Baker v. Officer John Fermon

Filing 41

ORDER & OPINION entered by Judge Joe Billy McDade on 6/26/2018. For the reasons stated above, Defendants' Motion for Summary Judgment 36 is GRANTED. CASE TERMINATED. See full written Order.(VH, ilcd)

E-FILED

Tuesday, 26 June, 2018 03:39:42 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION

SALIH BAKER,
Plaintiff,
v.
OFFICER JOHN FERMON and THE
CITY OF BLOOMINGTON,
Defendants.

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Case No. 16-cv-1358

ORDER & OPINION
This matter is before the Court on the Defendants’ Motion for Summary
Judgment on all four counts of Plaintiff’s First Amended Complaint. (Doc. 36). The
matter has been fully briefed and is ready for disposition. For the reasons stated
below, the Motion for Summary Judgment is GRANTED.
BACKGROUND 1
On September 27, 2014, at approximately 2:43 A.M., Bloomington Police
Officer John Fermon observed a gray vehicle stop over an intersection’s crosswalk.
After following the vehicle, Officer Fermon saw it cross over the median lines several
times. Accordingly, he activated his emergency lights and initiated a traffic stop.
Officer Fermon approached the vehicle and made contact with the driver,
Bathsheba Brooks. Rodney Pillows, Brooks’ boyfriend, was the front passenger and

Unless otherwise noted, the facts in the following section are taken from the
undisputed facts as determined by the Court from the parties’ summary judgment
briefing. (See Docs. 36 and 38). Facts that are immaterial to the disposition of the
Motion for Summary Judgment are excluded.

1

Plaintiff Salih Baker was the rear passenger sitting behind Brooks. About three
weeks prior to this incident, Officer Fermon arrested Plaintiff for possessing cocaine
and resisting arrest. (See Doc. 36 at 2-3; Doc. 38 at 7). Officer Fermon took their
identification to his vehicle and radioed for K9 Officer Steve Statz to assist. Officer
Fermon intended to have Officer Statz and his canine conduct a “free air sniff” of the
vehicle. Since the free air sniff required the occupants of the vehicle to exit, Officer
Fermon approached the vehicle a second time to explain the K9 procedure and order
the occupants out of the vehicle.
As Officer Fermon explained the K9 procedure from the driver side of the
vehicle, Officer Fermon noticed an open bottle of Patron tequila on the floor board in
front of Plaintiff. Officer Fermon then noticed that Plaintiff seemed to be clenching
something in his right hand. 2 Plaintiff complied with Officer Fermon’s request that
he exit the vehicle. As he exited, Officer Fermon attempted to grab his right hand to
see what, if anything, he was holding. Before he could do so, however, Plaintiff raised
his right hand toward his mouth. 3 At this point, Officer Statz informed Officer
Fermon that he thought Plaintiff ate something, although he admits in his deposition
he could not identify what, if anything, Plaintiff swallowed.
After handcuffing Plaintiff, the officers thoroughly searched Plaintiff’s person

The parties dispute this fact. Officer Fermon asserts that he saw Plaintiff clenching
a small baggie containing a white, powdery substance which he believed—based on
his experience—to be crack cocaine. Plaintiff asserts that he did not have any
narcotics on his person at that time.
3 The parties dispute the characterization of this fact. Plaintiff asserts that he simply
wiped his face. Officer Fermon asserts that, based on information relayed by Officer
Statz, Plaintiff put the suspicious baggie into his mouth and swallowed it. There is
no dispute that Plaintiff moved his hand toward his mouth.
2

2

in an attempt to find the baggie in case Plaintiff did not, in fact, eat it. After finding
no evidence of drugs, the officers attempted to remove any substances from Plaintiff’s
mouth and had Plaintiff spit on the ground, ultimately revealing no drugs. After a
search of the vehicle and the ground near where Plaintiff allegedly ate the baggie,
the officers found no evidence of drugs, only the open bottle of tequila. Officer Fermon
therefore believed that Plaintiff had already swallowed the baggie containing what
he believed to be crack cocaine. Officer Fermon then placed Plaintiff in the front seat
of his squad car and issued him a citation for illegal transportation of alcohol as a
passenger.
Officer Fermon brought Plaintiff to the McLean County Jail where jail officials
directed him to take Plaintiff to the hospital to address any medical concerns
associated with swallowing crack cocaine. They arrived at St. Joseph Medical Center
at approximately 3:42 A.M. The attending doctor, Dr. Darrell Looney, did not notice
any symptoms of cocaine ingestion after observation and physical examinations.
Nevertheless, the doctor and nurses provided Plaintiff with charcoal and sorbitol;
charcoal neutralizes any toxic substances, and sorbitol flushes the digestive system
to allow foreign substances or objects to pass through. Plaintiff did not object to taking
charcoal and sorbitol because he wanted to show his innocence. Plaintiff also did not
object to doctors and nurses taking an x-ray to look for the baggie in his body. After
about two hours of waiting, Plaintiff did not pass any baggie of cocaine nor did his x-

