Petition for Writ of Certiorari — Williams v. Jaglowski

Supreme

- Pree Ue.

Olle

om 82 JAN 1 4 2002

OPFCE OF ta C2 Ej

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2001

LINDA WILLIAMS

Petitioner,

V.

DETECTIVE JAGLOWSKI AND,

LIEUTENANT KELLY,

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

When a police officer makes an arrest for an

offense 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?

INDEX

OPINIONS BELOW

JURISDICTION .

CONSTITUTIONAL PROVISIONS

INVOLVED

STATEMENT

REASONS FOR GRANTING THE

WRIT

CONCLUSION

10

TABLE OF AUTHORITIES

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

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

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

(M.D.Ala. 2001) oo... ‘

Bell v. United States, 254 F.2d 82 (DC Cir. 1958)

Collins v. United States, 289 F.2d 129 (5th Cir. 1961)

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

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

a ot

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

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

Sheely v. Town of Plymouth,

EDT F.3d 15 (Ast Cir, 1999) on... ccccccccccccccscesoseccecessss.

Sparing v. Village of Olympia Fields, 266 F.3d 784

cil | SOTTO ee

Trejo v. Perez, 693 F.2d 482 (Sth Cir. SN Mediaitisceegees

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

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

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

Whren v. United States, 517 U.S. 806 DIED ciekceneicssncend

6

6

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a wnt of certioran

issue to review the judgment of the United States Court

of Appeals for the Seventh Circuit entered in this

proceeding on October 15, 2001.

OPINIONS BELOW

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

reported at 269 F.3d 778. The opinions of the district

court (App. 13-33, 34-39) are not officially unreported.

JURISDICTION

The jurisdiction of this Court is invoked under 28

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

was entered on October 15, 2001. (App. 12.)

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fourth Amendment to the

Constitution of the United States.

STATEMENT

On April 30, 1996, respondent Jaglowski, a Chi-

cago police detective, was assigned to investigate the

death of a man named Essex Adams. Upon arrival at

the Adams residence, Jaglowski learned that Essex had

died from a shotgun blast to the head.' Jaglowski then

spoke with Henry Adams, the brother of the deceased,

who told Jagloswki that his brother had been dating peti-

tioner, a Chicago police officer named Linda Williams.

Petitioner arrived at the scene while Jaglowski was

speaking with Henry Adams. Jaglowski greeted peti-

tioner by asking for her “‘badge and ID.’’ Petitioner

1. The death was later determined to be suicide.

told Jaglowski that she did not have a badge.- After a

further exchange, Jaglowski asked petutuoner for her

name and address. Petitioner provided this information.

Jaglowski then asked petitioner for her date of birth.

Petitioner refused to disclose her date of birth and

Jaglowski reiterated his request, stating “‘I’m the police

and if you don’t tell me your date of birth. I’m going to

arrest you. After petitioner again refused to respond,

Jaglowski’s order was repeated by a police sergeant.

(App. 3.) Petitioner refused to reveal her date of birth

and she was arrested for “obstructing a peace officer’’

and transported to a police station.

At the police station, respondent Kelly, a police

lieutenant, ordered petitioner to answer Jaglowski’s ques-

tions. Plaintiff refused to answer further questions and

Kelly approved the filing of charges against petitioner of

2. Petitioner did not have a badge because she had been

suspended from the police department in February of

1996. (App. 2.)

3. The Illinois ‘‘obstructing a peace officer’’ statute provides

as follows:

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 ILCS 5/31-1

The Illinois Supreme Court authoritatively construed this

Statute in People v. Raby, 40 Ill.2d 392, 240 N.E.2d 595

(1968) to require ‘‘some physical act or exertion.’’ 40

Ill.2d at 396, 240 N.E.2d at 599.

having obstructed a peace officer.

After the criminal charge was dismissed, petitioner

filed this Section 1983 action, contending that she had

been unlawfully arrested by respondents Jaglowski and

Kelly.

On cross-motions for summary judgment, the dis-

trict court concluded that there had not been probable

cause to arrest plainuff for obstructing a peace officer.*

(Appendix 27.) In the view of the district court, how-

ever, respondents were entitled to qualified immunity

because petitioner, as a suspended police officer, did not

have a ‘‘clearly established right not to cooperate with

an investigating officer's questions regarding her status

as a police officer or to provide information necessary to

confirm that status."’ (Appendix 22.)

On appeal, the Seventh Circuit agreed that there had

not been probable cause to arrest plaintiff for obstructing

a peace officer. (Appendix 6.) The Court of Appeals

affirmed on the ground that there had been ‘‘arguable

probable cause’’ to arrest ‘‘on the closely related charge

of failure to follow police rules.’ (Appendix 7.)

Petitioner argued in the court of appeals that

‘‘fojnly an overly creative advocate could believe that

there was a ‘close relationship’ between arresting

4. The district court relied on the line of Illinois cases

construing the state ‘‘obstructing a peace officer’’ charge

to require a physical act of obstruction. (Appendix 21-

25.)

plainuff for obstructing an investigation and arresting

plaintiff for refusing to reveal her date of birth.’ (Brief

of Appellant, No. 00-2600, 8.) Petitioner also pointed

out that respondent Kelly — a police lieutenant with

more than forty years of service — had conceded at his

deposition that petitioner could not have been arrested

[flor just not answering the questions."’ (Kelly Dep.

15.)

The Seventh Circuit rejected petitioner's arguments.

The court of appeals did not address respondent Kelly’s

admission that petitioner had not been subject to arest

““[f]or just not answering the questions’’ and did not

explain its conclusion that ‘‘[i]f failure to follow police

rules is a criminal offense at all (which we discuss in a

moment), it is One that is ‘closely related’ on the present

facts to the charge of obstructing an officer.’’ (App. 7.)

In the view of the Seventh Circuit, there was ‘‘arguable

probable cause’’ because the law is ‘‘unsettled’’ as to

whewer ‘‘a Chicago police officer’s failure to follow

police rules could violate a state criminal law.”’ (App.

7-8.) The Court of Appeals wrote that the “‘critical

question’ (App. 7) for the qualified immunity issue was

whether “‘state law defines the rules violation as a crimi-

nal offense.’’ Id.

The Court of Appeals answered this question by

relying on two provisions of the Chicago Municipal

Code: the first authorizes a custodial arrest for any ordi-

nance violation; the second is Section 2-84-290, which

provides as follows:

Any member of the police department who shall

neglect or refuse to perform any duty required of

him by . . . the rules and regulations of the

department of police . . . may, in addition to any

other penalty or punishment imposed by law, be

fined not more than $100.00 for each offense.

The Seventh Circuit noted that there had not been

any arrests of police officers for violation of police

department rules ‘‘other than the ones at issue in

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

and this case.’’ (App. 8.) Nonetheless, the Court of

Appeals upheld qualified immunity because ‘‘Chicago

police have the authority to arrest fellow officers for this

type of a violation of the Municipal Code.’’ Id.

REASONS FOR GRANTING THE WRIT

As applied by the Seventh Circuit, the ‘“‘related

offense’’ doctrine permits a creative advocate to concoct

- a qualified immunity defense for a police officer who has

knowingly violated the law. The contrary rule, as

explained by the First Circuit in Sheely v. Town of Ply-

mouth, 191 F.3d 15 (1st Cir. 1999), limits the ‘‘related

offense’’ doctrine to offenses which arise from the same

conduct and which ‘‘share similar elements’’ or are

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

duct.’ Id. at 19. This Court has never addressed the

‘“‘related offense’’ doctrine; this case provides an

appropriate vehicle in which to resolve the conflict

among the circuits on this important issue.

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

x -

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

Starting with Trejo v. Perez, 693 F.2d 482 (5th 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

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 ini-

tially formulated in criminal cases, the ‘‘related offense’’

doctrine permitted the arrestee to introduce evidence

about the subjective intent of the arresting officers to

show that 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 function 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

‘fon 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 refusing a police officer’s order

to reveal one’s date of birth (a non-existent offense) is

‘‘related’’ to the ordinance violation of ‘‘disobeying a

supervisor’s order’’ when the order is given to a police

officer to reveal her date of birth. 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

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’’).

Ye

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.

At one time, the Seventh Circuit included a subjec-

tive dimension in its ‘‘related offense’’ standard, permit-

ting the arrestee to show that the charge offered to jus-

tify the arrest was an ‘‘ex post facto extrapolation.’’

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

1988) This subjective test was not applied in this case,

where respondent Kelly conceded that a police officer

would not be arrested for disobeying a supervisor’s order

and where the Court of Appeals observed that no one

had ever been arrested for the purported ordinance viola-

tion it deemed to be the ‘‘related offense.’’®

6. The only instances in which the power to arrest for a

violation of police department rule had been asserted were

this case and an earlier Section 1983 case, Richardson v.

Bonds, 860 F.2d 1427 (7th Cir. 1988). (App. 8.)

After its decision in this case, the Seventh Circuit

reaffirmed its broad ‘‘related offense’’ rule in Sparing v.

Village of Olympia Fields, 266 F.3d 784 (7th Cir. 2001).

