Opposition Brief — Sparing v. Village of Olympia Fields

Supreme Court, U.S

FILED

No. 01-1230

DFFCE OF TE CLERK

IN THE

Supreme Court of the United States

EUGENE SPARING,

Petitioner,

V.

VILLAGE OF OLYMPIA FIELDS and JAMES KEITH,

Respondents. _

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION

Darcy L. Proctor

Counsel of Record

THomasS G DiCIAnni

ANCEL, GLINK, DIAMOND, BusH,

DICIANNI & ROLEK, P.C.

140 South Dearborn Street

Suite 600

Chicago, IL 60603

(312) 782-7606

Attorneys for Respondents

173745 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

TABLE OF CONTENTS

Table of Cited Authorities .................00.-

Statement OF The CASO... ww ccc cece sce secess

Reasons for Denying the Writ ..................

I.

The Writ Should Be Denied Because The

Petitioner Improperly Seeks Review Of The

Seventh Circuit’s Finding In His Favor That

The Warrantless Doorway Arrest At Issue

Violated The Fourth Amendment And, In Any

Event, The Court’s Finding Of Qualified

Immunity On Petitioner’s Warrantless Arrest

Claim Was Correct Because the Law

Surrounding Doorway Arrests Was Not

eg re

A. Petitioner Improperly Seeks Review of

the Court of Appeals’ Finding that The

Warrantless Doorway Arrest Violated the

Fourth Amendment ................

B. The Seventh Circuit Properly Found

That Officer Keith Was Entitled To

Qualified Immunity Because The Law

Surrounding Doorway Arrests Was Not

Clearly Established Or Settled At The

Fame CE TRE AMO... os veces.

Il.

Il.

il

Contents

The Writ Should Be Denied Because The

Seventh Circuit Properly Applied The

“Closely Related Offense” Doctrine And Its

Decision Is Consistent With The Fourth

Amendment And The View Of Other Circuits

i A ee ee ee ee re ee oe oe ee ee ee Oe ek et Oe ee ee

A. The Seventh Circuit’s Application of

The Closely Related Offense Doctrine

Was Proper and Comports With The

Fourth AMOnGdment ..........s0000:

B. The Seventh Circuit’s Application Of

The Closely Related Offense Doctrine Is

Consistent, Rather Than In Conflict,

With Other Circuit Decisions ........

The Writ Should Be Denied Because The

Seventh Circuit Properly Found That The

Evidence Was Insufficient To Establish That

Criminal Case Was Terminated In a Manner

Indicative Of Sparing’s Innocence And

Properly Granted Summary Judgment To The

Village And Keith On State Law Malicious

ED 6, p50 d0d 04 ede eeu wes

a rs oN ee Ee ae

Page

4

gy OO eee oe

~~ —_——

ili

TABLE OF CITEDAUTHORITIES

Page

Cases:

Avery v. King, 110 F.3d 12 (6th Cir. 1997) ....... 15

Biddle v. Martin, 992 F.2d 673 (7th Cir. 1993) ....

DN a rye Un nr ay are Os Nar ote ee 9-10, 12, 13, 14

Booker v. Ward, 888 F. Supp. 869 (N.D. Ill. 1995) ... 19

Dobiecki v. Palacios, 829 F. Supp. 229 (N.D. III.

SEE Lau eendskee baad eine hasan eee aeee 19

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

PEP POC ET OC ree TPP LTS, CET EET Te Pe ee ere 16

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

EG SUM fe sinc kncanescecyaea vcore 13, 16

Harlow vy. Fitzgerald, 457 U.S. 800 (1982) ....... 9

lenco v. City of Chicago, 148 F. Supp. 2d 938

8 Re ee Perry er or rr rrr rrr) 18, 19

Joiner v. Benton Community Bank, 82 I11.2d 40,

EE Fee Be CRUD oon n6 0 cbs ndetcnssves 17

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

Se concn poecanadkceeeaveauxen. 7, 8,9

iv

Cited Authorities

Page

People v. Hilgenberg, 223 Ill.App.3d 286,

585 N.E.2d 180 (2d Dist. 1991) .............. 10

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

fo 8 | Per rer rer Tere rr errr ae 11,12

Pfannstiel v. City of Marion, 918 F.2d 1178 (5th Cir.

| rer per rrr rer eer ere 16

Richardson v. Bonds, 860 F.2d 1427 (7th Cir. 1988)

Pe Tee ee ry ee ee eT ee PTET TT 10, 13

Sheehy v. Town of Plymouth, 191 F.3d 15 (1st Cir.

