Petition for Writ of Certiorari — Woods v. City of Chicago

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(1) Supreme Court, U.S.

FILE

Q1 376 AUG 2 8 2001

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2001

ALBERT WOODS,

Petitioner,

V.

CITY OF CHICAGO,

Respondent

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

2 Attorney for Petitioner

64

| |

| QUESTION PRESENTED

Does the reasonableness clause of the Fourth

Amendment incorporate the common law rule prohibit-

ing warrantless arrests in misdemeanor cases where the

alleged offense had not been committed ‘‘in the presence

of’’ the arresting officer?

OE ip OTA. i st

INDEX

OPINIONS BELOW .

JURISDICTION

CONSTITUTIONAL ingtinacs

INVOLVED . . cs

STATEMENT .

REASONS FOR GRANTING THE WRIT

CONCLUSION

TABLE OF AUTHORITIES

Atwater v. City of Lago Vista, No. 99-1408

ii 2,4

Carroll v. United States, 267 U.S. 132 (1925) ceccccccccccesesseee. 3

Commonwealth v. Conway, 2 Mass.App.Ct. 547,

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Coupey v. Henley, 2 Esp. 540,

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John Bad Elk v. United States, 177 U.S. 529 (1900) ........... 3

Nellis v. Wyoming Department of Transportation,

932 P.2d 741 (Wyoming 1997) .........c.ccccscccescsceseseceseecees 10

People v. Moore, 11 N.Y.2d 271, 228 N.Y.S.2d 822,

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Pickett v. State, 99 Ga. 12, 25 S.E. 608 (1896) .........ccccccceee. 4

Salt Lake City v. Hanson, 19 Utah 2d 32,

Ee 10

Simon v. West Virginia Department of Motor Vehicles,

181 W.Va. 267 383 S.E.2d 320 (1989) o.cceccccececccccccececeee 10

State v. Berker, 120 R.I. 849, 391 A.2d 107 (1978) ........... 7

State v. Bowman, 124 Idaho 936,

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State v. Carroll, 131 Conn, 224, 38 A.2d 798 (1944) .......... 5

State v. Flummerfelt, 235 Kan. 609,

EE a eee 8

State v. Marcotte, 233 Neb. 533,

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State v. Ritter, 472 N.W.2d 444 (North Dakota 1996) ......... 9

State v. Spry, 87 S.D. 318, 207 N.W.2d 504 (1973) ceccscssss 9

State v. Tywayne H., 123 N.M. 42, 933 P.2d 251 (1997) .... 9

State v. Vonderfecht, 284 N.J.Super. 555,

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Tomlin v. State, 869 P.2d 334 (1994) cocccccccccccecceceeccccc... 9

United States v. Viale, 312 F.2d 595 (2d Cir. 1963) ........ 4

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Mont. Code Anno. §46-6-311 (1997) . at

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N.H. Rev. Stat. Ann. §594:10 (1996) . . 6

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PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment of the United States Court

of Appeals for the Seventh Circuit entered in this

proceeding on December 8, 2000.

OPINIONS BELOW

The decision of the Court of Appeals (App. 1-31) is

reported at 234 F.3d 979. The opinion of the district court

(App. 34-46) is unreported.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. $1254: The judgment of the court of appeals (App.

32) was entered on December 8, 2000. Rehearing was

denied on May 30, 2001. (App. 33.)

CONSTITUTIONAL PROVISION INVOLVED

This case involves the Fourth Amendment to the Consti-

tution of the United States.

STATEMENT

At about 12:00 noon on July 21, 1997, a man walked

into a Chicago police station and told a desk officer that on

July 18, 1997 petitioner had approached him with a lead pipe

while threatening to kill him. (Appendix 29-30.) As a result

of this complaint, two Chicago police officers arrested peti-

tioner the next day on a charge of misdemeanor assault.! The

officers did not have a warrant. (Appendix 19.)

“Class C misdemeanor’ punishable by imprisonment of

not more than 30 days. 730 ILCS 5/5-8-3.

<2

After the criminal charge was dismissed, petitioner

brought this civil rights action under 42 U.S.C. §1983 com-

plaining that the officers had arrested him without probable

cause and challenging the policy of the City of Chicago to

authorize its police officers to make warrantless arrests for

misdemeanor offenses that did not involve a breach of the

peace and that had not occurred in the officer’s presence.

The district court concluded that the -individual officers had

acted with probable cause and granted summary judgment

against petitioner on all of his claims. The Seventh Circuit

affirmed.

The Court of Appeals addressed the merits of

petitioner’s claim against the City of Chicago, holding that

the common law requirement that an offense be committed

**in the presence of’’ the arresting officer was not part of the

Fourth Amendment. (App. 19-31.)

In a petition for rehearing filed after this Court’s deci-

sion in Atwater v. City of Lago Vista, No. 99-1408 (April 24,

2001) petitioner argued that this case warranted further con-

sideration on the ‘‘in the presence of’’ issue that the Court

had reserved in footnote 11 in Atwater. The court ur appeals

denied rehearing without opinion. (App. 33.)

REASONS FOR GRANTING THE WRIT

In footnote 11 in Atwater v. City of Lago Vista, No.

99-1408 (April 24, 2001), the Court explicitly reserved the

question presented in this case, i.e., whether the Fourth

Amendment includes an ‘‘in the presence’’ requirement for

misdemeanor arrests effected without a warrant. _

2. The Seventh Circuit enlarged the time for rehearing while

Atwater v. City of Lago Vista was pending before this

Court.

=. Fe

This question is squarely presented in this case: in its

decision inthis case, the Seventh Circuit resolved the ‘‘in the

presence of’’ issue against petitioner, explicitly holding that

the common law rule prohibiting warrantless arrests for mis-

demeanor offenses which were committed in the officer’s

presence is not part of the Fourth Amendment. (App. 19-31.)

The mode of analysis that the Court applied in Atwater

compels the conclusion that the ‘‘in the presence of’’ limita-

tion on an officer’s power to make an arrest for a mis-

demeanor is part of the Fourth Amendment. Certiorari

should be granted to review the decision of the Court of

Appeals on this important issue.

1. HISTORICAL ANALYSIS

Atwater teaches that history is the starting point for

analyzing plaintiff's contention that the Fourth Amendment

includes an ‘‘in the presence of’ requirement

At common law, an officer ‘‘was not authorized to make

an arrest without a warrant, for a mere misdemeanor not

committed in his presence.’’ John Bad Elk v. United States,

177 U.S. 529 (1900); Carroll v. United States, 267 U.S. 132,

156 (1925).

The common law rule is illustrated in Coupey v. Henley,

2 Esp. 540, 170 Eng.Rep. 448 (C.P.1797). There, one of the

participants in a scuffle complained to the constables who

“‘without any warrant or other authority’’ had arrested the

plaintiff. The officers had not witnessed the incident. In

directing a verdict for the plaintiff in a false arrest case, the

Court stated as black letter law that ‘‘a constable is not war-

ranted to take a person into custody for a mere assault,

unless he is present at the time, and interposes with a view to

prevent a breach of the peace.”’

Coupey is on all fours with this case. On July 21, 1997,

a citizen walked into a Chicago police station and told a desk

officer that he had been verbally assaulted by plaintiff three

ve

_ days before. The next day, two Chicago police officers, act-

ing without a warrant, arrested plaintiff at his place of

employment. The officers did not witness any assault; nor

did they act to prevent any breach of the peace. Under the

rule applied in Coupey, plaintiff would be entitled to a

directed verdict.

2. “IN THE PRESENCE OF” IS A BRIGHT LINE

RULE

In Atwater, the Court stressed the importance of a bright

line standard for Fourth Amendment rules. (slip op. 26-30.)

The ‘‘in the presence of”’ is a bright line that requires that

the officer be ‘‘apprised by any of his senses that a crime is

being committed.’’ Wilgus, Arrest Without Warrant, 22

Mich.L.Rev. 673, 680 (1924). The wrongdoing must be

readily apparent to the officers. Pickett v. State, 99 Ga. 12,

25 S.E. 608, 609 (1896). The officers must see something

that is ‘‘sufficiently indicative of a crime being in the course

of commission,’’ People v. Moore, 11 N.Y.2d 271, 272, 228

N.Y.S.2d 822, 823, 183 N.E.2d 225, 226 (1962); United

States v. Viale, 312 F.2d 595, 600 (2d Cir. 1963).

3. THE COMMON-LAW REQUIREMENT OF “IN

THE PRESENCE OF” HAS BEEN AFFORDED

GREATER RESPECT THAN THE “BREACH OF

THE PEACE” RULE

The Court observed in Atwater that ‘‘statutes in all 50

States and the District of Columbia permit warrantless mis-

demeanor arrests by at least some (if not all) peace officers

without requiring any breach of the peace, as do a host of

congressional enactments.’’ (slip op. 23.) The same is not

Ss

true for the ‘‘in the presence of’’ requirement, which appears

in at least 41 federal statutes.°

Of the original thirteen colonies, only New York has

sought to authorize warrantless arrests for any offense,

whether or not committed in the officer’s presence. N.Y.

Crim. Pro. Law §140.10 (McKinney 1997) permits an officer

to make warrantless arrest for any offense ‘‘whether in his

presence or otherwise.’’

Connecticut permits warrantless arrests for mis-

demeanors only when ‘‘the person arrested is taken or

apprehended in the act or on the speedy information of oth-

ers.’’* The “‘speedy information’’ provision prohibits a war-

rantless arrest 11 hours after the alleged offense. State v.

Carroll, 131 Conn, 224, 38 A.2d 798 (1944).

Delaware limits warrantless arrests for misdemeanors

committed out of the presence of the officer to offenses

3. The statutes include 8 U.S.C. §1357, 16 U.S.C §3375, 16

U.S.C. $1172, 16 U.S.C. §1338, 16 U.S.C. §1377, 16

U.S.C. §1540, 16 U.S.C. §1861, 16 U.S.C. §1a-6, 16 ©

U.S.C. §5506, 16 U.S.C. §559c, 16 U.S.C. §668(b), 16

U.S.C. §670j, 16 U.S.C. §690e, 16 U.S.C. §706, 16

U.S.C. $727, 16 U.S.C. §742j-1, 16 U.S.C. §831c-3, 16

U.S.C. §916(g), 16 U.S.C. §959, 16 U.S.C. §971f, 16

U.S.C. §972g, 18 U.S.C. §3052 18 U.S.C. §3056, 18

U.S.C. §3061, 18 U.S.C. §3063, 19 U.S.C. §1589a, 21

U.S.C. §372, 21 U.S.C. §878, 22 U.S.C. §1978, 22 U.S.C.

§2709, 25 U.S.C. §2803, 26 U.S.C. §7608, 28 U.S.C.

$566, 33 U.S.C. §452, 33 U.S.C. §466, 40 U.S.C. §212a,

40 U.S.C. §212a-2, 42 U.S.C. §2456a, 42 U.S.C. §7270a,

43 U.S.C. $1733, and 49 U.S.C. §44903.

4. Conn. General Statute §54-1f(a)

- a

involving ‘‘physical injury or the threat thereof... illegal

sexual contact or attempted sexual contact. . . violation of a

protective order issued by Family Court; or . . . misdemeanor

occurring on school property.’’ 11 Del.Code Ann. §1904

(1997).

Georgia likewise has narrowly defined the situations in

which an officer may make a warrantless arrest for a mis-

demeanor not committed in his -(or her) presence.

Ga.Code.Annot. §17-4-20 (1997) permits warrantless arrests

in cases involving ‘‘family violence,’’ physical abuse of a

vulnerable adult, ‘‘or for other cause if there is likely to be

failure of justice for want of a judicial officer to issue a war-

rant.”’

In Maryland, warrantless arrests are only permitted for

offenses committed in the officer’s presence or view.

Md.Ann.Code of 1957, Art. 27, §594B.

