Skube v. Williamson et al
Filing
117
OPINION entered by Judge Sue E. Myerscough on 2/27/2015. SEE WRITTEN OPINION. Motion for Partial Summary Judgment 107 granted in part and denied in part. Motion for Summary Judgment 108 denied. Defendants Sangamon County Sheriff's Offi ce and Neil M Williamson terminated. Defendants may file a brief arguing why the Court should not grant summary judgment in favor of the Plaintiff on these claims by March 6, 2015. The Plaintiff may respond to that brief by March 13, 2015. Entered by Judge Sue E. Myerscough on 02/27/2015. (DM, ilcd) Modified on 2/27/2015 (DM, ilcd).
E-FILED
Friday, 27 February, 2015 04:30:43 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
TAMARA SKUBE,
)
)
Plaintiff,
)
)
v.
)
)
NEIL M. WILLIAMSON, Sheriff of )
Sangamon County, Illinois, Solely )
In His Official Capacity, TRAVIS )
KOESTER, In His Individual and )
Official Capacities as Deputy of
)
The Sangamon County Sheriff’s
)
Office, SANGAMON COUNTY,
)
SANGAMON COUNTY SHERIFF’S )
OFFICE,
)
)
Defendants.
)
Civil No. 12-3185
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court are the Motion for Partial Summary
Judgment filed by Defendants Neil Williamson, Travis Koester, and
Sangamon County (d/e 107) and Plaintiff Tamara Skube’s Partial
Motion for Summary Judgment (d/e 108). The Defendants’ Motion
is GRANTED as to Skube’s false arrest claim against Deputy
Page 1 of 52
Koester in his official capacity and her improper search and seizure
claim and DENIED as to her other claims, and Skube’s Motion is
DENIED. Additionally, the Court issues notice to the parties under
Federal Rule of Civil Procedure 56(f) that the Court is considering
granting summary judgment in favor of Skube on her excessive
force and false arrest claims against Deputy Koester in his
individual capacity.
I. BACKGROUND
On July 21, 2011, Deputy Travis Koester of the Sangamon
County Sheriff’s Office pulled over a black sports utility vehicle
driven by Clifton Flagg in which the Plaintiff, Tamara Skube, was a
passenger. What followed is largely undisputed, as the events were
captured by a camera mounted on the dashboard of Deputy
Koester’s car. Deputy Koester approached Flagg’s window and
informed Flagg that he had illegally stopped over two stop lines and
had not stayed in his lane while making a left turn. Video, d/e 1-8
at 2:45-4:25. Deputy Koester then asked Flagg to step out of his
car to perform a field sobriety test. Vid. at 4:30-4:42. Flagg
eventually complied with Deputy Koester’s orders to exit his vehicle,
Page 2 of 52
but he refused to perform the sobriety test. Vid. 4:54-5:52. While
Deputy Koester was talking to Flagg about taking the sobriety test,
he called in the support of Officer Rachel Leggitt of the Southern
View Police Department. Vid. 5:20-5:21. When Flagg refused to
perform the sobriety test, Deputy Koester ordered him to turn
around and told him that he was under arrest for driving under the
influence of alcohol. Vid. 5:53-6:00. As Deputy Koester was
placing Flagg under arrest, Skube briefly exited the SUV and
walked to the back of the vehicle where Deputy Koester and Flagg
were standing. Vid. 6:01-6:06. Deputy Koester ordered her to “get
back in the car right now,” which she did. Vid. 6:07-6:14. Officer
Leggitt arrived a short time later, and Deputy Koester kept his taser
drawn and at the ready while Officer Leggitt handcuffed Flagg. Vid.
7:50-8:30. The officers then placed Flagg in the front seat of
Deputy Koester’s car. Vid. 8:45-10:22.
Deputy Koester next approached the passenger’s side of
Flagg’s SUV and asked Skube to show him her identification. Vid.
10:34-10:37. Skube then threw a cigarette butt out of her car
window, and Deputy Koester asked her to step out of the SUV and
Page 3 of 52
pick it up. Vid. 10:39-10:44. Skube complied with Deputy
Koester’s orders by stepping out of the car, showing him her
identification, and picking up the cigarette butt. Vid. 10:48-11:05.
She then stepped back into the passenger’s side of the SUV. Vid.
11:11-11:18. At that point, Deputy Koester informed Skube that
she needed to “make some arrangements to get a ride” because the
SUV was “being impounded” for a “12-hour DUI hold.” Vid. 11:2311:37. Deputy Koester then asked Skube to exit the SUV again and
led her back to his squad car, which was parked a short distance
behind the SUV. Vid. 11:42-11:45. He instructed Skube to wait
next to Officer Leggitt, who was standing by Deputy Koester’s squad
car and keeping an eye on Flagg in the front passenger’s seat. Vid.
11:46-11:52.
Deputy Koester next returned to the passenger’s side of the
SUV where, according to Skube, he began looking through Skube’s
purse. Vid. 11:54-12:07; Skube Deposition, d/e 107-6 at 47.
Skube then quickly approached Deputy Koester, exclaiming, “Hey,
you have no right.” Vid. 12:08-12:09. Deputy Koester turned to
face her, stating, “Back up now or you’re under arrest.” Vid. 12:10Page 4 of 52
12:12; Deputy Koester Deposition, d/e 107-1 at 285. Skube
continued to object that Deputy Koester did not have the right to
search the vehicle, to which Deputy Koester replied, “I’m not
searching it, I’m inventorying it. And if you don’t do what I tell you
right now you’re going to be tased.” Vid. 12:12-12:15. Skube
continued to object, and Deputy Koester told her, “Turn around,
you’re under arrest.” Vid. 12:15-12:17. Skube responded, “How
am I under arrest?” and held her arms out to her sides in a
questioning gesture, and Deputy Koester again told her, “Turn
around and put your hands behind your back.” Vid. 12:18-12:22.
Skube took a step back and began to repeat that Deputy Koester
“had no right,” and Deputy Koester repeated his order to “Turn
around and put your hands behind your back.” Vid. 12:22-12:24.
At that point, Deputy Koester raised his taser and fired it in
dart mode into Skube’s abdomen. Vid. 12:24-12:25. Skube turned
away, screaming, as Deputy Koester approached her while telling
her, “Get on the ground.” Vid. 12:26-12:28. Skube and Deputy
Koester then go off-screen and are no longer visible, but the video
includes the audio for the remainder of their interaction. Skube
Page 5 of 52
screamed while Deputy Koester told her, “Roll over and put your
hands behind your back or you’re getting it again.” Vid. 12:3112:34. Skube began to say “all right,” and then Deputy Koester
fired the taser again and Skube screamed. Vid. 12:35. Deputy
Koester continued to yell at Skube to “Put your hands behind your
back,” to which Skube screamed, “Okay, goddamn!” Vid. 12:3612:41. Deputy Koester repeated that order, and Skube yelled out
something inaudible. Vid. 12:42-12:46. Skube can then be heard
sobbing and saying, “Oh, god.” Vid. 12:47-12:52. Skube cried that
she “did not do anything,” to which Deputy Koester responded, “I
gave you several lawful orders and you didn’t follow any of them.
And then I told you ‘turn around and put your hands behind your
back,’ and you want to fight with us. I’m not doing that, okay?”
