the home begins is not a point immediately obvi-

ous. Splitting fractions of an inch can be a very treacherous

endeavor, producing arbitrary results. But we need not pull

out our rulers and begin to measure. Under the Fourth

Amendment, the point must be identified by inquiry into rea-

sonable expectations of privacy. United States v. Santana,

427 U.S. 38, 42 (1976); Katz v. United States, 389 U.S. 347

(1967).

The Supreme Court has already considered the question

of dividing outside from inside when the home is involved,

App. 8

although not completely resolving the question, in United

States v. Santana, supra. In Santana, the Court held that an

individual voluntarily standing in the threshold of her home

(i.e., in the middle of an open doorway) is outside rather than

inside the home for purposes of the Fourth Amendment. San-

tana, 427 U.S. at 42. The Court reasoned that an individual

voluntarily standing in an open doorway has knowingly

exposed herself to ‘‘public view, speech, hearing, and touch’’

just as if she were standing outside, in a public place. Id. In

those places, and thus in an open doorway, under those cir-

cumstances, the Watson rule, rather than the Payton rule,

applies. Id.; see also Katz, 389 U.S. at 351 (‘“What a person

knowingly exposes to the public, even in his own home or

office, is not a subject of Fourth Amendment protection.’’).

But what if the individual is not voluntarily standing in

an open doorway, but answers a knock at the door, standing

by a ‘“‘fraction of an inch’’ behind an open doorway? We

still apply Santana-type ‘‘public view, speech, hearing, and

touch’’ analysis to aid in the determination of whether a rea-

sonable expectation of privacy exists. To answer that Payton

established ‘‘a firm line at the entrance to the house,’’ Pay-

ton, 445 U.S. at 590, is to ignore an unmistakable

circularity—the question is where is the ‘‘entrance to the

house,’” which in these circumstances must be answered by

consideration of reasonable expectations of privacy.

We addressed precisely this question in United States v.

Berkowitz, supra, acknowledging that when an individual

voluntarily stands behind an open doorway—fractions of an

inch ‘‘inside the home’’—ordinarily, for purposes of the

Fourth Amendment, she stands outside, in a public place.

See Berkowitz, 927 F.2d at 1386-87; cf: Santana, 427 U.S. at

42. But, we said, the inquiry does not end there. We also

recognized that a person does not surrender reasonable expec-

tations of privacy in the home by simply answering a knock

App. 9

at the door, and we therefore declined to apply Santana in

toto.> Berkowitz, 927 F.2d at 1387. Instead, we held that an

individual retains the right to be free from physical intrusion

into the home by police officers without a warrant seeking to

effectuate an arrest, but the right could be waived in that cir-

cumstance by acquiescence (rather than consent) to a slight

entry. We stated our holding as follows: if the police go to

an individual’s home without a warrant, knock on the door,

announce from outside the home that the individual is under

arrest when she opens the door to answer, and the individual

acquiesces to a slight entry to complete the arrest,* the entry

is reasonable under the Fourth Amendment and consistent

with Payton. Id.

Berkowitz, however, did not overturn longstanding

Fourth Amendment precedent that absent exigent cir-

cumstances, police without a warrant must obtain an

3. Other courts have reached similar conclusions. See

United States v. McCraw, 920 F.2d 224, 228-30 (4th Cir.

1990); Duncan v. Storie, 869 F.2d 1100, 1103 (8th Cir.

1989); United States v. Herrold, 772 F. Supp. 1483,

1489-90 (M.D. Pa. 1991). But see United States y.

Carrion, 809 F.2d 1120, 1127-28 (Sth Cir. 1987); United

States v. Whitten, 706 F.2d 1000, 1015 (9th Cir. 1983).

4. Berkowitz actually states this proposition using the words

‘‘and the person acquiesces to the arrest.’’ 927 F.2d at

1386 (emphasis added). The issue, however, is whether

the entry is consistent with the Fourth Amendment, not

the arrest (which is lawful because supported by probable

cause). Despite the language used in that particular

sentence, we believe the holding in Berkowitz identified

the entry as the constitutional violation, not the arrest, and

therefore we use the former, not the latter.

App. 10

individual’s valid and voluntary consent before entering the

home to effectuate or complete an arrest. See, e.g., Steagald

v. United States, 451 U.S. 204, 214 n.7 (1981); Reardon v.

Wroan, 811 F.2d 1025, 1027-28 (7th Cir. 1987). As we have

said, Berkowitz only endorsed as reasonable under the Fourth

Amendment, a slight entry into the home to complete an

arrest announced outside the home when the individual

acquiesced to the entry while standing fractions of an inch

behind the threshold of her home with the door open. See

Berkowitz, 927 F.2d at 1386-87.

This case does not fit within the thin middle ground

established by Berkowitz, but is a case where Payton applies.

What puts this case beyond Berkowitz—as well as Santana

and Watson—and is most critical here, is that Sparing stood

inside his home, behind his closed screen door. He was nei-

ther in a public place, e.g., outside (Watson),° voluntarily in

an open doorway, also a public place (Santana), or answering

a knock at the door and standing fractions of an inch behind

an open doorway (Berkowitz). Because we are guided not by

the ‘‘common law of property,’’ Santana, 427 U.S. at 42, but

by the Fourth Amendment privacy interest as identified in

Katz, this difference is significant. Sparing was not exposed

to ‘‘public view, speech, hearing, and touch’’ as if he were

standing outside, in a public place (voluntarily or otherwise).

As a consequence, we apply Payton—Sparing did not

surrender any reasonable expectations of privacy in his home.

Without a warrant, this arrest could only be completed if

Sparing opened his screen door, and stepped outside of his

home or acquiesced to a slight entry to complete the arrest.

For Keith to enter the home without a warrant, as he did in

this case, he first needed Sparing’s consent.

5. Watson actually was arrested in a restaurant.

App. 11

We need not question the validity and voluntariness of

consent in this case, because no evidence of consent is

present. Because Sparing did not consent to Keith’s entry

into his home, Keith’s entry without a warrant to effectuate

or complete the arrest in Sparing’s home was unreasonable

and a violation of the Fourth Amendment. We pause here,

momentarily, to reiterate what seems to have been lost from

our discussion in Berkowitz: there was no reason in this case

not to get a warrant and every reason to obtain one. See

Berkowitz, 927 F.2d at 1388 (“Obtaining a warrant in the

first place would have prevented these potential problems, to

say nothing of the time it would have saved at trial and on

appeal litigating the legality of [the] arrest.’’). When time

permits, officers who elect not to obtain a warrant unneces-

sarily risk the type of constitutional violation involved in this

case.