With carefully enumerated exceptions for specific viola-

tions, Mass.Ann.Laws. ch. 90, §21, Massachusetts follows the

common law rule, permitting a warrantless arrest for a non-

felony only when an offense is committed in the presence of

the officer. Commonwealth v. Conway, 2 Mass.App.Ct. 547,

316 N.E.2d 757 (1974);

New Hampshire also enforces the ‘‘in the presence of”’

rule, but has created two exceptions: one for cases involving

domestic violence and stalking, the other when the officer

‘thas probable cause to believe that the person to be arrested

has committed a misdemeanor or violation, and, if not

immediately arrested, such person will not be apprehended,

will destroy or conceal evidence of the offense, or will cause

further personal injury or damage to property.’ N.H. Rev.

Stat. Ann. §594:10 (1996)

New Jersey permits warrantless arrests for mis-

demeanors when the offense occurred ‘‘upon view’’ of the

arresting officer. State v. Vonderfecht, 284 N.J.Super. 555,

557, 665 A.2d 1145, 1146 (1995).

North Carolina also retains the ‘‘in the presence of’

requirement, with two statutory exceptions: when the

offender ‘‘[w]ill not be apprehended unless immediately

arrested, or may cause physical injury to himself or others, or

damage to property unless immediately arrested.’’ N.C. Gen.

Stat. §15A-401 (1997).

Pennsylvania ‘‘has restricted the authority of police

officers to make warrantless arrests for crimes not committed

in their presence to a relatively narrow band of offenses.”’

McCarthy, Warrantless Arrests in Pennsylvania, 92

Dick.L.Rev. 115, 130 (1987).

Rhode Island has abandoned a strict ‘‘in the presence

of’ requirement, State v. Berker, 120 R.I. 849, 855, 391

A.2d 107, 111 (1978) but permits warrantless misdemeanor

arrests only when the officer ‘‘has reasonable ground to

believe that person cannot be arrested later or may cause

injury to himself or herself or others or loss or damage to

property unless immediately arrested.’’ R.I.Gen. Laws §12-

7-3 (1996).

South Carolina authorizes warrantless arrests for

offenses committed ‘‘in view,’’ provided that the arrest is

**made at the time of such violation of law or immediately

thereafter.”’ S.C. Code Ann. §17-13-30 (1997).

Virginia adheres to the ‘‘in the presence’’ of require-

ment for warrantless misdemeanor arrests. Va. Code Ann.

19.2-81 (1997. Many of the states without the common law

history of the original colonies also adhere to an ‘‘in the

presence of’ requirement.

Idaho enforces the ‘‘in the presence of’’ requirement for

warrantless misdemeanor arrests. State v. Bowman, 124

Idaho 936, 940, 866 P.2d 193, 197 (1994); Idaho Code § 19-

603.

=

Ind.Code.Ann. §35-33-1-1 limits an officer’s power to

make arrests without a warrant in non-felony cme: With the

exception of eleven enumerated misdemeanors,” and viola-

tions of a sentence of probation (Ind.Code.Ann. §35-50-7),

Ind.Code.Ann. §35-33-1-1(4) prohibits warrantless arrests for

misdemeanors unless the officer has ‘‘probable cause to

believe the person is committing or attempting to commit a

misdemeanor in the officer’s presence.’

Kansas expanded the ‘‘in the presence of’’ requirement

in 1970, when it authorized warrantless misdemeanor arrests

‘‘in certain emergency situations.’’ State v. Flummerfelt, 235

Kan. 609, 612, 684 P.2d 363, 366 (1984); Kan.Stat.Ann.

22-2401 (1997).

Montana permits a warrantless arrest when an offense is

being committed in the officer’s presence or when the officer

reasonably believes that ‘‘the person has committed an

offense and existing circumstances require immediate arrest.”’

Mont. Code Anno. §46-6-311 (1997).

5. Ind.Code.Ann. §9-26-1-1(1) (failure to stop at the scene of

a motor vehicle accident that involved injury or death);

Ind.Code.Ann. §9-26-1-1(2) (leaving the scene of a motor

vehicle accident that resulted in injury or death);

Ind.Code.Ann. §9-26-1-3 (failure to provide notice of a

motor vehicle accident that resulted in injury or death);

Ind.Code.Ann. §9-26-1-4 (failure to make a written report

of a motor vehicle accident that resulted in injury or

death); Ind.Code.Ann. §9-30-5 (operating a motor vehicle

while intoxicated) Ind.Code.Ann. §35-46-1-15.1 (violation

of order or protection); Ind.Code.Ann. §35-45-10

(stalking) Ind.Code.Ann. §35-47-2-22 (counterfeit

handgun license); Ind.Code.Ann. §35-47-2-1 (carrying a

handgun without a license)

x 2

In Nebraska, ‘‘without an exigent circumstance, a police

officer may not arrest an individual for a misdemeanor unless

it is committed in the officer’s presence.’’ State v. Marcotte,

233 Neb. 533, 537, 446 N.W.2d 228, 232 (1989). A

Nebraska statute defines: exigent circumstances as follows:

‘*(a) will not be apprehended unless immediately arrested;

(b) may cause injury to himself or others or damage to pro-

perty unless immediately arrested; (c) may destroy or con-

ceal evidence of the commission of such misdemeanor; or

(d) has committed a misdemeanor in the presence of the

officer.’” Neb.Rev.Stat.’ §29-404.02 (1997).

New Mexico adheres to an ‘‘in the presence of”

requirement for warrantless misdemeanor arrests. State v.

Tywayne H., 123 N.M. 42, 933 P.2d 251, 257 (1997).

Nevada permits a warrantless arrest for any ‘‘public

offense’’ committed in the officer’s presence, and has relaxed

the ‘‘in the presence of’’ requirement for ‘‘a felony or gross

misdemeanor.’’© Nev.Rev.Stat. §171.124 (1997).

Oklahoma adheres to a strict ‘‘in the presence of”

requirement for misdemeanor cases, with statutory exceptions

for domestic abuse and driving while intoxicated. 22 Okl.St.

§196; Tomlin v. State, 869 P.2d 334, 338 (1994).

In South Dakota, ‘‘an arrest for a misdemeanor must be

made upon a warrant, unless committed in the presence of

the arresting officer.’’ State v. Spry, 87 S.D. 318, 327, 207

6. Under Nevada law, a misdemeanor is punishable by

imprisonment of not more than six months, or a fine of

not more than one thousand dollars. Nev.Rev.Stat.

§193.150. The penalties for a ‘‘gross misdemeanor’’ are

imprisonment of up to one year or a fine of not more than

two thousand dollars. Nev.Rev.Stat. §193.140.

ae.

N.W.2d 504, 509 (1973). The same rule is applied in North

Dakota. State v. Ritter, 472 N.W.2d 444, 447 (North Dakota

1996); N.D.C.C. §29-06-15

Utah also adheres to the ‘‘in the presence of”’ require-

ment, Salt Lake City v. Hanson, 19 Utah 2d 32, 34, 425 P.2d

773, 774 (1967), with exceptions for carefully delineated

emergency situations.’

Wyoming law is similar to that applied in Utah, requir-

ing that the offense be committed ‘‘in the presence of’’ the

arresting officer or that there be a predefined emergency

situation, using the same list as in Utah. Wyo.Stat. §7-2-102

(Supp. 1994); Wyo.Stat. §31-5-1204(a); Nellis v. Wyoming

Department of Transportation, 932 P.2d 741, 744 (Wyoming

1997).

West Virginia adheres to the ‘‘in the presence of”’ stan-

dard. Simon v. West Virginia Department of Motor Vehicles,

181 W.Va. 267, 268, 383 S.E.2d 320, 321 (1989); W.Va.

Code §62-10-9 (1997).

7. Utah Code Ann. §7707-2(3) provides for arrest without

warrant when the officer:

(3) ... has reasonable cause to believe the person has

committed a public offense, and there is reasonable

cause for believing the person may:

(a) flee or conceal himself to avoid arrest;

(b) destroy or conceal evidence of the commission of

the offense; or

(c) injure another person or damage property

belonging to another person.

oe

As set out above, the ‘‘in the presence of’’ limitation on

an officer’s power to make a warrantless arrest has been -

afforded far greater respect that the rule limiting arrests to

actual breach of the peace.

CONCLUSION

It is therefore respectfully submitted that the petition for

writ of certiorari be granted.

August, 2001

KENNETH N. FLAXMAN

122 South Michigan Avenue

Suite 1850

Chicago, Illinois 60603

Attorney for Petitioner

APPENDIX

Plainsiff-Appellant,

CrtTy OF CHICAGO AND

CHICAGO POLICE OFFICERS

MAKOWSKI and MALANIS

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois

No. 98 CV 7092—Charles R. Norgle Judge.

Argued September 13, 2000—Decided December 8, 2000

Before Flaum, Chief Judge, and Bauer and Kanne, Circuit Judges.

BAUER, Circuit Judge.

Plaintiff-Appellant Albert Woods appeals from the order

of the United States District Court for the Northern District

of Illinois, Eastern Division, granting summary judgment to

defendants-appellees Makowski, Alanis, and the City of Chi-

cago. For the reasons set forth below, we affirm.

BACKGROUND

Albert Woods was arrested at his place of employment

for misdemeanor assault. After the charges against him were

Woods filed an action under 42 U.S.C. sec. 1983

against the City of Chicago and Chicago police officers

Makowski and Alanis, asserting violations of his Fourth

Amendment rights. In his complaint, Woods contended that

App. 2

the officers acted unreasonably in arresting him without a

warrant for misdemeanor assault one day after Gabriel Flores

(the putative assault victim) signed a criminal complaint

against him. He also asserted that the officers acted in accor-

dance with a policy of the City of Chicago authorizing its

police officers to make a full custodial arrest for a mis-

demeanor that did not involve a breach of the peace and that

had not been committed in the officers’ presence. The

officers moved to dismiss Woods’ complaint against them

under Fed. R. Civ. P. 12(b)(6), arguirig that Flores’ report of

the assault to the police (which Woods had referenced in his

complaint) gave them probable cause to arrest Woods, and

that arrests supported by probable cause are reasonable under

the Fourth Amendment subject to a “‘rare exception’’ not

applicable in Woods’ case. The City moved to dismiss on

similar grounds, arguing that even if Woods could show that

the City had a municipal ‘‘policy’’ authorizing warrantless

arrests for misdemeanors not involving a breach of the peace

and not committed in an officer’s presence, such a policy

would not be unconstitutional as applied to Woods’ arrest,

which was authorized by state law and based on probable

cause.

Woods filed a memorandum opposing the City’s motion

to dismiss, arguing that his complaint did not demonstrate

that the officers had probable cause to arrest him. According

to Woods, the complaint merely asserted that a citizen had

walked into a Chicago police station on July 21, 1997 and

stated that on July 18, 1997 he had been “‘verbally

assaulted’” by Woods. Woods noted that the complaint did

not allege that this information was communicated to the

arresting officers. Furthermore, he contended that even if the

arresting officers had been aware of the citizen’s complaint, it

did not provide them with probable cause to arrest because

‘‘verbal assault”’ is not an offense under Illinois law.

The City and the individual defendants jointly filed a

reply. Attached to the reply were various exhibits, including

App. 3

a copy of Flores’ verified misdemeanor complaint and a copy

of the arresting officer’s report of Woods’ arrest. The

verified misdemeanor complaint (signed. under oath by

Flores) charged Woods with aggravated assault, and stated

that ‘‘on or about 18 July °97... [Woods] while using a

deadly weapon, length of a lead pipe, did without lawful

authority produce weapon and came at victim yelling I’m

going to kill you, which placed Gabriel Flores in reasonable

ion of receiving a battery.’’ The arrest report essen-

tially repeated this account of the incident, stating that,

[t]he above subject arrested for [a]lggravated assault. On

18 July 97 victim went to truck leasing company where

offender is employed to gas up a leased truck. At that

time offender got into a verbal arguement [sic] with vic-

tim and produced a lead pipe and told victim I’m going to

kill you. When offender started to approach victim, vic-

tim got into his truck and fied the scene. R/O’s inter-

viewed victim who signed complainats [sic], R/O’s went

to offender’s place of employment, placed subject under

arrest and advised subject of his rights which he stated he

understood.