Vid. 12:55-13:06. Deputy Koester then took Skube into custody.
Second Amended Complaint, d/e 69 at ¶ 71.
After this incident, Flagg pled guilty to reckless driving and
Skube was not charged with any offenses. Second Amended
Complaint, d/e 69 at ¶¶ 57, 78. On July 13, 2012, Skube filed suit
against Deputy Koester, Sheriff Neil Williamson, the Sangamon
Page 6 of 52
County Sheriff’s Office, Sangamon County, and two of Deputy
Koester’s supervising officers. See Complaint, d/e 1. She amended
her complaint to its current form on February 28, 2014, bringing
Fourth Amendment violation claims through Section 1983 against
Deputy Koester in his official and individual capacities for excessive
use of force based on the first and second uses of his taser,
improper search and seizure, false arrest, and false imprisonment;
state-law claims against Deputy Koester in his official and
individual capacities for intentional infliction of emotional distress
and assault and battery; a supervisor liability claim against Sheriff
Williamson; and an indemnity claim against Sangamon County.
See Second Amended Complaint, d/e 69 at 15-30.
On September 22, 2014, Skube moved for summary judgment
on her improper search and seizure claim. See Plaintiff’s Partial
Motion for Summary Judgment, d/e 108. At the same time, the
Defendants moved for summary judgment against Skube’s false
arrest and false imprisonment claims, her excessive use of force
claims related to the first use of the taser against Deputy Koester in
both his official and individual capacities, her excessive force claim
Page 7 of 52
related to the second use of the taser against Deputy Koester in his
official capacity, the intentional infliction of emotional distress and
assault and battery claims, improper search and seizure claims,
any claim for compensatory damages arising out of the search, and
the supervisor liability claim. See Defendants’ Motion for Partial
Summary Judgment, d/e 107. In response to the Defendants’
motion, Skube voluntarily dismissed her claims against Deputy
Koester in his official capacity for excessive use of force and
improper search and seizure, her false imprisonment claims, her
intentional infliction of emotional distress claims, her claim for
assault and battery against Deputy Koester in his individual
capacity, and her supervisor liability claim. See Plaintiff’s Response
to Defendants’ Motion for Partial Summary Judgment, d/e 113 at 2.
The Court will address the remaining claims below.
II. LEGAL STANDARDS
Summary judgment is appropriate where the record, viewed in
the light most favorable to the nonmovant, reveals that there are no
genuine issues as to any material fact, meaning that the moving
party is entitled to a judgment as a matter of law. Fed. R. Civ. P.
Page 8 of 52
56(a); Trentadue v. Redmon, 619 F.3d 648, 652 (7th Cir. 2010)
(noting that all reasonable inferences must be drawn in favor of the
nonmovant). The party moving for summary judgment bears the
burden of establishing the absence of any genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Once the movant has met this burden, the nonmovant must
present evidence sufficient to create triable issues of fact on each of
the essential elements of her claim. Trentadue, 619 F.3d at 652.
The court simply determines whether there is a genuine issue of
fact for trial without weighing the evidence or evaluating the
credibility of the parties and witnesses. Outlaw v. Newkirk, 259
F.3d 833, 837 (7th Cir. 2001).
In addition to moving for summary judgment against most of
Skube’s claims, Deputy Koester argues that he is entitled to
qualified immunity against Skube’s Fourth Amendment claims.
Governmental actors are entitled to qualified immunity where their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (providing
Page 9 of 52
that qualified immunity protects governmental actors from liability
for civil damages).
The court applies a two-part inquiry to determine whether a
defendant is entitled to qualified immunity. First, the court
examines whether the plaintiff has presented evidence, taken in the
light most favorable to the plaintiff, that would allow a reasonable
fact finder to determine that the plaintiff was deprived of a
constitutional right. Sallenger v. Oakes, 473 F.3d 731, 739 (7th
Cir. 2007) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled in part by Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
Second, the court examines whether the particular constitutional
right was clearly established at the time of the alleged violation. Id.
A court may, in its discretion, address the second prong of the test
first. Pearson, 555 U.S. at 242.
The plaintiff bears the burden of establishing the existence of
a clearly established constitutional right. Rice v. Burks, 999 F.2d
1172, 1174 (7th Cir. 1993). A plaintiff may do this by either
pointing to a closely analogous case or showing that the conduct
was so egregious that no reasonable officer would have thought he
Page 10 of 52
was acting lawfully. Chelios v. Heavener, 520 F.3d 678, 691 (7th
Cir. 2008); Abbott v. Sangamon Cnty., Ill., 705 F.3d 706, 723-24
(7th Cir. 2013). “Importantly, the right must be clearly established
in a particularized sense, rather than in an abstract or general
sense.” Abbott, 705 F.3d at 731. However, “a case directly on point
is not required for a right to be clearly established and ‘officials can
still be on notice that their conduct violates established law even in
novel factual circumstances.’” Phillips v. Cmty. Ins. Corp., 678
F.3d 513, 528 (7th Cir. 2012) (quoting Hope v. Pelzer, 536 U.S. 730,
741 (2002)).
III. ANALYSIS
The Defendants move for summary judgment on Skube’s
excessive force claim against Deputy Koester in his individual
capacity related to the first use of his taser, her improper search
and seizure claim against Deputy Koester in his individual capacity,
her false arrest claims against Deputy Koester in his official and
individual capacities, and her assault and battery claim against
Deputy Koester in his official capacity.1 See Defs.’ Mot., d/e 107.
1
This list does not include the claims that the Plaintiff voluntarily dismissed,
Page 11 of 52
Skube moves for summary judgment on her improper search and
seizure claim. Pl.’s Mot., d/e 108. The Court finds that summary
judgment should be granted against Skube’s false arrest claim
against Deputy Koester in his official capacity and her improper
search and seizure claim and denied against the remainder of her
claims. The Court also finds that Skube’s motion for summary
judgment should be denied. Additionally, the Court issues notice
under Federal Rule of Civil Procedure 56(f) that the Court is
considering granting summary judgment in favor of Skube on her
false arrest and excessive force claims against Deputy Koester in his
individual capacity.
A. Deputy Koester is entitled to summary judgment
against Skube’s false arrest claim against him in his
official capacity.
As an initial matter, Deputy Koester should be granted
summary judgment against Skube’s false arrest claim against him
in his official capacity. “An official capacity suit is the same as a
suit against the entity of which the officer is an agent.” DeGenova
v. Sheriff of DuPage Cnty., 209 F.3d 973, 975 (7th Cir. 2000).
as it is not necessary for the Court to discuss the Defendants’ arguments
against those claims.
Page 12 of 52
Because such a claim is really brought against a defendant’s
employer, a plaintiff must show that her constitutional rights were
violated due to a “policy, custom, or practice” of the employing
entity. Waters v. City of Chicago, 580 F.3d 575, 580 (7th Cir.
2009). A plaintiff may make such a showing by establishing “(1) an
express policy that causes a constitutional deprivation when
enforced; (2) a widespread practice that is so permanent and wellsettled that it constitutes a custom or practice; or (3) an allegation
that the constitutional injury was caused by a person with final
policymaking authority.” Estate of Sims ex rel. Sims v. Cnty. of
Bureau, 506 F.3d 509, 515 (7th Cir. 2007).