As in this case, Sparing arose from an arrest for

obstructing a peace officer. 266 F.3d at 691 n.7. The

court of appeals noted that the arrest could not be based

on an obstructing charge because there had not been any

physical interference; the court of appeals concluded,

however, that the officer was entitled to qualified

immunity because he could have believed that the

arrestee had committed disorderly conduct by having

provided false information in response to the officer’s

questions. Id. at 692.

When a police officer makes an arrest for an

offense for which the officer could not reasonably

believed 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 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 (5th 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

— 2

creative counsel from concocting a qualified immunity

defense for an officer who violated the civil rights

plaintiff's clearly established rights.

CONCLUSION

It is therefore respectfully submitted that the petition

for writ of certiorari should be granted.

January, 2002

KENNETH N. FLAXMAN

122 South Michigan Avenue

Suite 1850

Chicago, Illinois 60603

Attorney for Petitioner

APPENDIX

eae Se

App. 1

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 00-2600

LINDA WILLIAMS

Plaintiff-Appellant,

V.

DETECTIVE JAGLOWSKI AND,

LIEUTENANT KELLY,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois

No. 97 CV 8850 —Rebecca R. Pallmeyer Judge.

Argued February 16, 2001—Decided October 15, 2001

Before Easterbrook, Manion, and Diane P. Wood, Cir-

cuit Judges.

Wood, Circuit Judge. On April 30, 1996, Essex Adams

died in an apparent suicide. Linda Williams, his girlfriend

and a suspended Chicago police officer, arrived at the scene

shortly after Adams’s death. Police at the scene tried to

question Williams about the death, but she was evasive and

refused to provide even basic identifying information such as

her date of birth. Her uncooperative attitude led the police at

the scene to arrest her for obstructing a police officer in his

official duties. Williams was taken into custody and detained

for approximately ten hours. Several weeks later, the charges

against Williams were dropped. She then filed this sec. 1983

action against the officers responsible for her arrest and

App. 2

detention, arguing that they lacked probable cause to arrest

her. The district court found that the officers had at least

arguable probable cause for the arrest and so were entitled to

qualified immunity. The court granted summary judgment

for the defendants on this basis, and we affirm.

i

In the early morning hours of April 30, 1996, Williams

was on the telephone with Adams when she heard a sound at

the other end like a gun being fired, followed by silence.

She promptly called 911 and reported the incident, and police

officers were dispatched to Adams’s apartment. When the

officers arrived, Adams’s brother Henry let them into the

apartment, where the officers discovered that Adams had

been shot in the head and that a gun was lying on the floor

near him. The officers realized that suicide was one possible

explanation, but the position of the gun and Henry Adams’s

Statement that Essex had not been depressed made them

suspect foul play.

Shortly after the police arrived, Williams showed up at

the apartment. Detective Allen Jaglowski, one of the officers

investigating the death, knew that someone named Williams

had made the original 911 call. Henry Adams had also

informed Jaglowski that Essex had been dating a Chicago

police officer named Linda Williams. Based on this informa-

tion, Jaglowski began an interview of Williams and asked her

for her badge and police ID. Williams replied that she did

not have these items, but she refused to elaborate. In fact,

Williams did not have a badge and ID because she was on

suspension pending her discharge, but she did not share that

information with Jaglowski. Jaglowski also asked Williams

for her address. Initially, she refused to provide it, but she

eventually relented and told him. Jaglowski next asked Wil-

liams for her date of birth. He did so because he regarded

*“Linda Williams’’ as a very common name, and he thought

that the police department might need more information to

App. 3

verify Williams’s identity and to confirm that she was a pol-

ice officer. This request was apparently the last straw for

Williams: she refused to give her date of birth, stating that

she thought it was irrelevant.

After Williams refused to provide her date of birth,

Jaglowski brought over a police sergeant, in uniform, who

ordered Williams to answer Jaglowski’s questions about her

identity. Williams refused. Jaglowski consulted with the

other officers at the scene and then warned Williams that she

would be arrested if she did not provide the information.

Williams continued to stonewall, and Jaglowski arrested her

on a charge of obstructing a police officer in the performance

of his official duties.

When the officers transported Williams to the police sta-

tion, Lieutenant Ronald Kelly, the watch commander, spoke

with Jaglowski and the other officers involved in the investi-

gation concerning the circumstances of Williams’s arrest.

Lieutenant Kelly questioned Williams and told her that she

had to answer the officers’ questions concerning her identity.

Williams remained adamant that she would not provide her

date of birth, although she did give Kelly her star number,

which enabled him to confirm that she was a suspended pol-

ice officer. After consulting with Jaglowski and the other

officers, Kelly approved the charges against Williams.

These charges were eventually dropped, but the fact

remained that she had been detained for about ten hours

before her release. She brought this sec. 1983 action against

Detective Jaglowski and Lieutenant Kelly alleging that they

lacked probable cause to arrest her.

-ll-

Whether police officers had probable cause to arrest a

suspect and whether they are entitled to qualified immunity

for the arrest are closely related questions, although qualified

immunity provides the officers with an ‘‘additional layer of

App. 4

protection against civil liability’? if a reviewing court finds

that they did not have probable cause. Hughes v. Meyer, 880

F.2d 967, 970 (7th Cir. 1989). In an unlawful arrest case in

which the defendants raise qualified immunity as a defense,

this court will ‘‘determine if the officer actually had probable

cause or, if there was no probable cause, whether a reason-

able officer could have mistakenly believed that probable

cause existed.’”” Humphrey v. Staszak, 148 F.3d 719, 725

(7th Cir. 1998). If the officers can establish that they had

‘“‘arguable probable cause’’ to arrest the plaintiff, then the

officers are entitled to qualified immunity, even if a court

later determines that they did not actually have probable

cause. Id. Accordingly, we will affirm the district court’s

grant of summary judgment if we find that ‘‘a reasonable

police officer in the same circumstances and with the same

knowledge . . . as the officer in question could have reason-

ably believed that probable cause existed in light of well-

established law.’’ Id.

A.

The defendants’ principal argument is that they had at

least arguable probable cause to arrest Williams for obstruct-

ing a police officer, and thus qualified immunity bars this

suit. ‘*‘Whether an officer is authorized to make an arrest

ordinarily depends, in the first instance, on state law.’’ Michi-

gan v. DeFillippo, 443 U.S. 31, 36 (1979). Federal law asks

only whether the officers had probable cause to believe that

the predicate offense, as the state has defined it, has been

committed. Richardson v. Bonds, 860 F.2d 1427, 1432 n.4

(7th Cir. 1988). Here, the relevant state law is 720 ILCS

sec. 5/31-1(a), which defines the offense of obstructing a pol-

ice officer. It reads in relevant part as follows: ‘‘A person

who knowingly resists or obstructs the performance by one

known to the person to be a peace officer . . . of any author-

ized act within his official capacity commits a Class A mis-

demeanor.’’ In interpreting this statute, the Illinois Supreme

App. 5

Court has held that sec. 5/31-1 ‘“‘do[es] not proscribe mere

argument with a policeman about the validity of an arrest or

other police action, but proscribe[s] only some physical act

which imposes an obstacle which may impede, hinder, inter-

rupt, prevent or delay the performance of the officer’s duties,

such as going limp, forcefully resisting arrest or physically

aiding a third party to avoid arrest.’ People v. Raby, 240

N.E.2d 595, 599 (Ill. 1968). The defendants do not point to

any physical act Williams committed that would satisfy the

requirement set out in Raby. Moreover, as far as the record

reveals, Williams did not engage in any physical act that in

any way hindered or impeded Detective Jaglowski. Her only

offense was stubbornly to refuse to supply Detective

Jaglowski with her date of birth, which would not constitute

obstruction as the Illinois Supreme Court defined that offense

in Raby. Unless the circumstances of this case somehow

bring it outside the Raby rule, the defendants did not have

even arguable probable cause to arrest Williams for obstruct-

ing a police officer.

The defendants argue that Illinois cases since Raby have

called the Raby rule into question. We are not so sure. Our

own analysis of the cases the defendants cite along with

other recent Illinois decisions indicates that the ‘‘physical

act’’ requirement is still very much an element of the crime

of obstructing a police officer in Illinois. Since Raby, the

Illinois Appellate Court has reaffirmed that a ‘‘physical act’’

is an essential element of obstruction under sec. 5/31-1, and

has further clarified that, under Raby, “‘mere silence’’ in the

face of requests for identifying information, or even supply-

ing false information, is not enough to constitute obstruction.

See People v. Ramirez, 502 N.E.2d 1237, 1239-40 (Ill. App.

Ct. 1986) (false information); People v. Weathington, 394

N.E.2d 1059, 1061-62 (Ill. App. Ct. 1979) (mere silence).

This court, following those cases, has also recognized that

“in Illinois the crime of resisting an officer in the perfor-

mance of his duty requires physical resistance.’’ Ryan v.

App. 6

County of DuPage, 45 F.3d 1090, 1093 (7th Cir. 1995).