The arrest report was signed under the statement “‘I do

solemnly, sincerely, and truly declare and affirm that the

facts stated herein are accurate to the best of my

knowledge.”’

Woods moved to exclude these exhibits on grounds that

such evidentiary material could not be considered during a

motion to dismiss. He argued that the court could not con-

sider the exhibits unless it first converted the motion to

dismiss into a motion for summary judgment under Fed. R.

Civ. P. 12(b), and that such a conversion would be inap-

‘ate in this case. Finally, he argued that unless the

court excluded these materials, it must give Woods an oppor-

tunity to respond, and that in order to do so Woods must be

allowed to depose the officers who signed the arrest report

App. 4

*tabout the report and about the circumstances of the signing

of the complaint’’ as well as ‘‘the citizen upon whose alleged

complaint plaintiff was arrested.’’ The court granted Woods’

motion to exclude the exhibits. Subsequently, the court

granted the City’s motion to dismiss on the ground that .

Woods had failed to state a municipal policy, and it gave

Woods leave to file an amended complaint.

Woods filed an amended complaint which restated his

earlier claim that Flores claimed to have been ‘‘verbally

assaulted’’ by Woods, and which explicitly stated that such a

claim did not supply the officers with probable cause to

arrest Woods. The amended complaint also reasserted that

the officers violated Woods’ Fourth Amendment rights by

arresting him without a warrant for a misdemeanor offense

not commited in their presence and not involving a breach of

the peace pursuant to a municipal policy authorizing such

arrests. Again, the defendants moved to dismiss, arguing that

Flores’ complaint established probable cause." Woods

opposed the defendants’ motion, again contending that even

if the officers had been aware of Flores’ complaint (which

his complaint did not allege), that complaint did not provide

probable cause to arrest because ‘‘verbal assault’’ is not an

offense under Illinois law, which defines assault as ‘‘conduct

which places another in reasonable apprehension of receiving

a battery.”” 720 ILCS 5/12-1.

1. The defendants also asserted the defense of qualified

immunity and argued that Woods failed to establish a

causal connection between the alleged municipal policy

and his claimed injury. However, the district court did

not address these issues, and they are not at issue in this

appeal.

App. 5

The court then converted the defendants’ motion to

dismiss into a motion for summary judgment, noting that the

defendants had attached ‘‘pertinent evidentiary material’’ to

their reply to Woods’ memorandum in opposition to the

motion to dismiss Woods’ original complaint. Addressing

Woods’ claim that Flores had complained merely of a ‘‘ver-

bal assault,’ the court quoted the arrest report’s account of

Flores’ complaint, which stated that Woods had brandished a

lead pipe during the altercation and which specifically refer-

enced Illinois’ aggravated assault statute. The court stated

that ‘‘the misdemeanor complaint, filed by Gabriel Flores,

further indicates that Woods committed an aggravated assault

with a deadly weapon while threatening to kill Flores,’’ and

that ‘‘this evidence indicates that thearresting officers arrested

Woods based on information that Woods committed an

aggravated assault.” In ordering Woods to respond to the

motion for summary judgment, the court admonished him to

‘‘pay particular attention’”” to Fed. R. Civ. P. 11(b), and

stated that: ‘“Woods’ characterization of the altercation as a

Further, his argument that "nowhere in the complaint does

plaintiff allege that any police officer had been informed that

plaintiff had engaged in conduct which placed another in rea-

sonable apprehension of receiving a battery’ . . . ignores facts

and logic in a blatant attempt to survive the motion [to]

dismiss.”””

In Woods’ response, he argued that the arrest report and

the misdemeanor complaint could not be considered on a

motion for summary judgment because: (1) the defendants

had not laid any foundation for their admission, (for example,

they did not show the date or time of the alleged interview

between Flores and the arresting officers in the arrest report);

(2) they were unauthenticated; and (3) the police report did

not fully and fairly set out the facts. In support of the latter

argument, Woods attached a Chicago Police Case Report to

his response, which he relied upon for its accuracy. The case

report stated that ‘‘R/O interviewed the victim who related to

App. 6

R/O that... offender... grabbed lead pipe—told victim to

get out of the truck and said kill you.’ Victim left thinking

offender overreacting. Today’s date 21 Dec. ’97 offender

told two of victim’s co-workers (Kenny and Mike) that he

was going to Victim given victim information sheet. R/O

advised warrant.’’ Woods argued that the case report demon-

strated that the police lacked probable cause to arrest him

because it showed that Flores waited three days to report the

incident and told the police that he left thinking Woods was

_ *‘overreacting,’’ and because Flores’ account of the incident

showed only that Woods had ‘‘verbally assaulted’’ Flores,

not that he had placed Flores in reasonable apprehension of

receiving a battery. Woods also noted that the police had no

documentation showing that they investigated Flores’ com-

plaint or made any effort to corroborate it (e.g. by speaking

to Flores’ supervisor or to either of the two coworkers who

allegedly heard Woods’ renewed threat to ‘“‘get’’ Flores.)_

Woods asked the district court to vacate its order converting

the motion to dismiss into a motion for summary judgment,

and in the alternative, to postpone ruling on the motion until

Woods had a chance to depose Flores and the officers who

signed and prepared the arrest report.

In ruling on the summary judgment motion, the district

court found that it could properly consider the police report

and the misdemeanor complaint. Responding to Woods’

objection that the documents were not authenticated, the

court held that the documents were ‘‘credible and

trustworthy’’ because they were sworn to under oath by the

officers and by Flores, and because they were business

records kept by the police department. Additionally, the

court found that Woods had admitted to the accuracy of the

complaint and the arrest report by attaching and relying on

the case report, which corroborated the account given by the

complaint and the arrest report. The court also noted that it

was examining the records ‘‘not for their truth, but for what

the officers knew when they arrested Woods.”’

App. 7

Upon considering the exhibits, the court concluded that

they showed that the officers had arrested Woods believing

that he had threatened to kill Flores with a lead pipe, and

that this alone established probable cause. In response to

Woods’ discovery request, the court noted that it had given

Woods the opportunity to show why it should not accept the

information in the complaint and the arrest report as credible,

and that he had failed to do so (indeed, he had even corro-

borated the documents by submitting the case report). More-

over, the court found that Woods had offered absolutely no

evidence that the documents were ‘‘fraudulent, signed by

mistake, or even inaccurate,’ nor had he even denied that he

had threatened to kill Flores while approaching him with a

lead pipe. Under the circumstances, the court found that

depositions would be a waste of time, and it granted sum-

mary judgment for the defendants without allowing Woods to

depose Flores or the officers who signed the arrest report.

This appeal followed.

DISCUSSION

|. Procedural Issues

Woods argues that, in deciding the converted motion for

summary judgment, the district court improperly considered

the verified misdemeanor complaint and the arrest report. He

also argues that the district court abused its discretion in rul-

ing on the motion without allowing him to depose Flores and

the officers who prepared and signed the arrest report.

A district court may properly grant summary judgment

when ‘“‘the record shows that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law.”’ Whetstine v. Gates Rubber

Co., 895 F.2d 388, 391-92 (7th Cir. 1990) (citation omitted).

The moving party has the burden of establishing the lack of

such an issue. See id. at 392 (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986)).

OO se eee! ale

App. 8

We review a district court’s grant of summary judgment

de novo, drawing all reasonable inferences from the record in

the light most favorable to the nonmovant.

As a preliminary matter, we note that the court did noth-

ing improper in converting the defendants’ motion to dismiss

into a motion for summary judgment. Under Fed. R. Civ. P.

12(b), a district court must make such a conversion when

matters outside of the complaint are presented and not

excluded by the court. Here, the district court initially

granted Woods’ motion to strike the defendants’ exhibits, and

ruled on the initial motion to dismiss without considering the

exhibits or anything outside of the pleadings. Then, after

Woods filed an amended complaint and the defendants

moved again to dismiss, the court reconsidered the previously

stricken exhibits and treated the defendants’ new motion to

dismiss as a motion for summary judgment. Woods cites no

cases that suggest that a district court may not consider pre-

viously stricken exhibits in ruling on a converted motion for

summary judgment, and we find that the district court acted

properly in doing so here.

However, Woods argues that the district court-erred in

considering the arrest report and the misdemeanor complaint

in deciding the summary judgment motion because the

reports contained inadmissible hearsay, and because the docu-

ments were not ‘‘affidavits’’ under Fed. R. Civ. P. 56(e) and

28 U.S.C. sec. 1746. He also argues that the district court

abused its discretion in ruling on the summary judgment

motion before giving him leave to depose Flores and the

officers who signed and prepared the arrest report. We

address these arguments in turn.

A. Woods’ Hearsay Argument

Woods argues that the arrest report and the mis--

demeanor complaint contained inadmissible hearsay, and

therefore could not properly be considered on a motion for

summary judgment. The district court found that the infor-

mation in these documents was credible and trustworthy

App. 9

under Fed. R. Evid. 803(6) because they were sworn to under

oath by the officers and by Flores, and because they were

business records kept by the police department. Woods con-

cedes that portions of police reports that contain information

prepared by the business are admissible as business records.

For example, Woods suggests that a properly authenticated

police report would be admissible to show the date and time

of the arrest and the date and time that the arrestee was

released on bond. However, Woods notes that “‘the business

records exception does not embrace statements contained

within a business record that were made by one who is not a

part of the business if the embraced statements are offered

for their truth.”’ United States v. Vigneau, 187 F.3d 70, 75

(ist Cir. 1999). In other words, Woods argues that state-

ments made by third parties in an otherwise admissible busi-

ness record cannot properly be admitted for their truth unless

they can be shown independently to fall within a recognized

hearsay exception.

While we agree fully with this principle of law, we find

that it is not implicated in this case and is of no help to

Woods. As the district court noted, the defendants offered

the statements in the arrest report and the verified criminal

complaint describing the details of the alleged altercation

between Woods and Flores not for their truth, but to show

the effect that the statements had on the officers. Because

the officers asserted the defense of qualified immunity,

Woods had the burden at trial to prove that the police lacked

probable cause to arrest him. See Sorenson v. Ferrie, 134

F.3d 325, 330 (Sth Cir. 1998); see generally Eversole v.

Steele, 59 F.3d 710, 717-18 (7th Cir. 1995). The determina-

tion of whether an arresting officer has probable cause to

arrest an alleged offender turns on whether a reasonable per-

son in the officer’s position would have probable cause to

believe that an offense has been committed. This inquiry, in

turn, depends upon whether the facts and circumstances com-

municated to the arresting officer at the time of the arrest

App. 10

would warrant a reasonable officer in holding such a belief.

The defendants correctly note that ‘‘so long as a reasonably

credible witness or victim informs the police that someone

has committed . . . a crime, the officers have probable cause

to place the alleged culprit under arrest...’ Jenkins v.

Keating, 147 F.3d 577, 585 (7th Cir. 1998), and that once

such a reasonably credible complaint has been made, the

existence of probable cause to arrest does not depend upon

the actual truth of the complaint. See Kelley v. Myler, 149

F.3d 641, 647 (7th Cir. 1998) (‘‘Probable cause does not

depend on the witness turning out tr have been right; it’s

what the police know, not whether they know the truth that

matters.’’). In this case, the defendants offered the informa-

tion conveyed to the police by Flores and memorialized in

the misdemeanor complaint and arrest report not to show that

Woods had actually performed the conduct as reported in

those documents, but rather to show that they had probable

cause to arrest Woods based upon the information communi-

cated to them by Flores. The district court considered the

statements strictly to determine the effect that they would

have upon the arresting officers when communicated to them

by a presumptively reliable citizen. Thus, the district court

did not run afoul of the prohibition on hearsay by consider-

ing these documents for this limited purpose.