Skube voluntarily dismissed all of her other claims against
Deputy Koester in his official capacity, and she does not present
any arguments related to a pattern, practice, or custom within the
Sangamon County Sheriff’s Office related to false arrests. See Pl.’s
Resp., d/e 113 at 10-16. Therefore, the Defendants’ motion for
summary judgment is granted as to Skube’s false arrest claim
against Deputy Koester in his official capacity.
B. Deputy Koester is not entitled to summary judgment or
Page 13 of 52
qualified immunity against Skube’s false arrest claim
against him in his individual capacity.
While Deputy Koester may be entitled to summary judgment
against Skube’s false arrest claim against him in his official
capacity, the same is not true of Skube’s false arrest claim against
him in his individual capacity. Skube’s false arrest claim amounts
to an allegation that Deputy Koester violated her Fourth
Amendment right to be free from unreasonable seizure by arresting
her without probable cause. It follows that if Deputy Koester did
have probable cause to arrest Skube, her false arrest claim must
fail. See Morfin v. City of E. Chicago, 349 F.3d 989, 997 (7th Cir.
2003); Juriss v. McGowan, 957 F.2d 345, 349 (7th Cir. 1992) (“[A]
person arrested with probable cause cannot cry false arrest.”).
Deputy Koester had probable cause to arrest Skube if “the facts and
circumstances within [Deputy Koester’s] knowledge and of which
[he] ha[d] reasonably trustworthy information [were] sufficient to
warrant a prudent person in believing [Skube] ha[d] committed or
[was] committing an offense.” See United States v. Sawyer, 224
F.3d 675, 678-79 (7th Cir. 2000).
Page 14 of 52
Deputy Koester claims that he had probable cause to arrest
Skube for the offense of resisting or obstructing a peace officer.
Defs.’ Mot., d/e 107 at 9. He further argues that even if he did not
have probable cause to arrest her, he is entitled to qualified
immunity against Skube’s claim because there was not a clear
precedent holding that he did not have probable cause. Id. at 14.
Qualified immunity provides officers an added level of
discretion in determining whether probable cause existed for an
arrest. That is, if a reasonable officer could have believed the arrest
was lawful, in light of clearly established law and the information
known to the officer, then the officer is entitled to qualified
immunity. Abbott, 705 F.3d at 714. This is sometimes called
“arguable probable cause,” and it protects officers who reasonably
but mistakenly believe that probable cause exists. Id. The Court’s
inquiry will therefore hinge on whether Deputy Koester had
“arguable probable cause” to arrest Skube for resisting or
obstructing a peace officer.
Illinois law states that “[a] person who knowingly resists or
obstructs the performance by one known to the person to be a
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peace officer . . . of any authorized act within his or her official
capacity commits a Class A misdemeanor.” 720 ILCS 5/31-1.
Deputy Koester argues that Skube violated the statute by “(1)
disregarding his direction to stand by the other office [sic] by
vacating that position and approaching him; (2) interfering with his
inventory of the vehicle following the arrest of the driver; and (3)
failing to comply with his repeated orders to back up, turn around,
and place her hands behind her back.” Defs.’ Mot., d/e 107 at 910. The Court will divide its analysis of Skube’s actions and
whether they give rise to probable cause into two parts. First, the
Court will examine Skube’s actions from the point that she
approached Deputy Koester and told him that he did not have the
right to search her purse to the time that Deputy Koester declared
that she was under arrest, which is the period from 12:08 to 12:17
in the video. The second part of the Court’s analysis will focus on
Skube’s actions from the point that Deputy Koester stated that
Skube was under arrest to when he tased her, or 12:18 to 12:24 in
the video.
On the first of these inquiries, the law is clear that Deputy
Page 16 of 52
Koester did not have probable cause to arrest Skube for resisting or
obstructing after she walked up to him and objected to his
searching her purse. Illinois courts have long held that the
resisting statute does not “proscribe mere argument with a
policeman about the validity of an arrest or other police action.”
People v. Raby, 240 N.E.2d 595, 599 (Ill. 1968). Rather, the statute
prohibits “only some physical act which imposes an obstacle which
may impede, hinder, interrupt, prevent or delay the performance of
the officer’s duties, such as going limp, forcefully resisting arrest or
physically aiding a third party to avoid arrest.” Id. This means that
a person “may inquire as to [the] reason [for an arrest]; he may
point out the officer’s mistake; he may protest and argue; but he
may not impede the arrest by physical action.” People v. Crawford,
505 N.E.2d 394, 396 (Ill. App. Ct. 1987); see also People v. McCoy,
881 N.E.2d 621, 630 (Ill. App. Ct. 2008) (“The statute does not
prohibit a person from verbally resisting or arguing with a police
officer about the validity of an arrest or other police action.”).
Under these rules, Illinois courts have overturned convictions
for resisting or obstructing where defendants “simply refused to
Page 17 of 52
comply with the request of an officer,” People v. Stoudt, 555 N.E.2d
825, 828 (Ill. App. Ct. 1990), or “merely argued with the officer as to
when he would answer the booking questions and then, after an
indefinite but certainly a brief time, did answer the questions,”
People v. Weathington, 411 N.E.2d 862, 863-64 (Ill. 1980).
Furthermore, the Seventh Circuit has held that a group of
plaintiffs did not violate the resisting/obstructing statute by
approaching police officers “while those officers were attempting to
arrest another of the plaintiffs,” “asking the officers what was going
on,” and later “question[ing] why they were being arrested.”
Gonzalez v. City of Elgin, 578 F.3d 526, 538 (7th Cir. 2009). In
Gonzalez, police officers responded to reports of a fight in a
restaurant parking lot. See id. at 530-36. When the officers
arrived, the fight had already ended and the people involved in the
fight had dispersed, but the officers began forcefully arresting a
group of people who remained in the area but had not been involved
in the fight. Id. One of the plaintiffs told a police officer, “I think
you guys have the wrong people,” and followed the officer while the
officer was taking another of the plaintiffs into custody. Id. at 531Page 18 of 52
32. The plaintiff told the officer “we didn’t do anything” and asked
him why he was arresting them and where he was taking her friend.
Id. at 532. A video of the incident showed that this plaintiff
followed the officer closely and was “visibly distressed.” Id. Another
plaintiff walked up to the police and “pleaded with them to stop”
beating her husband, “saying, ‘We didn't do anything. Leave him
alone.’” Id. at 535. Both of these plaintiffs were arrested for
resisting and obstructing an officer, though those charges were
later dismissed. Id. at 532, 535.
In reversing summary judgment against the plaintiffs’ false
arrest claims, the Seventh Circuit emphasized that “without more
evidence, there is nothing wrong in itself with approaching a police
officer.” Id. at 538. The court stated that “‘[i]t is well settled under
Illinois law . . . that the resistance must be physical; mere
argument will not suffice.’” Id. (quoting Payne v. Pauley, 337 F.3d
767, 776 (7th Cir. 2003)). Furthermore, the court cited Illinois
precedent for the rule that using abusive language against officers
does not constitute resisting or obstructing, and that “disrespect for
the law, antagonism, or belligerence is insufficient to constitute
Page 19 of 52
resisting or obstructing a peace officer.” Id. (citing People v. Long,
738 N.E.2d 216, 222 (Ill. App. Ct. 2000); People v. Flannigan, 267
N.E.2d 739, 741-42 (Ill. App. Ct. 1971)).