3

ray show a baggie’s presence in his body. 4 At approximately 7:30 A.M., Plaintiff
received clearance for discharge and Officer Fermon brought him back to the McLean
County Jail.
After bringing Plaintiff back to the jail, Officer Fermon wrote a probable cause
statement asserting the existence of probable cause that Plaintiff obstructed justice.
At the jail, officials continued to observe Plaintiff for any foreign substances that may
pass as a result of taking sorbitol. Plaintiff remained in an observation cell for about
one week. Neither drugs nor a baggie were ever recovered.
Later on September 27, 2014, an Assistant State’s Attorney, Ashley
Scarborough, submitted a verified statement of arrest to a judge. That same day, a
judge signed the statement of arrest, thus concluding that Officer Fermon had
probable cause to arrest Plaintiff for obstructing justice and to detain him in lieu of
bond. On September 28, one day later, Officer Fermon wrote a more detailed police
report of the incident. 5 After Officer Fermon submitted his reports to the State’s
Attorney’s Office, he had no further involvement with the criminal proceedings
relevant to Plaintiff’s arrest on September 27, 2014.
A grand jury convened on October 8, 2014 to consider whether to indict
Plaintiff for obstruction of justice. Officer Fermon did not testify; instead, Sergeant
Randall Wikoff testified based on knowledge he obtained from reading reports on this

Dr. Looney testified that, depending on the person taking the sorbitol, it may take
minutes, hours, days, or a week to pass a foreign substance in the digestive system.
(Doc. 38-2 at 26-27).
5 Plaintiff asserts that Officer Fermon misled the prosecutor and Grand Jury by
making misstatements in his reports. Officer Fermon and the City of Bloomington
dispute this assertion.
4

4

matter. Later that same day, the grand jury returned a bill of indictment charging
Plaintiff with obstruction of justice.
On October 14, 2016, Assistant State’s Attorney, Patrick Sheehan, entered an
order of nolle prosequi regarding Plaintiff’s obstruction of justice charge, thus
terminating its prosecution. 6
On March 20, 2017, Plaintiff filed his First Amended Complaint, in which he
alleges that Officer Fermon is liable under 42 U.S.C. § 1983 because he violated
Plaintiff’s Fourth Amendment rights. (Doc. 22). In Count I, Plaintiff alleges
unreasonable seizure. (Doc. 22 at 4). In Count II, Plaintiff alleges unreasonable
search. (Doc. 22 at 5). And in Count III, Plaintiff alleges unreasonable detention. (Doc.
22 at 6). Plaintiff also states a supplemental state law claim of malicious prosecution
against Officer Fermon and the City of Bloomington (Count IV). (Doc. 22 at 6-7).
On May 1, 2018, Defendants filed a Motion for Summary Judgment (Doc. 36)
seeking summary judgment on all counts of Plaintiff’s First Amended Complaint.
(Doc. 36 at 1). Defendants argue that Plaintiff cannot show that Officer Fermon
unreasonably seized, searched, and detained Plaintiff on September 27, 2014, as is
required to violate the Fourth Amendment. (Id.). Defendants further contend that,

The parties dispute the effect of this nolle prosequi order. On September 13, 2016,
Plaintiff and his counsel agreed with Mr. Sheehan to keep Plaintiff’s obstruction of
justice charge active notwithstanding the plea deal arranged for two other, unrelated
charges. According to the plea hearing transcript from September 13, 2016, (Doc. 382 at 101-02) and the signed plea deal from August 11, 2016, (Doc. 38-2 at 105). The
obstruction of justice charge was not part of that initial nolle prosequi. However, the
Affidavit of Patrick Sheehan affirms that the obstruction of justice charge was later
terminated in consideration for the plea deal arranged on August 11, 2016, as shown
in the order of nolle prosequi from October 14, 2016. (Doc. 40-1). The parties dispute
whether the nolle prosequi indicates Plaintiff’s innocence.
6