Ree Sree a ry er ee eT errr, 14,15

Trejo v. Perez, 693 F.2d 482 (Sth Cir. 1982) ...... 13, 16

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

See eUe ak cuac al cake avee eRe eae eek 6, 7

Wilder v. Prokop, 846 F.2d 613 (10th Cir. 1988) .. 19

Wolf v. Buss (America), 77 F.3d 914 (7th Cir. 1996),

cart. Gemiad, S19 US. B66 oc ccc ccccsccess 18, 19

Cited Authorities

42 U.S.C. § 1983

720 ILCS 5/26-1(a)(4)

720 ILCS 5/31-1

Federal Rule of Civil Procedure 56(c)

United States Constitution:

Fourth Amendment

Page

]

STATEMENT OF THE CASE

Ihe petitioner, Eugene Sparing, (“Sparing”) brought cis

action under 42 U.S.C. § 1983 alleging that James Keith

(“Keith”), a police officer with the Village of Olympia Fields

(the “Village”), violated Sparing’s Fourth Amendment rights

by entering his home and arresting him without a warrant

and without probable cause. Petitioner also invoked the

district court’s supplemental jurisdiction to assert the Illinois

tort of malicious prosecution against Keith and the Village

(where appropriate, “Respondents”). Keith moved for

summary judgment on petitioner’s Fourth Amendment claims

arguing that (1) the doorway arrest of Sparing was lawful

and did not violate the Fourth Amendment warrant

requirement, (2) Sparing’s arrest is supported by probable

cause, and (3) Keith is entitled to qualified immunity. As to

petitioner’s state law claim, Respondents argued that probable

cause existed and is an absolute defense to this claim.

Sparing’s arrest arose out of an alleged scheme organized

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 himself. 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 attention, but

Sanfratello did not respond. 266 F.3d 684, 686.

In mid-August of 1996, Officer James Keith called

Sparing to confirm his part of Smith’s story. Sparing did.

Keith next interviewed Sanfratello, who disputed the story

in several respects, but admitted to signing the checks because

2

he was a signatory 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 a.m. 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

Id. 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.” Jd.

The following day, (August 15, 1986), 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

3

know. She then admitted to talking with the police about the

facsimile from Smith. Sparing, 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 payments. Later that day, Keith

spoke with Parker again, and she told him the same story.

266 F.3d at 686-687.

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

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

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. /d.

Sparing filed a lawsuit against the Village of Olympia

Fields and Officer James Keith alleging violations 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 sough: damages under 42 U.S.C. § 1983.

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.

4

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 the Illinois tort law. 266 F.3d

at 687.

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 district 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.

The appeal to the Seventh Circuit followed. /d.

The Court of Appeals held that: (1) Sparing’s warrantless

arrest violated his Fourth Amendment rights; but (2) Officer

Keith was entitled to qualified immunity because the law

surrounding doorway arrests was not clearly established at

the time of Sparing’s arrest, and because probable cause for

the arrest existed under the closely-related offense doctrine;

and (3) criminal case did not terminate in a manner indicative

of Sparing’s innocence. Petitioner seeks review of the

Seventh Circuit’s decision on these issues.