Here, Skube’s actions are closely analogous to those of the
plaintiffs in Gonzalez, Stoudt, and Weathington. Skube quickly
approached Deputy Koester but stopped several feet away from him
and verbally disputed his actions. In other words, she attempted to
“point out [Deputy Koester’s] mistake”—granted, rather passionately
and emotionally, but without the use of any “physical action.” See
Crawford, 505 N.E.2d at 396. Under the above cases, Skube was
permitted to approach Deputy Koester and object to what he was
doing and she was allowed to not immediately comply with Deputy
Koester’s orders to back up. The Defendants’ argument that
Skube’s “intention in approaching Deputy Koester was not to have a
discussion with him but was to stop him from searching her purse”
does not affect this analysis. See Defs.’ Mot., d/e 107 at 12. The
plaintiffs in Gonzalez surely intended to stop the police officers from
arresting their friends when they approached them and objected to
their actions. What matters is that, in both situations, the
Page 20 of 52
arrestees verbally protested the officers’ actions without becoming
physically aggressive. Gonzalez made clear that such actions do
not violate the resisting/obstructing statute. Therefore, Deputy
Koester’s first two claimed bases for probable cause—that Skube
resisted or obstructed by not standing where she had been told and
that she interfered with Deputy Koester’s inventory search by
approaching him—are both insufficient to establish probable cause
under the law.
Consequently, Deputy Koester lacked probable cause to arrest
Skube when he first declared that she was under arrest at 12:17 in
the video. However, the Court’s inquiry does not end there. Even if
Deputy Koester did not have probable cause to arrest Skube at the
time he declared that she was under arrest, Skube was not
permitted to resist Deputy Koester’s arrest order. Illinois law
mandates that “‘resistance of even an unlawful arrest by a known
officer’ is a violation of the [resisting] statute.” City of Champaign v.
Torres, 824 N.E.2d 624, 629 (Ill. 2005) (quoting People v. Locken,
322 N.E.2d 51, 54 (Ill. 1974)). Therefore, if Skube’s actions after
Deputy Koester stated that she was under arrest amounted to
Page 21 of 52
resisting arrest—even though the initial arrest was not valid—
Skube would have violated the statute and given Deputy Koester
probable cause for a valid arrest. For that reason, the Court must
determine whether Skube’s actions from the time that Deputy
Koester declared that Skube was under arrest (12:17 in the video)
to the time that he tased her (12:24 in the video) constituted
resisting arrest.
Determining whether Skube’s actions gave rise to probable
cause for her arrest requires the Court to first decide whether
Skube was actively, physically resisting arrest or simply arguing
and being slow to comply with Deputy Koester’s orders. See Abbott,
705 F.3d at 722 (“The greatest difficulty lies in determining the
point at which mere verbal argument or refusal to act becomes an
act of physical resistance or obstruction.”). The precedent in this
area directs that verbal resistance can amount to active, physical
resistance giving rise to probable cause in two situations: (1) if the
arrestee accompanies verbal resistance with some physically
resisting act, and (2) if the arrestee verbally resists and refuses to
comply for a prolonged period of time.
Page 22 of 52
Under the first of these lines of cases, even a brief period of
physical resistance can constitute resisting arrest if the resistance
is sufficiently active. For instance, in Brooks v. City of Aurora,
Illinois, 653 F.3d 478 (7th Cir. 2011), the Seventh Circuit evaluated
whether a plaintiff had violated the resisting statute when, having
been informed that he was under arrest, the plaintiff “backpedaled
away, escaped [the arresting officer]’s attempt to grab his wrist and
raised his arms to his shoulders.” Id. at 484. A video recorded
from the arresting officer’s dashboard camera also showed that the
plaintiff “repeatedly, physically rebuffed [the arresting officer]’s
attempts to grasp him and that, after he had stopped backtracking,
[the plaintiff] turned to face [the officer] and threw out his arms in
what could be construed as a resisting or defensive posture.” Id.
The Brooks court found that while this level of resistance may not
have actually violated the statute—the state criminal charge for
resisting arrest had been dismissed—the question was sufficiently
close that the officer was entitled to qualified immunity against the
plaintiff’s false arrest claim. Id. Other courts have found that an
arrestee is resisting if he physically struggles with officers for
Page 23 of 52
several minutes as the officers try to handcuff him, People v.
Ostrowski, 914 N.E.2d 558, 572 (Ill. App. Ct. 2009), or if she runs
towards a police car in what could reasonably be perceived as an
effort to help her son escape from the car and disregards an officer’s
orders to stop, Abbott, 705 F.3d at 723. See also Raby, 240 N.E.2d
at 599 (holding that “physically aiding a third party to avoid arrest”
can constitute resisting or obstructing). On the other hand, very
minor physical resistance does not constitute resisting arrest. See
City of Pekin v. Ross, 400 N.E.2d 992, 994 (Ill. App. Ct. 1980)
(“[W]hen the officers attempted to handcuff Ross’ hands behind his
back he pulled his arms down and in front of him. Ross testified
that this happened because the officers were hurting him by putting
his hands behind his back and pushing them up. This certainly
does not constitute resistance.”).
Even if an arrestee does not take some active form of physical
resistance, he can violate the statute if he refuses to comply for a
prolonged period of time. Such was the case in Brickey v.
Fitzgerald, No. 12-3202, 2013 WL 6152302 (C.D. Ill. Nov. 22, 2013),
where this Court held that an officer was entitled to qualified
Page 24 of 52
immunity against a plaintiff’s false arrest claim when the plaintiff
heatedly argued with the officer and refused to follow the officer’s
orders for several minutes after the officer declared that the plaintiff
was under arrest, requiring two additional officers to come to the
scene to assist the arresting officer. Id. at *7; see also People v.
Synnott, 811 N.E.2d 236, 237-38, 241 (Ill. App. Ct. 2004) (finding
that a man had resisted arrest by refusing officers’ repeated orders
to exit the man’s car, requiring the officers to make numerous
attempts to get him out of the car over several minutes).
However, as discussed in detail above, the law is clear—and
had been for many years when the events giving rise to this case
occurred in July 2011—that a short period of arguing and not
complying with police orders does not constitute resisting arrest.
See, e.g., Payne, 337 F.3d at 776 (“[T]he resistance must be
physical; mere argument will not suffice.”); Raby, 240 N.E.2d at 599
(holding that the statute does not “proscribe mere argument with a
policeman about the validity of an arrest or other police action”);
People v. Berardi, 948 N.E.2d 98, 103-04 (Ill. App. Ct. 2011)
(finding that a person had not violated that statute when,
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“[a]lthough both parties repeated themselves multiple times, the
encounter lasted only a short time. Defendant told Taylor he had a
right to be present and Taylor stated that he was not going to
debate that question with defendant, and that defendant would be
arrested if he did not leave.”); McCoy, 881 N.E.2d at 630, 632
(emphasizing that “[t]he statute does not prohibit a person from
verbally resisting or arguing with a police officer about the validity
of an arrest,” and reversing a conviction where the prosecutor had
“suggested to the jury that mere argument or refusal to cooperate
with a police officer is sufficient to support a finding of guilty”).