Although Sparing has demonstrated a constitutional vio-

lation, he cannot show that the violation was Clearly esta-

blished under the second part of the standard for qualified

immunity. Indeed, we are in agreement with the First Circuit

in concluding that the law surrounding Fourth Amendment

““doorway arrest’’ questions, particularly on the facts of this

case, was not sufficiently settled or defined at the time of the

arrest to defeat qualified immunity in this case. See gen-

erally Joyce v. Town of Tewksbury, 112 F.3d 19, 22 (1st Cir.

1997) (en banc). Thus, Keith was appropriately entitled to

summary judgment for Sparing’s Fourth Amendment warrant

claim under section 1983.°

6. Sparing presents an additional Fourth Amendment

argument based on the Illinois resisting arrest statute:

Sparing argues that he was required by Illinois law to

acquiesce to Keith’s entry to complete the arrest, and if he

resisted by not acquiescing to the entry, he was subject to

additional charges for resisting arrest. He argues that if

he acquiesced, the [Illinois statute compelled his

App. 12

.A.3 Arrest without probable cause

Sparing next argues that the district court employed a

‘*fanciful view of Illinois law and a warped reading of the

record’’ in concluding that his participation in Smith’s

scheme could have provided Keith with probable cause to

believe that he had committed the offense of disorderly con-

duct. Therefore, he argues, the district court erred in grant-

ing summary judgment to Keith on his Fourth Amendment

probable cause claim.’ Sparing contends that the section of

the Illinois disorderly conduct statute under which the district

court found probable cause for the arrest requires a written

report and that the report must falsely identify an offense, not

simply acts that may be part of an offense.

The disorderly conduct statute provides:

(a) A person commits disorderly conduct when he

acquiescence and as a consequence that acquiescence is

constitutionally defective. Having decided that Berkowitz

~ does not apply, we need not consider this issue.

7. The district court did not find probable cause for the

charge of obstructing a police officer--the offense for

which Sparing was arrested and _ charged--because

Sparing’s conduct could not be considered physical

obstruction, which is a necessary element of the offense.

See People v. Hilgenberg, 585 N.E.2d 180, 183 (Ill. App.

Ct. 1991). But the district court continued to consider

whether probable cause existed for disorderly conduct

because ‘‘probable cause need not have existed for the

charge for which the plaintiff was arrested, so long as

probable cause existed for arrest on a closely related

charge.’’ Biddle v. Martin, 992 F.2d 673, 676 (7th Cir.

1993).

App. 13

knowingly:

* * * *

(4) Transmits or causes to be transmitted in any

manner to any peace officer, public officer or public

employee a report to the effect that an offense will

be committed, is being committed, or has been

committed, knowing at the time of such transmis-

sion that there is no reasonable ground for believ-

ing that such an offense will be committed, is being

committed, or has been committed{.] \

720 Ill. Comp. Stat. 5/26-1(a)(4). Illinois case law, in partic-

ular People v. Stevens, 352 N.E.2d 352 (Ill. App. Ct. 1976),

establishes that either written or oral reports may satisfy the

element of a ‘‘report’’ in the statute. Id. at 354.

Sparing attempts to distinguish Stevens, while at the

same time advancing his second argument, by stating that the

defendant in Stevens reported a “‘robbery.’” He argues that

he only relayed information to Keith about what he had seen

~ and never stated that an ‘‘offense’’ had been committed.

This is a fanciful interpretation of both Stevens and the

disorderly conduct statute. The plain language of the statute

is not limited to false reports of an offense, as Sparing

argues, but covers false reports ‘‘to the effect that an offense

. . . has been committed.’’ 720 Ill. Comp. Stat. 5/26-1(a)(4).

When Sparing told Keith that he had seen Sanfratello in the

office copying files from a computer and photocopying, it

was to corroborate Smith’s accusation of theft and trespass.

Clearly, the report had the effect of falsely conveying to a

police officer that an offense had been committed.

Thus, Keith was also appropriately entitled to summary

judgment for Sparing’s Fourth Amendment probable cause

claim under section 1983.

App. 14

i.B Malicious Prosecution

Sparing argues that for the reasons articulated in his

probable cause discussion addressed above, the district court

wrongly granted summary judgment to the Village and Keith

on his state law malicious prosecution claim. Because we

have disposed of his arguments on probable cause, Sparing is

left empty-handed. However, we will address this issue

because we uphold summary judgment on the second ground

offered by the district court. We review this claim, like the

others, de novo.

We are not convinced, as was the district court, that

because probable cause existed for the offense of disorderly

conduct, Sparing could not maintain a state law malicious

prosecution cause of action for resisting or obstructing a

police officer--the offense actually charged. We are aware of

no Illinois case that adopts the closely related offense rule,

which we apply in qualified immunity cases, in state law

malicious prosecution tort cases. Therefore, we do not rest

our opinion on this ground.

However, illinois law does require that the criminal

proceeding upon which a malicious prosecution action is

predicated was terminated in a manner indicative of the

innocence of the accused. Joiner v. Benton Cmty. Bank, 411

N.E.2d 229, 232 (Ill. 1980). The record is silent on this

issue, except for Keith’s assertion in his deposition that the

case was dismissed for lack of a warrant (hardly indicative of

Sparing’s innocence). At summary judgment, Sparing had an

obligation to come forward with evidence to support his

claim and could not merely rest on the allegations in his

complaint. See Fed. R. Civ. P. 56(e). He failed to do so.

App. 15

Therefore the Village and Keith were appropriately entitled

to summary judgment for Sparing’s state law malicious

prosecution claim.®

lil. CONCLUSION

For the foregoing reasons, the judgment of the district

court is Affirmed.

8. We do not reach the issues of damages raised on this

appeal, because we affirm the district court’s grant of

summary judgment in favor of the Village and Keith on

all counts alleged in the complaint.

App. 16

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 00-1021

EUGENE SPARING,

Plaintiff-Appellant,

Vv.