The cases that the defendants claim call the Raby hold-

ing into question have been distinguished by the Illinois

courts. Two involve a defendant refusing to identify himself

or giving false information to officers attempting to serve

process on the defendant. People v. Meister, 682 N.E.2d

306, 309 (Ill. App. Ct. 1997); Migliore v. County of Winne-

bago, 321 N.E.2d 476, 479 (Ill. App. Ct. 1974). The Illinois

courts have been clear that these cases involve concerns

unique to the service of process context and do not apply to

police investigations. See, e.g., Weathington, 394 N.E.2d at

1061 (distinguishing Migliore on this basis). The final case

on which the defendants rely, People v. Gibbs, 253 N.E.2d

117, 119-20 (Ill. App. Ct. 1969), involved a defendant who

interrupted an encounter between police and third parties,

advised the third parties that they did not have to allow the

police to search them, and urged the third parties to leave the

area. Although this case offers some support for the idea

that verbal interference alone could be sufficient to support a

finding of obstruction in some cases, the Appellate Court has

made it clear that Gibbs involved ‘‘unusual facts’’ and did

not undermine the general rule stated in Raby. Ramirez, 502

N.E.2d at 1239. In this case, nothing Williams did interfered

with the police officer’s interactions with any third parties.

In light of this well established law, we conclude that a rea-

sonable officer could not have thought the situation fit within

the narrow exception Gibbs created to the Raby rule, nor that

even arguable probable cause existed to support an arrest of

Williams for the offense of obstructing a police officer.

This does not, however, win the day for Williams. The

fact that the officers lacked probable cause to arrest her for

the precise offense with which she was charged is only one

part of our inquiry. Police officers are not required to be

legal scholars. This means, among other things, that the

App. 7

arresting Officer’s knowledge of facts sufficient to support

probable cause is more important to the evaluation of the

propriety of an arrest than the officer’s understanding of the

legal basis for the arrest. Biddle v. Martin, 992 F.2d 673,

676 (7th Cir. 1993), citing Richardson v. Bonds, 860 F.2d

1427 (7th Cir. 1988). This is why an arrest is justified if the

officers had probable cause (or arguable probable cause) to

arrest the suspect either for the precise offense the officers

cited or for a closely-related offense. Id. In order to rely on

a Closely-related charge, however, the officers must show that

the charge can reasonably be based on the same set of facts

that gave rise to the arrest and that the charge offered as

justification is one that ‘‘would [have recommended] itself to

a reasonable police officer acting in good faith’’ at the time

the arrest was made. Richardson, 860 F.2d at 1431. The

justification for the arrest cannot be an ‘‘ex post facto extra-

polation [ ] of all crimes that might have been charged on a

given set of facts.’’ Id.

Jaglowski and Kelly argue that, even if they lacked

probable cause to arrest Williams for obstructing a police

officer, they had probable cause, or at least arguable probable

Cause, to arrest her on the closely-related charge of failure to

follow police rules. If failure to follow police rules is a

criminal offense at all (which we discuss in a moment), it is

one that is “‘closely related’’ on the present facts to the

charge of obstructing an officer. We turn then to the critical

question, which is whether state law defines the rules viola-

tion as a criminal offense, see DeFillippo, 443 U.S. at 36, or

if the police rules are more like a schoolteacher’s admonition

not to run in the halls— rule, to be sure, but nothing so

dignified as a criminal law of the state.

Although it is not entirely clear that a Chicago police

officer’s failure to follow police rules could violate a state

criminal law, it appears likely that this is the case. At the

very least, we find that the law is unsettled, which means that

App. 8

the defendants here had at least arguable probable cause to

arrest Williams, and any remaining question about the

propriety of the arrest raises only an issue of state law, not a

federal constitutional problem. No Illinois court has ever

considered this question. Nevertheless, the Chicago Munici-

pal Code (a ‘“‘state’’ law for this purpose) specifies that Chi-

cago police officers have the power to arrest for any violation

of the Code. Chicago Mun. Code sec. 2-84-2300. Another

section of the Municipal Code provides:

Any member of the police department who shall

neglect or refuse to perform any duty required of him

by . . . the rules and regulations of the department of

police . . . may, in addition to any other penalty or

punishment imposed by law, be fined not more than

$100.00 for each offense.

Id. sec. 2-84-290.

In a case with striking similarities to this one, we held

that this provision incorporated the police rules into the Chi-

cago Municipal Code. See Richardson, 860 F.2d at 1432

(finding police had arguable probable cause to arrest off-duty

officer for refusal to provide his name and star number in

violation of police rules). This implied that a violation of the

police rules amounts to a violation of the Municipal Code,

and an arrest may be made if probable cause exists.

Although both parties admit that arrests for failure to follow

police rules are highly unusual (in fact, at oral argument the

City conceded that it was not aware of any such arrests other

than the ones at issue in Richardson and this case), the Chi-

cago Municipal Code has not changed materially since we

decided Richardson, and no Illinois case since then has cast

doubt on our conclusion that the Chicago police have the

authority to arrest fellow officers for this type of a violation

of the Municipal Code.

App. 9

The Supreme Court has recently held that arrests for

misdemeanor violations that would be punishable only by a

fine do not offend any constitutional principles. Atwater v.

City of Lago Vista, 121 S. Ct. 1536 (200i). Atwater held

that ‘‘[iJf an officer has probable cause to believe that an

individual has committed even a very minor criminal offense

in his presence, he may, without violating the Fourth Amend-

ment, arrest the offender.’ 121 S. Ct. at 1557. Municipal

Code sec. 2-84-290 describes just such a minor criminal

offense. Since a failure to follow police rules is at least

potentially a violation of that section of the Municipal Code,

Atwater indicates that such an arrest would be constitutional.

The only remaining issue is whether the officer had probable

cause to believe that Williams had committed that offense in

his presence.

In our opinion, he did. At the time of Williams’s arrest,

Detective Jaglowski had information that Williams was a pol-

ice officer, and he knew that she had refused to answer his

questions about her identity even after having been ordered

to do so by a superior officer. These facts formed the basis

for the obstruction arrest, and the same facts would support a

charge of failure to follow police rules. Kelly testified that

Williams’s status as a police officer and her failure to follow

police rules played at least some role in the decision to

charge her, which reassures us that this justification is not an

€x post facto excuse for the arrest. Moreover, the undisputed

evidence in the record establishes that Williams violated at

least one police rule in the presence of the arresting officer.

Police Rule 6 prohibits disobedience of a written or oral

directive of a superior officer. Williams was ordered by a

uniformed sergeant, who was superior to her, to provide her

date of birth to Detective Jaglowski, and she refused to obey.

Although Kelly and Jaglowski also argue that Williams

violated a number of other police rules, we find it unneces-

Sary to determine whether her conduct violated those other

tules because the Rule 6 violation is clear. That is enough to

App. 10

support the district court’s conclusion that Williams suffered

no deprivation of her federal rights when she was arrested.

Williams makes two final arguments that need not detain

us long. First, she argues that, regardless of whether an

active police officer could be arrested for violating the police

rules, she was on suspension at the time of her arrest, and

suspended officers cannot be arrested for violating police

rules. This makes little sense, especially on the facts of our

case. Williams admits that she did not tell Jaglowski she

was on suspension, and, as far as the record reveals, the

officers did not discover this information until after Williams

was arrested and transported to the station. Because the

probable cause analysis focuses on the information that was

available to the arresting officer at the time of the arrest, see

Humphrey, 1<_ F.3d at 725, the fact that, unbeknownst to the

arresting officers, Williams was on suspension at the time of

her arrest is irrelevant to our analysis. Moreover, Williams

has not pointed to any police rule, municipal ordinance, or

case suggesting that the police rules are not fully applicable

to suspended officers. In the face of such silence, a reason-

able officer could easily believe that, if active officers could

be arrested for violating police rules, suspended officers

could also be arrested for the same infractions.

Finally, Williams argues that applying Police Rule 6 to

require her to answer Jaglowski’s questions, under threat of

arrest, violates her Fifth Amendment right not to be com-

pelled to incriminate herself. Although it is possible that a

rule requiring police officers to answer a superior officer’s

questions on pain of arrest might in some circumstances run

afoul of the Fifth Amendment, we do not believe that

Williams’s Fifth Amendment rights are implicated here. The

Fifth Amendment privilege allows people not to answer

official questions if their answers ‘‘might incriminate [them]

in future criminal proceedings.’’ Minnesota v. Murphy, 465

U.S. 420, 426 (1984). It seems highly unlikely that Williams

App. 11

would have incriminated herself in any way by providing

Detective Jaglowski with her birth date, and Williams has not

suggested any reason why this information might have

proved incriminating. Cf. United States v. Edwards, 885

F.2d 377, 385 (7th Cir. 1989) (noting that Miranda warnings

are not generally required before asking arrestees for ‘‘book-

ing information’? such as name and address because such

information is not likely to evoke an incriminating response).

In the circumstances of this case, Williams’s Fifth Amend-

ment argument has no merit.

For these reasons, we find that Detective Jaglowski and

Lieutenant Kelly had at least arguable probable cause to

arrest Williams for violating the Chicago Police

Department’s rules, and that they are entitled to qualified

immunity on that basis. Accordingly, the judgment of the

district court is

AFFIRMED.

eS

App. 12

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 00-2600

LINDA WILLIAMS

Plaintiff-Appellant,

*

DETECTIVE JAGLOWSKI AND,

LIEUTENANT KELLY,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois

No. 97 CV 8850 —Rebecca R. Pallmeyer Judge.