5

even if Plaintiff could establish constitutional violations, qualified immunity bars
Plaintiff’s claims. (Id.). Defendants lastly argue that Plaintiff cannot succeed in
establishing the elements of his state law malicious prosecution claim. (Doc. 36 at 12).
Plaintiff timely filed his Response in Opposition to Defendants’ Motion for
Summary Judgment on May 29, 2018. (Doc. 38). Plaintiff argues that, viewing the
evidence in the light most favorable to him, genuine issues of material fact exist as to
the underlying facts of Plaintiff’s constitutional claims. (Doc. 38 at 1). Specifically,
Plaintiff argues that whether Officer Fermon had probable cause to seize, search, and
continue to detain Plaintiff (Counts I, II, and III, respectively) rests on an underlying
factual dispute. (Id.). Plaintiff further responds that the record supports all elements
of his malicious prosecution claim. (See Doc. 38 at 17).
Defendants timely filed their reply on June 12, 2018. Thus, this matter is ripe
for decision.
LEGAL STANDARDS
Courts grant summary judgment where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A grant of summary judgment is appropriate
only where the movant shows that the evidence could not justify a reasonable jury
finding in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (defining a genuine dispute of material fact). In other words, “[o]nly disputes
over facts that might affect the outcome of the suit . . . will properly preclude the
entry of summary judgment.” Id. at 248. At this stage, courts view evidence in the
6

light most favorable to the nonmovant, with material factual disputes resolved in the
nonmovant’s favor. See Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016). However,
when the parties “tell two different stories, one of which is blatantly contradicted by
the record, . . . a court should not adopt that version of the facts for purposes of ruling
on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
To survive a defendant’s properly supported motion for summary judgment,
the plaintiff “must show evidence sufficient to establish every element that is
essential to its claim and for which it will bear the burden of proof at trial.” Life Plans,
Inc. v. Security Life of Denver Ins. Co., 800 F.3d 343, 349 (7th Cir. 2015) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Specifically, “[i]n a § 1983 case, the
plaintiff bears the burden of proof on the constitutional deprivation that underlies
the claim, and thus must come forward with sufficient evidence to create genuine
issues of material fact to avoid summary judgment.” McAllister v. Price, 615 F.3d 877,
881 (7th Cir. 2010). The plaintiff-nonmovant cannot survive summary judgment by
simply asserting that a material fact is genuinely disputed; it must instead “support
the assertion by: (A) citing to particular parts of materials in the record . . .; or (B)
showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1).
In the event a nonmovant fails to meet its burden, courts may “grant summary
judgment if the motion and supporting materials . . . show that the movant is entitled
to it.” Fed. R. Civ. P. 56(e)(3); see Celotex Corp., 477 U.S. at 323 (stating that the

7

defendant-movant “‘is entitled to judgment as a matter of law’” where “the nonmoving
party has failed to make a sufficient showing on an essential element of her case”).
DISCUSSION
Officer Fermon argues that he is entitled to summary judgment on Plaintiff’s
§ 1983 claims on two independent grounds: (1) that the undisputed facts show no
constitutional violations, and (2) that he is immune from suit regarding those claims
because of qualified immunity. (Doc. 36). Both Defendants argue that they are
entitled to summary judgment on Plaintiff’s supplemental state law claim of
malicious prosecution because Plaintiff cannot present sufficient evidence to
establish the elements of his claim. The Court addresses these arguments in turn.
I.

Officer Fermon Is Entitled To Qualified Immunity On Plaintiff’s
Constitutional Claims.
Plaintiff makes three arguments regarding his arrest and detention on

September 27, 2014. First, he claims that Officer Fermon unlawfully arrested him
because there was no probable cause to arrest him for obstruction of justice (Count
I). (Doc. 38 at 12-13). Second, he argues that Officer Fermon unconstitutionally
searched him when medical staff conducted an x-ray of his body and provided him
with charcoal and sorbitol to drink in order to safely pass evidence of drug possession
through his digestive system. (Count II). (Doc. 38 at 15-17). Third, Plaintiff claims
that Officer Fermon unlawfully failed to release him from police custody when Officer
Fermon uncovered no evidence that Plaintiff swallowed a baggie of cocaine (Count
III). (Doc. 38 at 13-15). Because the Court finds that qualified immunity protects
Officer Fermon, the Court will not reach the merits of Plaintiff’s constitutional claims.