VILLAGE OF OLYMPIA FIELDS AND

JAMES KEITH,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District ~f Illinois

No. 97 CV 5479 —Charles R. Norgle Judge.

[September 19, 2001]

JUDGMENT — ORAL ARGUMENT

Honorable Frank H. Easterbrook, Circuit Judge

Honorable Kenneth F. Ripple, Circuit Judge

Honorable Ann C. Williams, Circuit Judge

The judgment of the District Court is AFFIRMED, with

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

this date.

App. 17

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 00-1021

EUGENE SPARING,

Plaintiff-Appellant,

v.

VILLAGE OF OLYMPIA FIELDS AND

JAMES KEITH,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois

No. 97 CV 5479 —Charles R. Norgle Judge.

[November 14, 2001]

ORDER

Honorable Frank H. Easterbrook, Circuit Judge

Honorable Kenneth F. Ripple, Circuit Judge

Honorable Ann C. Williams, Circuit Judge

On consideration of the petition for rehearing and peti-

tion for rehearing en banc, filed in the above-entitled cause

by plaintiffs-appellants, no judge in active service has

requested a vote thereon, and all of the judges on the original

panel have voted to deny. Therefore, the petition for rehear-

ing is hereby DENIED.

App. 18

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 97 CV 5479

EUGENE SPARING,

Plaintiff,

Vv.

VILLAGE OF OLYMPIA FIELDS AND

JAMES KEITH,

Defendants.

MEMORANDUM OPINION AND ORDER

NORGLE, J. Eugene Sparing (‘‘Sparing’’) brought this

suit alleging that James Keith (‘‘Keith’’), a police officer

with the Village of Olympia Fields, violated Sparing’s civil

rights by entering his home and arresting him without a war-

rant and without probable cause. Sparing seeks damages

under 42 U.S.C. § 1983 for the alleged civil rights violations,

and also invokes the court’s supplemental jurisdiction to

assert the Illinois tort of malicious prosecution against Keith

and the Village (where appropriate, ‘“‘Defendants’’). Defen-

dants now move for summary judgment, while Sparing

moves for summary judgment on his § 1983 claims. For the

following reasons, the court grants Defendants’ motion and

denies Sparing’s motion.

App. 19

Il. BACKGROUND’

On July 23, 1996, David Smith (‘‘Smith’’) filed a crimi-

nal report with the Olympia Fields Police Department.

Smith, an accountant, told Keith that he terminated an

employment relationship with Tom Sanfratello (‘‘Sanfra-

tello’’) on May 31, 1996. Smith complained that Sanfratello

took files from Smith’s office, prepared checks made out to

himself, and forged Smith’s signature on the checks. Smith

said his friend, Sparing, saw Sanfratello in Smith’s office on

July 9, 1996 at 2:30 a.m. Sparing allegedly knocked on the

window to get Sanfratello’s attention, but Sanfratello

ignored him.

On August 13, 1996, Keith telephoned Sparing, asking

him to verify Smith’s version of events, and Sparing did so.

Later the same day, Keith questioned Sanfratello about the

alleged incident. Sanfratello disputed the Story, claiming that

he did not leave Smith’s employment until June 10, 1996.

Sanfratello admitted taking files, but claimed that he returned

them to Smith. Sanfratello also admitted signing checks, but

maintained he was a signatory on the account, and Smith

owed him money.

Sanfratello also told Keith about a conversation he had

with Sparing’s secretary, Linda Parker (‘‘Parker’’). Parker

allegedly told Sanfratello that Smith and Sparing were ‘‘up to

no good.’’* (Defs.’ Rule 12(M) stmt. par. 6.) According to

1. The court takes the facts from the parties Local Rule 12

statements, and discusses any factual disputes in the text.

On September 1, 1999, Local Rules 12(M) and 12(N)

were re-numbered to Local Rules 56. 1(a) and 56. 1(b).

Consistent with the parties submissions, the court cites the

former numbering system in this opinion.

2. Sparing objects to this statement, and other statements, as

hearsay. (See Pl.’s Rule 12(N) reply, pars. 6, 9, 10.) As

discussed below, the court does not consider the

App. 20

Sanfratello, Parker said that Smith faxed a message to Spar-

ing about Sparing’s alleged observation of Sanfratello at

Smith’s office. Sanfratello gave Keith a copy of the fax,

which read:

Gene:

July 9, 1996 at 2:45 a.m. [you] observed Tom at

office copying files from computer and photocopy-

ing. You knocked on windows and Tom ignored

you. You left and went home.

Thanks,

David

(Defs.’ Rule 12(iM) stmt. par. 7.)

On August 14, 1996, Keith telephoned Parker to investi-

gate Sanfratello’s story, and prepared a written report of this

telephone interview. According to Keith’s report, Parker told

Keith that she received the fax from Smith and gave it to

Sparing, who allegedly said ‘‘Dave [Smith] wants me to per-

jure myself.’’ (Defs.’ Rule 12(M) stmt. par. 9.)

The next day, Parker telephoned Keith to tell him that

Sparing confronted her about the conversation she had with

Keith the previous day. According to Parker, she met Spar-

ing for lunch, where he asked her with whom she had been

speaking. Parker did not answer Sparing’s question, but later

Sparing drove her by the Olympia Fields police station to

‘‘refresh her memory.’’ Parker then told Sparing that she

statements for their truth. (See infra, Part II.B.2.) Rather,

the court considers the statements to review the

information known to Keith at the time of Sparing’s

arrest. Therefore, Sparing’s objections are overruled.

App. 21

spoke with the police about the fax from Smith. According

to Parker, Sparing responded ‘‘I thought you were my

friend,’’ and asked ‘‘How could you do this to me?’’ and

‘“Don’t you know this could lead to criminal charges against

me?’’ (Defs.’ Rule 12(M) stmt. par. 10.) Parker claimed

that Sparing then fired her, told her that he would be evicting

her from the house she rented from him, and that he was tak-

ing back a van on which she was making payments. Later

the same day, Keith interviewed Parker in person, where she

restated the things she told Keith in their telephone conversa-

tion.

Following this meeting with Parker, Keith went to

Sparing’s residence/business and knocked on the door. A

man answered the door, and identified himself as Sparing.

Keith then told Sparing he was under arrest. At the time

Keith announced the arrest, Keith was Standing outside the

threshold, and Sparing was standing inside the screen door.