5

REASONS FOR DENYING THE WRIT

I. THE WRIT SHOULD BE DENIED BECAUSE THE

PETITIONER IMPROPERLY SEEKS REVIEW OF

THE SEVENTH CIRCUIT’S FINDING IN HIS

FAVOR THAT THE WARRANTLESS DOORWAY

ARREST AT ISSUE VIOLATED THE FOURTH

AMENDMENT AND, IN ANY EVENT, THE

COURT’S FINDING OF QUALIFIED IMMUNITY

ON PETITIONER’S WARRANTLESS ARREST

CLAIM WAS CORRECT BECAUSE THE LAW

SURROUNDING DOORWAY ARRESTS WAS NOT

CLEARLY ESTABLISHED

A. Petitioner Improperly Seeks Review of the Court

of Appeals’ Finding that The Warrantless

Doorway Arrest Violated the Fourth Amendment

Petitioner improperly seeks review of an issue on which

he prevailed below. Specifically, the petitioner is asking this

Court to review the Court of Appeals’ finding in his favor

that Officer Keith violated Sparing’s Fourth Amendment right

by making a slight entry (taking a few step inside) into

Sparing’s home after announcing the arrest from outside as

Sparing stood in the threshold of an open interior doorway

behind a closed screen door. Respondents disagree with this

finding and maintain as they did below that Keith’s slight

entry into Sparing’s home under the facts and circumstances

of this case did not violate the Fourth Amendment. In any

event, the finding of the Court of Appeals is not a proper

subject for this Court’s review as the determination below

was in favor of the petitioner. Therefore, the only issue on

which the petitioner can properly seek review is on the issue

6

of qualified immunity asserted by Officer Keith on the

plaintiff’s Fourth Amendment warrantless arrest claim under

42 U.S.C. § 1983.

B. The Seventh Circuit Properly Found That Officer

Keith Was Entitled To Qualified Immunity

Because The Law Surrounding Doorway Arrests

Was Not Clearly Established Or Settled At The

Time Of This Arrest

Respondents maintain that the warrantless doorway arrest

of Sparing did not violate the Fourth Amendment and

disagree with the finding below. Indeed, the Respondents

argued below that United States v. Berkowitz, 927 F.2d 1376,

1387 (7th Cir. 1991) supported their position that the

warrantless arrest of Sparing under the facts and

circumstances of this,case did not violate the Fourth

Amendment. In Berkowitz, the Seventh Circuit held:

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.

Jd. Here, Respondents presented undisputed evidence that

Sparing did not object or otherwise protest the arrest

following Officer Keith’s announcement, but asked only

if he could put his portable telephone down, took a few

steps back inside to set the telephone down, returned to Keith

(who had taken a few steps inside behind Sparing) and then

left the residence with Keith. The evidence was also

7

uncontested that Sparing was actually placed under arrest

and handcuffed outside of the front of his residence in the

driveway. Respondents maintained below that under

Berkowitz, the law in the Seventh Circuit at the time

of this arrest in August of 1996 established that the arrest of

Sparing comported with the Fourth Amendment.

See Berkowitz, 927 F.2d at 1387 (upholding 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 as reasonable under the Fourth Amendment.)

The Court of Appeals disagreed with the Respondents’

position, but went on to consider Officer Keith’s qualified

immunity defense to Sparing’s Fourth Amendment warrant

claim applying the two-part test in accordance with Supreme

Court precedent. First, the court considered whether Sparing

alleged the deprivation of an actual constitutional right.

266 F.3d at 688. In light of its holding that the warrantless

arrest violated the Fourth Amendment, the first prong

was met. The court then considered whether the second

part of the test was satisfied, i.e., whether that right was

clearly established at the time of the alleged violation. Jd.

The Seventh Circuit concluded 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 this arrest to defeat qualified'‘immunity, relying

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

(1st Cir. 1997) (en banc) Jd. at 69/.

In Joyce, the police went to the plaintiff’s parents’ home

to arrest him for violation of a domestic violence restraining

order. The police did not have a search warrant. Plaintiff

answered the officers’ knock at the door by opening the

8

interior door, but keeping the outer screen door closed.

The police informed plaintiff he was under arrest, and asked

him to step outside. Instead, the plaintiff retorted “ya right”

and withdrew from the doorway, calling for his mother.

The officers followed the plaintiff into the house and arrested

~him inside. The arrest occurred on August 6, 1989. 112 F.3d

at 20-21. The plaintiff in Joyce brought suit against the police

alleging Fourth Amendment violations for the alleged illegal

entry into the plaintiff’s parents’ home without a warrant.

Id. at 21. The First Circuit held that the police were entitled

to qualified immunity and stated as follows:

Given the unsettled state of the law, we have

no hesitation in concluding that the officers in this

case are protected by qualified immunity, which

protects public officials against section 1983

liability so long as they acted reasonably. Hunter

v. Bryant, 502 U.S. 224, 228 (1991); Anderson v.

Creighton, 483 U.S. 635, 639 (1987). As the

Supreme Court has said, qualified immunity

“provides ample protection to all but the plainly

incompetent or those who knowingly violate the

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

The aim is to protect those who might otherwise

be deterred from official duties for fear that an

innocent mistake would create personal liability.

* * * *

The critical point here is that Officers

Donovan and Budryk are “entitled to qualified

immunity [so long as] their decision was

reasonable, even if mistaken.” (Citation omitted).