In this case, Skube argued with Deputy Koester for
approximately six seconds after his arrest order before he tased her.
She did not physically resist, as her only physical action was to
take one step back when Deputy Koester declared that she was
under arrest, in what appeared to be a surprised reaction to Deputy
Koester’s arrest order, while asking him, “How am I under arrest?”
Vid. at 12:19-12:20. Skube then continued to object that Deputy
Koester did not have the right to search her purse. Vid. at 12:2212:23. She did not “backpeddle away” or “repeatedly, physically
Page 26 of 52
rebuff[] [Deputy Koester]’s attempts to grasp [her],” as the plaintiff
in Brooks did. See Brooks, 653 F.3d at 484. Furthermore, her
period of argument was not nearly as prolonged as the plaintiffs’
resistance in Brickey and Synnott. Rather, Skube verbally resisted
and argued for a period of several seconds and she was not given an
opportunity for “eventual cooperation” before Deputy Koester tased
her. See Weathington, 411 N.E.2d at 864. The law was clear that
this brief period of argument did not constitute resisting arrest, so
Deputy Koester had neither probable cause nor arguable probable
cause to arrest Skube when he did so.
For these reasons, under the clearly established law that
existed at the time of Skube’s arrest, no reasonable officer in
Deputy Koester’s position would have believed that he had probable
cause to arrest Skube for resisting or obstructing a peace officer.
Therefore, a jury could find that Deputy Koester falsely arrested
Skube, meaning that Deputy Koester is not entitled to summary
judgment or a finding of qualified immunity on Skube’s false arrest
claim against Koester in his individual capacity.
C. Deputy Koester is not entitled to summary judgment or
Page 27 of 52
qualified immunity against Skube’s excessive force
claim.
Deputy Koester also moves for summary judgment and a
finding of qualified immunity against Skube’s excessive force claim
related to the first use of his taser. The Court’s previous finding
regarding Skube’s false arrest claim has important ramifications for
her excessive force claims. The Seventh Circuit has held that
“when an illegal arrest sets off a chain of indignities inflicted on the
hapless victim, including offensive physical touchings that would be
privileged if the arrest were lawful, she is entitled to obtain damages
for these indignities whether or not they are independent violations
of the Constitution.” Herzog v. Vill. of Winnetka, Ill., 309 F.3d
1041, 1044 (7th Cir. 2002); see also Williams v. Sirmons, 307 F.
App’x 354, 360 (11th Cir. 2009) (“If no probable cause authorizes
an arrest, any use of force to effectuate the unlawful arrest is a
violation of the Fourth Amendment.”). Therefore, if a jury finds that
Deputy Koester’s arrest of Skube was unlawful, Deputy Koester’s
use of force in effectuating that arrest would be per se
unreasonable. Because the Court today holds that a jury could
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make such a finding about the arrest, making Deputy Koester liable
for excessive use of force against Skube, the Court cannot grant
summary judgment on Skube’s claim or find that Deputy Koester is
entitled to qualified immunity.
Furthermore, even if a jury were to find against Skube on her
false arrest claim, Deputy Koester would still not be entitled to
summary judgment or qualified immunity against Skube’s excessive
force claim. Regarding excessive force, the Seventh Circuit has held
that “[e]ven when a police officer has probable cause to execute an
arrest, he still may have committed [a constitutional violation] ‘if,
judging from the totality of circumstances at the time of the arrest,
the officer used greater force than was reasonably necessary to
make the arrest.’” Brooks, 653 F.3d at 486 (quoting Gonzalez, 578
F.3d at 539).
To determine whether Deputy Koester’s use of force was
reasonable, the Court must examine Deputy Koester’s actions
under the three-factor test laid out by the Supreme Court in
Graham v. Connor, 490 U.S. 386, 396 (1989). These factors
include (1) “the severity of the crime at issue,” (2) “whether the
Page 29 of 52
suspect poses an immediate threat to the safety of the officers or
others,” and (3) “whether [s]he is actively resisting arrest or
attempting to evade arrest by flight.” Id. In evaluating an officer’s
actions, the “use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Id. The ultimate question “is whether the officers’
actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them.” Id. at 397. Because the
determination is an objective one, “[a]n officer’s evil intentions will
not make a Fourth Amendment violation out of an objectively
reasonable use of force; nor will an officer’s good intentions make
an objectively unreasonable use of force constitutional.” Id.
Here, the Graham factors did not support any significant use
of force against Skube. First, even if Deputy Koester had been
correct that there was probable cause to believe that Skube had
committed an offense, Skube’s offense was minor—the nonviolent
resistance of an unlawful arrest order. See Abbott, 705 F.3d at 730
(stating that obstructing or resisting a police officer is “not a serious
or violent crime”). Furthermore, while Deputy Koester testified that
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he viewed Skube as a threat to him and Officer Leggitt, see Deputy
Koester Dep., d/e 107-1 at 294, 327, that testimony is inconsistent
with the video evidence and with his own statements in his
deposition. The Court notes that, to the extent that Deputy
Koester’s testimony about Skube constituting a threat conflicts with
what is depicted in the video, the Court is permitted to “view[] the
facts in the light depicted by the videotape.” See Scott v. Harris,
550 U.S. 372, 381 (2007) (instructing lower courts not to consider
testimony that “is so utterly discredited by the record that no
reasonable jury could have believed [it]”). The Court concludes that
Deputy Koester’s testimony that Skube was “go[ing] back and forth”
from a “fight stance” is inconsistent with what is depicted in the
video. See Deputy Koester Dep., d/e 107-1 at 294-96. The only
movements Skube made were to gesture with her hands when she
was objecting to Deputy Koester’s search and, after Deputy Koester
told her she was under arrest, to take one step backwards and bend
her arms out at her elbows, with her palms facing out in a
questioning gesture. Vid. 12:11-12:20. Immediately before Deputy
Koester tased her, she again gestured at the car while stepping
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back with her right foot and repeating that Deputy Koester did not
have the right to search her purse. Vid. 12:21-12:23. None of
these actions appear threatening. Further, Deputy Koester had
already conducted an “ocular pat-down” of Skube by looking her
over for weapons when she first got out of the SUV and concluded
that she did not have a weapon. See Deputy Koester Dep., d/e 1071 at 305. And any possible threat that Flagg could have posed was
essentially neutralized, as he was secured in Deputy Koester’s
squad car and Officer Leggitt was monitoring him. The Court
concludes that “[t]his was simply not the kind of ‘tense, uncertain,
and rapidly evolving’ situation that required ‘split-second’ judgment
calls.” See Phillips, 678 F.3d at 526 (quoting Graham, 490 U.S. at
397). The situation here—standing on the side of the road with an
uncooperative arrestee—may have presented some danger, but “‘[a]
desire to resolve quickly a potentially dangerous situation is not the
type of governmental interest that, standing alone, justifies the use
of force that may cause serious injury.’” Abbott, 705 F.3d at 731
(quoting Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001)).
Moreover, Skube was not “actively resisting arrest”—as the Court
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discussed in the previous section, Skube’s resistance cannot be
considered active. She may have become “verbally belligerent,” but
verbal belligerence does not constitute active resistance. See
Gonzalez, 578 F.3d at 539.