Then, Sparing asked if Keith had a warrant. Keith replied

that he did not need one because he had probable cause to

believe Sparing committed a crime. After Keith announced

the arrest, Sparing asked to put something down, and walked

farther into his residence. At that time, Keith Stepped inside

Sparing’s residence. Sparing returned to the doorway, and

walked outside with Keith, who then handcuffed Sparing and

took him to the Olympia Fields police station. Sparing was

charged with obstructing a peace officer in violation of 720

ILCS 5/31-1. According to Sparing, Keith offered to release

Sparing if he would provide evidence against Smith. Sparing

claims that during the ride to the police station, Keith said

‘You're going to have to change your Story. You’re going

to have to cooperate. And if you testify against Smith, then I

won't arrest you.’’ (Pl.’s Rule 12(N) stmt. par. 6.) Sparing

also claims Keith said that if Sparing ‘‘told the right story’’

and testified against Smith, ‘‘this will be over for you.”’

(Pl.’s Rule 12(N) stmt. par. 7.) Keith denies making these

statements.

App. 22

At the time of his arrest, Sparing claims he was selected

to be a director of a business that was in the process of going

public. As a member of the board of directors, Sparing

would have been entitled to purchase 100,000 shares of stock

at $0.075 per share. The stock, which is not yet publicly

traded, sold for $2.00 per share during the summer of 1999.

Sparing asserts that he lost this opportunity because Keith

arrested him. Defendants disagree and argue that Sparing

was not officially approved as a director at the time of his

arrest.

On August 7, 1997, Sparing filed a four count complaint

against Keith, the Village, and William Bednar.* Count I,

brought under 42 U.S.C. § 1983, claims that Keith violated

Sparing’s Fourth Amendment rights when he entered

Sparing’s residence without a warrant. Count II, another §

1983 claim, alleges that Keith violated Sparing’s Fourth

Amendment rights when he arrested Sparing without prob-

able cause. Count IV is brought under the court’s supple-

mental jurisdiction, and alleges the Illinois tort of malicious

prosecution against Keith and the Village on the theory of

respondeat superior. A large part of Sparing’s claimed dam-

ages is the purported lost investment opportunity.

In their motion for summary judgment, Keith and the

Village argue that Keith has qualified immunity against the §

1983 claims because Keith did not arrest Sparing in his

home, and because Keith had probable cause to make the

arrest. Keith and the Village also argue that the malicious

prosecution claim fails because Keith had probable cause,

3. William Bednar is a police officer in Park Forest, Illinois.

Count III was directed to Officer Bednar, which Sparing

voluntarily dismissed on February 3, 1998. |

App. 23

\

and because ofthe Illinois Tort Immunity Act, 745 ILCS §§

10/2-109 and 10/2-208. Alternatively, Keith and the Village

argue that Sparing’s claimed damages are speculative, and

not recoverable.

in Sparing’s motion on the § 1983 claims, he argues

that Keith did not have probable cause to make the arrest,

and that he is entitled to judgment because Keith admits to

entering Sparing’s home. Sparing does not move for sum-

mary judgment on his malicious prosecution claim, rather, he

asserts that a trial is necessary. Sparing also maintains that

the alleged damages are not speculative, and should be

resolved at trial.

ll. DISCUSSION

ll.A Standard for Summary Judgment

Summary judgment is permissible when ‘“‘there is no

genuine issue as to any material fact and ... the moving party

is entitled to judgment as a matter of law.’’ Fed.R.Civ.P.

56(c). The nonmoving party cannot rest on the pleadings

alone, but must identify specific facts, see Cornfield v. Con-

solidated High School District No. 230, 991 F.2d 1316,

1320 (7th Cir. 1993), that raise more than a mere scintilla of

evidence to show a genuine triable issue of material fact.

See Murphy v. ITT Educational Services, Inc., 176 F.3d 934,

936 (7th Cir. 1999). In other words, summary judgment is

the ‘‘put up or shut up’’ stage of a lawsuit, when the party

opposing the motion must present ‘‘what evidence it has that

would convince a trier of fact to accept its version of

events.’’ Shank v. William R. Hague, Inc., 192 F.3d 675, 682

(7th Cir. 1999) (citing Schacht v. Wisconsin Dep’t of Correc-

tions, 175 F.3d 497, 503-04 (7th Cir. 1999)). In deciding a

motion for summary judgment, the court can only consider

evidence that would be admissible at trial under the Federal

Rules of Evidence. See, Bombard v. Fort Wayne Newspa-

pers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). The court views

the record and all reasonable inferences drawn therefrom in

the light most favorable to the party Opposing summary

App. 24

judgment. See Fed.R.Civ.P. 56(c), s ee also, Perdomo v.

Browner, 67 F.3d 140, 144 (7th Cir. 1995). ‘‘In the light

most favorable’ simply means that summary judgment is not

appropriate if the court must make ‘‘a choice of inferences.”’

See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962),

see also, First Nat’l Bank of Arizona v. Cities Service Co.,

391 U.S. 253, 280 (1968); Wolf v. Buss (America) Inc., 77

F.3d 914, 922 (7th Cir. 1996). The choice between reason-

able inferences from facts is a jury function. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

1.6 Qualified immunity

11.B.1 In general

Government officials have qualified immunity against §

1983 liability ‘‘insofar as their conduct does not violate

clearly established rights of which a reasonable person would

have known.”’ Wollin v. Gondert, 192 F.3d 616, 622 (7th

Cir. 1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). The rationale behind the qualified immunity doc-

trine is to protect public officers from ‘‘undue interference

with their duties and from potentially disabling threats of lia-

bility ....”’ Wollin, 192 F.3d 616, 622 (citing Jenkins v. Keat-

ing, 147 F.3d 577, 584-85 (7th Cir. 1998)). The immunity

operates to avoid ‘‘excessive disruption’’ of government, and

permits ‘‘the resolution of many insubstantial claims on sum-

mary judgment.’’ See Wollin, 192 F.3d 616, 622 (quoting

Harlow, 457 U.S. at 818 (1982)). The existence of qualified

immunity is a question for the court, which should resolve

the issue as early as possible. See Biddle v. Martin, 992 F.2d

673, 676 (7th Cir. 1993) (noting that a false arrest case

should not go to trial if there is any reasonable basis to find

probable cause) (citing Hunter v. Bryant, 502 U.S. 224, 228

(1991) and Cross v. City of Des Moines, 965 F.2d 629, 632

(8th Cir. 1992)); see also Alvarado v. Picur, 859 F.2d 448,

451 (7th Cir. 1988) (holding that the question of qualified

immunity is a question of law for the court).