B. Woods’ “affidavit” argument

Woods also argues that the district court should not have

considered the arrest report and the misdemeanor complaint

because they did not qualify as admissible ‘‘affidavits’’ under

28 U.S.C. sec. 1746 and Fed. R. Civ. P. 56(e). Rule 56(e)

authorizes parties to submit affidavits supporting or opposing

a motion for summary judgment, but it specifically mandates

that such affidavits ‘‘shall be made on personal knowledge,

shall set forth such facts as would be admissible in evidence,

and shall show affirmatively that the affiant is competent to

testify to the matters stated therein.’’ Moreover, 28 U.S.C.

sec. 1746 provides, in relevant part, that ‘‘[wJherever, under

any law of the United States or under any rule . . . made

App. 11

pursuant to law, any matter is required or permitted to be

supported ... by . force and effect, be supported . . . by the

unsworn declaration, certificate, verification, or statement, in

writing of such person which is subscribed by him, as true

under penalty of perjury . . .”’ (emphasis added). Woods

contends that the misdemeanor complaint and the arrest

report were not ‘‘affidavits’’ as contemplated by 28 U.S.C.

sec. 1746 because, while they were purportedly sworn by

Flores and officer Makowski (respectively), neither document

contained the ‘‘penalty of perjury’’ language as required by

that section. Moreover, Woods maintains that even if officer

Makowski’s signed declaration on the arrest report were

sufficient to transform that document into an ‘‘affidavit,’’ the

report would still be inadmissible under Fed. R. Civ. P. 56(e)

because it contained statements made by Flores regarding

matters not within Makowski’s personal knowledge.

Woods’ arguments are unpersuasive. First, while Fed.

R. Civ. P. 56(e) allows a party to submit affidavits in support

of its summary judgment motion, it does not require that all

supporting material be submitted in affidavit form. See Fed.

R. Civ. P. 56(b) (permitting a party to move for summary

judgment ‘‘with or without supporting affidavits’’); Celotex,

477 U.S. at 323 (1986). Sworn testimony is not the only

basis on which summary judgment may be granted; rather,

‘“*the court may consider any material that would be admissi-

ble or usable at trial,’’’ Aguilera v. Cook County Police &

Corrs. Merit Bd., 760 F.2d 844, 849 (7th Cir. 1985) (citation

omitted), including properly authenticated and admissible

“documents or exhibits. See Martz v. Union Labor Life Ins.

Co., 757 F.2d 135, 138 (7th Cir. 1985). Therefore, the dis-

trict court was entitled to consider the arrest report and the

misdemeanor complaint even if they were not admissible as

‘‘affidavits,’’ under 28 U.S.C. sec. 1746 or Fed. R. Civ. P.

56(e), so long as those documents were properly authenti-

cated and were otherwise admissible.

App. 12

The district court found the documents admissible as a

business record under Fed. R. Evid. 803(6). To be admissi-

ble as a business record, a document must have sufficient

indicia of trustworthiness to be considered reliable. See Saks

Int’l, Inc. v. M/V ‘‘Export Champion,’’ 817 F.2d 1011, 1013

(2d Cir. 1987). Normally, to demonstrate such trustworthi-

ness and reliability at the summary judgment stage, the party

seeking to offer the business record must attach an affidavit

sworn to by a person who would be qualified to introduce the

record as evidence at trial, for example, a custodian or any-

one qualified to speak from personal knowledge that the

documents were admissible business records. See Federal

Deposit Ins. Corp. v. Patel, 46 F.3d 482, 484 (Sth Cir.

1995); see also Martz, 757 F.2d at 138 (‘When a party seeks

to offer evidence through other exhibits, they must be

identified by affidavit or otherwise made admissible in evi-

dence.’’). However, under the rather peculiar circumstances

of this case, we feel that the district court did not abuse its

discretion in admitting the arrest report and the misdemeanor

complaint as business records without requiring the defen-

dants to authenticate them by affidavit.

Woods attached a Chicago Police Case Report to his

response to the defendants’ motion for summary judgment,

and he relied on the case report for its accuracy both in his

original response before the district court and in his appellate

brief presented to this Court. The case report recapitulated

Flores’ account of the altercation as presented in the arrest

report and the misdemeanor complaint in each of its essential

details. By submitting and relying upon the case report,

Woods conceded the accuracy of the documents that the

defendants sought to introduce. This situation is strikingly

similar to the situation that the First Circuit confronted in

Cerqueira v. Cerqueira, 828 F.2d 863 (ist Cir. 1987). In

that case, the plaintiff sued the legal titleholder to a fishing

boat, seeking recovery for injuries he sustained while he was

working on the boat. The defendant moved for summary

App. 13

judgment on the grounds that he was not the owner of the

boat and was therefore not liable for the plaintiff's injuries.

The defendant tried to show that he was not the owner of the

boat by, inter alia, attaching an exhibit to his legal memoran-

dum supporting his motion for summary judgment. The

exhibit was purportedly an unsigned draft of an agreement

between the parties prepared by the plaintiff's lawyer for use

in an earlier case between them, and it showed that the plain-

tiff had bought the boat and that the defendant held title for

the plaintiff because the plaintiff was not a U.S. citizen. In

his appellate brief, the plaintiff conceded that he had drafted

the document as a proposed resolution of the earlier case.

While the court noted that ‘‘technically speaking, [the defen-

dant] should have introduced his exhibits into the record

through affidavits, not as exhibits to a memorandum of

law ...,’’ it held that given the plaintiff's concession, it was

appropriate for the district court to have considered the exhi-

bit in ruling on the motion for summary judgment. Id. at

865. The court reasoned that there was ‘“‘no point in remand-

ing this case to permit [the defendant] to file an affidavit stat-

ing the very thing that [the plaintiff] has conceded, namely,

that the document is what it purports to be.’’ Id.

We find this reasoning persuasive and applicable to the

facts of this case. By submitting the case report and relying

on it, Woods has conceded that Flores made out a complaint

_ against him to the Chicago Police, and that in that complaint

Flores alleged that Woods had threatened to kill him while

wielding a lead pipe. Since these are exactly the facts that

the defendants sought to prove through the arrest report and

the misdemeanor complaint, we conclude that Woods cannot

reasonably question the reliability of those documents.

Requiring authenticating affidavits in this case would be an

empty formality, and the district court did not abuse its dis-

cretion when it considered the documents without such

affidavits.

App. 14

Moreover, even were we to hold that the district court

erred in considering the arrest report and misdemeanor com-

plaint absent a certifying affidavit or some other traditional

method of authentication, such an error would be harmless in

this case. Rule 56(c) provides that summary judgment shall

be granted if, among other documents, ‘‘[the] admissions on

file . . . show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judg-

ment as a matter of law.’’ An ‘‘admission’’ includes ‘‘any-

thing which is in practical fact an admission’ Cerqueira, 828

F.2d at 865 (citation omitted), including statements made in a

brief presented to the district court, see United States v. One

Heckler-Koch Rifle, 629 F.2d 1250, 1253 (7th Cir. 1980).

Woods submitted the case report to the district court, and he

relied on its account of the complaint that Flores gave to the

police in his response to the defendants’ summary judgment

motion. As a practical matter, this amounted to an admission

of the facts presented in the case report, and the district court

was entitled to consider the facts admitted in ruling on the

defendants’ summary judgment motion. By continuing to

rely on the case report and subsequently failing to offer any

evidence to rebut its account of Flores’ complaint, Woods

left the district court free to grant summary judgment upon

consideration of the facts admitted by Woods alone and

without even considering the arrest report or the mis-

demeanor complaint. Thus, even if the latter documents

were inadmissible and therefore not available for the district

court’s consideration, the court could still properly have

granted summary judgment for the defendants. See In re

Sunset Bay Assocs. v. Eureka Fed. Sav. & Loan Ass’n, 944

F.2d 1503, 1513-14 (9th Cir. 1991) (holding that, once a

party had admitted that the opposing party’s unauthenticated

‘exhibit contains truthful information, the court may consider

the material in that exhibit because ‘‘an admission is, or

course, admissible in evidence’’). In his reply brief, Woods

tries to avoid having some of the damaging information in

the case report admitted against him (in particular, the case

App. 15

report’s statement that the “‘R/O’s interviewed the victim’’)

by asserting that the case report itself is unverified and lacks

the ‘‘basic foundation predicates of date, time, place, and

persons present.’’ However, while unauthenticated documents

generally cannot be considered on a motion for summary

judgment, a party who submits such a document without

reservation cannot subsequently complain because the district

court considered the contents of the document. See Walker

v. Wayne County, lowa, 850 F.2d 433, 435 (8th Cir. 1988).

C. Woods’ discovery request

Woods also argues that the district court “‘applied an

erroneous legal standard’’ in refusing to permit him to

depose Flores and the arresting officers before ruling on the

defendants’ summary judgment motion. Citing Jllinois State

Employees Union v. Lewis, 473 F.2d 561 (7th Cir. 1973),

Woods maintains that summary judgment should not be

entered ‘‘until the party opposing the motion has had a fair

ity to conduct such discovery as may be necessary

to meet the factual basis for the motion.’’ See Celotex, 477

U.S. at 326 (1986). Woods contends that the district court

erroneously denied him this opportunity, and that its “‘sua

sponte” decision to enter summary judgment was unfair and

premature. Woods’ argument is unconvincing.

A district court’s decision to consider a defendant's

motion for summary judgment before allowing the plaintiff

to depose certain witness is a discovery matter which we

review for abuse of discretion. Doty v. Illinois Cemra) R.R.

Co., 162 F.3d 460, 461 (7th Cir. 1998). Rule 56(f) author-

izes a district court to refuse to grant a motion for summary

j or to continue its ruling on such a motion pending

further discovery if the nonmovant submits an affidavit

demonstrating why it cannot yet present facts sufficient to

justify its opposition to the motion. Fed. R. Civ. P. 56(f).

While Woods did ask the district court to postpone its ruling

until he could depose Flores and the officers, he did not file

an affidavit outlining his reasons for needing further

App. 16

discovery as contemplated by Rule 56(f). This alone justifies

affirmance of the district court’s decision. See Wallace v.

Tilley, 41 F.3d 296, 302-03 (7th Cir. 1994) (holding that the

court was precluded from considering whether the district

court had abused its discretion in ruling on defendant’s sum-

mary judgment motion before allowing plaintiff to conduct

requested discovery where the plaintiff had not filed an

affidavit pursuant to rule 56(f), and stating that ‘‘’when a

party does not avail himself of relief under Rule 56(f), it is

generally not an abuse of discretion for the district court to

rule on the motion for summary judgment’’’ (citation omit-

ted)); see also Jones v. Merchants Nat’l Bank & Trust Com-

pany of Indianapolis, 42 F.3d 1054, 1060 (7th Cir. 1994);

Kinney v. Indiana Youth Ctr., 950 F.2d 462, 466 (7th Cir.

1991); Boling v. Romer, 101 F.3d 1336, 1339 n.3 (10th Cir.

1996); Burlington Coat Factory Warehouse Corp. v. Esprit

de Corp., 769 F.2d 919, 926 (2d Cir. 1985) (collecting

cases); see also Committee for the First Amendment v. Camp-

bell, 962 F.2d 1517, 1522 (10th Cir. 1992) (ruling that

unverified statements in an attorney’s memoranda of law

alleging a need for a continuance on a motion for summary

judgment pending further discovery were insufficient as

grounds for a continuance under Rule 56(f), and stating that

“*faldvocacy by counsel does not suffice for evidence or fact

in the Rule 56(f) context.”’) (citation omitted).

Further, even if we were to waive Rule 56(f)’s affidavit

requirement in this case, we would still find that the district

court did not abuse its discretion in ruling on the motion

before granting Woods leave to depose Flores and the arrest-

ing officers. Woods offered virtually nothing to demonstrate

why the depositions that he sought were likely to generate

any genuine issue of material fact. Woods never denied that

Flores complained to the Chicago police that Woods had

approached him with a lead pipe while threatening to kill

App. 17

him (indeed, his submission of and reliance upon the case

report precluded him from denying this).2 This admission

alone would be enough to establish that the arresting officers

had probable cause to arrest Woods (thereby entitling the

officers to summary judgment on Woods’ sec. 1983 claims),

absent some evidence showing that it should have been

t to the officers that Flores was incredible as a matter

of law and that the officers acted unreasonably in relying on

his complaint. Woods never put forward any such evidence,

nor did he explain why discovery was likely to unearth it.

