Petition for Writ of Certiorari — Woods v. City of Chicago
Supreme Court brief2001
Ask Donna
What actually matters in this document.
Text
(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,
2 eee 6
Coupey v. Henley, 2 Esp. 540,
Bg Mee, SEB OP, ETB) cecececresecsecnsssnsscrceresscssccsenatnce 3
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,
IEE IT TIIIIIIED - sx scsncishdincsdodcteensbieicasublesatitliebiionssesinesinuaaies 4
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,
en a IIIT ia seiincneisibsctiDicceieninaiesbnisdbsebiecsiicaadaiisatntioade 7
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,
eg Ee 9
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,
WAMHDOMNE =. -
Tomlin v. State, 869 P.2d 334 (1994) cocccccccccccecceceeccccc... 9
United States v. Viale, 312 F.2d 595 (2d Cir. 1963) ........ 4
(OREO on a ee 5
OO ii a ea 5
06 UR NE i os as ca 5
Wh RISA OUR ahs ee it 5
MUA oe 5
MUI GOOD foci eee 5
SAG UN si 5
NCE Oa ci 5
CME MING aco on ee Pe 5
5G CR: Wii es tt ae ee 5
WGA OU ee 5
MUNG UUM ce 5
SOS BAS DI ccicitsicnc cue ee 5
WUBI IR ig ok ee i es 5
GORE CU cs ai 5
MG CRE: ONG a tS es 5
UBC, OU 8 oon 2 5
CUAL OM 5
16 U.S.C. $959 cecccccsesne eS URE Ts SIRS ROE 5
WO DBI COTE cincctisnntinihitianihige ie ek en Sea 5
- iii -
OBC. CI iii renters Ei icles
Se I oo sssseantsinbssesbbinidselasibdisdcesntobaianess
SO ii sinensppniidnbeictalehbailaidtainicecat Sindh
Ne RR TR FOES ae se Ber etre eo)
SNE ONE iii ici cinckiieiniilienceeamanen
US IN oii iiiicisteatinn tition
Oh I I is ccicaleceslaulabeiniiebeasdicniabitbadbions
RL Vue ERMA R SURE SAAPN Gs REECE Tee Ten
SEO BU osc csnsnininsnssnaliilichictanltibiaiadbiatdain
TRU ON oi idee
I . sissielniinsieaiotebntamiaigldaiasal
DS asics i cccinici intiascaceeniattalentiladanliaa
pt | Ream aTER IST SED aby BINT Loe Syste ECE rea
OE ioivseicsessisicicrtseentnnoidictdamehuanp aia :
REE TI sink: ssriintrsissnessnanobiccueeasmeabiaciaclag att
LE se: | Seema ONeANe Tone aN Tense eee
OTE NG iis igsescckskeiehinlniciicanilitaciclanicttbdccil
Pn Et ade..." Sessa Lame SRC Te MO TRE Oe ROU MEIER
BOO OP 5 ist 6 ai cea clan eneeicted
SE ON iia ie reliance
OO GN iii iiiicictesclatiieeibintielannccasdet
Conn. General Statute §54-1f(a) ..............sccccsssssssessssesssssseeeees
11 Del.Code Ann. $1904 (1997) .0.......cccsscccssssssssrsessrsessseeees
Ga.Code.Annot. §$17-4-20 (1997) ........ccsssssscsssscssssseressssoses
-iv-
EO NG SONU: sasssscsiinenineciticiinllita aD 7
720 TLCS (Ulimois) S/12-1 ..seccseesscsssesssssensessevsensesoeeneese. l
720 ILCS (Illinois) 5/5-B-3 o.oo. ecccccssssssseeee-.. i 8
ELOOAME: COE IEE cstciccccecneniscinmnile sor 7
Ind.Code. Ann. tS EY en oN 8
Hind.Code.Asmm. §3S-4S-20 nssooecsecsossscsssssesesessosestnssoeeess... 8
Ind.Code. Amn. §35-46-1-15.1 0 ...ccccocsscsssssssssssesseseeeeeooece... 8
Hind.Code.Amm. $35-47-2-1 cceoecsscsscsscsssseeeesssssseeeeesoeeees.,. 8
Ind .Code.Amn. §35-47-2-22 ......ccscscssssrsssssssssseseseseeoseeses. 8
OURAN GORING scticinccctcsisesecteninitsdibgh ties Bore 8
Hind.Code.Amn. §9-26-1-1(1) .ece.ccccsscsscsxcesessssseseeeeseseoeees.,. 8
Hind.Code.Amm. §9-26-1-1(2) aceoecssssscssscseceeesrrsseeseeeseseecee,. 8
EDR GEG cestctceracnninninnasibin tik ie 8
EAR: GOES ccstnirstssvinisinsinnindb abies 8
ORM: GOI: crcesimrinisinniiiainniitig tibial ema a 8
Koam.StatAmm. §22-2401 ...ecoosccsscssecsssersessesesesenseseooeesesss... 8
Mass.Ann.Laws. ch. 90, §21 + 6
Md.Ann.Code of 1957, Art. 27, §594B . 6
Mont. Code Anno. §46-6-311 (1997) . at
N.C. Gen. Stat. §15A-401 (1997) . o
N.D.C.C. §29-06-15 ... . 10
N.H. Rev. Stat. Ann. §594:10 (1996) . . 6
N.Y. Crim. Pro. Law §140.10 (McKinney 1997) 5
Neb.Rev.Stat. §29-404.02 (1997) . 9
Nev.Rev.Stat. §171.124 (1997) .. wae 9
SOC UO UIs RING ccntcsseicstinisatznstncsscnmsestetnnincesieees
I, SII ITED coin nseetnpastpnansntuanetansennasnsnitieanets
ee a: ID iiteiiicniinhitetleaceihtinpicaistnlnditnseiciibimnigubiiasi
FeRAM, RAIS BEB Pe CROP cccsctetcccienccscceccssesisccssnsee
S.C. Code Ann. $17-13-30 (1997) ........cccccccsecsesseesenees
SEU SAD FI, SER UMEIND cccapictntsvenssennsensesnaccensioncnene
TAME, RU © vaicsctsitadetienssactcccccencticccestestencess
Wa ee, ae I CLIO ED corernscrnsneccenstgnescsasannssneenece
We, PRED cccthcddssidittncnsedtisncttsectivcttznnnbins
Wyo.Stat. §7-2-102 (Supp. 1994) .......ccccccccsecseeseesenee
McCarthy, Warrantless Arrests in Pennslyvania,
FS Soe. BED CIDE) ciqcsscsectniscnsntctcssccsccecnstcesce
Wilgus, Arrest Without Warrant,
BE OX | TT
comnaeee 10
es
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.