The Seventh Circuit has held that, in situations such as this
one, where a nonviolent, minor offender is not actively resisting
arrest, the arresting officer may use only minimal force. See
Abbott, 705 F.3d at 732 (stating that “only a minimal amount of
force may be used on” nonresisting or passively resisting arrestees);
Smith v. Ball State Univ., 295 F.3d 763, 771 (7th Cir. 2003)
(holding that an arrestee’s unresponsiveness to police inquiries,
which officers could “reasonably misconstrue . . . as resistance,”
required “the minimal use of force”). The use of a taser in dart
mode, however, does not constitute minimal force. Lewis v.
Downey, 581 F.3d 467, 475 (7th Cir. 2009) (holding that “the use of
a taser gun . . . is more than a de minimis application of force”).
For that reason, “courts generally hold that it is unreasonable for
officers to deploy a taser against a misdemeanant who is not
actively resisting arrest.” Abbott, 705 F.3d at 730.
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In Abbott, an officer arrested a young man, Travis, for
obstructing a peace officer after Travis interfered with animal
control officers’ efforts to secure his loose dog. 705 F.3d at 710.
The arresting officer placed Travis in the back of a squad car, where
Travis struggled with the officer to get free. Id. After the officer had
secured Travis in the car, Travis’s mother, Cindy, began moving
toward the car while yelling at the officer. Id. at 710-11. The
officer ordered Cindy to stop, and when she disregarded his orders
and kept moving towards the car, the officer fired his taser at her.
Id. at 711. Cindy fell to the ground, and the officer activated the
taser a second time. Id. The plaintiffs—Cindy and Travis—did not
challenge the officer’s first use of the taser against Cindy, but the
court concluded that a jury could find that the second use of the
taser was unreasonable. Id. at 729-30.
Regarding the defendants’ arguments about the “rapidly
unfolding” nature of the events leading up to the tasing, the
Seventh Circuit in Abbott court emphasized that:
We are mindful that Deputy Sweeney acted in a rapidly
unfolding situation and that officers are to be given
leeway under those circumstances. But Sweeney
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attempts to transform the circumstances into much more
than they really were. Although he reasonably believed
that Travis was attempting to escape, it is undisputed
that Travis could not open the car door from the inside.
And had he escaped, it is unlikely he would have gone far
because Sergeant Lawley or the animal control officers
could have intercepted him—this is not the case of a
single officer attempting to control and detain multiple
suspects. Furthermore, Travis was not a violent criminal
who had been arrested for a violent crime; rather, he
simply had been acting foolishly, albeit criminally.
Because the Graham balance tips so heavily in Cindy's
favor, we do not think that the rapidly unfolding nature
of these relatively innocuous events tips the balance the
other way.
Id. at 731. Furthermore, in denying the officer qualified immunity,
the court held that, “[p]rior to 2007, it was well-established in this
circuit that police officers could not use significant force on
nonresisting or passively resisting suspects.” Id. at 732.
Similarly, in Cyrus v. Town of Mukwonago, 624 F.3d 856, 863
(7th Cir. 2010), the Seventh Circuit held that repeated tasings could
be found unreasonable where the plaintiff “had, at most, committed
a misdemeanor offense . . . and he was not exhibiting violent
behavior.” Id. The Cyrus court also noted that, “As importantly,
there is no evidence suggesting that [the plaintiff] violently resisted
the officers’ attempts to handcuff him.” Id.; see also Phillips, 678
Page 35 of 52
F.3d at 524-25 (finding that minimal force was required against an
arrestee who “never exhibited any sort of aggressive behavior
toward the officers” and did not attempt to escape, but instead
exhibited “passive noncompliance” with officers’ orders to exit her
vehicle).
Other circuits have also emphasized that the use of a taser
against a nonviolent, minor offender is excessive. See Hagans v.
Franklin Cnty. Sheriff’s Office, 695 F.3d 505, 509-10 (6th Cir. 2012)
(recognizing that “[a] suspect’s active resistance . . . marks the line
between reasonable and unreasonable tasing in” the Sixth, Eighth,
Tenth, and Eleventh Circuits); Bryan v. MacPherson, 630 F.3d 805,
828-29 (9th Cir. 2010) (“While the commission of a misdemeanor
offense is not to be taken lightly, it militates against finding the
force used to effect an arrest reasonable where the suspect was also
nonviolent and posed no threat to the safety of the officers or
others.”) (internal quotation marks omitted); Brown v. City of
Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009) (“[T]he law was
sufficiently clear to inform a reasonable officer that it was unlawful
to [t]aser a nonviolent, suspected misdemeanant who was not
Page 36 of 52
fleeing or resisting arrest, who posed little to no threat to anyone's
safety, and whose only noncompliance with the officer's commands
was to disobey two orders to end her phone call to a 911 operator.”);
Parker v. Gerrish, 547 F.3d 1, 9-10 (1st Cir. 2008) (holding that a
jury could reasonably find excessive an officer’s use of a taser
against an arrestee who was at most passively resisting arrest);
Casey v. City of Fed. Heights, 509 F.3d 1278, 1281-82 (10th Cir.
2007) (concluding that the use of a taser against a nonviolent
misdemeanant was excessive).
Further, the case sub judice is distinguishable from those in
the Seventh Circuit where the court has found the use of a taser to
be reasonable. See, e.g., Clarett v. Roberts, 657 F.3d 664, 674-75
(7th Cir. 2011) (holding that the use of a taser was reasonable
where the jury could have found that the plaintiff was blocking
officers from entering a room in which the officers reasonably
believed that other officers needed help, and finding that the
subsequent use of the taser was reasonable because the plaintiff
“was kicking and flailing at [the arresting officer] and continued this
assaultive behavior when he tried to arrest her”); United States v.
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Norris, 640 F.3d 295, 303 (7th Cir. 2011) (concluding that it was
reasonable to use a taser on a defendant when he had “displayed an
unwillingness to accede to reasonable police commands, and his
actions suggested an intent to use violence to fend off further police
action”); Forrest v. Prine, 620 F.3d 739, 745 (7th Cir. 2010) (ruling
against a plaintiff’s excessive force claim where the plaintiff was not
merely “slow to comply with an order,” but rather “had attacked an
officer earlier in the night,” “was a relatively large man confined in
an enclosed space of relatively small area,” and “was pacing in [his]
cell, clenching his fists and yelling obscenities” while disregarding
the tasing officer’s repeated orders over the course of several
minutes).
The above cases, along with the cases discussed in the
previous section, negate the Defendants’ assertion that “[t]here is no
closely analogous case law that would put Deputy Koester on notice
that Plaintiff’s actions were passive and that use of a Taser was
unreasonable.” See Defs.’ Mot., d/e 107 at 18. The law was clear
at the time that Deputy Koester tased Skube that Skube’s actions
did not amount to active resistance and that the use of a taser in
Page 38 of 52
dart mode against a nonviolent, minor offender was unreasonable.
Deputy Koester is therefore not entitled to summary judgment or a
finding of qualified immunity against Skube’s excessive force claim.
D. Pursuant to Federal Rule of Civil Procedure 56(f), the
Court is considering granting summary judgment in
favor of Skube on her excessive force and false arrest
claims against Deputy Koester in his individual
capacity.