Instead, Woods merely pointed to a sentence in the case

report which indicated that Flores told the police that he had

left the scene of the altercation with Woods thinking that

Woods was ‘‘overreacting,”’ suggesting that this establishes

that the officers should not have relied on Flores’ account of

the incident when arresting Woods.? However, Flores’

2 Woods did contend that there was no evidence that

Flores’ complaint was communicated to the particular

officers who arrested him, but given that the case report

opened its narration of Flores’ complaint with the

statement that ‘‘R/O interviewed victim who related to

R/O that... . ” this argument is at worse disingenuous,

and is at best pure sophistry.

3. Woods also pointed to Flores’ delay in reporting the

incident as a possible ground for the police to doubt his

credibility. However, as the case report indicates, Flores

provided the police with a credible explanation for the

delay—namely, the renewed threat that Woods had

communicated to Flores’ co-workers on the day that he

reported the incident. Woods does not deny that Flores

gave this explanation, nor does he suggest why it might

have been incredible.

App. 18

comment that he thought that Woods was ‘‘overreacting”’ is

completely irrelevant to the material facts that Woods needed

to contest to defeat summary judgment; it tends to show nei-

ther that Flores did not report Woods’ assault to the police,

nor that Flores’ account of the assault was in any way

incredible. At best it shows merely that Flores thought that

Woods was ‘‘overreacting’’ when he assaulted Flores, not

that Flores was overreacting by reporting a crime to the pol-

ice. Thus, based upon the facts that Woods presented to the

district court, any claim that Flores was incredible as a

matter of law and that the officers should not have relied

upon his complaint would have been pure speculation. This

is far too slender a reed upon which to hang a discovery

request. See generally United States v. All Assets and

Equip. of West Side Bldg. Corp., 58 F.3d 1181, 1190 (7th

Cir. 1995).

Indeed, under the circumstances of this case, we would

most likely affirm even if the district court had converted the

defendants’ motion to dismiss into a motion for summary

judgment and granted the motion without giving Woods any

notice of the conversion or any opportunity-to respond to the

summary judgment motion. While the conversion of a

12(b)(6) motion into a summary judgment motion ‘‘should

be accompanied by prior notice and ’a reasonable opportunity

to establish the existence of material controverted facts,’’’ the

failure to afford such procedure will not necessarily mandate

reversal unless ‘‘the record discloses the existence of

unresolved material fact issues,’’ or ‘‘the parties represent

that they would have submitted specific controverted material

factual issues to the trial court if they had been given the

opportunity.” Milwaukee Typographical Union No. 23 v.

Newspapers, Inc., 639 F.2d 386, 391 (7th Cir. 1981) (citation

omitted). As has been noted, Woods did not present any-

thing that would create a genuine issue of material fact, nor

did he point to any specific controverted factual issue that he

would be able to present after conducting depositions. Thus,

App. 19

the court could have granted the converted motion against

Woods without notice. The fact that the court gave Woods

notice and ample opportunity to respond and Woods still

failed to raise any genuine issue of material fact only

strengthens our conclusion that the district court did not

abuse its discretion when it granted the motion without

allowing Woods to depose Flores or the officers.

il. Fourth Amendment Issue

Woods argues that his warrantless arrest for mis-

demeanor assault was unconstitutional because the alleged

assault did not involve a breach of the peace and did not

occur in the presence of the arresting officers. Woods notes

that the Supreme Court has recently stated that ‘‘[i]n deter-

mining whether a particular governmental action violates [the

Fourth Amendment], we inquire first whether the action was

regarded as an unlawful search or seizure under the common

law when the Amendment was framed.”’ Wyoming v. Hough-

ton, 526 U.S. 295, 299 (1999). The common law in

existence at the time of the framing of the Fourth Amend-

ment prohibited a peace officer from making a warrantless

arrest for a misdemeanor unless the misdemeanor was com-

mitted in the presence of the arresting officer and involved a

breach of the peace. See United States v. Watson, 423 US.

411, 418 (1976); Carroll v. United States, 267 U.S. 132,

156-57 (1925); Bad Elk v. United States, 177 U.S. 529,

534-35 (1900). Relying on Houghton, Woods maintains that

the common law rule controls the Fourth Amendment inquiry

in this case, and that therefore his warrantless arrest for a

misdemeanor not committed in the presence of the arresting

officers violates the Amendment. Woods further argues that

the Chicago ‘‘municipal policy’’ which authorized his arrest

is unconstitutional insofar as it abrogates the common law

rule. We are not persuaded.

The Supreme Court has never held that a police officer

violates the Fourth Amendment merely by arresting someone

without a warrant for a misdemeanor offense which did not

App. 20

occur in the officer’s presence and/or did not involve a

breach of the peace. Rather, when determining the constitu-

tionality of a warrantless arrest for a criminal offense, the

- Court has repeatedly focused its inquiry on the existence of

probable cause for the arrest. See, e.g., Gerstein v. Pugh,

420 U.S. 103, 111-12 (1975). While ‘‘the Court has

expressed a preference for the use of arrest warrants when

feasible,’’ Gerstein, 420 U.S. at 113, the Court has never

elevated this judicial preference to a per se rule mandating

warrants for all arrests irrespective of the existence of prob-

able cause. See, e.g., Watson, 423 U.S. at 417 (stating that

**‘such a requirement would constitute an intolerable handi-

cap for legitimate law enforcement’’’ (citation omitted)).

Indeed, in Gerstein, the court noted that it ‘‘has never invali-

dated an arrest supported by probable cause solely because

the officers failed to secure a warrant,’’ 420 U.S. at 113, and

in the intervening years since Gerstein it has strayed from

this principle only once, when it imposed a warrant require-

ment for arrests made in a suspect’s home. See Payton v.

New York, 445 U.S. 573, 585-86, 589-90 (1980) (holding

that, absent exigent circumstances, the Fourth Amendment

prohibits warrantless, nonconsensual entry into a suspect’s

home in order to make a felony arrest—notwithstanding the

existence of probable cause to arrest). Moreover, in Payton

the Court justified its departure from the usual rule by

emphasizing that the Fourth Amendment affords citizens spe-

cial protections against government intrusions into their

homes, stating that ‘‘’physical entry of the home is the chief

evil against which the wording of the Fourth Amendment is

directed’’’ (quoting United States v. United States District

_ Court, 407 U.S. 297, 313 (1972)) and that the language of

the Fourth Amendment ‘‘unequivocally establishes the propo-

sition that ‘[a]t the very core [of the Fourth Amendment]

stands the right of a man to retreat into his own home and

there be free from unreasonable governmental intrusion.’’’ Id.

at 589-90 (citation omitted). No authorities cited by either of

the parties to this appeal, nor any that we have found,

App. 21

expressly require the police to obtain an arrest warrant before

lawfully arresting a subject whom they have probable cause

to believe has committed an offense in any instance other

than an arrest in a suspect’s home.’ Indeed, we have con-

cluded otherwise. See, ¢.g., United States v. Fernandez-

Guzman, 577 F.2d 1093, 1097 (7th Cir. 1978) (‘‘{I]n the area

of arrests made in a public place, an arrest warrant has never

been considered to be constitutionally mandated even when

there was opportunity for one to be obtained.’’) (citing Wat-

son, 423 U.S. 411 (1976)). Because Woods was not arrested

in his home, he cannot avail himself of Payton’s holding, and

Woods, however, Houghton did not constitutionalize the

common law rules regarding misdemeanor arrests, nor did it

even address the reasonableness of an arrest under the Fourth

Amendment. Houghton addressed the reasonableness of a

search, not of a seizure of the person, and it held merely that

“police officers with probable cause to search a car may

4. In Maryland v. Macon, which was decided five years after

Payton, the Court expressly reserved the question of

whether the Fourth Amendment prohibits a warrantless

arrest outside of the home for the state law misdemeanor

of distribution of obscene materials. See 472 US. 463,

471 (1985).

App. 22

inspect passengers’ belongings found in the car that are capa-

ble of concealing the object of the search.’’ 526 U.S. at 307.

Moreover, neither of the cases cited by Houghton as author-

ity for its historical analysis held that the common law rules

governing misdemeanor arrests controls the inquiry into the

‘*reasonableness’’ of a misdemeanor arrest under the Fourth

Amendment. California v. Hodari D. looked to the common

law to determine the meaning of ‘“‘seizure’’ under the Fourth

Amendment, not to determine whether a given seizure was

reasonable under the Amendment. See 499 U.S. 621, 624-29

(1991). Wilson v. Arkansas ruled that the common law

‘*knock and announce’’ rule forms a part of the Fourth

Amendment reasonableness inquiry, and that the reasonable-

ness of a search of a dwelling ‘‘may depend in part on

whether law enforcement officers announced their presence

and authority prior to entering.’’ 514 U.S. 927, 931 (1995)

(emphasis added). Indeed, in Wilson, the Court was careful

not to reduce the reasonableness inquiry to any inflexible, per

se rule, noting that ‘‘[tJhe Fourth Amendment’s flexible

requirement of reasonableness should not be read to mandate

a rigid rule of announcement that ignores countervailing law

enforcement interests,’’ and holding that ‘‘although a search

or seizure of a dwelling might be constitutionally defective if

police officers enter without prior announcement, law

enforcement interests may also establish the reasonableness

of an unannounced entry.’’ Id. at 934. Thus, neither Hough-

ton nor the cases it relied upon directly support Woods’ argu-

ment.

Moreover, in a case that was decided after both Hodari

and Wilson, the Court strongly and unequivocally affirmed its

traditional view that, absent certain extraordinary cir-

cumstances, a seizure is reasonable under the Fourth Amend-

ment when it is based upon probable cause regardless of the

severity of the offense involved. See Whren v. United States,

517 U.S. 806, 817-18 (1996). In Whren, the Court held that

a traffic stop of a motorist by plainclothes policemen in an

App. 23

unmarked car did not violate the Fourth Amendment where

the officers had probable cause to believe that the motorist

committed a traffic violation. The motorist argued that the

stop was unreasonable because the law enforcement interests

in investigating minor traffic offenses were minimal and were

outweighed by the individual motorist’s right to be free from

such intrusions. In rejecting this reasoning, the Court stated

that while it is true in principle that the reasonableness

inquiry always involves a balancing of all relevant factors,

‘‘Tw]ith rare exceptions . . . the result of that balancing is not

in doubt where the search or seizure is based upon probable

cause.’” Id. at 817. The Court noted that ‘‘[w]here probable

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

necessary actually to perform the “balancing’ analysis

involved searches or seizures conducted in an extraordinary

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

physical interests—such as, for example, seizure by means of

deadly force, unannounced entry into a home, entry into a

home without a warrant, or physical penetration of the

body.’’ Id. at 818 (citations omitted). After concluding that

the traffic stop at issue did not ‘‘remotely qualify’’ as any

such extreme practice, the Court held that it was “governed

by the usual rule that probable cause to believe the law has

been broken avoiding police contact.’’ Id. Whren did not

directly address the question presented here since it involved

a temporary traffic detention and not a full custodial arrest,

and since it did not address the relationship between the

Fourth Amendment and the common law arrest rules. How-

ever, Whren’s unequivocally stated rationale flatly contradicts

Woods’ assertion that certain warrantless non-felony arrests

violate the Fourth Amendment even if they are based upon

probable cause, and it undermines any claim that the reason-

ableness of a seizure under the Fourth Amendment depends

App. 24

entirely upon whether the offense is classified as a felony or

as a misdemeanor.»

In addition, while we have never decided whether the

Fourth Amendment incorporates the common law ‘“‘in the

presence’’ rule for misdemeanor arrests,° we have held that

other aspects of the common law standards of misdemeanor

arrests are not part of the Fourth Amendment’s prohibition of

““unreasonable’’ searches and seizures. In Ricci v. Arlington

Heights, Illinois, the plaintiff brought a sec. 1983 action

against the Village of Arlington Heights and the police

officers who had arrested him, arguing that a full custodial

arrest for the fine-only misdemeanor offense of operating a

business without a license violated the Fourth Amendment.

