# Petition for Writ of Certiorari — Williams v. Jaglowski

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1018

## Text

Supreme
- Pree Ue.

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1497%3A1. Public record. Not legal advice.