Armstrong et al v. Maloney et al

Filing 197

MEMORANDUM Opinion and Order Signed by the Honorable Edmond E. Chang on 2/21/2012:Mailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LAVERNE ARMSTRONG, ROBBIN
ARMSTRONG, and CORDERO
ARMSTRONG,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
MICHAEL MALONEY, THIEN CHAIKET, )
BRIGID CARLQUIEST, PIOTR
)
SZCZUROWSKI, ALAN LASCH, GEORGE )
NIEDZWIECKI, ELIZABETH ROSELIEB, )
DAVID MICHAELSEN, JOSEPHINE
)
CHRISTOPHER, and CITY OF CHICAGO, )
)
Defendants.
)

No. 08 CV 04398
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Plaintiffs Laverne, Robbin, and Cordero Armstrong filed this lawsuit against a
group of Chicago police officers (the Officers), along with the City of Chicago.1 The
Armstrongs seek to recover damages under 42 U.S.C. § 1983. Both sides have filed
motions for summary judgment [R.113; 119]. For the reasons explained below, the
Armstrongs’ motion is denied and the Defendant Officers’ motion is denied in part and
granted in part.
I.
In deciding the parties’ cross-motions for summary judgment, the Court views
the evidence in the light most favorable to the respective non-moving party. On

1

Citation to the record is “R.” followed by the docket entry. The Court has federal
question jurisdiction. See 28 U.S.C. § 1331.

January 12, 2007, at around 5 p.m., Officer George Niedzwiecki and his partner,
Officer Piotr Szczurowski, were dispatched to the 400 block of North Hamlin. R.121 ¶
28. There, they encountered Aimee Dunlap,2 who told the two officers she had just
found the car that she had earlier reported as stolen. R. 114 ¶ 9. According to the
officers, she also said that Corvell Hodges, her ex-boyfriend, was the one who stole her
car. R.121 ¶ 29. Dunlap asked the officers to arrest Hodges (who was not present at
the time) but Officer Niedzwiecki explained that Dunlap would have to agree to swear
out a warrant for his arrest first. R.121, Exh. D (Niedzwiecki Dep. at 26). The officers
then left the scene. Id. at 30–31.
A few hours later, the two officers were again dispatched to the 400 block of
North Hamlin because of a report of domestic battery. R. 121 ¶ 31. When they arrived,
they saw both Dunlap and Hodges in the area. Id. ¶ 64. At this point, the parties
disagree as to what Dunlap said. The officers maintain that Dunlap told them that
Hodges hit her and that she wanted him arrested. R. 121 ¶ 32. In contrast, Dunlap
denies that she ever told the officers that Hodges hit her. R. 114 ¶ 26.
The parties do agree, however, that at this point, Officer Szczurowski asked
Hodges, “Come here. We want to talk to you.” R. 114 ¶ 35; R. 121 ¶ 35. As the officer
said that, Hodges began to run (according to Hodges and Dunlap, he walked, not ran)
away from the scene. R. 121 ¶¶ 35-37. Officers Szczurowski and Niedzwiecki both

2

By the time of Dunlap’s deposition, she was married to Corvell Hodges and went by the
name Aimee Hodges. R. 129 at 3 n.1. Because of the evidentiary references to Ms. Hodges as
Aimee Dunlap, this opinion will refer to her by the latter name.