Thus, the officers are not liable unless in

9

the circumstances of this case, it is reasonably

well-established, and should therefore have been

Clear to the officers, that the entry without a search

warrant was unlawful. Because it is not even clear

that there was a violation — a point that we do not

decide — there certainly was no violation so patent

as to strip the officers of qualified immunity.

112 F.3d at 23.

The law surrounding doorway arrests under the facts and

circumstances of this case did not become any more clear

between the time of the arrest in Joyce on August 6, 1989

and the date of the arrest involving Sparing on August 15,

1996. Under the qualified immunity defense, a rule of law is

not clearly established if a defendant could not be said to

know that it prohibited his conduct. Harlow vy. Fitzgerald,

457 U.S. 800, 818 (1982). Accordingly, the Seventh Circuit

properly granted qualified immunity to Keith on Sparing’s

Fourth Amendment warrant claim under Section 1983.

II. THE WRIT SHOULD BE DENIED BECAUSE THE

SEVENTH CIRCUIT PROPERLY APPLIED THE

“CLOSELY RELATED OFFENSE” DOCTRINE

AND ITS DECISION IS CONSISTENT WITH THE

FOURTH AMENDMENT AND THE VIEW OF

OTHER CIRCUITS

A. The Seventh Circuit’s Application of The Closely

Related Offense Doctrine Was Proper and

Comports With The Fourth Amendment

The Seventh Circuit correctly found there was probable

cause for Sparing’s arrest under the closely related offense

doctrine, relying on Biddle v. Martin, 992 F.2d 673, 676

10

(7th Cir. 1993). In Biddle, the plaintiff was arrested for

obstructing a police officer in violation of 720 Illinois

Compiled Statutes 5/31-1 for refusal to provide his name

and identification, as well as swearing and shouting at a police

officer which prevented the officer from filling out a tow

report for the plaintiff’s vehicle. Jd. at 674. The charge against

the plaintiff was eventually dismissed. Plaintiff sued for false

arrest and for malicious prosecution under Section 1983.

Id. at 674. The district court granted summary judgment for

the officers, finding that the plaintiff’s unlawful arrest claim

was without merit because the officers had probable cause

to arrest him for obstruction of justice, disorderly conduct,

and for allowing someone to operate his vehicle in a manner

contrary to law. On appeal, the Seventh Circuit upheld the

district court’s decision, citing Richardson v. Bonds, 860 F.2d

1427 (7th Cir. 1988) (holding that probable cause need not

exist on the charge for which a plaintiff was arrested, so long

as probable cause exists for arrest on a closely related charge.)

Using an objective standard, the Seventh Circuit in

Biddle determined a reasonable police officer could have

believed, even mistakenly, that she had probable cause to

arrest plaintiff on one of the charges offered in justification.

992 F.2d at 678.

In the case at bar, both the district court and the Seventh

Circuit found that probable cause did not exist 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 a “physical act” which is a necessary

element of the offense, relying on People v. Hilgenberg,

223 Ill.App.3d 286, 585 N.E.2d 180, 183-184 (2d Dist. 1991)

(holding Illinois criminal statute, 720 ILCS 5/31-1,

prohibiting any person from “resisting” or “obstructing”

peace officer does not proscribe mere argument with police

11

about validity of arrest, but proscribes only some “physical

act” which imposes obstacle which may impede, hinder,

interrupt, prevent or delay the performance of officer’s

duties.) However, here the Seventh Circuit found probable

cause existed for the closely related offense of disorderly

conduct under IIlinois criminal law. The disorderly conduct

statute provides:

(a) A person commits disorderly conduct when

he knowingly:

ae * * *

(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 [.]

720 ILCS 5/26-1(a)(4).

Sparing contended that this section of the Illinois

disorderly conduct did not apply because the statute requires

a written report, and that the report must falsely identify an

offense, not simply acts that may be part of a criminal offense.

266 F.2d at 691. The Seventh Circuit disagreed with both of

these contentions. First, the court correctly interpreted I] linois

case law, in particular, People v. Stevens, 40 Ill.App.3d 303,

352 N.E.2d 352 (1st Dist. 1976), which established that either

written or oral reports may satisfy the element of a “report”

12

in the statute. Jd at 354. The Seventh Circuit rejected

Sparing’s attempt to distinguish Stevens, as well as Sparing’s

other contention that the defendant in Stevens reported a

“robbery,” arguing that Sparing only relayed information to

Keith about what he had observed and never stated that an

“offense” had been committed. The Seventh Circuit flatly

rejected plaintiff’s creative arguments and held: “[t]he plain

language of the statute is not limited to false reports of

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

offense ... has been committed.’ 720 ILCS 5/26-1(a)(4).”