See 116 F.3d 288, 288 (7th Cir. 1997). The plaintiff did not

dispute that the officers had probable cause to believe that he

was violating the ordinance. See id. at 290. However, the

plaintiff argued that the misdemeanor offense for which he

was arrested did not involve a breach of the peace, and that

because the common law prohibited custodial arrests for such

offenses, his arrest was unreasonable under the Fourth

5. Furthermore, even after Houghton, courts have continued

to apply. the traditional ‘‘probable cause’’ standard that

was reaffirmed in Whren in determining the

reasonableness of an arrest. See, e.g., United States v.

Moore, 215 F.3d 681, 685 (7th Cir. 2000); Wooley v. City

of Baton Rouge, 211 F.3d 913, 925 (5th Cir. 2000).

6. In Gramenos v. Jewel Cos., Inc., we reserved the question

of whether a state statute abrogating the common law ‘‘in

the presence’’ rule for misdemeanor arrests ‘‘without

putting equivalent guarantees of reasonable conduct in its

place’’ comports with the Fourth Amendment. 797 F.2d

432, 441 (7th Cir. 1986). |

App. 25

Amendment. We declined to read the literal strictures of the

common law rule into the Fourth Amendment, and we upheld

the plaintiff's arrest on Fourth Amendment grounds, noting

that ‘‘the common law rule has been relaxed to include

arrests for offenses other than breaches of the peace.”’ Id. at

291 (citations omitted). Woods correctly notes that Ricci is

distinguishable from his case in some key respects, because

Ricci (unlike Woods) committed his offense in the presence

of the arresting officers, and because Ricci did not directly

address the question of whether and under what cir-

cumstances a warrant is constitutionally required for a non-

felony arrest.’ However, the fact remains that we upheld a

warrantless arrest in Ricci which would not have been per-

mitted under framing-era common law, and in doing so we

rejected the argument that the strict terms of the common law

rule control the inquiry into the constitutionality of a mis-

demeanor arrest. Thus, while Ricci does not definitively

refute Woods’ argument, it directly undermines his major

premise.

Moreover, several of our sister circuits have squarely

addressed Woods’ argument, and they have uniformly held or

stated that the common law ‘“‘in the presence’’ rule is not

part of the Fourth Amendment. See Vargas-Badillo v. Diaz-

Torres, 114 F.3d 3, 6 (1st Cir. 1997) (upholding a grant of

summary judgment for defendant police officer on a sec.

1983 claim alleging illegal arrest, and stating that ‘‘[t]o date,

neither the Supreme Court nor this circuit ever has held that

the Fourth Amendment prohibits warrantless arrests for mis-

demeanors not committed in the presence of arresting

7. As Woods notes, in Ricci we held that the plaintiff had

waived any argument under the warrant clause. See id. at

292.

App. 26

officers’’); United States v. Smith, 73 F.3d 1414, 1416 (6th

Cir. 1996) (stating that the requirement that a misdemeanor

must have occurred in the officer’s presence to justify a war-

rantless arrest ‘‘is not mandated by the Fourth Amendment:

it is merely a rule of the common law’’); Pyles v. Raisor, 60

F.3d 1211, 1215 (6th Cir. 1995) (rejecting a Fourth Amend-

ment challenge to a misdemeanor arrest when probable cause

existed, and holding that the plaintiff's ‘‘right as an alleged

misdemeanant to be arrested only when the misdemeanor is

committed in the presence of the arresting officer [is] not

grounded in the federal Constitution and will not support a

sec. 1983 claim’’); Fields v. City of South Houston, Texas,

922 F.2d 1183, 1189 (Sth Cir. 1991) (ruling that ‘‘[t}he

United States Constitution does not require a warrant for mis-

demeanors not occurring in the presence of the arresting

officer’’); Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990)

(ruling that ‘‘[t]he requirement that a misdemeanor must have

occurred in the officer’s presence to justify a warrantless

arrest is not grounded in the Fourth Amendment’’); Street v.

Surdyka, 492 F.2d 368, 372 (1974) (rejecting a constitutional

challenge to a warrantless misdemeanor arrest and stating

that ‘‘[w]e do not think the fourth amendment should now be

interpreted to prohibit warrantless arrests for misdemeanors

committed outside an officer’s presence. . . . The fourth

amendment protects individuals from unfounded arrests by

requiring reasonable grounds to believe a crime has been

committed. The states are free to impose greater restrictions

on arrests, but their citizens do not thereby acquire a greater

federal right’’); see also Scott v. District of Columbia, 101

F.3d 748, 754 (D.C. Cir. 1996) (noting that several circuits

agree that “‘the Fourth Amendment does not incorporate the

common-law presence requirement for misdemeanor arrests,

and that no cause of action exists under sec. 1983 unless the

App. 27

arresting officer lacked probable cause to believe a crime was

committed,’ but declining to decide the issue).®

Therefore, given the weight of Supreme Court authority

on this issue, the overwhelming consensus of the circuits, and

our similar holding in Ricci, we reject Woods’ invitation to

constitutionalize the framing-era common law of mis-

demeanor arrests and to overturn any Illinois state or munici-

pal laws which abrogate it.

However, while the Fourth Amendment does not require

a warrant for a misdemeanor arrest like the one effected here,

it does require that all warrantless arrests be ‘*reasonable.”’

Payton, 445 U.S. at 585 (citations omitted). We have held

that the ‘‘reasonableness of an arrest depends on the

existence of two objective factors: First, did the arresting

officers have probable cause to believe that the defendant had

committed or was committing an offense. Second, was the

arresting officer authorized by state and or municipal law to

effect a custodial arrest for the particular offense.’’ Ricci,

116 F.3d at 290 (quoting United States v. Trigg, 878 F.2d

1037, 1041 (7th Cir. 1989)). Woods’ warrantless mis-

demeanor arrest was authorized by Illinois law, see 725 ILCS

5/107-2 (1998), so in order to survive summary judgment,

8. Indeed, most of these courts upheld the constitutionality

of the warrantless misdemeanor arrests at issue even

though the arrests violated the relevant state law which

had incorporated some variant of the common law **in the

presence’’” ule. Since Tlinois law authorizes

misdemeanor arrests regardless of whether the offense

occurred in the presence of the arresting officer, Woods’

claim of a Fourth Amendment violation seems even

weaker than the similar claims rejected by many of our

sister circuits.

App. 28

Woods needed to raise a genuine issue regarding whether the

officers had probable cause to arrest him. On the facts

presented, there can be no doubt that Woods failed to do so.

Probable cause has been defined as ‘‘facts and cir-

cumstances ’sufficient to warrant a prudent man in believing

that the [suspect] had committed or was committing an

offense.’’’ Gerstein, 420 U.S. at 111-12 (quoting Beck v.

Ohio, 379 U.S. 89, 91 (1964)); see United States v. Rucker,

138 F.3d 697, 700 (7th Cir. 1998). The rule of probable

cause is a ‘‘practical, nontechnical conception’’ that affords

the “‘best compromise’’ between the interests of individual

liberty and effective law enforcement. Illinois v. Gates, 4

U.S. 213, 231 (1983); Gerstein, 420 U.S. at 112 (citation

omitted). Contrary to what its name might seem to suggest,

probable cause ‘‘demands even less than 'probability,’’’

United States v. Moore, 215 F.3d 681, 685 (7th Cir. 2000)

(quoting United States v. Burrell, 963 F.2d 976, 986 (7th

Cir. 1992)); it ‘‘requires more than bare suspicion but need

not be based on evidence sufficient to support a conviction,

nor even a showing that the officer’s belief is more likely

true than false.’’ Id. at 686 (citation omitted).

Applying this standard, we have consistently held that

an identification or a report from a single, credible victim or

eyewitness can provide the basis for probable cause. See

Tangwall v. Stuckey, 135 F.3d 510, 520 (7th Cir. 1998);

Hebron, 18 F.3d at 422; Gramenos v. Jewel Cos., Inc., 797

F.2d 432, 439 (7th Cir. 1986) (holding that a police officer

had probable cause to arrest an alleged shoplifter based upon

the uncorroborated report of a single security guard, and stat-

ing that ‘‘[wJhen an officer has ’received information from

some person—normally the putative victim or eye witness—

who it seems reasonable to believe is telling the truth,’ he

has probable cause’’) (citation omitted). In this case, the evi-

dence showed that the arresting officers arrested Woods after

Flores made out a criminal complaint against him, claiming

that Woods had brandished a lead pipe and threatened to kill

App. 29

Flores. Woods has offered nothing to dispute the fact that

the complaint was made, nor does he offer anything to chal-

lenge either the accuracy or the credibility of Flores’ descrip-

tion of the incident. Woods argues that the complaint as

made by Flores, if true, establishes only that Woods had

committed a ‘‘verbal assault,"” which is not a crime under

Illinois law; thus, Woods argues that Flores’ complaint did

not give the arresting officers probable cause to believe that

Woods ‘‘had committed an offense.’’ However, as Woods

notes, a offender commits an assault under Illinois law when

he engages in ‘‘conduct which places another in reasonable

ion of receiving a battery’ 720 ILCS 5/12-1

Woods also asserts that there is no documentation show-

ing that the officers attempted to corroborate Flores’ com-

App. 30

717, 725 (7th Cir. 2000) (‘‘’[t]he inquiry is whether an

officer has reasonable grounds on which to act, not whether it

was reasonable to conduct further investigation.’’’) (citation

omitted). Therefore, even if the police had relied exclusively

on Flores’ complaint in making the arrest and had made no

effort to investigate or corroborate Flores’ version of the

events, they would have been justified in making the arrest

provided that a reasonable officer would have found Flores’

complaint to be reasonably credible.

In an effort to call the credibility of Flores’ complaint

into question, Woods notes that Flores made out the com-

plaint three days after the alleged assault occurred. He also

points to the case report, which, in reporting Flores’ descrip-

tion of the assault, states that Flores told the officers that he

left the altercation thinking that Woods was ‘‘overreacting.’’

As we have already noted, however, the case report submit-

ted by Woods indicated that Flores told the police that

Woods had renewed his threats against Flores through two of

Flores’ coworkers on the very day that Flores made out his

complaint. This amounts to an apparently credible explana-

tion for why Flores reported the offense when he did, and

Woods offers absolutely nothing either to rebut this explana-

tion or to undermine its credibility. Moreover, the bare fact

that Flores left the scene of the altercation thinking that

Woods was overreacting does not support any reason able

inference that Flores did not take Woods’ threats seriously,

nor does it in any way tend to diminish the credibility of

Flores’ account of the incident. Finally, even if these facts

did somehow diminish the credibility of the complaint that

Flores made to the police, they certainly would not render it

dubious enough to require the police to conduct a further

investigation before arresting Woods (that is, they would not

render his report incredible as a matter of law). We have

found probable cause to arrest based upon uncorroborated

citizen complaints which were far more questionable than

was Flores’ complaint. See Spiegel, 196 F.3d at 724-26

App. 31

(finding that the defendant police officer had probable cause

to arrest the plaintiff even though the victim had waited

nearly a month to make a report, and even though there were

inconsistencies in the victim’s report as well as evidence sug-

gesting that the victim’s charge against the plaintiff was

retaliatory); Gerald M. v. J. Conneely, 858 F.2d 378, 380-81

(7th Cir. 1988) (upholding district court’s grant of summary

judgment for police officer in a sec. 1983 case, reasoning that

the uncorroborated complaint of a ten-year-old child that his

bicycle had been stolen by two other children was sufficient

to provide the officer with probable cause to arrest the

accused children, even though the arresting officer knew of a

long-standing grudge between the victim’s family and the

family of the accused children). Thus, as Woods failed to

raise any material fact calling into question the officers’

claim that they had probable cause to arrest him, he was

unable to state a constitutional violation as required by sec.

1983, and the defendants were entitled to summary judgment.

CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

App. 32 .

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 99-4069

ALBERT WOODS,

Plaintiff-Appellant,

V.