[October 15, 2001]

JUDGMENT — ORAL ARGUMENT

Honorable Frank H. Easterbrook, Circuit Judge

Honorable Daniel A Manion, Circuit Judge

Honorable Diane P. Wood, 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. 13

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 97 CV 8850

LINDA WILLIAMS

Plaintiff,

v.

DETECTIVE J AGLOWSKI AND,

LIEUTENANT KELLY,

Defendants.

Appeal from the United States District Court

for the Northern District of Illinois

MEMORANDUM OPINION AND ORDER

PALLMEYER, J.

On April 30, 1996, Plaintiff Linda Williams, a

Suspended police officer, was arrested and charged with

obstructing a police officer when she refused to provide pol-

ice officers investigating a murder with her date of birth.

After a brief detention and Subsequent dismissal of the

charges, Plaintiff filéd this lawsuit under 42 U.S.C. §1983

against Detective Allen Jaglowski and Lieutenant Ronald

Kelly of the Chicago Police Department. She claims that her

arrest and subsequent detention violated her rights under the

Fourth and Fifth Amendments.

Both Plaintiff and Defendants have moved for summary

judgment. Plaintiff argues that the undisputed facts establish

that her arrest violated the Fourth Amendment because it was

App. 14

not supported by probable cause. She argues, further, that

the arrest violated her Fifth Amendment privilege to remain

silent. Defendants assert that there was probable cause to

arrest Plaintiff for the obstructing a police officer under 720

ILCS 5/31-1. At a minimum, Defendants argue that the facts

reflect that they had probable cause to arrest Plaintiff, a

suspended police officer, on a closely related charge of

violating the Chicago Police Department’s Rules and Regula-

tions by impeding the Department’s policies and goals, fail-

ing to promptly report information regarding the commission

of a crime, and failing to identify herself upon request.

Finally, Defendants assert that if the court concludes they

lacked probable cause to arrest Plaintiff, they are nevertheless

entitled to dismissal of individual capacity claims on grounds

of qualified immunity.

The court concludes that, as a matter of law, Defendants

lacked probable cause to believe that the Plaintiff violated the

Illinois obstruction statute. Because the record does not sup-

port a conclusion on the applicability of the police rules to a

suspended officer, the court does not reach a conclusion on

the issue of whether Defendants had probable cause to arrest

Plaintiff on the closely related charge that she violated City

of Chicago police rules. The court concludes, further, how-

ever, that in light of the uncertainty surrounding Plaintiff’s

obligation to comply with police rules, the arrest did not

violate any clearly established statutory or constitutional

right. Therefore, Defendants are entitled to summary judg-

ment on the defense of qualified immunity.

FACTS

The court draws the facts of the case exclusively from

the parties’ Local Rule 12(m) statements and 12(n) replies.

Where, as here, both sides move for summary judgment, the

court resolves doubts in favor of the non-moving party with

respect to each motion.

App. 15

During the early morning hours of April 30, 1996,

Defendant Detective Jaglowski was assigned to investigate

the death of Essex Adams at 1861 South Millard in Chicago.

(Defendants Kelly and Jaglowski Joint Local Rule 12(M)

Statement (hereinafter ‘Defendants’ 12(m)’’) par. 15.)

Arriving at the Adams’ residence, Jaglowski met another

officer who reported that the victim had died from a shotgun

blast to the head and that the victim’s brother led police

Officers into the victim’s apartment. (Id. par. 17.) Defendant

Jaglowski entered the victim’s bedroom, where he observed

the body of a male, lying on a couch with a shotgun wound

to the head. (Id.) Jaglowski concluded from his initial

examination of the body that the individual had been dead

for a very short period of time. (Id.) The positioning of a

shotgun lying against the couch, in relation to victim’s body,

raised Jaglowski’s suspicions because the gun was not in a

typical position for a suicide or accidental death. (Id.)

Jaglowski believed there was a possibility of foul play. (Id.

par. 20; Jaglowski Dep. at 45.) While performing his prelim-

inary investigation, Jaglowski overheard an officer on the

scene state that a person by the name of ‘‘Williams’’ had

called the police regarding Adams’ death. (Id. par. 19.)

The first witness that Jaglowski interviewed at the crime

scene was Henry Adams, Essex Adams’s brother who lives

on the floor below. (Id. par. 22.) Henry Adams informed

Jaglowski that Essex had been working regularly and had not

been despondent. (Id.) Henry Adams also stated that Essex

had been dating a Chicago police officer named Linda Willi-

ams. (Id. par. 23.)

At some point during the interview with Henry Adams,

Linda Williams herself arrived at the scene of the investiga-

tion. After he had finished interviewing Henry Adams,

Jaglowski began to interview Plaintiff. (Id. par. 24.)

Jaglowski’s initial questions appear to have concerned

Plaintiff's status as a Chicago police officer (Id. par. 24);

App. 16

Plaintiff recalls that Jaglowski immediately asked him, *

’where was my badge and I.D.’’ ’ and when she told him she

did not have one, Jaglowski “‘became sarcastic.’” (Williams

Dep. at 102.) Defendants contend that Plaintiff ack-

nowledged that she was a police officer but refused to pro-

duce police identification or provide an explanation why she

could not. (Defendants’ 12(m) pars. 26, 27.)

At the time of the Adams investigation, Plaintiff had

been placed on unpaid suspension from the Chicago police

department. (Defendants’ 12(m) par. 8.) Defendants note

that all officers are required by Police Rules and Regulations

to produce identification upon request to prove that they are

police officers, (Defendants’ 12(m) par. 27), to promptly

report to the Department any information concerning any

crime or unlawful action, (Defendants’ 12(m) par. 10(d)), and

to assist the department in implementing its goals and poli-

cies, (Defendants’ 12(m) par. 10(a),(b)). Plaintiff points out,

however, that the rules are silent as to their applicability to

suspended officers not entitled to carry or possess police

identification, (Plaintiff's 12(n) par. 27), and argues that the

regulations ‘‘appear not to apply to suspended officers,”’

(Plaintiff's 12(n) par. 9). Neither party offers any evidence

sufficient to support a finding on the applicability of the

Rules and Regulations to suspended officers.

After questioning Plaintiff about her status as a police

officer, Jaglowski asked Plaintiff for her name and address,

which Plaintiff provided. (Defendants’ 12(m) par. 29.)

Jaglowski then asked Plaintiff for her date of birth, to which

Plaintiff responded, ‘‘Date of birth, that’s irrelevant.’’ (Id.

par. 30.) Jaglowski contends that because the name ‘‘Linda

Williams’’ is a common name, he needed a birth date to ver-

ify Plaintiff's identity and status as a police officer with the

police dispatcher. (Id. par. 31.) Plaintiff argues that her date

of birth was unnecessary as there was only one “‘Linda Wil-

liams’’ who was a suspended Chicago police officer in 1996.

App. 17

(Plaintiff's 12(n) par. 31.)

Plaintiff stood by her refusal to disclose her date of birth

and Jaglowski warned her that she would be placed under

arrest if she persisted.’ (Defendants’ 12(m) par. 33.) Willi-

ams refused to provide her date of birth and was placed

under arrest by Jaglowski and another officer. (Id. par. 35.)

Detective Jaglowski and another officer transported

Plaintiff to the Tenth District Station, where Defendant

Ronald Kelly was on duty as a watch commander. (Id. par.

36.) Defendant Kelly discussed the circumstances surround-

ing Plaintiff's arrest with Lieutenant Robert Duewerth and

Sergeant Robert Cervenka, who were present at the scene of

the death investigation, as well as Detective Jaglowski. (Id.)

Kelly recalled that the other officers told him “‘that they had

a female who is alleged to have been a police officer and was

on suspension and that she refused to answer any questions

in a death investigation.”’ (Kelly Dep. at 5.) Sergeant Cer-

venka told Kelly that he had ordered Plaintiff to answer

Detective Jaglowski’s questions and that her failure to answer

constituted a violation of police regulations. (Defendants’

1. Defendants assert, ‘‘After attempting to interview plaintiff

and observing her behavior, Det. Jaglowski believed that

if Essex Adams’ death was caused by ’foul play,’ there

was a strong possibility that plaintiff was involved in his

death.’’ (Defendants’ 12(m) par. 34.) The portion of

Jaglowski’s deposition that Defendants cite as support,

however, reflects Jaglowski’s belief in a “‘possibility that

she may have been involved”’ in ‘‘an offense’’ only after

She had been arrested and was in custody. (Jaglowski

Dep. at 43.) In any event, Defendants arrested Plaintiff

for obstruction; they do not Suggest that they ever had

probable cause to arrest Plaintiff as a murder suspect.

App. 18

12(m) par. 39.) Plaintiff admits that Cervenka made these

statements but asserts that police rules ‘‘could not constitu-

tionally be applied to compel plaintiff to answer questions’’

and that ‘‘this type of interrogation’’ of Plaintiff violated the

Chicago municipal code and the collective bargaining agree-

ment between the City and the police union. (Plaintiff's

12(n) par. 39.) Lt. Kelly spoke directly with Plaintiff and

told her she had to answer Jaglowski’s questions pertaining

to the investigation. (Defendants’ 12(m) par. 40.) He

confirmed that she was a Chicago police officer and advised

her that she would be charged with obstructing a police

officer. (Id. par. 41.) Ultimately, Kelly approved a mis-

demeanor charge of obstructing; he testified that he con-

sidered the following facts when he made that decision: (1)

Plaintiff had made the 911 call regarding Essex Adams’

death; (2) the shotgun used in Adams’ death was farther from

the body than Detective Jaglowski considered normal for a

suicide; (3) Plaintiff arrived at the death scene soon after pol-

ice officers arrived there; (4) Plaintiff refused to answer any

questions posed to her at the crime scene; and (5) Plaintiff, a

Chicago police officer, had refused to comply with the direct

order of a superior officer. (Id. par. 43.)