8

Qualified immunity “shields public officials from civil liability,” including
police officers. Allin v. City of Springfield, 845 F.3d 858, 862 (7th Cir. 2017). Courts
deciding a defendant’s motion for summary judgment based on qualified immunity
“consider ‘(1) whether the facts, taken in the light most favorable to the plaintiff
[nonmovant], show that the defendant violated a constitutional right; and (2) whether
the constitutional right was clearly established at [that] time.’” Estate of Clark v.
Walker 865 F.3d 544, 550 (7th Cir. 2017) (quoting Gonzalez v. City of Elgin, 578 F.3d
526, 540 (7th Cir. 2009)).
Plaintiffs bear the burden of establishing that, even assuming the
constitutional violation occurred, that “the right at issue was clearly established.”
Volkman v. Ryker, 736 F.3d 1084, 1090 (7th Cir. 2013). “A right is clearly established
if it is sufficiently clear that any reasonable official would understand that his or her
actions violate that right, meaning that existing precedent must have placed the . . .
constitutional question beyond debate.” Allin, 845 F.3d at 862 (quoting Zimmerman
v. Doran, 807 F.3d 178, 182 (7th Cir. 2015)). In other words, “qualified immunity
protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Id.
(quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)).
In the context of probable cause disputes under the Fourth Amendment, the
Seventh Circuit recognizes the doctrine of “arguable probable cause” when
determining whether qualified immunity shields police officers from suit. See Hurt v.
Wise, 880 F.3d 831, 841 (7th Cir. 2018); Carmichael v. Village of Palatine, Ill., 605
F.3d 451, 459 (7th Cir. 2010) (quoting Williams v. Jaglowski, 269 F.3d 778, 781 (7th
Cir. 2001)). “Arguable probable cause” exists where a reasonable officer “in the same
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circumstances and . . . possessing the same knowledge as the officer in question could
have reasonably believed that probable cause existed in light of well-established law.”
Huff v. Reichert, 744 F.3d 999, 1007 (7th Cir. 2014) (quoting Humphrey v. Staszak,
148 F.3d 719, 725 (7th Cir. 1998)) (emphasis added). The “arguable probable cause”
doctrine entitles police officers to qualified immunity where “the arresting officer[ ]
‘reasonabl[y] . . . could have believed the arrest to be lawful” even where, in hindsight,
no probable cause existed. Hurt, 880 F.3d at 841. In sum, qualified immunity provides
police officers “with an ‘additional layer of protection against civil liability’ if . . . they
did not have probable cause.” Carmichael, 605 F.3d at 459 (quoting Williams, 269
F.3d at 781). “In the Seventh Circuit, ‘[i]f a case involves a question of whether
probable cause existed to support an officer’s actions, the case should not be permitted
to go to trial if there is any reasonable basis to conclude that probable cause existed.”
Gibbs v. City of Chicago, No. 12-cv-0566, 2014 WL 1031440, at *3 (N.D. Ill. March 18,
2014) (quoting Eversole v. Steele, 59 F.3d 710, 717-18 (7th Cir. 1995)) (emphasis in
original).
Officer Fermon argues that he is entitled to summary judgment on qualified
immunity grounds because he had “arguable probable cause” to believe Plaintiff
swallowed contraband, thereby obstructing justice. (Doc. 36 at 19-20). Under Illinois
law, an officer has probable cause to believe a person obstructs justice where, “with
intent to prevent the apprehension or obstruct the prosecution or defense of any
person, he or she knowingly... [d]estroys, alters, conceals or disguises physical
evidence.” 720 ILCS 5/31-4(a)(1). He argues that, even if the Court assumes that
Plaintiff did not actually have a baggie of a white powdery substance in his hand,
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Plaintiff’s history with cocaine possession—and Officer Fermon’s knowledge of that
history—coupled with Officer Statz’s assertion that Plaintiff ate something and
Plaintiff’s swipe of his hand over his mouth, would provide any reasonable officer
with sufficient reason to believe that Plaintiff obstructed justice by swallowing
contraband. (Doc. 36 at 19-20).
Plaintiff responds that his “right to be free from arrest and search unsupported
by probable cause was clearly established at the time of the arrest.” (Doc. 38 at 20).
He continues that Officer Fermon violated his clearly established rights when Officer
Fermon arrested him for obstruction of justice “after medical tests revealed that
Plaintiff had no foreign or illegal substances in his body.” (Doc. 38 at 21). However,
Plaintiff does not respond to Officer Fermon’s argument that “arguable probable
cause” existed. Since “arguable probable cause” would cloak Officer Fermon’s actions,
Plaintiff did not meet his burden as the nonmovant on summary judgment. And since
the standard of probable cause differs from the “arguable probable cause” standard
pursuant to the qualified immunity defense, Burritt v. Ditlefsen, 807 F.3d 239, 250
(7th Cir. 2015), Plaintiff cannot survive summary judgment by simply repeating the
same arguments submitted in regard to the alleged lack of actual probable cause. In
other words, the issue raised by Officer Fermon’s defense of qualified immunity is not
whether he actually had probable cause, but whether Officer Fermon reasonably
believed that he had probable cause, even if the subsequent medical testing yielded
no evidence that obstruction of justice occurred. See Hurt, 880 F.3d at 841; Burritt,
807 F.3d at 250.