App. 25

Qualified immunity is a two part analysis. First, the

court considers whether the plaintiff has produced evidence

of a violation of a federal constitutional right. See Spiegel v.

Cortese, 196 F.3d 717, 722 (7th Cir. 1999) (citing Eversole

v. Steele, 59 F.3d 710, 717 (7th Cir. 1995)). If so, the court

considers whether the constitutional standards implicated

were Clearly established at the time in question. See Spiegel,

196 F.3d 717, 722. The defendant is entitled to qualified

immunity if the answer to either inquiry is negative. See

Chan v. Wodnicki, 123 F.3d 1005, 1008 (7th Cir. 1997) (not-

ing the plaintiff's burden to establish that, under Clearly esta-

blished law, the defendant official would understand that his

actions violate the plaintiff's rights). Although qualified

immunity is a defense, the plaintiff has the burden of estab-

lishing that the defendant violated a clearly established con-

stitutional right. See Spiegel, 196 F.3d 717, 722.

1.B.2 Probable cause

The court first addresses Sparing’s cldim that he was

arrested without probable cause, and Keith’s| assertion that he

is entitled to qualified immunity against that claim. After

reviewing the parties briefs, Local Rule 12 Statements, and

supporting materials, the court finds the first qualified

immunity question dispositive. See Khuans v. School Dist.

110, 123 F.3d 1010, 1018 (7th Cir. 1997) (finding qualified

immunity applied after reviewing the first step in the

qualified immunity analysis); compare Chan, 123 F.3d at

1008 (noting that most courts go directly to second inquiry).

As described below, Keith is entitled to qualified immunity

because Sparing presents no evidence that Keith did not have

probable cause.

The constitutional right at issue is Sparing’s right to be

free from arrest without probable cause. “‘It is axiomatic

that ‘[a] warrantless arrest ... must be supported by probable

cause.’’’ United States v. Sholola, 124 F.3d 803, 814 (7th

Cir. 1997) (quoting United States v. Navarro, 90 F.3d 1245,

1254 (7th Cir. 1996)). The court’s determination of probable

App 76

cause is an objective test, focusing on the information known

to officers at the time of arrest. See Spiegel, 196 F.3d 717,

723 n. 1 (noting that a probable cause determination is less

than a ‘‘more likely than not’’ test, but how much less will

depend on the circumstances) (citing Gramenos v. Jewel

Companies, 797 F.2d 432, 438 (7th Cir. 1986)). Probable

cause itself is a ‘‘‘commonsense determination, measured

under a reasonableness standard,’ the arresting officer’s

knowledge’’’ would warrant a reasonable person to believe

that a crime had been committed. See Spiegel, 196 F.3d 717,

723, (quoting Tangwall v. Stuckey, 135 F.3d 510, 519 (7th

Cir. 1998) and Qian v. Kautz, 168 F.3d 949, 953 (7th Cir.

1999)). In other words, “‘the inquiry is whether an officer

has reasonable grounds on which to act[.]’’ Spiegel, 196

F.3d 717, 723 (quoting Kelley v. Myler, 149 F.3d 641, 647

(7th Cir. 1998)). With these principles in mind, the court

examines the information known to Keith at the time he

arrested Sparing.

The tale begins with Smith’s report to Keith, where

Smith complained that Sanfratello took files from Smith’s

office and forged Smith’s name on checks. Smith’s story led

Keith to question Sparing and Sanfratello. Sanfratello, in.

turn, led Keith to Parker, who provided ample evidence for a

reasonably prudent person to believe that Sparing had com-

mitted a crime. First, Parker told Keith that she received the

fax from Smith and gave it to Sparing, who allegedly said

‘‘Dave [Smith} wants me to perjure myself.’’ (Defs.’ Rule

12(M) stmt. par. 9.) The fax itself appears to be instructions

from Smith to Sparing about Sparing’s alleged sighting of

Sanfratello in Smith’s office. Second, Parker told Keith that

Sparing confronted her about her conversations with Keith,

and drove her past the Olympia Fields police station, saying

‘*T thought you were my friend,’’ and asking ‘‘How could

you do this to me?’’ and ‘‘Don’t you know this could lead to

criminal charges against me?’’ (Defs.’ Rule 12(M) stmt. par.

10.) Finally, Parker told Keith that Sparing fired her, told

App. 27

her he was going to evict her, and that he was taking back a

van on which she had been making payments. Again, it is

irrelevant whether Parker’s statements were correct, or

whether Sparing actually made the statements that Parker

related to Keith. See Spiegel, 196 F.3d 717, 723; cf. Wollin,

192 F.3d 616, 621 (noting that a court reviewing an officer’s

determination of probable cause should not ask, after the fact,

if there was a more reasonable interpretation of events) (cit-

ing Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998)).

Rather, the question is whether Keith had reasonable grounds

on which to act. See Spiegel, 196 F.3d 717, 723. On these

facts, the court finds that Keith had reasonable grounds to

believe that Sparing fabricated the story about Sanfratello,

and that Sparing and Smith conspired to frame Sanfratello.

Therefore, the court answers the first qualified immunity

question in the negative, and finds, as a matter of law, that

Keith had probable cause to arrest Sparing.

Despite the deferential rules of probable cause, Sparing

argues the intricacies of law, and contends that Keith did not

have probable cause to arrest Sparing for obstructing a police -

officer, 720 ILCS § 5/31-1, the crime with which Sparing

was charged.* Sparing relies on People v. Raby, 40 Ill.2d

392, 240 N.E.2d 595 (1968) to argue that obstructing a peace

officer requires a physical obstruction, rather than merely

4. The statute reads, in relevant part:

720 ILCS 5/31-1. Resisting or obstructing a peace

officer or correctional institution employee.