Plaintiff asserts that she was held in a detention cell at

the Tenth District station for ten hours before being released

on bail. (Plaintiff's 12(m) par. 8.) As Defendants point out,

however, Plaintiff's testimony reflects that her ten hour

‘‘detention’’ began from the moment she was handcuffed at

the crime scene until she was released, not the time she spent

in the detention cell. (Defendant’s 12(n) par. 8 (citing Willi-

ams Dep. at 165).) On September 25, 1996 the charges were

dismissed. (Id. par. 10.)

App. 19

DISCUSSION

Standards for Summary Judgment

The court must grant summary judgment if the plead-

ings, depositions, answers to interrogatories, and admissions

on file, together with the parties’ affidavits, if any, reveal that

there is no genuine issue of material fact and that the moving

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

P. 56(c); Jenkins v. Keating, 147 F.3d 577, 583 (7th Cir.

1998); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.

2458, 2553 (1986). The court construes all facts in the light

most favorable to the non-moving party. Jenkins, 147 F.3d at

583. To survive a motion for summary judgment, the non-

moving party must demonstrate that specific, material facts

exist which give rise to a genuine issue. Celotex Corp., 477

U.S. at 324, 106 S.Ct. 2553. When considering cross-

motions for summary judgment, the court considers the

motions simultaneously. This ‘‘Janus-like perspective ...

sometimes forces the denial of both motions,’’ but only

where there are material facts in dispute. Buttitta v. City of

Chicago, 803 F.Supp. 213, 217 (N.D.III.1992), aff'd, 9 F.3d

1198 (7th Cir. 1993).

Probable Cause for Violation of Section 5/31-1

Plaintiff contends that Defendants violated her Fourth

and Fifth Amendment rights when they arrested and

- prosecuted her for her refusal to answer questions. These

circumstances, Plaintiff urges, simply do not support prob-

able cause to believe that she was committing an offense.

(Plaintiff's Memorandum in Support of Motion for Partial

Summary Judgment (hereinafter ‘‘Plaintiff’s Memorandum’’)

at 1.) Defendants assert, however, that the case law supports

the officers’ belief that Plaintiff was committing an offense

when she refused to provide her birth date to Officer

Jaglowski. (Defendants’ Memorandum in Support of their

Motion for Summary Judgment (hereinafter ‘‘Defendants’

App. 20

Memorandum’’) at 5). The court concludes that as a matter

of law, the officers did not have probable cause to arrest

Plaintiff for obstructing a police officer. In light of this

determination, the court does not reach the issue of whether

the officers’ questions violated Plaintiff's Fifth Amendment

rights.

For an arrest to be reasonable under the Fourth Amend-

ment, the arresting officer must have probable cause to

believe that the suspect committed an offense. United States

v. Nobles, 69 F.3d 172, 179 (7th Cir. 1995). An arrest is

supported by probable cause where ‘‘at the moment the deci-

sion [to arrest] is made, the facts and circumstances within

[the officer's] knowledge and of which she has reasonably

trustworthy information would warrant a prudent person in

believing that the suspect had committed or was committing

an offense.’” Qian v. Kautz, 168 F.3d 949, 953 (7th Cir.

1999). Police officers are not required to be absolutely cer-

tain that an offense was committed. United States v. Fox-

worth, 8 F.3d 540, 543 (7th Cir. 1993). The officer need not

even believe that it is more likely than not. United States v.

Burrell, 963 F.2d 976, 986 (7th Cir. 1992). The officer is,

however, required to base the arrest on something more than

a ‘‘mere suspicion.’’ Foxworth, 8 F.3d at 543. Therefore,

probable cause lies somewhere between a ‘‘mere suspicion’”’

and ‘‘more likely than not.’’

Williams was arrested for violating 720 ILCSS5/31-1,

‘‘Resisting or Obstructing a Peace Officer or Correctional

Institution Employee.’’ (hereinafter “‘Section 5/31-1°’) The

statute provides that, ‘‘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.’’ To support an arrest for violation of this sta-

tute, Defendants must have had information available at the

time of the arrest that would lead them to believe that

App. 21

Plaintiff was obstructing the performance of a peace officer.

Courts struggle to determine exactly what types of

actions constitute obstruction in violation of Section 5/31-1.

According to the Illinois Supreme Court, obstruction involves

(1) a physical act of resistance which (2) has the effect of

impeding or hindering, or delaying the performance of an

Officer’s duties. People v. Raby, 40 Ill.2d 392, 399, 240

N.E.2d 595, 599 (1968). Plaintiff argues that neither prong

of the test is met here. |

A. Physical Obstruction

Citing Raby, Plaintiff emphasizes that the type of action

that will support an obstruction charge must be limited to

“physical’’ rather than ‘‘passive’’ resistance. In Raby, the

Illinois Supreme Court upheld the conviction under §5/31-1

of a protester who sat down in the middle of an intersection

and ‘went limp’’ when officers tried to arrest him for disord-

erly conduct. Raby, 40 Ill.2d at 399, 240 N.E.2d at 599.

The Supreme Court reasoned that the act of going limp was a

physical action which interfered with the officer’s duty to

arrest the protest. In reaching its conclusion, the court ack-

nowledged that the obstruction statute does not prohibit

“‘mere argument with a policeman about the validity of an

arrest.’’ Id. (citing Landry v. Daley, 280 F. Supp 938, 959

(N.D.I11.1968). Rather, §5/31-1 proscribes ‘‘only some phy-

sical act which imposes an obstacle which may impede,

hinder, interrupt, prevent or delay the performance of the

officer's duties, such as going limp, forcefully resisting arrest

or physically aiding a third party to avoid arrest.’’ Id.

Illinois courts continue to recognize the physical act

requirement established in Raby. Indeed, as Defendants here

acknowledge, ‘‘[mJerely arguing with a police officer does

not constitute obstructing a police officer, while an act of

physical resistance clearly does.’’ (Defendants’ Memoran-

dum at 6 (citing People v. Hilgenberg, 223 Ill.App.3d 286,

App. 22

289, 585 N.E.2d 180, 183 (2d Dist.1991), cert. denied, 144

Ill.2d 638, 591 N.E.2d 26 (1992). The case law demon-

strates, however, that it is often difficult to determine whether

a given act may fairly be characterized as ‘‘physical’’ or

‘‘passive.’’ Raby itself illustrates this difficulty. It is unclear

how ‘‘going limp’’ fits into the same category of physical

action as ‘‘forcefully resisting arrest or aiding a third party to

avoid arrest.’’ 40 Il].2d at 399, 240 N.E.2d at 599.

Courts continued to struggle with this distinction after

Raby. In People v. Gibbs, 115 Ill.App.2d 113, 253 N.E.2d

117 (1st Dist.1969), police officers were in the process of

conducting an investigative seizure of several teenagers when

the defendant came out of a nearby building and informed

the officers that their search violated the teens’ constitutional

rights. The defendant then apparently advised the teenagers

to disregard the officers’ orders and follow him into the

building. Affirming his conviction, the court held that ‘‘the

defendant interfered with and obstructed the officers in the

performance their duties as completely and as effectively as

if he physically touched or otherwise physically interfered

with the officers.’’ 115 Ill.App.2d at 119, 253 N.E.2d at 119.

In People v. Finley, 49 Ill.App.3d 26, 29, 363 N.E.2d

871, 873 (Sth Dist.1977), a police officer pursued and

stopped a car involved in a shooting. The officer was in the

process of ordering the suspects out of the car when a

bystander approached and stood in front of the officer. The

officer ordered the citizen to leave. He refused and was

arrested and charged with obstructing a police officer. The

Illinois appellate court affirmed his conviction, characterizing

the citizen’s failure to remove himself from the area when

ordered by the police officer as physical act of obstruction.

Most recently, in Ryan v. County of DuPage, 45 F.3d

1090, 1093 (7th Cir. 1995), the plaintiff wore an air filtration

mask into an Illinois courtroom in violation of a courthouse

rule. A police officer ordered the plaintiff to remove the

Le ee ee ee ee

App. 23

mask, but he refused and was arrested. Affirming the dismis-

sal of plaintiff's Fourth Amendment Claim, the Seventh Cir-

cuit concluded that the ‘‘physical resistance’’ requirement

was satisfied. ‘‘The physical resistance took the form of

Ryan’s refusing to take off the mask, which left the police

with a choice between arresting him and removing the mask

forcibly.’’ 45 F.3d at 1093.

Some courts have attempted to resolve the problematic

distinction between physical and passive actions by distin-

guishing instead between verbal and physical resistance.