11

Courts in the Seventh Circuit have addressed issues of “arguable probable
cause” regarding obstruction of justice arrests. See, e.g., Morfin v. City of East
Chicago, 349 F.3d 989, 1000 n.13 (7th Cir. 2003) (noting that a factual dispute
precluded summary judgment over arguments of actual and “arguable probable
cause”); Moriconi v. Koester, No. 11-cv-3022, 2014 WL 5609279, at *4 (C.D. Ill. Nov.
4, 2014) (rejecting arguable probable cause because the arresting officer was “on
notice that he had no probable cause to arrest [the plaintiff] for obstruction”);
Nawrocki v. Scully, No. 05 C 1466, 2006 WL 1735294, at *9-10 (N.D. Ill. June 19,
2006) (finding that an officer could have reasonably, though mistakenly, interpreted
facts to establish probable cause); Sagat v. Gramza, No. 98 C 2507, 1999 WL 14499,
at *8 (N.D. Ill. Jan. 8, 1999) (finding that qualified immunity shielded the officer from
suit where “the facts created an impression that [obstruction of justice] occurred”).
In Nawrocki, for example, the court concluded that, since a credible witness
relayed information to the police suggesting that the plaintiff failed to tell the truth
in an investigation, the police reasonably believed that the plaintiff’s dishonesty
constituted the crime of obstruction of justice. 2006 WL 1735294, at *10.
Likewise, the Court finds that Officer Fermon is entitled to summary judgment
because, even if a jury were to find that Plaintiff never actually possessed drugs on
the night in question, no reasonable jury could conclude that Officer Fermon’s belief
that he had probable cause to believe Plaintiff obstructed justice was unreasonable.
In this Court’s opinion, any reasonable police officer in Officer Fermon’s position
would have made the logical connection that Plaintiff probably ate contraband given
the following undisputed facts: (1) that Officer Fermon arrested Plaintiff for
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possessing cocaine (among other charges) a mere twenty days before the arrest in
question (Doc. 38 at 7; Doc. 38-1 at 116-18), (2) that Officer Fermon tried to restrain
Plaintiff’s right hand to see what, if anything, he was holding because thought he saw
a substance resembling crack cocaine in his right hand 7 (see Doc. 38 at 5, 8; Doc. 40
at 3), (3) that Officer Statz informed Officer Fermon that Plaintiff ate something from
his right hand when Plaintiff raised his right hand to his mouth 8 (Doc. 36 at 6; Doc.
36-1 at 3; Doc. 38 at 8; Doc. 38-1 at 126; Doc. 38-2 at 8, 94-95), and (4) that no drugs
were subsequently found on Plaintiff’s person or in the surrounding area (Doc. 38 at
5-6). Because well-settled law allows police officers to rely on their experience and
training, see United States v. Charles, 801 F.3d 855, 860 (7th Cir. 2015), the totality
of the facts and circumstances at the time of arrest, see Abbott v. Sangamon Cty., Ill.,
705 F.3d 706, 714 (7th Cir. 2013), and credible witness statements, see Holmes v.
Village of Hoffman Estates, 511 F.3d 673, 680 (7th Cir. 2007), when making an onscene determination of probable cause, Officer Fermon did not “knowingly violate the
law” when he arrested, searched, and detained Plaintiff for obstructing justice. See
Allin, 845 F.3d at 862 (quoting Mullenix, 136 S. Ct. at 308).

Plaintiff never disputes that Officer Fermon genuinely believed that he thought
Plaintiff held a suspicious baggie in his right hand. (Doc. 38 at 4-5, 8). Rather,
Plaintiff only disputes that he actually had anything in his right hand. (Id.) Thus, the
Court treats Officer Fermon’s belief as an undisputed fact, even if a jury could
reasonably find that the belief was incorrect. See Fed. R. Civ. P. 56(e)(2).
8 The record shows—and Plaintiff does not expressly dispute—that Officer Statz
“informed Officer Fermon that the Plaintiff had eaten what he had in his hand.” (See
Doc. 38 at 5, 10; Doc. 40 at 8). Plaintiff responds only that Officer Statz did not
specifically see “any item enter Plaintiff’s mouth” and “never saw Plaintiff’ swallow
any items.” (Id.). Notwithstanding the latter facts being in dispute, the Court treats
Officer Statz’s statement to Officer Fermon as an undisputed fact. See Fed. R. Civ. P.
56(e)(2).
7