266 F:3d at 692. The Seventh Circuit correctly concluded

that when Sparing told Keith that he had seen Sanfrantello

in the office copying files from a computer and photocopying,

it was to corroborate Smith’s accusation of criminal trespass

and properly held “[Sparing’s] report had the effect of falsely

conveying to a police officer that an offense had been

committed.” Jd.

In applying the closely related offense doctrine in Biddle

v. Martin, 992 F.2d 673, 676 (7th Cir. 1993), the Seventh

Circuit observed:

While an arresting officer’s subjective knowledge

of facts sufficient to constitute probable cause is

central to evaluation of the propriety of an arrest,

we do not believe that the officer's view of

the legal basis for the arrest is important.

(Emphasis added) Under the principles of Harlow

v. Fitzgerald and the Fourth Amendment, an

objective standard applies where the parties

present alternative legal justifications for an arrest.

The issue is whether a reasonably competent

police officer, with knowledge of the facts actually

13

known by the arresting officer, would have

concluded that probable cause existed to arrest

for the offense offered as justification.

Id. (quoting Richardson vy. Bonds, 860 F.2d 1427, 1430-31

(7th Cir. 1988).

The closely related offense doctrine comports with the

Fourth Amendment while at the same time strikes a balance

between two competing concerns. First, that police officers

making warrantless arrests should not be forced “to routinely

charge every citizen taken into custody with every offense

that they thought he could be held for in order to increase

the chances that at least one charge would survive the test

for probable cause.” Trejo v. Perez, 693 F.2d 482, 485

(5th Cir. 1982). Second, that police officers should not be

allowed “to justify what from the outset may have been

actually sham or fraudulent arrests on the basis of ex post

facto justifications that turn out to be valid.” Gassner v. City

of Garland, Tex., 864 F.2d 394 (Sth Cir. 1989). By limiting

the application of this doctrine to cases where a police officer

lacks probable cause to make a warrantless arrest for the

charged offense, but nevertheless possessed probable cause

to make a warrantless arrest for an uncharged offense arising

from the same conduct (emphasis added), the federal courts

have both grasped the realities of modern law enforcement

and protected well-established Fourth Amendment freedoms.

Biddle v. Martin, 992 F.2d 673, 676-77 (7th Cir. 1993).

Accordingly, the Seventh Circuit correctly found that

probable cause existed for the closely-related charge of

disorderly conduct and properly held that Officer Keith was

entitled to summary judgment on plaintiff’s Section 1983

false arrest claim.

14

B. The Seventh Circuit’s Application Of The Closely

Related Offense Doctrine Is Consistent, Rather

Than In Conflict, With Other Circuit Decisions

Contrary to the plaintiff’s suggestion, the Seventh

Circuit’s application of the closely related offense doctrine

is consistent with other federal circuit decisions. For example,

the only case relied on by the plaintiff is Sheehy-v. Town of

Plymouth, 191 F.3d 15 (1st Cir. 1999). In Sheehy, the plaintiff

was arrested for assault and battery with a dangerous weapon,

as a result of a dispute with his neighbor, and for disorderly

conduct for not cooperating with the investigating officers,

i.e., refusing to identify himself. Both charges were later

dismissed, and the plaintiff filed a claim against the Town

and the arresting officer for false arrest. The district court

entered summary judgment in favor of the arresting officer,

adopting the related crimes defense. Jd at 17. On appeal, the

First Circuit reversed finding that material questions of fact

existed as to the facts underlying the arrest for disorderly

conduct and, therefore, summary judgment on qualified

immunity grounds was improper. 191 F.3d at 19-20. No such

dispute exists here.

Nevertheless, Sheehy s discussion of the related crimes

defense sets forth the same analysis utilized in the instant

case. First, the crime with which the plaintiff is charged and

the crime offered to the court as justification for the arrest

must relate to the same conduct. Second, the two crimes must

share similar elements or be directed generally at prohibiting

the same type of conduct. Jd. The Sheehy court further

observed the related crimes defense “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,” relying on Biddle v. Martin,

992 F.2d 673, 677 (7th Cir. 1993). Jd at 20.

15

The Seventh Circuit’s analysis in this case is consistent

with the two-part test applied in Sheehy. First, the offense

charged (obstructing a police officer in violation of 720 ILCS

5/31-1),? and the uncharged offense (disorderly conduct in

violation of 720 ILCS 5/26-1(a)(4), supra) relate to the same

conduct by Sparing, i.e., provision of false information to a

police officer. Second, the two criminal offenses (obstructing

a police officer and disorderly conduct) do share similar

elements and are directed generally at prohibiting the same

type of conduct, i.e., interference with the efficient

administration of criminal justice.