Under this framework, spoken words, or mere argument fall

into the passive category. In People v. Ramirez, 151

Ill.App.3d 731, 735, 502 N.E.2d 1237, 1239 (5th Dist. 1986),

the occupant of a car parked near a crime scene provided a

false name in response to police questioning. The appellate

court reversed her conviction for obstruction, reasoning that

giving a false name to police does not violate the obstruction

statute. Similarly, in People v. Weathington, 76 Ill.App.3d

173, 176, 394 N.E.2d 1059, 1061 (4th Dist.1979), the physi-

cal act requirement was not fulfilled where an arrestee

refused to provide a booking officer with his name, address,

birth date, place of birth, social security number, occupation,

and physical description. Notably, however, the Weathington

court appeared more concerned with an arrestee’s Fifth

Amendment right to remain silent after arrest than it did with

articulating a definition of ‘‘obstruct.’’ The court wanted to

preserve an absolute post-arrest right to remain silent. ‘‘It

would be incongruent to say that one may remain silent and

yet must provide *booking’ information.’’ 76 Ill.App.3d at

177, 394 N.E.2d at 1062.

Based on Ramirez and Weathington, Plaintiff asserts a

forceful argument that words spoken or withheld do not

Satisfy the physical act requirement of obstruction. Defen-

dants insist, however, that an obstruction charge may be

based solely on an individual’s refusal to provide information

App. 24

or providing false information and that withholding informa-

tion from officers in some circumstances satisfies the physi-

cal act requirement. They cite Migliore v. Winnebago, 24

Ill.App.3d 799, 321 N.E.2d 476 (2d Dist.1974), where police

officers went to Nick Migliore’s residence to serve a sub-

poena. Migliore admitted the officers to his home, but when

asked to identify himself, responded, ‘‘I don’t know.”’

Migliore was arrested and charged with violating Section

5/31-1. The appellate court affirmed Migliore’s conviction,

reasoning that under Illinois law officers are under a legal

obligation to serve a subpoena. Identification of the indivi-

dual being served was essential to the performance of that

duty. Accordingly, failure to identify one’s self to the

Officers obstructed of their effective performance. 24

Ill.App.3d at 802, 321 N.E.2d 479.

The facts surrounding the instant case, however, make

an extension of Migliore problematic. First, unlike officers

serving a subpoena, Jaglowski was not under a specific statu-

tory obligation or court direction to take action that required

knowledge of Plaintiff’s birth date. For example, Defendants

have not suggested that Jaglowski was required to make

confirmed identifications of possible witnesses at the scene.

Furthermore, the circumstances surrounding service of pro-

cess are very different from criminal investigations. Officers

serving subpoenas are not likely to ask more than the

individual’s name. In criminal investigations, by contrast,

detectives are likely to ask questions that extend beyond

identity and into possibly incriminating information.

Defendants also raise People v. Meister, 289 Ill.App.3d

337, 682 N.E.2d 306 (4th Dist.1997), where the appellate

court upheld a conviction for giving false information to

officers attempting to serve ine defendant’s wife with a sub-

poena. Although factually similar to Migliore, Meister is

even less applicable to the case at bar. In Meister, the defen-

dant was prosecuted for obstructing service of process under

App. 25

720 ILCS 5/31-3, a different statute from the ‘obstruction of

performance” provision involved here. Even if the court

interpreted ‘‘obstruct’’ in 720 ILCS 5/31-3 in a manner simi-

lar to Section 5/31-1, the facts of Meister and this Case are

far from analogous. The defendant in Meister, after learning

that officers would serve his wife, contacted the officers and

told them she was out of town. That same day, however,

officers found the wife at home. ‘(The husband’s] conduct

was designed to mislead the officers and delay the perfor-

mance of their duties.’’ 289 Ill.App.3d at 342, 682 N.E.2d at

309. ‘

In contrast to Meister, Williams did not provide false

information, nor did she refuse to provide information neces-

sary for the officers to carry out a court order, as in Migliore.

Neither Meister nor Migliore appear to address the physical

resistance requirement directly, but cases cited by Plaintiff

Suggest that Plaintiff's conduct did not meet this test. She

did not go limp (Raby), lead other potential arrestees away

(Gibb), stand in the officer’s way (Finley), or refuse to

remove equipment (Ryan). The court has grave doubts that

Plaintiff’s conduct constituted physical resistance.

B. Impeding Performance

The physical act requirement, however, is only one

prong of a § 5/31-1 inquiry. To constitute obstruction, an

action must satisfy the physical act requirement and have the

effect of imposing ‘‘an obstacle which may impede, hinder,

interrupt, prevent or delay the performance of the officer’s

duties.’’ Raby, 40 Ill.2d at 399, 240 N.E.2d at 599. In other

words, §5/31-1 proscribes only those physical actions which

have the effect of interfering with some lawful duty. In Peo-

ple v. Hilgenberg, 223 Ill.App.3d 286, 585 N.E.2d 180 (2d

Dist.1998), the defendant, locked inside her place of busi-

ness, refused to unlock the front door te allow police officers

access. Police officers did not display a warrant nor did they

App. 26

have any reason to believe the defendant had committed any

criminal act. The court held that the defendant’s failure to

open the door was not obstruction because ‘‘a failure to

respond to an officer’s request to open a door or to permit

entry to the premises only has legal significance if the

request was authorized within his official capacity and the

response of the defendant actually impeded an act the officer

was authorized to perform.’’ 223 Ill.App.3d at 290, 585

N.E.2d at 184. Similarly, in People v. Moore, 286 Ill.App.3d

649, 676 N.E.2d 700 (3d Dist. 1997), an individual fled from

an officer who attempted to make an unjustified investigative

stop. The court held that where an officer’s ‘‘performance”’

is not justified under law, “‘a person who runs away is not

resisting or obstructing an authorized act of the police

officer.’ 286 Ill.App.3d at 654, 676 N.E.2d at 704.

As noted earlier, the court has grave doubts about

whether Ms. Williams engaged in any physical resistance.

Even if the court were to conclude that Williams’ refusal to

give her date of birth satisfied §5/31-1’s physical act require-

ment, the court would be required to determine whether

Jaglowski had a lawful duty to obtain Plaintiff’s date of birth

and that Plaintiff's refusal to respond impeded that duty.

There is little question that Jaglowski was engaged in perfor-

mance of a lawful duty. He was charged with investigating

the death of Essex Adams. As a part of that investigation,

Jaglowski certainly needed to identify the possible witnesses

at the scene of the crime, gathering enough information to

contact them at a later time. In this court’s view, however,

Jaglowski is entitled to summary judgment on the probable

cause issue only if he demonstrates that Plaintiff’s reactions

to Jaglowski’s questions interfered with the performance of

that duty.

In response to Jaglowski’s initial questions, Williams

willingly provided both her full name and address. (Defen-

dants’ 12(m) par. 29.) Furthermore, Henry Adams identified

App. 27

Plaintiff as the victim’s girlfriend, a Chicago police officer.

(Defendants’ 12(m) pars. 22, 23.) The court has difficulty

understanding that this information was insufficient to enable

Jaglowski to contact Williams at a later time, and Defendants

themselves have not explained how Plaintiff’s refusal to pro-

vide her date of birth would have made it more difficult for

Jaglowski to_contact her. In this court’s view, no prudent

officer would conclude that a possible witness known to be a ~

police officer obstructs his investigation where she provides

both her name and address, but refuses to provide her date of

birth. Accordingly, the court concludes that Defendants

lacked probable cause to arrest Plaintiff for a violation of 720

ILCS 5/31- 1. Defendant’s motion for summary judgment on

this issue is denied, and Plaintiff's motion for partial sum-

mary judgment is granted in part.

Probable Cause on a Closely Related Charge

Defendants correctly observe that an arrest without prob-

able cause does not violate the arrestee’s rights so long as

probable cause existed on a closely related charge. Biddle v.

Martin, 992 F.2d 673, 676 (7th Cir. 1993). Even if probable

cause was lacking with respect to 720 ILCS 5/31-1, Defen-

dants assert, they nevertheless had probable cause to arrest

Plaintiff for violating City of Chicago Department of Police

Rules and Regulations.

The police rules were created by the Police Department

and incorporated into the Chicago Municipal Code. Chicago

Municipal Code §2-84-220. Therefore, a violation of any

provision of the police rules is a violation of the Municipal

Code. Under Illinois law, a police officer is permitted to

make an arrest for code violations. Richardson v. Bonds, 860

F.2d 1427, 1432 (7th Cir. 1988) (citing People v. Edge, 406

Ill. 490, 497, 94 N.E.2d 359, 363 (1950).)

Defendants contend that by not providing Detective

Jaglowski with her date of birth, Plaintiff violated various

App. 28

provisions of the police rules. (Defendants’ Reply in Further

Support of their Motion for Summary Judgment (hereinafter

‘‘Defendant’s Reply’’) at 7.) First, officers are prohibited

from engaging in ‘‘any conduct which impedes the

Department’s efforts to achieve its policy and goals.’’ Chi-

cago, Ill., Rules and Regulations of the Police Department,

§5, Rule 2 (1975) (‘‘Rules’’). Second, officers must ‘‘pro-

mote the Department’s efforts to implement its policy or

goals.’” Id. 3. Third, officers are required to ‘“‘report

promptly to the Department any information concerning any

crime or other unlawful action.”’ Id.