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It seems that Plaintiff thought it sufficient to refute the existence of “arguable
probable cause” by simply referring the Court to Officer Fermon’s lack of actual
probable cause. In other cases, it may very well be that facts relevant to the actual
probable cause inquiry are disputed such that a court cannot make a determination
of whether “arguable probable cause” exists. See, e.g., Morfin, 349 F.3d at 1000 n. 13.
(“Because the facts [within the officer’s] knowledge at the time of the arrest are a
matter of dispute between the parties, summary judgment on the basis of ‘arguable
probable cause’ also is inappropriate.”). But here, Plaintiff only states he did not
possess any contraband and that Mr. Pillows never saw him with drugs. He does not
point to any factual disputes that are relevant to Officer Fermon’s belief that Plaintiff
held a baggie of contraband. For example, Plaintiff does not address whether in fact
his hand was ever clenched. He does not address Officer Fermon’s belief that his hand
was clenched. He does not mention whether Officer Fermon looked at his hand. He
does not dispute that Officer Fermon attempted to grab his right hand after he exited
the vehicle. Had Plaintiff mentioned a single disputed fact that would undermine
whether Officer Fermon was reasonable to believe Plaintiff held a baggie of
contraband, the Court would not find summary judgment to be appropriate. But here,
the undisputed facts do not cast any doubt on the reasonableness of Officer Fermon’s
belief.
Moreover, Officer Statz’s statement to Officer Fermon corroborated Officer
Fermon’s belief that Plaintiff had contraband in his hand that Plaintiff swallowed,
even assuming, in hindsight, that his belief was wrong. See Holmes, 511 F.3d at 680
(7th Cir. 2007) (stating that “[f]ellow law enforcement personnel are among the
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witnesses whose accounts the arresting officer may rely upon” when making an onscene determination of probable cause); Wollin v. Gondert, 192 F.3d 616, 625 (7th Cir.
1999) (reaffirming that, “[s]o long as a reasonably credible witness . . . informs the
police that someone has committed, or is committing, a crime . . . [the officers’] actions
will be cloaked with qualified immunity [even] if the arrestee is later found
innocent”); Nawrocki, 2006 WL 1735294, at *9 (citing Smith v. Lamz, 321 F.3d 680,
685 (7th Cir. 2003)). Moreover, Pillows confirmed that the officers were discussing
Plaintiff swallowing something as he got out of the car. (Doc. 38-1 at 91) (“But I know
I heard him saying that he’s swallowing something, he’s trying to swallow
something.”).
To be clear, immunity applies to all three of Plaintiff’s constitutional claims
because they all stem from Officer Fermon’s reasonable on-scene determination of
probable cause to believe that Plaintiff obstructed justice. 9 See Manuel v. City of
Joliet, Ill., 137 S. Ct. 911, 917 (2017) (clarifying that the existence of probable cause
is the central issue in a Fourth Amendment suit); Birchfield v. North Dakota, 136 S.
Ct. 2160, 2173 (2016) (clarifying that, in the context of a search, the existence of
exigent circumstances “allows a warrantless search when an emergency leaves police
insufficient time to seek a warrant,” such as “when police fear the imminent
destruction of evidence”); Mullenix, 136 S. Ct. at 309 (citing Anderson v. Creighton,
483 U.S. 635, 641 (1987)) (asserting “the principle that warrantless searches not

As to the detention, Dr. Looney testified that, depending on the person taking the
sorbitol, it may take minutes, hours, days, or a week to pass a foreign substance in
the digestive system. (Doc. 38-2 at 26-27). Plaintiff has presented nothing that
disputes this fact.
9

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supported by probable cause and exigent circumstances violate the Fourth
Amendment”); Anderson, 483 U.S. at 641 (holding that police officers are entitled to
summary judgment where, “in light of the clearly established principles governing
warrantless searches, [the officers] could, as a matter of law, reasonably have
believed that the search . . . was lawful”); Gutierrez v. City of East Chicago, No. 2:16CV-111, 2016 WL 5819818, at *6 (N.D. Ind. Sept. 6, 2016) (citing Kentucky v. King,
563 U.S. 452, 460 (2011)) (clarifying that exigent circumstances justifying a
warrantless search include where a person requires emergency assistance “to protect
[someone] from imminent injury” or “to prevent the imminent destruction of
evidence”). In other words, Officer Fermon did not “knowingly violate the law” when
he seized, searched, and detained Plaintiff because he had “arguable probable cause”
for his actions. See Allin, 845 F.3d at 862 (quoting Mullenix, 136 S. Ct. at 308).
Therefore, for the reasons discussed above, Defendants’ Motion for Summary
Judgment is GRANTED as to Plaintiff’s unreasonable seizure, search, and detention
claims (Counts I, II, and III, respectively) on the grounds that qualified immunity
shielded Officer Fermon’s actions.
II.