The decision in this case is also consistent with the other

federal circuit decisions applying the closely-related offense

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

the plaintiff was arrested for forcibly interfering with a federal

officer’s administration of justice. The district court found

that the officer lacked probable cause to arrest the plaintiff

under the offense charged because he did not use*force or

threat of force as required by the statute. 110 F.2d at 14.

However, the Sixth Circuit found that the offense charged

was “sufficiently” related to the offense of wilful obstruction

offered in justification for the plaintiff’s arrest and, therefore,

probable cause existed for plaintiff ’s arrest. 110 F.2d at 15.

2. Article 31. Interference With Public Officers

5/31-1. Resisting or obstructing a peace officer

(a) A person who knowingly resists or obstructs the

performance by one known to the person to be a

peace officer .. . of any authorized act within his

official capacity commits a Class A misdemeanor.

720 Illinois Compiled Statutes 5/3 1-1.

16

See, e.g., Pfannstiel v. City of Marion, 918 F.2d 1178,

1180 (Sth Cir. 1990) (holding that although the police officers

may have improperly arrested the plaintiff for trespassing

after he loudly and abusively questioned their authority, they

were entitled to qualified immunity because the plaintiff’s

loud and abusive conduct provided them with arguable

probable cause to arrest him for disorderly conduct); Trejo v.

Perez, 693 F.2d 482, 485 (Sth Cir. 1982) (finding that

although police officer lacked probable cause to arrest the

plaintiff for disorderly conduct for using vulgar language in

response to request for identification, the officer was entitled

to raise the defense that he had arguable probable cause to

arrest the plaintiff for the related offense of failing to furnish

the requested identification). See also Gasho v. United States,

39 F.3d 1420, 1428 (9th Cir. 1994) (“probable cause may

still exist for a closely related offense, even if that offense

was not invoked by the arresting officer, as long as it involves

the same conduct for which the subject was arrested”);

Gassner v. City of Garland, Tex., 864 F.2d 394, 396-400

(Sth Cir. 1989) (holding that the police officer was entitled

to qualified immunity because he had arguable probable cause

to arrest Gassner for disobeying the order of a police officer

enforcing the traffic laws even though the district court found

that there was not arguable probable cause to arrest Gassner

for the charged offense of disorderly conduct.)

For the reasons discussed, the Seventh Circuit properly

applied the closely related offense doctrine in the instant case,

and there is no conflict among the federal circuits which

warrants this Court’s review.

17

Iti. THE WRIT SHOULD BE DENIED BECAUSE THE

SEVENTH CIRCUIT PROPERLY FOUND THAT

THE EVIDENCE WAS INSUFFICIENT TO

ESTABLISH THAT CRIMINAL CASE WAS

TERMINATED IN A MANNER INDICATIVE OF

SPARING’S INNOCENCE AND PROPERLY

GRANTED SUMMARY JUDGMENT TO THE

VILLAGE AND KEITH ON STATE LAW

MALICIOUS PROSECUTION CLAIM

Petitioner also seeks review of the Seventh Circuit’s

decision upholding summary judgment on plaintiff’s

supplemental state law malicious prosecution claim.

The Seventh Circuit, reviewing the district court’s summary

judgment on that claim de novo, upheld the second of two

grounds relied on by the district court. The Seventh Circuit

disagreed with the district court’s analysis that probable cause

on the closely related offense defeated the state law claim of

malicious prosecution of the plaintiff for the crime of

obstructing a police officer. The Seventh Circuit found that

no Illinois case had expressly adopted the closely related

offense doctrine at least in malicious prosecution tort cases.

Therefore, the Seventh Circuit declined to rest its

opinion on this ground. 266 F.3d at 692. However, because

Illinois law does require that the criminal proceeding upon

which a malicious prosecution action is predicated be

terminated in a manner indicative of the innocence of the

accused (Joiner v. Benton Community Bank, 82 Il1.2d 40,

411 N.E.2d 229, 232 (1980)), the Seventh Circuit affirmed

summary judgment on the lack of this element. Jd.