(a) A person who knowingly resists or obstructs the

performance by one known to the person to be a peace

officer or correctional institution employee of any

authorized act within his official Capacity commits a Class

A misdemeanor. '

App. 28

providing false information to an officer. Because Sparing

did not physically obstruct Keith, Sparing argues that Keith

could not have had probable cause to arrest Sparing for

obstructing a police officer. Sparing further argues that Keith

did not have probable cause to arrest Sparing for disorderly

conduct. According to Sparing, the Illinois disorderly con-

duct statute, 720 ILCS § 5/26-1, only applies to persons that

file a false police report.> Because Sparing did not file a for-

mal police report, he argues that Keith could not have prob-

able cause to arrest Sparing for disorderly conduct.

Keith submits that he had probable cause to arrest Spar-

ing for obstructing a police officer, and also maintains that he

had probable cause to arrest Sparing for disorderly conduct,

which Keith claims is closely related to obstructing a police

officer. According to Keith, a § 1983 claim based on false

arrest will fail if probable cause exists for a crime that is

closely related to the crime charged. See Biddle, 992 F.2d at

676-77 (and cases cited therein).

The court agrees with Sparing that physical obstruction

is a necessary element of the crime of obstructing a peace

officer. See People v. Hilgenberg, 223 Ul.App.3d 286, 165

5. The statute reads, in relevant part:

720 ILCS 5/26-1. Disorderly conduct.

(a) A person commits disorderly conduct when he

knowingly: ;

(4) Transmits or causes to be transmitted in any manner

to any peace officer, public officer or public employee a

report to the effect that an offense will be committed, is

being committed, or has been committed, knowing at the

time of such transmission that there is no reasonable

ground for believing that such an offense will be

committed, is being committed, or has been committed...

App. 29

Ill.Dec. 784, 585 N.E.2d 180, 183 (1991). Nonetheless, the

court finds Keith’s argument persuasive. ‘‘Probable cause

need not exist [ ] for the charge for which plaintiff was

arrested, so long as probable cause existed for alrest on a -

closely related charge.’’ Biddle, 992 F.2d at 676. The court

is to *‘strike a balance which allows the arresting officer to

choose which crime she will charge without having to charge .

every single offense sustainable on the facts, and yet does not

‘open [ ] the door to the extrapolation of offenses in an effort

to justify a sham arrest.’ Jd. (quoting Trejo v. Perez, 693

F.2d 482, 485 (Sth Cir. 1982)). Indeed, the court does ‘‘not

consider all the possible charges [Sparing’s] conduct might

support."’ Biddle, 992 F.2d at 677: see also Spiegel, 196

F.3d 717, 723 n. 1 (stating that the court could not

‘‘emphasize enough’’ that an officer does not need probable

cause as to every element of an offense, rather, the officer

needs enough information to believe that the “‘arrestee was

committing, or had committed a crime’’) (citing Hunter v.

Bryant, 502 U.S. 224, 228 (1991)). The court finds that

Sparing’s conduct, as known to Keith at the time of the

arrest, is sufficiently related to disorderly conduct to support

his arrest. See People v. Stevens, 40 Ill.App.3d 303, 352

N.E.2d 352, 354 (1976) (upholding a conviction for disord-

erly conduct where the defendant told police a false story of

a robbery); see also Biddle, 992 F.2d at 676-77 (citing cases).

Further, Sparing presents no evidence to Suggest that Keith

extrapolated the obstructing charge from non-existent facts in

order to justify a sham arrest. See Biddle, 992 F.2d at 676;

cf. Richardson v. Bonds, 860 F.2d 1427, 1431 n. 3 (7th Cir.

1988) (noting that an arrest could be found invalid if an

arrestee could demonstrate, with specific facts, that an arrest-

ing officer acted in bad faith). Thus, Sparing’s dissatisfaction

with being charged with obstructing a police officer is una-

vailing. Sparing’s other argument, that he could not be

charged with disorderly conduct because he did not file a for-

mal police report, is equally unavailing. See Stevens, 352

App. 30

N.E.2d at 354 (upholding a disorderly conduct conviction

where the defendant gave a false story to police).

The court’s inquiry into Keith’s qualified immunity

stops at this point. See Chan, 123 F.3d at 1008 (noting that

qualified immunity exists if the answer to either inquiry is

negative); cf. Khuans, 123 F.3d at 1018. However, even if

the court. were to continue to the second qualified immunity

question, Keith would still prevail. If a § 1983 plaintiff

establishes a constitutional violation, the defendant is entitled

to qualified immunity, unless the plaintiff also demonstrates

that the law ‘‘was so ‘clearly established’ that ’a reasonable

official would understand that what he is doing violates that

right.”’” Chan, 123 F.3d at 1008 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). To make this

demonstration, Sparing must point to either an analogous

case, dealing with the same constitutional right and similar

facts, or demonstrate that the violation was so obvious that a

reasonable person would recognize that their actions were a

violation. See Chan, 123 F.3d at 1008; see also Spiegel, 196

F.3d 717, 723 (noting that a police officer is immune to

claims based on an arrest without probable cause unless it is

obvious that no reasonably competent officer would have

believed that there was probable cause) (citing Malley v.

Briggs, 475 U.S. 335, 341 (1986)). Sparing fails to carry

this burden. Sparing does not point to an analogous case that

shows that Keith did not have probable cause. Further, as

demonstrated by the above discussion, Keith’s actions were

not obviously violative of Sparing’s rights. Put another way,

Sparing fails to point to any law indicating that Keith’s

actions were illegal. Consequently, the answer to the second

qualified immunity question is also a negative.

1.8.3 Sparing’s arrest and Keith’s entry .

Sparing next contends that he was arrested in his home,

without a warrant, and without exigent circumstances, in vio-

lation of his Fourth Amendment rights. Keith claims that he

is entitled to qualified immunity because he did not arrest

App. 31

Sparing in his home. The court’s resolution of this issue is

limited to the first qualified immunity inquiry, which the

court answers in the negative.

The constitutional right at issue is the right to be free

from a warrantless arrest in the home, in the absence of exi-

gent circumstances. Again, it is axiomatic that the Fourth

Amendment prohibits a warrantless entry into a home to

effect an arrest, in the absence of exigent circumstances. See

Payton v. New York, 445 U.S. 573 579-80 (1980). However,

as discussed below, the court finds that Sparing’s allegation

is without merit.