Plaintiff Cannot Establish All The Elements Of Malicious Prosecution
Under Illinois Law.
Officer Fermon and the City of Bloomington next argue that they are entitled

to summary judgment on Plaintiff’s state law claim of malicious prosecution. They
contend that Plaintiff cannot present sufficient evidence to establish all the elements
of the claim. (See Doc. 36 at 13-17).

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“To establish a claim for malicious prosecution under Illinois law, plaintiffs
must establish five elements: (1) commencement or continuation of an original
proceeding [by the defendant]; (2) termination of the proceeding in favor of the
plaintiff; (3) the absence of probable cause; (4) malice; and (5) damages.” Cairel v.
Alderden, 821 F.3d 823, 834 (7th Cir. 2016) (citing Sang Ken Kim v. City of Chicago,
368 Ill. App. 3d 648, 654 (2006)). “The absence of any one of these elements bars a
plaintiff from pursuing the claim.” Johnson v. Saville, 575 F.3d 656, 659 (7th Cir.
2009) (quoting Swick v. Liautaud, 169 Ill. 2d 504, 512 (1996)).
The

first

element

of

an

Illinois

malicious

prosecution

claim—the

“commencement or continuation of an original proceeding”—ordinarily refers to the
prosecutor of the particular criminal action. See Reed v. City of Chicago, 77 F.3d 1049,
1053-54 (7th Cir. 1996) (citing Albright v. Oliver, 510 U.S. 266, 279 n.5 (1994)
(Ginsburg, J., concurring)) (holding that “a malicious prosecution action against
police officers is ‘anomalous’” since “the State’s Attorney, not the police, prosecutes a
criminal action”). “[T]he chain of causation [between an arresting officer’s
involvement and the ‘commencement or continuation of an original proceeding’] is
broken by an indictment, absent an allegation of pressure or influence exerted by the
police officers, or knowing misstatements by the officers to the prosecutor.” Colbert v.
City of Chicago, 851 F.3d 649, 655 (7th Cir. 2017) (quoting Reed, 77 F.3d at 1053)
(emphasis in original). In other words, “a plaintiff may not maintain a maliciousprosecution claim against an arresting officer without first showing ‘some postarrest
action which influenced the prosecutor’s decision to indict.’” Id. (quoting Snodderly v.
R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 902 (7th Cir. 2001)). While a
17

police officer’s “allegedly false statement constitutes a post-arrest action,” plaintiffs
must present evidence to show that such allegedly false statements “influenced the
prosecutor’s decision to indict, or that the prosecutor relied on it to obtain the
indictment.” Id. Absent evidence showing that the arresting officer himself influenced
the indictment process, “there is no basis to infer that [an arresting officer’s] allegedly
false report precluded the grand-jury indictment from breaking the chain of causation
between” the arrest and the prosecution. Id.
Defendants argue that Plaintiff cannot present evidence showing “that Officer
Fermon pressured, influenced, or made misstatements to the prosecutor,” as required
by the first element of Plaintiff’s claim. (Doc. 36 at 14). They rely primarily on Colbert
to argue that, because Officer Fermon did not testify before the grand jury and
because Plaintiff cannot produce any evidence suggesting that Officer Fermon
otherwise influenced the indictment process through misstatements, the chain of
causation required under the first element is broken. (Id.). The Court disagrees.
It is true that Colbert held that absent the production of specific evidence that
an officer himself influenced or pressured the indictment process with falsities, a
plaintiff will not be able to establish the first element of his malicious prosecution
claim. See 851 F.3d at 655. Colbert explained that it is not enough to simply allege
that there are false statements in a police report; rather, a plaintiff must provide facts
establishing a connection between (1) the purported misstatement, and (2) the
prosecutor’s decision to indict and the success in obtaining the indictment. See 851
F.3d at 655.