CITTY OF CHICAGO AND

CHICAGO POLICE OFFICERS

MAKOWSKI and MALANIS

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois

No. 98 CV 7092—Charles R. Norgle Judge.

[December 8, 2000]

JUDGMENT — ORAL ARGUMENT

Honorable Joel M. Flaum, Chief Judge

Honorable William J. Bauer, Circuit Judge

Honorable Michael S. Kanne, 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. 33

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Plaintiff-Appetlant,

CrtTy OF CHICAGO AND

CHICAGO POLICE OFFICERS

MAKOWSKI and

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois

No. 98 CV 7092—Charles R. Norgle Judge.

[May 30, 2001]

ORDER

Honorable Joel M. Flaum, Chief Judge —

Honorable William J. Bauer, Circuit Judge

Honorable Michael S. Kanne, Circuit Judge

On consideration of the petition for rehearing filed in the

above-entitled cause by plaintiff-appellant, all of the judges

on the original panel have voted to deny. Therefore, the

petition for rehearing is hereby DENIED.

App. 34

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ALBERT Woops,

Plaintiff,

No. 98 CV 7092 v.

CITTY OF CHICAGO AND

CHICAGO POLICE OFFICERS

MAKOWSKI and MALANIS

Defendants

ORDER

CHARLES R NORGLE, SR.., District Judge: ~

Before the court is Defendants’ motion to dismiss, which

the court converted to a motion for summary judgment pur-

suant to Federal Rule of Civil Procedure 12(b)(6). For the

following reasons, the court grants the motion.

1. Background

- After the court dismissed Plaintiff Albert Woods

(‘‘Woods’’) original Complaint for failing to state a munici-

pal policy, Woods amended his Complaint. In his First

Amended Complaint, Woods alleges that ‘‘[o]n July 21,

1997, a citizen walked into a Chicago police station and

stated that on July 18, 1997 he had been verbally assaulted

by plaintiff.’’ (Am. Compl. par 5.) The Complaint further

alleges that ‘‘[t]he arresting officers did not have a warrant of

any type, did not have probable cause to believe that plaintiff

had committed an offense, and acted unreasonably in making

the warrantless arrest.’’ (Id. par. 6.) Additionally, Woods

claims that the officers acted pursuant to a policy of the Chi-

cago Police Department authorizing ‘‘officers to make an

App. 35

arrest without a warrant for any misdemeanor, even when the

offense does not involve a breach of the peace and had not

been committed in the officer’s presence.’” (Am. Compl.

par. 7.) Specifically, the municipal policy alleged is: ‘*The

members of the Police Department shall have power... to

arrest or cause to be arrested, with or without process, all

persons who break the peace, or are found violating any

municipal ordinance or any criminal law of the state...”

(Id. par. 7) (citing Municipal Code of the City of Chicago

§5-84-230.)

Defendants moved to dismiss, presenting four argu-

ments: (1) it was reasonable under the Fourth Amendment to

arrest Woods based on the allegations of a citizen complaint;

(2) the allegations of the citizen complaint established prob-

able cause; (3) defendant police officers are entitled to

qualified immunity for their actions; and (4) Woods fails to

establish a causal connection between the alleged municipal

policy and Woods’ claimed injury. (Mot. at 5.)

Woods responded, raising, basically, two arguments.

First, he states that ‘‘‘verbal assault’ is not an offense under

Illinois law’’ (Resp. at 3) and, ‘‘[njowhere in the complaint

does plaintiff allege that any police officer had been informed

that plaintiff had engaged in conduct which placed another in

reasonable apprehension of receiving a battery.” (Resp. at

5.) Thus, Woods concludes, ‘‘{u}nder clearly established Illi-

nois law, a citizen’s report of a ‘verbal assault’ does not

establish probable cause to make an arrest.”” (Id.) Second,

Woods argues that the municipal ordinance is unconstitu-

tional because it ‘“‘purports to abrogate the common law rule

that prohibited warrantless arrest in non-felony cases unless

the offense had been committed in the officer’s presence and

involved a breach of the peace.’’ (Resp. at 1.) Apparently,

Woods is attempting to place himself in the niche noticed by

the Seventh Circuit in Gramenos'v. Jewel Cos., Inc., 797

F.2d 432, 441-42 (7th Cir. 1986) (stating that plaintiff “‘does

not seek relief against the operation of the Illinois statute

————————

App. 36

authorizing misdemeanor arrests on probable cause) and Ricci

v. Arlington Hts., Ill., 116 F.3d 288, 290 (7th Cir. 1997) (not-

ing that the arrestee in Gramends did not challenge the con-

Stitutionality of the Illinois statute). The court notes that

Woods’ attorney is the same attorney who represented the

plaintiff in Ricci.

Woods argues that his Complaint alleges that the

officers had no probable cause to arrest him nor did they act

reasonably in arresting him based on a citizen’s complaint of

a *’verbal assault.‘* Indeed, as written, Woods’ Complaint

would survive a motion to dismiss, as there undoubtedly

exists some set of factual circumstances in which a warrant-

less arrest based on a citizen’s complaint of verbal assault

would lack probable cause (such as the arresting officers

knowing that the complaining citizen was lying about the

assault). Moriarty v. Lewis Funeral Dirs. 150 F .3d 773,

777(7th Cir. 1998) (stating that a complaint may not be

dismissed unless it is impossible to prevail under any set of

facts that could be proved consistent with the allegations);

Albiero v. City of Kankankee, 122 F.3d 417, 419 (7th Cir.

1997). However, when the court examined Defendants’

fully-briefed Motion to Dismiss the Amended Complaint, it

re-examined several exhibits that Defendants attached to their

February 5, 1999 Reply to Plaintiff's Response to Defen-

dants’ January 29, 1999 Motion to Dismiss. One of those

exhibits, the misdemeanor complaint, states, in pertinent part:

Gabrial Flores complainant, now appears before the Cir-

cuit Court of Cook County and states that Albert Woods

8830 S Michigan has, on or about 18 July 97 at Cook

County Ill committed the offense of Aggravated Assault in

that he/she while using a deadly weapon, length of lead

pipe, did without lawful authority produce weapon and

came at victim yelling I’m going to kill you, which placed

Gabriel Flores in reasonable apprehension of receiving a

battery. In violation of 720 Illinois Compiled Statute

5/12-2

App. 37

(Defendants’ Feb. 5, 1999 Reply [doc.no. 15], ex. C.)

Flores’ signature indicates that he signed the misdemeanor

complaint under oath and after he had been sworn. The mis-

demeanor complaint was subscribed and sworn to before PO

G Makowski, who also signed the document.

Defendants also attached the Arrest Report to their origi-

nal Reply. (See Defendants’ Feb. 5, 1999 Reply, Ex. A.)

The arrest report describes the aggravated assault the follow-

ing way:

This is an on view arrest by 012 district tactical beat

1269C. The above subject arrested for Aggravated assault

On 18 July 97 victim went to truck leasing company

where offender is employed to gas up a leased truck. At

that time offender got into a verbal argument with victim

and produced a lead pipe and told victim I’m going to kiil

you. When offender started to approach victim victim got

‘nto hs truck. and fled the scene; RIO’s interviewed vic-

tim who signed complainants, RIO’s went to offenders

place of emplyment, placed subject under arrest and

advised subject of his rights which he stated he under-

stood.

(Id.) Both arresting officers signed the Arrest Report under

the line "I do solemnly, sincerely, and truly declare and

affirm that the facts stated herein are accurate to the best of

my knowledge.‘‘ (Id.) Another officer signed the line

approving probable cause. (See id.)

On February 4, 1999, Defendants’ counsel sent a letter

to Woods’ attorney, referring to the description of the aggra-

vated assault in the Misdemeanor Complaint. (Defendants’

Feb. 5, 1999 Reply, Ex. C.) Although the court had previ-

ously granted Woods’ motion to strike these exhibits (see

Feb. 23, 1999 Order), it reconsidered this position. Upon

re-examination of the documents, the court found no reason

to proceed with lengthy discovery if the officers had indeed

arrested Woods believing that he approached Flores with a

App. 38

lead. pipe while threatening to kill him. Accordingly, the

court converted Plaintiff's motion to dismiss into a motion

for summary judgment pursuant to Federal Rule of Civil Pro-

cedure 12(b)(6) and ordered Plaintiff to respond. (See July

29, 1999 Order.) Woods responded, Defendants replied, and

Woods filed a surreply.

In his Response to the court’s Order, Woods brings up

several issues. Regarding the procedural aspect of the case,

Woods argues that: (1) the court correctly barred the exhibits

from consideration when it considered Defendants’ first

motion to dismiss; (2) the court inappropriately converted the

motion to dismiss to one of summary judgment; (3) the

court’s two ’’factual findings‘‘ in its July 29, 1999 Order are

incorrect; (4) Flores’ admission that Woods ’’over reacted‘:

demonstrates that the officers should not have relied on

Flores’ account when arresting Woods; and (5) the exhibits

are unauthenticated. Woods also argues that the court should

deny the motion on its merits because ‘verbal assault’ does

not establish probable cause to make an arrest, and the muni-

cipal ordinance under which the officers acted is unconstitu-

tional.

ll. Discussion

Summary judgment is permissible when ’’there is no

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

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

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

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

solidated High School District No. 230, 991 F.2d 1316, 1320

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

dence to show a genuine triable issue of material fact. See

Murphy v. ITT Technical Services, Inc., 176 F.3d 934, 936

(7th Cir. 1999). In deciding a motion for summary judg-

ment, the court can only consider evidence that would be

admissible at trial under the Federal Rules of Evidence. See

Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562

(7th Cir. 1996). The court views the record and all

App. 39

reasonable inferences drawn therefrom in the light most

favorable to the non-moving party. Fed. R. Civ. P. 56(c), see

also, Perdomo v. Browner, 67 F.3d 140, 144(7th Cir. 1995).

means that summary judgment is not appropriate if the court

must make °’’a choice of inferences.‘‘ United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962), see also, First Nat'l

Bank of Arizona v. Cities Service Co., 391 U.S. 253, 280

(1968); Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th

Cir. 1996). The choice between reasonable inferences from

facts is a jury function. See Anderson v. Liberty Lobby. Inc.,

477 U.S. 242, 255 (1986). With these principles in mind, the

court turns to the case at bar.

A. Prior Ruling Excluding Exhibits

Throughout his Response, Woods argues that the court

should vacate its July 29, 1999 Order. That Order alerted the

parties that the court would consider the exhibits it had previ-

ously stricken. Woods argues that the court correctly

excluded the arrest report and similar materials from its con-

sideration of Defendants’ first motion to dismiss, and the

court should do so here. (See, e.g., Resp. at 2, 4.) After re-

examining the exhibits, however, the court decided that

addressing their contents sooner rather than later would be a

more efficient use of the parties’ and the court’s resources.

Woods offers nothing to convince the court otherwise. Thus,

Plaintiff's motion to vacate the court’s July 29, 1999 Order is

denied.

B. Court’s Conversion to Motion for Summary Judgment

Next, Woods argues that the court inappropriately con-

verted the motion to dismiss to a motion for summary judg-

ment. Woods contends that in order to properly respond to

the motion for summary judgment, he would have to depose

the officers who signed the arrest report; the citizen who filed

the complaint with the police; and ’’the assistant corporation

counsels who were involved in the settlement of Hansen v.

City of Chicago, Case No. 98 C 105 (a case attached as an

exhibit to Defendants’ first Reply). The court disagrees.

App. 40

Federal Rule of Civil Procedure 12(b)(6) allows a court to

corisider matters outside the motion to dismiss pleadings and

convert the motion to dismiss to one of summary judgment.

Woods offers no contrary authority.

Woods also offers no basis whatsoever for seeking leave

to depose certain witnesses. Woods offers absolutely nothing

to undermine the trustworthiness of the exhibits. Taken as a

whole, the Misdemeanor Complaint and Arrest Report, both

of which were signed under oath by Flores and the defendant

officers, convince the court that the officers indeed arrested

Woods on the belief that he committed an aggravated assault.