With respect to Rules 2 and 3, the Defendants do not

make clear exactly what policy or goal the Plaintiff either

impeded or failed to promote. The court has already con-

cluded that Plaintiff's name and address were sufficient con-

tact information to allow Jaglowski to contact her at a later

time. For the reasons explained earlier, the court has

difficulty understanding how Plaintiff’s refusal to provide her

birth date impeded Jaglowski’s investigation. Nor do Defen-

dants provide evidence that Plaintiff failed to promptly report

information concerning the crime; to the contrary it is

undisputed Plaintiff made the 911 call regarding Adams’

death after she heard a gunshot over the telephone.

(Defendant’s 12(n)(3)(b), pars. 12, 14.) Beyond that, Defen-

dants do not allege that there was any other information that

Plaintiff could have reported.

Defendants also contend, however, Plaintiff violated two

other police rules. Rule 6 prohibits disobedience of any writ-

ten or oral directive. Defendants contend Plaintiff violated

this rule when she refused Sergeant Cervenka’s order to

answer Defendant Jaglowski’s questions. (Id. pars. 39, 40.)

In addition, Defendants assert, Plaintiff was required to pro-

vide Detective Jaglowski with sufficient information to

confirm her status as a police officer. (Defendant’s 12(m)

par. 27.) Police Rule 37 provides that a police officer is

App. 29

required ‘‘whether on or off duty, to correctly identify him-

self by giving his name, rank and star number when so

requested by other members of the Department or by a

private citizen.”” RULES §5, Rule 37. The Seventh Circuit

examined Rule 37 in Richardson v. Bonds, 860 F.2d 1427

(7th Cir. 1988). There, officers responded to a report that

two off-duty police officers were consuming or trafficking

cocaine in a local tavern. On entering the tavern, the investi-

gating officer recognized one individual and asked the

suspect for police identification. The Court of Appeals

upheld the validity of the suspect’s arrest for refusal to

respond, stating that even though the applicability of the rule

to off-duty police officers was unclear, ‘‘a reasonably com-

petent officer would be cognizant of, and should seek to

comply with, the mandatory identification requirement.”’

Richardson, 860 F.2d at 1431. Relying on Richardson,

Defendants argue that Plaintiff’s failure to produce her police

badge or sufficient information to confirm her status as a pol-

ice officer constituted a basis for her arrest.

Plaintiff devotes little attention to the question of

whether her conduct violated police rules. She argues,

instead, that she was not required to comply with either Rule

6 or Rule 37 because, at the time of her arrest, she was not

merely off-duty but had been suspended from the police

force. (Plaintiff's 12(n) par. 27.) When an officer is placed

on suspension, Plaintiff asserts, she is not entitled to carry

police identification; indeed, Plaintiff argues that if a

suspended police officer presents police identification she

subjects herself to a charge of ‘‘false impersonation’’ of an

officer. (Id.) Perhaps not surprisingly, although the Rules

reflect that off duty officers are required to comply, neither

side has offered any authority concerning the obligations of

suspended officers. The inferences in favor of each party

with respect to the opponent’s motion for summary judgment

are conflicting. The court is unprepared at this stage to con-

clude as a matter of law that Defendant officers did or did

App. 30

not have probable cause to believe that Plaintiff's failure to

provide identification information violated the police rules.

Qualified Immunity

The uncertainty surrounding this issue suggests, how-

ever, that Defendants are nevertheless entitled to sunimary

judgment on qualified immunity grounds. The doctrine of

qualified immunity is designed to shield government officials

with discretionary functions ‘‘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.’’ Kompare v. Stein, 801 F.2d 883, 886

(7th Cir. 1986) (citing Harlow v. Fitzgerald, 457 U.S. 808,

818, 102 S.Ct. 2727, 2738 (1982)). Police officers fall under

the category of protected officials where the challenged con-

duct relates to an arrest. Kompare, 801 F.2d at 887.

The standard for granting qualified immunity on sum-

mary judgment is objective. The court examines whether the

state of the law at the time of the arrest was such that a rea-

sonable person would have known her actions were unconsti-

tutional. Id.; see also Matalby v. Winston, 36 F.3d 548, 555

(7th Cir. 1994) (‘‘If officers of reasonable competence couid

disagree on this issue, immunity should be recognized.’’).

For reasons explained earlier, the court has concluded

that the circumstances of this case did not support a finding

of probable cause to believe that Plaintiff's refusal to answer

questions constituted an obstruction of justice. The court

notes, further, that it was well-established in 1996 that an

obstruction offense required physical resistance and interfer-

ence with the officer’s duty, elements not present here.

The parties’ qualified immunity discussion focuses on

Plaintiff's Fifth Amendment right to refuse to answer ques-

tions, rather than her Fourth Amendment right to be arrested

only on probable cause. Had the court reached the Fifth

App. 31

Amendment issue and concluded that the arrest did violate

Plaintiff's right against self-incrimination, the qualified

immunity issue would be more complicated than Plaintiff

suggests. She cites Moya v. United States, 761 F.2d 322,

355 (7th Cir. 1985), where the Seventh Circuit held that a

Suspect’s refusal to present identification could not constitute

probable cause that he was in possession of narcotics. As

Defendants note, however, this case differs from Moya in

that Plaintiff's very act of refusing to provide her date of

birth and police badge was the purported offense, not the

basis of probable cause for another.

Whether an individual has a Fifth Amendment right to

decline questions may turn on the degree of suspicion har-

bored by the officer. In Tom v. Voida, 963 F.2d 952, 959

(7th Cir. 1992), the Seventh Circuit considered, without

resolving, the issue of whether an officer could use a

Suspect’s refusal to cooperate in an investigative stop sup-

ported by reasonable suspicion, as a basis for establishing

probable cause. The court posed for itself the question, ‘“‘Do

citizens have a right to refuse to respond to questions posed

during investigative stops based merely on reasonable suspi-

cion?’’ Answering the question with either a yes or no

created problems, the court observed; a ‘‘yes”’ arguably

emasculates the utility of a Terry stop, while a ‘‘no’’ answer

arguably grants too great a power to law enforcement. The

Supreme Court has addressed only the issue of compelling

information absent reasonable suspicion. In Brown v. Texas,

443 US. 47, 99 S.Ct. 2637 (1979), the Court held that a

Suspect’s mere presence in an alley could not have formed

the basis for a reasonable suspicion that he was engaged in a

criminal offense and that there was no basis for arresting him

for failure to provide identification. 443 U .S. at 51, 52, 99

S.Ct. at 2641. The Court expressly declined to consider the

constitutionality of requiring identification in a lawful stop.

Id. at 53, 99 S.Ct. at 2641. Similarly, in Florida v. Bostick,

501 U.S. 429, 111 S.Ct. 2382 (1991), the Court considered

App. 32

whether questions posed to random bus passengers by police

officers violated the Fourth Amendment. The Court held that

police officers may ask questions of any individual, but

‘‘when officers have no basis for suspecting a particular indi-

vidual, they may generally ask questions of that individual—

as long as the police do not convey a message that compli-

ance with their requests is required.’” 501 U.S. at 435, 111

S.Ct. at 2386 (citations omitted).

Brown and Bostick, however, both involved individuals

who were randomly stopped and questioned. Here, in con-

trast, Williams was not the subject of a random stop.

Jaglowski was concerned about the possibility of foul play,

he was aware that Plaintiff was romantically involved with

the deceased and made the 911 call shortly after his death,

and he believed Williams was evasive in responding to ques-

tions regarding her status as a police officer. These facts are

arguably sufficient to warrant an investigative stop, though

they fall short of probable cause. Defendants have a color-

able argument that the law is uncertain whether reasonable

suspicion is sufficient to compel information from a suspect.

In this case, even if Jaglowski’s questioning of Plaintiff

was not supported by reasonable suspicion, it is not obvious

that Plaintiff had a clearly established right not to respond.

As discussed above, Plaintiff has not challenged Defendants’

argument that Chicago police officers are duty-bound to

present identification or provide their name, rank, and star

number. Williams apparently admitted that she was a Chi-

cago police officer, but when asked to produce identification

responded only that she did not have any. (Plaintiff's 12(n)

par. 25.) In Richardson v. Bonds, 860 F.2d 1427 (7th Cir.

1988), the court upheld qualified immunity for police officers

who arrested an off-duty officer who refused to produce

identification. The court reasoned that while a private citizen

may have the right to cooperate with police, ‘‘we have little

doubt that a person gives up certain rights on joining a police

App. 33

force, such as the right to be stubbornly non-cooperative in

the face of a legitimate request for identification.’ Richard-

son, 860 F.2d at 1432. The court concluded that an off-duty

police officer did not have a clearly established right to

refuse to present identification. Similarly, this court could

not find any authority suggesting that a suspended officer has _

a clearly established right not to cooperate with an investigat-

ing officer’s questions regarding her status as a police officer

or to provide information necessary to confirm that status.