The case of United States vy. Berkowitz, 927 F.2d 1376

(7th Cir. 1991) decides the issue. Berkowitz arose from the

warrantless arrest of Marvin Berkowitz at his home, and the

subsequent seizure of evidence found inside the home. See

id. at 1385-90. One of the issues on appeal was whether the

trial court erred in denying Berkowitz’s motion to suppress

the evidence seized during Berkowitz’s arrest. See id. at

1378. The parties agreed that there was probable cause to

arrest Berkowitz, and that the arresting officers went to

Berkowitz’s home, knocked on the door, and Berkowitz

answered the door. See id. at 1379-80. At that point, the

stories diverged. According to the government, the arresting

officer told Berkowitz he was under arrest immediately after

Berkowitz opened the door. See id. at 1380. The officer

claimed that Berkowitz did not resist or attempt to close the

door. See id. Instead, Berkowitz merely asked if he could

have his sports coat, which was draped over a chair inside

the home, and another officer retrieved the coat. See id.

Berkowitz disagreed, and said that after he opened his door,

the officers stepped into the home, and announced the arrest.

See id. Thus, according to the government, the arrest pre-

ceded the entry, while according to Berkowitz, the entry pre-

ceded the arrest. See id. On these disputed facts, the

Seventh Circuit remanded the case for an evidentiary hearing

App. 32

on whether the officers were inside or outside Berkowitz’s

home at the time the officer announced the arrest. See id. at

1385-90 (emphasis added).

The significance of Berkowitz is that the Seventh Circuit

stated that the arrest was valid if it happened as the govern-

ment claimed. See id. Courts generally uphold arrests where

the police go to a home without a warrant, knock on the

door, announce the arrest from the outside of the home, and

the person acquiesces to the arrest. See id. at 1386 (and

cases cited therein) (emphasis added). ‘‘Payton prohibits

only a warrantless entry into the home, not a policeman’s use

of his voice to convey a message of arrest from outside the

home .... Moreover, there is nothing in Payton that prohibits

a person from surrendering to police at his doorway.’’ Ber-

kowitz, 927 F.2d at 1386 (citations omitted). When a person

submits to an arrest at his doorway, the arrestee ‘‘has for-

feited the privacy of his home to a certain extent.’’ Id. at

1387. In other words, ‘‘[a] person who has submitted to the

police’s authority and stands waiting for the police to take

him away can hardly complain when the police enter his

home briefly to complete the arrest.’’ Id. On such facts,

officers may enter the home after announcing the arrest to

take control of the arrestee without violating the Fourth

Amendment. See id. |

The facts of the case at bar are indistinguishable from

the government’s position in Berkowitz. The parties do not

dispute that Keith knocked on Sparing’s door, Sparing

answered and identified himself, and Keith told Sparing he

was under arrest. At the time Keith announced the arrest,

Keith was standing outside the home, and Sparing was stand-

ing inside the home behind a screen door. After Keith

announced the arrest, Sparing asked if Keith had a warrant,

and Keith said he did not. Then, Sparing asked if he could

put something down, and walked farther into his residence.

At that time, Keith entered the home. Sparing does not

App. 33

argue that he did not submit to Keith’s announcement of

arrest, and there is no evidence to support such an argument.

Cf California v. Hodari D., 499 U.S. 621, 626 (1991) (hold-

ing that a person submitting to a show of authority is under

arrest). This case presents the ‘‘threshold arrest’’ scenario

that the Seventh Circuit said does not violate the Fourth

Amendment. See Berkowitz, 927 F.2d at 1385-90. There-

fore, the court finds that Sparing has not presented evidence

of a constitutional violation. See id. ; see also McKinney y.

George, 726 F.2d 1183, 1188 (7th Cir. 1984) (noting that the

privacy of the home is not invaded when a person surrenders

to an arrest made at the threshold); Cf. Collier vy. Baker, No.

96-C-0023, 1999 WL 543206, at *3-5 (N.D.IIl. July 23,

1999) (discussing Berkowitz in the context of a warrantless

airest in a suspect’s home, and denying a motion for sum-

mary judgment to resolve a factual question about whether

police officers had consent to enter the Suspect’s home).

Sparing claims that this case is controlled by Payton,

which prohibits warrantless entries into a home to make a

routine arrest, absent exigent circumstances. See Payton, 445

U.S. at 589-90. Payton, however, is readily distinguishable

from the case at bar. In Payton, New York detectives, after

two days of intensive investigation, found enough evidence

to establish probable cause to believe that Thomas Payton

committed a murder. See id. at 576. Without a warrant, six

officers went to Payton’s apartment to arrest him. See id.

The officers knocked on the door, but did not get a response,

even though they could see light and hear music coming

from the apartment. See id. The officers called for assis-

tance, and half an hour later, used crowbars to break open

Payton’s door. See id. at 576-77. As it turned out, no one

was home, but the officers saw a .30 caliber shell Casing in

plain view, seized it, and the government introduced it at

Payton’s murder trial. See id. On such facts, the Supreme

Court held that police officers must have a warrant to enter a

home to effect a routine arrest, unless exigent circumstances

App. 34

exist. See id. at 596-600.

In sharp contrast to the facts of Payton, the undisputed

facts in this case establish that Keith did not break into

Sparing’s home to effect the arrest, and that Keith’s entry

into Sparing’s home does not violate the Fourth Amendment.

See Berkowitz, 927 F.2d at 1385-90. Thus, Sparing’s reli-

ance on Payton is unavailing. The other cases Sparing cites,

Welsh v. Wisconsin, 466 U.S. 740 (1984), and Illinois v.

Rodriguez, 497 U.S. 177 (1990), are similarly distinguish-

able. Welsh dealt with a warrantless entry into the home of a

drunken driving suspect, and his arrest in his second floor

bedroom. See Welsh, 466 U.S. at 743. Rodriguez considered

a watrantless entry into a home, which was based on the con-

sent of a person that did not have common authority over the

premises. See Rodriguez, 497 U.S. at 179. Both of these

cases are inapposite to the case at bar, where Keith

announced the arrest from outside the home, and Sparing

acquiesced to the arrest in his doorway.