Given the above legal conclusions, the Court is considering
granting summary judgment in favor of Skube on her false arrest
and excessive force claims against Deputy Koester in his individual
capacity. The factual questions at issue in these claims appear to
be resolved by the video. Therefore, the Court does not have to
construe facts in favor of the Plaintiff to decide that no reasonable
officer would have thought he had probable cause to arrest Skube
or felt that he needed to use a taser against her in dart mode.
Instead, the Court can make objective determinations regarding the
existence of probable cause for Skube’s arrest and the
reasonableness of Deputy Koester’s use of force.
A jury may be able to find that Deputy Koester genuinely
believed that Skube was obstructing his inventory search or
Page 39 of 52
resisting arrest, but such a finding would not change the fact that
Skube’s actions—several seconds of arguing with Deputy Koester
about why he was searching her purse and the grounds for
declaring that she was under arrest—are exactly the sorts of actions
that Raby and its progeny held do not violate the resisting arrest
statute. There are, therefore, no factual questions for a jury to
resolve here; the Court is simply making a legal determination that,
given the state of the law in July 2011, no reasonable officer would
have believed that he had probable cause to arrest Skube for
resisting arrest. See Abbott, 705 F.3d at 714 (“Usually in a § 1983
false-arrest case the jury determines whether the arrest was
supported by probable cause; but if the underlying facts are
undisputed, the court can make that decision on summary
judgment.”). The same is true of Skube’s excessive force claim, in
that, a jury could find that Deputy Koester genuinely believed that
he needed to tase Skube, but that finding would be legally
irrelevant. The inquiry is one of objective reasonableness, Graham,
490 U.S. at 397, and, as described earlier, the video makes clear
that Deputy Koester’s belief that he needed to tase Skube was
Page 40 of 52
objectively unreasonable.2 See Phillips, 678 F.3d at 520 (“Objective
reasonableness of force is a legal determination rather than a pure
question of fact for the jury to decide.”). Additionally, Deputy
Koester cannot create a question of material fact by contradicting
what the video plainly shows, as the Court will “view[] the facts in
the light depicted by the videotape.” See Scott, 550 U.S. at 380-81.
Therefore, the Court is hereby giving notice pursuant to
Federal Rule of Civil Procedure 56(f) that the Court is considering
granting summary judgment on behalf of Skube on Counts VIII, II,
and IV of her Second Amended Complaint.
E. Deputy Koester is entitled to summary judgment on
Skube’s improper search and seizure claim.
Both Skube and the Defendants move for summary judgment
on Skube’s improper search and seizure claim against Deputy
Koester in his individual capacity. Deputy Koester argues that he
was entitled to search Skube’s purse as part of a lawful inventory
search. See Defs.’ Mot., d/e 107 at 23-26. Skube counters that
Again, this inquiry is only relevant if the Court finds against the Plaintiff on
her unlawful arrest claim. If the Court finds that the arrest was unlawful, then
the force Deputy Koester used in effecting that arrest was excessive. See
Herzog, 309 F.3d at 1044.
Page 41 of 52
2
Deputy Koester’s inventory search should not have extended to
Skube’s purse, and that Deputy Koester actually used his inventory
search as a pretext for “rummaging” through the purse. See
Memorandum in Support of Plaintiff’s Partial Motion for Summary
Judgment, d/e 108-1 at 5-7.
In general, “[i]nventory searches constitute a well-recognized
exception to the warrant requirement and are reasonable under the
Fourth Amendment.” United States v. Cartwright, 630 F.3d 610,
613 (7th Cir. 2010) (citing South Dakota v. Opperman, 428 U.S.
364, 376, (1976)). An officer can conduct an inventory search if the
search is “conducted pursuant to standard police procedures aimed
at protecting the owner’s property—and protecting the police from
the owner’s charging them with having stolen, lost, or damaged his
property.” United States v. Pittman, 411 F.3d 813, 817 (7th Cir.
2005). In addition to protecting property, inventory searches serve
to protect officers from potential danger. Opperman, 428 U.S. at
376. The purpose of requiring police departments to follow
standard inventory procedures is to ensure that a department’s
inventory searches are “designed to produce an inventory,” rather
Page 42 of 52
than being used as “a ruse for a general rummaging in order to
discover incriminating evidence.” See Florida v. Wells, 495 U.S. 1, 4
(1990); Cartwright, 630 F.3d at 614 (emphasizing that “[t]he
existence of a police policy, city ordinance, or state law alone does
not render a particular search or seizure reasonable or otherwise
immune from scrutiny under the Fourth Amendment,” and
examining the inventory policy in question to ensure that it was
designed to meet the legitimate purposes of an inventory search);
United States v. Lomeli, 76 F.3d 146, 148 (7th Cir. 1996)
(“Requiring sufficient regulation of inventory searches ensures that
a police procedure is not merely a pretext for concealing an
investigatory police motive.”).
Here, Deputy Koester was operating pursuant to a standard
policy when he ordered Flagg’s car to be towed and then began
conducting an inventory search. The Sangamon County Sheriff’s
Office Tow and Inventory Policy permits a car to be towed after its
driver is arrested for DUI. See Sangamon County Sheriff’s Office
Tow and Inventory Policy, d/e 107-3 at 1. The policy also grants an
officer the discretion to allow another licensed driver to take control
Page 43 of 52
of a vehicle instead of having it towed. Id. When an officer orders a
vehicle to be towed, he may conduct an inventory search under the
following procedure:
An examination and inventory of the contents of all
vehicles towed, removed or held by [Sangamon County
Sheriff’s Office] shall be conducted. The examination and
inventory will be restricted to those areas where an owner
or operator would ordinarily place or store property or
equipment in a vehicle. This would normally include the
front and rear seat area, glove compartment, map case,
sun visor, console storage compartment, trunk,
receptacles, luggage, boxes, bags, engine compartment,
or any area of the vehicle which might contain the
owner’s or operator’s property or equipment, including
any open, closed or locked containers therein.
Sangamon County Sheriff’s Office Tow and Inventory Policy, d/e
107-3 at 2.
Here, because Deputy Koester arrested Flagg for DUI, he was
permitted to order Flagg’s car to be towed. Deputy Koester testified
that he judged Skube to be intoxicated, so he did not think she
should drive Flagg’s car. See Deputy Koester Dep., d/e 107-1 at
244-45. Once Deputy Koester ordered Flagg’s car towed, the
Sangamon County policy authorized him to search the car. See
Pittman, 411 F.3d at 817. The Court concludes that Sangamon
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County’s inventory policy is directed at inventorying and protecting
the property of the owners of towed vehicles and does not appear to
be designed as a “ruse” to permit “general rummaging.” See Wells,
495 U.S. at 4. Therefore, the policy provided Deputy Koester valid
authorization for his inventory search of Flagg’s car.
Skube argues that, even if an inventory search were permitted,
the otherwise valid search should not have encompassed her purse.
Skube further alleges that Deputy Koester knew that the purse
belonged to Skube, not Flagg, and, therefore, Deputy Koester
should not have searched it. See Pl.’s Mem., d/e 108-1 at 5-6. As a
matter of common sense, the Court agrees. The purple Coach
purse sitting on Skube’s seat quite clearly belonged to Skube, not
Flagg. See Skube Dep., d/e 107-6 at 40-41; Koester Dep., d/e 1071 at 244. It would have been logical for Deputy Koester to ask
Skube to take her purse, rather than inventorying it with Skube
standing a few feet away from him.