Defendants’ motion for summary judgment with respect

to qualified immunity is granted. |

CONCLUSION

Defendants lacked probable cause to arrest Plaintiff for

obstruction. Whether they had probable cause to arrest her

for the closely-related charge of violating police rules is unc-

ertain. Even if a lay suspect has a Fifth Amendment

privilege to refuse to answer the officers’ questions, a police

officer does not have such a privilege to violate police rules,

and the record does not permit_a determination whether a

Suspended officer, such as Plaintiff, was bound to comply

with such rules. The court concludes, therefore, that Defen-

dants are shielded from individual liability by qualified

immunity. Accordingly, Plaintiff's motion for partial sum-

mary judgment is granted in part and denied in part; Defen-

dants’ motion for summary judgment is granted. Judgment is

entered in favor of Defendants and against Plaintiff.

App. 34

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 97 CV 8850

LINDA WILLIAMS

Plaintiff,

v.

DETECTIVE JAGLOWSKI AND,

LIEUTENANT KELLY,

Defendants.

Appeal from the United States District Court

for the Northern District of Illinois

MEMORANDUM OPINION AND ORDER

PALLMEYER, J.

This case involves a suspended police officer, Plaintiff

Linda Williams, who was arrested and charged with obstruct-

ing the performance of a peace officer. The arrest was made

when Plaintiff refused to provide a police officer with her

date of birth during a homicide investigation and also refused

to produce police identification in violation of Chicago Police

Department Rule 37 (‘‘Rule 37’’).' Plaintiff brought suit

1. The facts of the case are set forth in detail in the court’s

decision upon cross-motions for summary judgment, and

need not be repeated here. See Williams v. Jaglowski, No.

97 C 8850, 1999 WL 965866, at *1 (N.D.Ill. Sept. 29,

1999).

App. 35

under 42 U.S.C. §1983 against Detective Allen Jaglowski and

Lieutenant Ronald Kelly (‘‘Defendants’’) of the Chicago Pol-

ice Department (*‘CPD’’), claiming that her arrest and deten-

tion violated her Fourth Amendment right against unreason-

able seizures and her Fifth Amendment privilege to remain

silent.

Upon cross-motions for summary judgment, this court

held that Defendants lacked probable cause to believe that

Plaintiff had violated the Illinois obstruction statute. See

Williams v. Jaglowski, No. 97 C 8850, 1999 WL 965866, at

*8 (N.D.IIl. Sept. 29, 1999). On the closely related charge of

violating police department rules by failing to identify herself

upon request, the court decline to decided whether Defen-

dants had probable cause to arrest Plaintiff, noting that the

record did not support a conclusion on the applicability of

the police rules to a suspended officer. See id. at *10. Ulti-

mately, however, the court granted Defendants’ motion for

summary judgment on the defense of qualified immunity,

concluding that in light of the uncertainty surrounding the

obligation of a suspended officer to comply with police rules,

the arrest did not violate any clearly established statutory or

constitutional right. See id. at *12.

Pursuant to Federal Rule of Civil Procedure 59, Plaintiff

now moves for reconsideration of the September 29, 1999

order granting judgment in Defendants’ favor. Specifically,

Plaintiff argues that reconsideration is warranted on three

bases: (1) the court failed to consider the subjective belief of

the arresting officer in making its qualified immunity deter-

mination; (2} the court misapprehended the requirements of

Police Rule 37; and (3) the court adopted an overly broad

reading of the holding in Richardson v. Bonds, 860 F.2d

1427 (7th Cir. 1988) to conclude that Plaintiff had a clearly

established right not to respond to police questioning during

an investigation.

App. 36

Motions for reconsideration serve a narrow function and

must be supported by a showing of extraordinary cir-

cumstances justifying relief from judgment. See Commodity

Trend Serv., Inc. v. Commodity Futures Trading Comm'n,

149 F.3d 679, 684 (7th Cir. 1998). As such, motions for

reconsideration are designed to correct manifest errors of law

or fact or to present newly discovered evidence. See Pub-

lishers Resource, Inc. v. Walker-Davis Publications, Inc., 762

F.2d 557, 561 (7th Cir. 1985). Accordingly, a motion for

reconsideration is an ‘‘improper vehicle to introduce evidence

previously available or to tender new legal theories.’’ See

Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 400 (7th

Cir. 1986). With these principles in mind, the court will

consider each of Plaintiffs’ arguments in turn.

Plaintiff argues that Defendants’ subjective understand-

ing of the legal justification for Plaintiff's arrest controls the

qualified immunity inquiry. Specifically, Plaintiff points to

the deposition testimony of Defendant Kelly during which

Kelly stated that Plaintiff could not have been arrested ‘‘[flor

just not answering the questions[.]’’ (Kelly Dep., at 15.)

Plainuff further notes that Jaglowski testified that his deci-

sion to arrest Plaintiff had nothing to do with police rule vio-

lations, and that instead he believed she was obstructing his

investigation because ‘“‘she refused to answer questions that

were material to the investigation.’’ (Jaglowski Dep., at 59.)

Plaintiff argues, that this testimony shows that arresting

Plaintiff for violating a police rule is not a “‘rationale that

would recommend itself to a to a reasonable police officer

acting in good faith.’ Because Defendants did not actually

believe that the police rules provided a justification to arrest

her, Plaintiff argues, they are not entitled to immunity.

Plaintiff misunderstands the doctrine of qualified

immunity, as the standard for determining its application is

an objective one. Indeed, the U.S. Supreme Court has expli-

citly stated that ‘‘[e]vidence concerning the defendant’s

App. 37

subjective intent is simply irrelevant to that defense.’’ See

Crawford-El v. Britton, 523 U.S. 574, 588 (1998). In the

context of an improper arrest, the determination of whether

the challenged conduct was in violation of Clearly established

constitutional rights turns on the objective inquiry of whether

a reasonable police officer, in light of clearly established law

and with the facts known to him at the time, could have mis-

takenly believed that probable cause to arrest existed. See

Humphrey v. Staszak, 148 F.3d 719, 727 (7th Cir. 1998).

Plaintiff's assertion that the subjective beliefs of Defendants

affect their entitlement to immunity is legally erroneous. The

court has already determined that Defendants’ actions were

objectively reasonable either (1) because the law is uncertain

about whether reasonable suspicion-here based on the facts

that Plaintiff was romantically involved with the deceased,

made the 911 call shortly after his death, and was evasive in

responding to questions-is sufficient to compel information

from a suspect; or (2) because, even if Jaglowski’s question-

ing of Plaintiff was not supported by reasonable suspicion,

“‘it is not obvious that Plaintiff had a clearly established right

not to respond.’’ See Williams, 1999 WL 965866, at *11.

For this reason, the court denies Plaintiff’s motion for recon-

sideration on this basis.

Next, Plaintiff argues that the court misunderstood Rule

37 to require ‘‘production of identification’’ rather than its

actual requirement that an officer ‘‘correctly identify himself

by giving his name, rank and star number when so required

by other members of the Department[.]’’ Therefore, Plaintiff

argues, because ‘‘nothing in Rule 37 requires a police officer

to produce his or her identication [sic],’’ the court improperly

relied on a violation of a police rule as a basis for Plaintiff’s

arrest. This argument is an exercise in semantics and does

not persuade the court. The undisputed facts establish that

Plaintiff was evasive about her status with the CPD, and that

she refused to produce police identification, including her

‘“star number.’’ Reasonably assuming Plaintiff was an active

App. 38

police officer, Jaglowski could have believed that her failure

to identify herself as required in Rule 37 was a violation of

~ her obligations under that Rule. Because such belief, in the

absence of a clearly established right on the part of Plaintiff

not to respond, was objectively reasonable, Defendants are

entitled to qualified immunity.

Finally, Plaintiff argues that the holding of Richardson

v. Bonds, 860 F.2d 1427 (7th Cir. 1988) should be limited to

cases involving firearms. Richardson involved the arrest of

an armed off-duty police officer who failed to respond to a

request for police identification during the investigation of

illegal drug consumption. See id. at 1428-29. In arguing

that he was entitled to qualified immunity, the arresting

officer offered two rationales for Richardson’s arrest: (1) that

a reasonably competent officer would be aware that a civilian

is prohibited from carrying a concealed firearm; and (2) that

a reasonably competent officer would have known of police

rules requiring an officer to identify himself in response to

inquiries by fellow police officers. See id. at 1431. After

analyzing the failure to identify rationale, the court granted

summary judgment in favor of the arresting officer on the

qualified immunity defense, concluding that a reasonably

competent officer could have relied on the violation of the

police rules to make an arrest, even though the !aw was not

clear as to the application of Rule 37 to off-duty cfficers.

See id. at 1434.

Nothing in the Richardson decision suggests that the

court limited its holding to cases involving armed officers.

Indeed, that Richardson was carrying a firearm appears not to

have figured at all into the court’s qualified immunity

analysis. Instead, the court concluded that, ‘‘at the time of

the arrest, it was not clearly established that an off-duty pol-

ice officer could not be arrested for failing to identify him-

self, as required by police department regulation.’’ See id. at

1433. This court applied that holding to the facts presented

App. 39

here and concluded that, likewise, it does not appear that a

“suspended officer has a clearly established right not to

cooperate with an investigating officer’s questions regarding

her status as a police officer or to provide information neces-

Sary to confirm that status.’ See Williams, 1999 WL

965866, at *11.

Accordingly, Plaintiff's motion for reconsideration (Doc.

28-1) is denied.