2

jumped out of the squad car, and gave chase. Id. ¶ 37. At this moment, according to the
officers, Dunlap yelled out that Hodges had a gun. Id. ¶ 38. The officers also testified
that Dunlap later said that Hodges was known to have a gun, but that she was not
sure if he was carrying a gun with him at that time. R. 114 ¶ 42. Dunlap denies ever
making these statements. Id. ¶ 41.
During Officer Niedzwiecki’s chase of Hodges, Officer Niedzwiecki used his radio
and stated, over the air, that he was chasing a domestic battery suspect who might
have a gun. R. 121 ¶ 38. But the officers were unable to catch Hodges, and soon gave
up chasing him. R. 114 ¶ 46. They decided to wait to see if he would come back. R. 121
¶ 40. Hodges did indeed return, and when the officers saw him, they saw him climbing
over the gate and jumping into the backyard of 425 North Hamlin. Id. ¶ 41.
The officers saw Hodges run up the stairs and pound on the door of the second
floor apartment while yelling, “Let me in. Let me in.” Id. ¶ 75. The door opened, and
Hodges was let inside. Id. By this time, several officers had arrived at the scene, but
the officers did not have a warrant to enter the second-floor apartment. Officer
Szczurowski went over the air and let everyone know that Hodges had gone inside the
second-floor rear door of the apartment and had closed the door behind him. Id. ¶ 78.
Those living inside the apartment were Charles, Laverne, Cordero, and Robbin
Armstrong, along with Robbin’s infant daughter. R. 114 ¶ 55.
To continue the pursuit of Hodges into the apartment, Officer Szczurowski,
along with four or five plainclothes officers, ran up the stairs, and began pounding on
the door while yelling, “Police. Open up the door.” Id. ¶ 79. According to Officer
3

Niedzwiecki, the woman behind the door asked if the officers had a warrant. R. 114
¶ 58. The officers replied that they did not. Id. The woman refused to open the door;
the officers broke down the door and entered the apartment. R. 121 ¶¶ 50, 80. In total,
ten to twelve officers entered. Id. ¶¶ 85, 137. The officers ordered all the apartment’s
occupants to get on the ground, and all of the occupants complied. Id. ¶ 111. As the
search for Hodges began, the parties dispute what happened next.
In the officers’ version of events, Robbin Armstrong tried to mislead the officers
into believing that Hodges had escaped the apartment. Officer Szczurowski recalled
Robbin yelling, “There’s nobody here. He ran out the front door.” R. 121 ¶ 83. Officer
Niedzwiecki also heard Robbin tell the officers that Hodges ran out the front door. Id.
¶ 57. Other officers confirm that Robbin made these statements. Id. ¶ 163. In contrast,
Robbin denies making any of these statements. R. 155, Exh. I (Robbin Dep. at
140–141). According to her, she told the officers that there were only five people inside
the apartment because she was unaware that Hodges had entered. R. 121 ¶ 124.
The parties do agree that the officers soon found Hodges and arrested him. R.
114 ¶ 63. After the arrest, the officers continued to search the apartment. R. 154 ¶ 18.
Cordero Armstrong claims that the officers kicked and stepped on his face and back.
Id. ¶ 11. The officers also arrested Robbin Armstrong because they believed she tried
to mislead them into thinking that Hodges was not in the apartment. R. 121 ¶ 125; R.
114 ¶ 73.
Soon after, the police officers left the Armstrong apartment. After they left, the
Armstrongs discovered that the back door was broken. R. 154 ¶ 21. They also
4

discovered that Robbin Armstrong’s bed and the railings were broken, and $250 was
missing from Robbin’s bedroom. Id. ¶¶ 22–24.
Officer Maloney later prepared and signed a misdemeanor complaint that
charged Robbin Armstrong with Obstructing a Police Officer. R. 114 ¶ 76. On February
26, 2007, the Circuit Court of Cook County struck the charge from the docket with
leave to reinstate. Id. ¶ 78; R. 125 at 17. The charge was eventually dismissed. R. 129
at 7.
These events led to this lawsuit. In August 2008, Laverne, Robbin and Cordero
Armstrong filed a five-count complaint under 42 U.S.C. § 1983. R. 1. The first three
counts were false arrest, search and seizure, and failure-to-intervene claims by each
of the Armstrongs against all of the defendants. Id. ¶¶ 19–29. The last two counts were
claims (relating to her arrest and prosecution) by Robbin Armstrong against all of the
defendants.3 Id. ¶¶ 30–41. The Armstrongs filed a motion for partial summary
judgment on Counts 1, 2, and 5. R. 113. The officers filed a motion for summary
judgment on all claims. R. 125.

3

The plaintiffs later voluntarily dismissed Count 4 (relating to due process violations).
R. 153 at 10. Defendants seek to have the Court dismiss this claim with prejudice and grant
costs. Under Federal Rule of Civil Procedure 41(a)(1)(A)(2), the dismissal is with prejudice
because it comes so late in the litigation. No costs, however, will be awarded in light of the
substantial overlap between the due process claim and the false arrest and malicious
prosecution claims.