The Seventh Circuit properly found that Sparing could

not meet his burden as to this element of his claim.

The evidence presented showed that the criminal case was

18

dismissed because the arrest was effected without a warrant.

A prosecutor’s conclusion that dismissal is warranted because

the illegal arrest of the accused might jeopardize the

prosecution is hardly a dismissal indicative of the innocence

of the accused as required under Illinois tort law. A favorable

termination, for purposes of a malicious prosecution claim,

must be one that deals with the factual issues of the case.

Ienco v. City of Chicago, 148 F. Supp. 2d 938, 944 (N.D. Ill.

2001), reversed on other grounds, 2002 WL 548891 (7th Cir.

2002).° Jenco involved the arrest and prosecution of a

defendant involved in a debt collection matter who was

unlawfully arrested and searched, and convicted on a number

of charges, which were subsequently reversed on appeal.

The evidence used in the original criminal case was reliable,

but suppressed because of the illegal arrest. Since the original

conviction was reversed, the court determined that the parties

never reached the merits of the case. Jd. at 945. Similarly, in

this case, the criminal court never reached the merits of the

case against Sparing and consequently, there was no

determination of the factual issues of the case. The district

court correctly held, and the Seventh Circuit correctly

affirmed summary judgment, based on this element.

The plaintiff challenges the procedure because the district

court raised this element sua sponte. However, the district

court was not precluded from doing so. In Wolf v. Buss

(America), 77 F.3d 914 (7th Cir. 1996), the plaintiff

successfully argued that under Federal Rule of Civil

Procedure 56(c), a district court’s consideration of a summary

judgment motion is not limited to the content of the parties’

pleadings, but is expanded to include depositions, answers

to interrogatories, and admissions on file in addition to any

3. Only the Westlaw citation is currently available.

19

affidavits. /d. at 921. Viewing the record beyond the summary

judgment motion allowed the court to enter summary

judgment. Notably, in Wolf, the plaintiff’s petition for

certiorari was denied by the United States Supreme Court

(519 U.S. 866), and a request for rehearing on the petition

for certiorari was denied as well. (519 U.S. 1023). Likewise,

the Tenth Circuit has adopted an identical rule. In Wilder v.

Prokop, 846 F.2d 613 (10th Cir. 1988), the court held that a

district court could grant summary judgment on grounds other

than those raised in a motion before the court if the facts

were developed and showed entitlement of the non-moving

party to summary judgment. /d. at 623.

An appellate court can affirm a lower court judgment

based on any reason that is supported by the record.

The Seventh Circuit properly determined that plaintiff could

not meet his burden under Illinois tort law because as a matter

of law, the dismissal of a criminal prosecution because of a

defective arrest was not a termination in a manner indicative

of the plaintiff’s innocence. See, e.g., Ienco v. City of

Chicago, supra; Dobiecki v. Palacios, 829 F. Supp. 229, 235

(N.D. Ill. 1993) (termination of criminal proceedings for

technical failure to comply with Miranda does not indicate

innocence for purposes of malicious prosecution claim);

Booker v. Ward, 888 F. Supp. 869, 877 (N.D. Ill. 1995)

(dismissal of criminal proceeding following suppression of

evidence based on “technical” grounds not termination in a

manner “indicative of innocence” under Illinois law).

Both the district court and the Seventh Circuit correctly

concluded that the only evidence in the record showed that

the criminal action was “dismissed for lack of warrant”.

The plaintiff sees some injustice based on the district court’s

raising the issue sua sponte. However, the court could

20

reasonably conclude that that fact could not be disputed.

How could it? Moreover, even if it could be disputed,

the plaintiff was not prevented in any way from pointing the

dispute out to the courts below in a post-judgment motion.

Plaintiff had ample opportunity to argue the legal question

of whether such a dismissal could be indicative of innocence

and lost on that point. For these reasons, the Seventh Circuit

properly affirmed the summary judgment in favor of the

Village and Officer Keith on plaintiff’s state law malicious

prosecution claim.

CONCLUSION

As aresult, the Writ should be denied.

Respectfully submitted,

Darcy L. Proctor

Counsel of Record

THOMAS G DiCIANNI

ANCEL, GLINK, DIAMOND, BusH,

DIcIANNI & ROLEK, P.C.

140 South Dearborn Street

Suite 600

Chicago, IL 60603

(312) 782-7606

Attorneys for Respondents