Significantly, however, Woods never argues that the informa-

tion contained in these reports is incorrect. Woods offers not

even a scintilla of evidence that any of the documents were

fraudulent, signed by mistake, or even inaccurate. And

Woods never denies that he threatened to kill Flores while

stepping toward him with a lead pipe in hand. Without any

basis whatsoever, much less a good faith basis, the court

finds conducting depositions would be a waste of time.

Accordingly, the court denies Woods’ motion for leave to

depose certain witnesses and finds y that it properly con-

verted the motion to dismiss into a motion for summary

judgment.

C. The Court’s “Factual Findings”

Next, Plaintiff takes issue with two ‘‘improvidently’’

made ‘‘factual findings’’ in the court’s July 29, 1999 Order.

First, Plaintiff asserts that the court made a finding that,

*‘Wood’s characterization ofthe altercation as a ‘verbal

assault’ is grossly misleading’’ (July 29, 1999 Order) without

“‘furnishing plaintiff with either notice or an opportunity to

be heard.’’ (Resp. at 4.) Plaintiff also objects to the ‘‘factual

finding”’ that ‘Woods .. . ignores facts and logic in a bla-

tent attempt to survive the motion to dismiss.’’ (July 29,

1999 Order.) These statements, however, are not findings of

fact; the court based no part of its decision on these impres-

sions. Furthermore, Woods’ Response reinforces the above

App. 41

points. Plaintiffs argument that ‘‘the Court made its finding

of ‘grossly misleading’ without furnishing plaintiff with

either notice or opportunity to be heard’’ (Resp. at 4) leads

the court to believe that Plaintiff fails to understand the pur-

pose of the July 27, 1999 Order and of his Response.

D. Flores’ Statement that Woods Overreacted

Woods next argues that because Flores stated that ‘‘after

plaintiff had made this threat, Woods next argues that

because Flores stated that ’’after plaintiff had made this

threat, [complaining citizen] left thinking offender over react-

ing.‘‘ (Resp. at 7) (citing General Offense Case Report, July

21, 1997, Resp., Ex. A), the officers had no probable cause to

arrest him. The court finds this argument meritless, as the

court agrees that brandishing a lead pipe and threatening to

kill. someone at a gas pump is, most likely, an overreaction.

E. Exhibits are Unauthenticated

Woods also states that ’’{nor should plaintiff be required

to accept at face value statements made in a police report

that acomplaint had been personally signed. Testimony by

police officers in other litigation indicates that a common

practice by Chicago police officers is to sign complaints for

citizens.‘ (Resp. at 7.) Woods contends that Defendants

haye failed to lay a proper foundation for the exhibits, and

thus they are insufficient to support a motion for summary

judgment. See Fed. R. Civ. P. 56 (’’The judgment shall be

rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no issue as to any

material fact. . . However, the court need not go further to

determine that the information in the Misdemeanor Com-

plaint and the Arrest Report is trustworthy. The court finds

that these reports, sworn to under oath by the officers and

Flores, are credible; they are business records kept by the

police department. (See Fed. R. Evid. 803(6)). Additionally,

Woods attaches to his Response a Chicago Police Case

Report. (See Resp., Ex. 1.) The Case Report, that Woods

App. 42

points to for its accuracy (see Resp. at 7), states: ‘‘Offender

became enraged. Grabbed lead pipe-told victim to get out of

truck and said ‘if I get fired over this, I’m going to kill

you.’”’ (See Resp., Ex. 1.) Thus, Woods admits the accuracy

of the Misdemeanor Complaint and the Arrest Report. And

his bare that statement police officers sometimes sign com-

plaints for citizens (see Resp. at 7) is of no value whatsoever.

Moreover, the court examines these reports not for their

truth, but for what the officers knew when they arrested

Woods. Thus, even if Flores lied to the officers (as Woods

does not assert), it has no bearing on what the officers

believed when they arrested Woods. ‘‘[P]olice officers have

probable cause to make a warrantless arrest when they have

trustworthy information sufficient to warrant a prudent person

in believing that the suspect had committed or was commit-

ting an offense.’’ United States v. Rucker, 138 F.3d 697, 700

(7th Cir. 1998). ‘*This flexible, commonsense approach does

not require that the officer’s belief be correct or even more

likely true than false, so long as it is reasonable.’’ Qian v.

Kautz, 168 F.3d 949, 953 (7th Cir. 1999).

The reports’ credible information shows, and Woods

presents no evidence to the contrary, that the officers arrested

him believing that he threatened to kill Flores with a lead

pipe. The court sees no reason to prolong this case. The

court gave Woods the opportunity to show why it should not

accept the information in the Misdemeanor Complaint and

the Arrest Report as credible. Woods utterly failed to do so

and even corroborated the arrest information by providing the

Case Report. Despite Woods’ failure to offer any reason

why the court should not accept the reports’ as true, he asks

the court to further authenticate the trustworthy reports. The

court finds no reason to do so.

App. 43

F. Reasonable Arrest

Finding nothing in Woods’ Response to undermine the

validity of the arrest report, the court addresses whether the

arrest comports with the Fourth Amendment, that is, whether

: the arrest was reasonable. The court finds in the affirmative.

As the Seventh Circuit noted in Ricci, the reasonableness of

an arrest depends on two factors:

First, did the arresting officer have probable cause to

believe that the defendant had committed or was

committing an offense. Second, was the arresting officer

authorized by state and or municipal law to effect a

custodial arrest for the particular offense. If these two

factors are present, we believe that an arrest is necessarily

reasonable under the fourth amendment.

116 F.3d at 290.

The court first finds that the officers had probable cause

to arrest Woods because Flores reported to the officers that

Woods threatened to kill him as he moved toward him with a

lead pipe (and Woods offers nothing to dispute these facts).

See Gramenos, 797 at 439 (affirming finding of probable

cause based on sole eyewitness account that plaintiff

shoplifted goods). Likewise, ‘‘[i]f policemen arrest a person

on the basis of a private citizen’s complaint that if true

would justify the arrest, and they reasonably believe it is

true, they cannot be held liable for a violation of the

Constitution merely because it later turns out that the

complaint was unfounded.’’ McKinney v. George, 726 F.2d

1183, 1187 (7th Cir. 1984) (citing Brinegar v. Uniied States,

338 U.S. 160, 176, (1949); of. Butler v. Goldblatt Bros., Inc.,

589 F.2d 323, 325 (7th Cir. 1978)); Rucker, 138 F.3d at 700;

Oian, 168 F.3d at 953. Thus, the Misdemeanor Complaint,

Arrest Report, and Case Report establish that the officers had

probable cause to arrest Woods.

Defendants also satisfy the second prong of a reasonable

arrest, the authorization prong. ‘‘Illinois law authorizes a

peace officer to arrest a person when the officer ‘has

ie

App. 44

reasonable grounds to believe that the person is committing

or has committed an offense.’’’ Ricci, 116 F.3d at 290 (quot-

ing 725 ILCS 5/107-2(1)(c)). Importantly, [t]he Illinois law

does not differentiate between offenses punishable by fine

only and offenses punishable by a possible (or certain) term

of imprisonment. Ricci, 116 F.3d at 290. Significantly,

Woods does not argue that this Illinois law is unconstitu-

tional. Woods argues that his actions, threatening to kill

Flores while approaching him with a lead pipe, constitute a

‘‘verbal assault’’ which is not an offense under Illinois law.

(See Mem. in Opp. at 2-5; Resp. at 8.) However, after given

the chance to respond to the reports’ description of the aggra-

vated assault, Woods fails to convince the court that the

altercation does not fall under the definition of ‘‘offense’’

under Illinois law. Woods’ assertion that ‘‘{uJnder Illinois

law, a ‘verbal assault’ is not a criminal offense’’ is simply

unpersuasive. In fact, Woods’ statement that there must be

‘‘conduct which places another in reasonable apprehension of

receiving a battery’’ (Resp. at 8) is well taken; the court

finds ample undisputed evidence that Flores was placed in

reasonable apprehension of receiving a battery and that the

officers believed as much. Thus, as the court held in Ricci,

the officers were authorized to arrest Woods pursuant to Illi-

nois law. Having satisfied both prongs of the reasonableness

test, the court finds Woods’ arrest to be reasonable and there-

fore constitutionally sound. Woods’ argument that the Muni-

cipal Code of the City of Chicago 2-84-230 is unconstitu-

tional need not be addressed; the officers were authorized to

act under Illinois law, 725 ILCS 5/107-2(1)(c), and Woods

does not contest the Illinois statute’s validity.

G. Common Law Violation

Next, Woods argues that under the common law, his

arrest was unlawful. Woods argues that ‘‘under the common

law, an officer could make a custodial arrest for a mis-

demeanor only if the crime was committed in the officer’s

presence.”” Ricci, 116 F.3d at 290 (citing Gramenos, 797

F.2d at 441). However, ‘‘a suit under §1983 must show a

App. 45

violation of the Constitution or laws of the United States, not

just a violation of state law.’’ Gramenos, 797 F.2d at 434.

‘““[AJn alleged violation of a state statute does not give rise

to a corresponding §1983 violation, unless the right encom-

passed in the state statute is guaranteed under the United

States Constitution.’’’ Id. (quoting Moore v. Marketplace

Restaurant. Inc., 754 F.2d 1336, 1349 (7th Cir. 1985)).

Although Gramenos is silent about whether a suit under

§1983 can survive if it demonstrates a violation of the com-

mon, as opposed to state, law, the court finds that, as in

Gramenos, a plaintiff must allege a violation of a constitu-

tional right in order to support a §1983 claim. Simply put, a

claim of a violation of common law does not equate to a

claim of a Constitutional violation. Accordingly, having

found Woods’ arrest constitutional, the court need not

address whether the arrest violated the common law. But it

will.

The court finds Ricci informative on this point. See 116

F.3d 288. In that case, the plaintiff sued the Village of

Arlington Heights, Illinois for violating that village’s fine-

only ordinance that precluded operation of a business without

a license. See id. at 289. The plaintiff argued that the com-

mon law allowed arrest for a misdemeanor committed in an

Officer’s presence only if that crime constituted a breach of

the peace. See Ricci, 116 F.3d at 291. The Ricci court, how-

ever, declined to utilize the plaintiffs proffered bright-line

test; stating, ‘“‘the common law mule has been relaxed to

include arrests for offenses other than breaches of the

peace.”’ Id. (citing Fisher v. Wash. Metro. Area Transit

Auth., 690 F.2d. 1133 (4th Cir. 1982) (refusing to find uncon-

stitutional an arrest for violation of a fine-only ordinance

prohibiting eating on trains); Higbee v. City of San Diego,

911 F.2d 377 (9th Cir. 1990) (finding constitutionally permis-

sible the detention for processing of misdemeanor arrestees

who were operating a ‘“‘peep show’’ in viol ttion of local

ordinance, even though officers could have issued field

App. 46

release citations under city policy)). The court then found

that:

the rationale for warrantless arrests for breaches of the

peace was to promptly suppress breaches of the peace.

Here the arrest served a similar purpose. The arrest

prevented Ricci from continuing to violate a law he had

been admittedly violating for some time.

Ricci, 116 F.3d at 291. The court concluded that the arrest

was reasonable under the Fourth Amendment and that the

officers were entitled to arrest a violator of the municipal

ordinance. See id.

Likewise, the arrest in the case at bar, satisfies the

relaxed common law rule. See Ricci, 116 F.3d at 291. Tak-

ing into custody a person who had threatened to kill someone

while brandishing a lead pipe serves a purpose similar to

promptly suppressing breaches of the peace and preventing a

business owner from continuing to violate a law. See id.

Thus, Woods’ argument that his arrest violated the common

law fails.

Having found that Woods fails to establish a constitu-

tional violation, the court declines to address the arguments

that defendant police officers are entitled to qualified immun-

ity and that Woods fails to establish a causal connection

between the alleged municipal policy and his claimed injury.

ill. Conclusion

For the reasons stated above, the court grants Defen-

dants’ motion.

IT IS SO ORDERED.

ENTER:

/s/ Charles Ronald Norgle, Sr.

United States District Judge

Dated: November 4, 1999

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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