18

In Colbert, an officer made an alleged false statement in an arrest affidavit. Id.
That officer did not testify before the subsequent grand jury. Id. The intervening
indictment was secured by the testimony of an officer who was also on the scene of
the incident. Id. at 655. Importantly, there was no indication before the court that
the indictment was secured by the allegedly false statements of the officer. Id.
Unlike in Colbert, there is evidence here of a direct connection between Officer
Fermon’s statements and the indictment. In this case, the Court can see from the
transcript of the grand jury proceedings that the testifying officer, who was not on
the scene of Plaintiff’s arrest, had nothing to offer the jurors other than what was
either explicitly in the reports Officer Fermon prepared or conclusions the testifying
officer drew from those reports. It is clear from the transcript the testifying officer’s
conclusions are based directly on Officer Fermon’s reports. Thus, there is a clear
connection between the Officer Fermon’s reports and the indictment.
A plaintiff must provide facts establishing a connection between (1) the
purported misstatement, and (2) the prosecutor’s decision to indict and the success in
obtaining the indictment. See Colbert, 851 F.3d at 655. The Court finds that a
sufficient connection between Officer Fermon’s reports and the resulting indictment
has been satisfied here.
As for the second element of a malicious prosecution claim, the plaintiff bears
the burden of proving that the prosecutor terminated the relevant criminal
proceedings in the plaintiff’s favor. See Thompson v. City of Chicago, 722 F.3d 963,
978 (7th Cir. 2013) (citing Swick, 169 Ill. 2d at 512-13). Here is where Plaintiff’s claim
stumbles.
19

“[A] criminal proceeding has been terminated in favor of the accused when a
prosecutor formally abandons the proceeding via a nolle prosequi, unless the
abandonment is for reasons not indicative of the innocence of the accused.” Swick,
169 Ill. 2d at 513. A prosecutor’s abandonment of criminal proceedings “is not
indicative of the innocence of the accused when the nolle prosequi is the result of an
agreement or compromise with the accused.” Id. Dismissal of a criminal charge does
not imply innocence “when it is part of a plea bargain.” Bridewell v. Eberle, 730 F.3d
672, 677 (7th Cir. 2013) (applying Swick, 169 Ill. 2d at 512-513); see also Evans v.
City of Chicago, 434 F.3d 916, 923 n.16 (7th Cir. 2006), overruled on other grounds by
Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013), (discussing that a guilty
plea, in consideration for a nolle prosequi, means that the defendant “believe[s] that
if the matter had gone to trial, it would [have] result[ed] in a conviction”).
Thus, even though the Court finds Plaintiff has raised sufficient evidence
linking Officer Fermon’s misstatements to the indictment, his malicious prosecution
claim fails because he cannot sustain the second element of the claim. Defendants
assert that the nolle prosequi regarding the obstruction of justice claim “was entered
in consideration of the Plaintiff’s pleas in two other criminal cases.” (Doc. 36 at 15)
(emphasis in original). Attached to Defendants’ Motion is the Affidavit of Patrick
Sheehan, the Assistant State’s Attorney who entered the relevant nolle prosequi
orders. (Doc. 36-6). The affidavit plainly states that “[o]n October 14, 2016, an order
of nolle prosequi was entered on [Plaintiff’s obstruction of justice charge]” and that
the order of nolle prosequi was arranged “as part of, and in consideration of, Plaintiff’s
pleas” on the other criminal charges. (Doc. 36-6 at 1).
20

In response, Plaintiff sidesteps the October 14 nolle prosequi order and,
instead, argues that “[t]he State’s Attorney’s indication that it was dismissing [the
obstruction of justice charge] is not consistent with the plea agreement it signed with
Plaintiff [on August 11, 2016] or the Court transcript from Plaintiff’s plea hearing on
September 13, 2016.” (Doc. 38 at 18). Accordingly, Plaintiff argues that the facts
elicited in Affidavit of Patrick Sheehan are disputed because the September 13
hearing transcript shows that the obstruction charge was not part of the plea deal
regarding the other criminal proceedings. (Doc. 38 at 12, 18; Doc. 38-2 at 101-02).
The fact that the August 11, 2016, plea deal did not consider the obstruction
charge is immaterial. On October 14, 2016, a separate order of nolle prosequi was
entered that specifically dismisses the obstruction of justice charge “in consideration
for [Plaintiff’s] pleas” in the other criminal proceedings. 10 (Doc. 40-1). Thus, there is
no evidence in the record that could justify a finding that the termination of Plaintiff’s
obstruction of justice charge indicates his innocence in the matter. Accordingly,
Defendants are entitled to judgment as a matter of law since all five elements of the
malicious prosecution claim must be present and there is no need to comment further
on the remaining elements.
For these reasons, the Motion for Summary Judgment is GRANTED as to
Plaintiff’s malicious prosecution claim (Count IV).

Since the evidence plainly contradicts Plaintiff’s version of the facts, the Court
views the facts according to the record in deciding this Motion. See Scott, 550 U.S. at
380.
10

21

CONCLUSION
For the reasons stated above, Defendants’ Motion for Summary Judgment
(Doc. 36) is GRANTED. CASE TERMINATED.
SO ORDERED.
Entered this 26th day of June, 2018.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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