Regardless, the Court concludes that Deputy Koester was not
legally required to ask Skube about the purse before he conducted
his inventory search. Deputy Koester was permitted to conduct an
Page 45 of 52
inventory search of Flagg’s vehicle, and the inventory policy he
followed reasonably encompassed property left on the passenger’s
seat. Therefore, Deputy Koester was permitted to search the purse
as part of his inventory. Similarly, in United States v. Battle, 370 F.
App’x 426 (4th Cir. 2010), the Fourth Circuit upheld a conviction
based upon an inventory search that encompassed the property of a
passenger who had not been arrested, even though the officer who
conducted the search had not asked the passenger to retrieve his
belongings before beginning the search. Id. at 429. The court
found that:
The specific language of the policy does not require an
officer to allow the passengers to retrieve their valuables
before the inventory search. Manifestly, allowing a
motorist to retrieve containers before the completion of
an inventory search would defeat one of the purposes of
the search: the protection of an officer.
Id. Here, the Sangamon County Tow and Inventory Policy did not
require officers to ask occupants of a vehicle that was going to be
towed to remove their belongings before conducting an inventory
search. Therefore, Deputy Koester was allowed to follow this valid
inventory policy and begin his inventory with the property left on
Page 46 of 52
the passenger’s seat of Flagg’s vehicle.
Skube does not squarely address this issue. She does not cite
any cases holding that an officer must ask a passenger to remove
her property from a vehicle before conducting an inventory search.
Instead, Skube emphasizes that the Opperman court stated that
the purpose of an inventory search is “the protection of the owner’s
property while it remains in police custody.” Opperman, 428 U.S.
at 369 (emphasis added). Subsequent courts, when citing
Opperman and its progeny, also specifically mention protection of
the “owner’s property.” See, e.g., Pittman, 411 F.3d at 817; United
States v. Richardson, 121 F.3d 1051, 1055 (7th Cir. 1997).
However, none of these courts used “owner” as a term to
distinguish the owner of the car from any hypothetical passengers,
rather than as a general term for the occupant of the vehicle. See
Opperman, 428 U.S. at 365-66 (the “owner” whose property was
confiscated after the inventory search had also been the only
occupant of the vehicle); Richardson, 121 F.3d at 1051 (same).
These courts were also not necessarily referring to the owner of the
car, as opposed to the owner of the inventoried property.
Page 47 of 52
Further, the way in which courts analyze inventory searches
belies any argument that officers are only permitted to search the
property of arrestees. In Cartwright, the driver of a car was
arrested for driving without a license, but the owner of the car was
actually the passenger. See Cartwright, 630 F.3d at 612. After
arresting the driver, the police conducted a search of the car in
preparation for towing it, without first asking the passenger/owner
to remove any of her belongings from the car. Id. at 612-13. Even
though the court stated that “[a]n inventory search is lawful if . . .
the individual whose possession is to be searched has been lawfully
arrested,” the court did not find problematic the police’s search of
the passenger/owner’s property, who had not been arrested. Id. at
614. Therefore, the Cartwright court appears to hold that an
inventory search is lawful if the driver of the vehicle is lawfully
arrested.
Skube argues that, even if an inventory search could
encompass her purse, “[i]t is clear by his actions that Deputy
Koester searched the purse, not for purposes of an inventory, but as
a ‘pretext for concealing some other kind of investigatory search.’”
Page 48 of 52
Pl.’s Mem., d/e 108-1 at 6.3 However, because Deputy Koester was
permitted to search the purse as part of his inventory search, any
investigatory motive that he possessed is irrelevant. See Lomeli, 76
F.3d at 148 (“[T]he fact that an inventory search may also have had
an investigatory motive does not invalidate it.”). Since Deputy
Koester’s search of Skube’s purse did not constitute an improper
search, Skube’s motion for partial summary judgment is denied,
and the Defendants’ motion for summary judgment on this cause is
granted. As the Court is granting summary judgment on Skube’s
improper search and seizure claim, the Court need not reach the
question of whether Skube would be entitled to compensatory
damages on this claim.
F. Deputy Koester is not entitled to summary judgment
on Skube’s assault and battery claim.
Lastly, Deputy Koester moves for summary judgment on
Skube’s state law claim for assault and battery, but only as to
Deputy Koester’s first use of the taser against Skube. To establish
an assault and battery under Illinois law, a plaintiff must show that
The Plaintiff attributes this quote to “Opperman, 428 at 376,” but Opperman
actually refers to “a pretext concealing an investigatory police motive.”
Opperman, 428 U.S. at 376.
Page 49 of 52
3
a defendant “act[ed] intending to cause a harmful or offensive
contact” with the plaintiff, and “a harmful contact with the [plaintiff]
directly or indirectly result[ed].” Flores v. Santiago, 986 N.E.2d
1216, 1219 (Ill. App. Ct. 2013) (internal quotation marks and
citations omitted).
As a public officer, Deputy Koester’s actions are insulated from
state tort claims by the Illinois Tort Immunity Act, which states that
“[a] public employee is not liable for his act or omission in the
execution or enforcement of any law unless such act or omission
constitutes willful and wanton conduct.” 745 ILCS 10/2-202. For
an act to be considered “willful or wanton,” the act “must have been
committed with an actual or deliberate intention to cause harm” or
with “an utter indifference to or conscious disregard for the safety of
others.” 745 ILCS 10/1-210; Nelson v. Thomas, 668 N.E.2d 1109,
1116-17 (Ill. App. Ct. 1996).
As explained earlier, the use of a taser in dart mode
constitutes an intermediate level of force that causes “intense pain.”
See Abbott, 705 F.3d at 726; Lewis, 581 F.3d at 475. Given that a
jury could find that Deputy Koester unlawfully arrested Skube and
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used excessive force in effecting that arrest, a jury could also find
that Deputy Koester acted with an “utter indifference to or
conscious disregard for” Skube’s safety when he tased her.
Therefore, summary judgment on Skube’s assault and battery claim
is denied.
IV. CONCLUSION
For those reasons, the Defendants’ Motion for Summary
Judgment is GRANTED as to Skube’s false arrest claim against
Deputy Koester in his official capacity (Count VII) and her improper
search and seizure claim against Deputy Koester in his individual
capacity (Count VI), and DENIED as to Skube’s false arrest and
excessive force claims against Deputy Koester in his individual
capacity (Counts VIII and II) and her assault and battery claim
against Deputy Koester in his official capacity (Count XIII).
Additionally, the Plaintiff’s Partial Motion for Summary Judgment is
DENIED. Because there are no surviving claims against Sheriff
Williamson or the Sangamon County Sheriff’s Office, those
Defendants are DISMISSED from this suit. Sangamon County will
remain in this suit only as an indemnity party under Count XVI of
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the Plaintiff’s complaint.
The Court hereby issues notice under Federal Rule of Civil
Procedure 56(f) that the Court is considering granting summary
judgment in favor of the Plaintiff on her false arrest and excessive
force claims against Deputy Koester in his individual capacity
(Counts VIII, II, and IV). The Defendants may file a brief arguing
why the Court should not grant summary judgment in favor of the
Plaintiff on these claims by March 6, 2015. The Plaintiff may
respond to that brief by March 13, 2015.
ENTER: February 27, 2015.
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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