In sum, the court finds that Keith did not violate

Sparing’s Fourth Amendment right to be free from a warrant-

less arrest in his home. Thus, the court answers the first

qualified immunity question in the negative, and Keith is

entitled to qualified immunity. See Chan v. Wodnicki, 123

F.3d 1005, 1008 (7th Cir. 1997). Although the court does

not reach the second qualified immunity question, the court

notes that the Payton rule is well established, and that if the

facts of this case had been within the scope of Payton, the

result might well be different.

11.6.4. Malicious prosecution

Sparing’s next claim is that both Keith and the Village

are liable to him for the Illinois tort of malicious prosecution.

Under Illinois law, a plaintiff must allege the following ele-

merits to state a cause of action for malicious prosecution:

‘*(1) the commencement or continuance of an original crimi-

nal or civil judicial proceeding by the defendant; (2) the

App. 35

termination of the proceeding in favor of the plaintiff; (3)

the absence of probable cause for such proceeding; (4) the

presence of malice; and (5) damages resulting to the plain-

tiff.’ Meerbrey v. Marshall Field & Co., Inc., 139 Il.2d 455,

564 N.E.2d 1222, 1231 (1990) (citations omitted); see also

Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996).

Keith and the Village make two arguments for summary

judgment. First, they argue that they are entitled to summary

judgment because the existence of probable cause is an abso-

lute bar to a claim of malicious prosecution. See Biddle, 992

F.2d at 678. Second, Keith and the Village argue that the

Illinois Tort Immunity Act immunizes public officers from

liability, unless the officers acted wilfully and wantonly.

Sparing disagrees, maintaining that Keith did not have

probable cause, and that a jury must decide whether Keith

acted wilfully and wantonly. As evidence of Keith’s allegedly

wilful and wanton conduct, Sparing contends that: (1) Keith

did not fully investigate Sanfratello’s alleged crime of forg-

ing his name on Smith’s checks; (2) Keith did not seek legal

advice prior to arresting Sparing; (3) Keith did not obtain an

arrest warrant; and (4) Keith tried to force Sparing to testify

against Smith. As outlined below, the court need not address

whether Keith’s conduct was wilful and wanton.

The court’s earlier finding of probable cause necessarily

dooms Sparing’s malicious prosecution claim. Illinois has a

“strict requirement that a malicious prosecution plaintiff

show ... that the action complained of ... was commenced

maliciously and without probable cause.’’ Cult Awareness

Network v. Church of Scientology Int’l, 177 Il.2d 267, 685

N.E.2d 1347, 1357 (1997) (noting that Illinois law disfavors

an action for malicious prosecution); see also Juriss v.

McGowan, 957 F.2d 345, 349 n. 1 (7th Cir. 1992) (“‘[A] per-

son arrested with probable cause cannot cry false arrest’’).

In this case, Sparing is unable to succeed on his malicious

prosecution claim because the court has already found that

App. 36

Keith had probable cause to arrest Sparing. Thus, an essen-

tial element of the claim fails, and Keith and the Village are

entitled to summary judgment.

The court also notes that Sparing utterly fails to present

evidence to support his prima facie case of malicious

prosecution. As stated earlier, summary judgment is the

‘‘put up or shut up’’ stage of a lawsuit, where the party

opposing the motion must present evidence that could con-

vince a trier of fact of the merits of the claim. See Shank,

192 F.3d at 682 (citing Schacht, 175 F.3d at 503-04). Spar-

ing presents no evidence that the criminal charges against

Sparing were resolved in his favor, or that Keith acted with

malice. The court is not obliged to ‘‘scour the record’’ to

find Sparing’s evidence, and declines to do so in this case.

See Waldridge v. American Hoechst Corp., 24 F.3d 918, 922

(7th Cir. 1994). Further, as discussed below, Sparing’s

claimed damages are not recoverable. Therefore, the court

has an additional basis on which to grant summary judgment

in favor of Keith and the Village on Sparing’s claim of mali-

cious prosecution.

ll.C Damages

Although the issue is now moot, the court agrees with

Keith and the Village that Sparing’s lost investment damages

are not recoverable. A § 1983 case is a tort claim, and the

damages available are governed by general principles of tort

law. See Memphis Comm. Sch. Dist. v. Stachura, 477 U.S.

299, 305-06 (1986); see also Button v. Harden, 814 F.2d

382, 383 (7th Cir. 1987). A tort plaintiff does not recover all

damages that arise from ‘‘but for’? causation. See Movitz v.

First Nat’l Bank of Chicago, 148 F.3d 760, 762-65 (7th Cir.

1998). The plaintiff is only entitled to recover those dam-

ages that are foreseeable. See id. (and cases cited therein). ~

Here, Sparing’s claimed damages are anything but foresee-

able. According to Sparing, his arrest prevented him from

being named to the board of directors of a corporation that

was in the process of being formed, and which the corporate

App. 37

promoters planned to take public. As a director, Sparing

would have had the opportunity to purchase 100,000 shares

of stock at $0.075 per share. The parties dispute whether

Sparing was actually chosen to be on the board of directors

of the new corporation, or was merely being considered as a

director. In any event, Sparing was not a director at the time

of his arrest, and never purchased any stock. Further, the

. court is unaware of whether the stock was available for pur-

chase at the time of Sparing’s arrest, or if the new corpora-

tion had even been incorporated when Sparing was arrested.

Finally, the stock is not yet being publicly traded. Nonethe-

less, Sparing claims that he is entitled to the difference

between the stock’s current value and the price at which he

would have purchased the stock, $0.075 per share. Put

another way, Sparing wants Keith and the Village to pay him

for an investment he did not make. In addition to the

patently speculative nature of the damages, Sparing fails to

present any evidence to suggest that Keith and the Village

had reason to foresee the claimed damages. Sparing’s argu-

ment is similar to that of an angry teenager, who tells his

parents that he did not choose to be born, and is just as una-

vailing. See Movitz, 148 F.3d at 762-65 (and cases cited

therein).

ill. CONCLUSION |

The court finds that Keith has qualified immunity

against Sparing’s claims brought under 42 U.S.C. § 1983.

The court also finds that Sparing’s malicious prosecution

claim is barred by the existence of probable cause for Keith

to arrest Sparing. Further, the court finds that Sparing fails

to present evidence of essential elements of his malicious

prosecution claim. For the foregoing reasons, the court grants

Defendants’ motion for summary judgment, and denies

Plaintiff's motion for partial summary judgment. Case ter-

minated.

IT IS SO ORDERED.