5

II.
Summary judgment must be granted “if 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). The same standard applies to cross-motions for
summary judgment. Int’l Bhd. of Elec. Workers, Local 176 v. Balmoral Racing Club,
Inc., 293 F.3d 402, 404 (7th Cir. 2002). Rule 56 “mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). All facts, and any inferences to be drawn
from them, must be viewed in the light most favorable to the non-moving party. Wis.
Cent., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir.2008).
III.
Before examining in detail each claim and the parties’ dueling cross-motions for
summary judgment, it might help to state the conclusions, just as it helps to glance at
the destination on a map before tracing the road from start to end:
< Warrantless entry: neither side wins summary judgment on this claim. The
officers offer evidence that Dunlap accused Hodges of hitting her and reported
that Hodges had a gun, which are exigent circumstances for chasing Hodges into
the apartment without a warrant. Dunlap denies saying those things, which
would undermine probable cause and refute exigent circumstances. This claim
must proceed to trial.
< Damage to property and use of excessive force. The Armstrongs allege that,
after the officers entered the apartment, the officers damaged their property and
used excessive force against Cordero Armstrong. But the Armstrongs cannot
specifically identify who did what, or who might have been able to intervene.
6

Because the officers can be held liable only for their personal conduct, the
officers are entitled to summary judgment on these claims.
< Post-Hodges Arrest. After Hodges was arrested, the exigency (if there was one)
dissipated. Yet the undisputed fact is that the officers remained in the
apartment, and continued to seize the Armstrongs (they could not leave), for
some time after the arrest. Both the overstay and the seizure after the arrest of
Hodges was unreasonable under the Fourth Amendment, and on those claims,
it is the Armstrongs who are entitled to summary judgment on liability. The
trial will address damages for these liabilities.
< Arrest and Prosecution of Robbin for Obstruction. The five officers who were
not involved in Robbin’s arrest win summary judgment on the arrest and
malicious prosecution claims. But there is a genuine issue over whether the two
officers who did make the arrest had probable cause to do so. As to those two
officers, neither side gets summary judgment on the false arrest and malicious
prosecution claims. (And contrary to the officers’ argument, the malicious
prosecution claim was timely filed.)
A.

Warrantless Entry

The first claim advanced by the complaint is a Fourth Amendment violation
based on the warrantless entry into the Armstrongs’ apartment, a claim distinct from
the claims premised on what the officers allegedly did after entering. To justify
entering into the apartment without a warrant, the officers argue that they had
probable cause to arrest Hodges for domestic battery and that there were exigent
circumstances (Dunlap told them that Hodges had a gun) to chase Hodges into the
apartment. The Armstrongs contend that the officers did not have probable cause to
arrest Hodges at all, R.129 at 8–10, and that even if there was probable cause to arrest
him for domestic battery, the crime was insufficiently serious to justify a warrantless
entry. R. 129 at 7–8, 11–12; R. 153 at 5–7.

7

For the Armstrongs’ summary judgment motion, the evidence must be viewed
in the officers’ favor, and in that light, the officers readily had probable cause to arrest
Hodges and to chase him into the apartment. Probable cause is measured from the
officers’ perspective, and here they knew or believed enough (even when viewed in the
light most favorable to Plaintiffs) to arrest Hodges for domestic battery and chase him
into the apartment. It is undisputed that the officers had been dispatched to respond
to a domestic disturbance. R. 121 ¶¶ 31, 62. Police department communications records
show that the officers were responding to code “DD” at 8:23 p.m. R.167, Exh. E at 11.
In the briefs, the Defendants have not clearly explained the “DD” code’s meaning, but
Officer Niedzwiecki did testify that the officers were responding to a report of domestic
disturbance, specifically related to Aimee Dunlap. R.167, Exh. D (Niedzwiecki Dep. at
32). Moreover, the officers testified that they had responded to an earlier call in the
day, where Dunlap was upset because she believed that Hodges had stolen her car.
R.121, Exh.B (Dunlap Dep. at 16); Exh. D (Niedzwicki Dep. at 23). Most importantly,
the officers maintain that Dunlap told them that Hodges hit her and that she wanted
him arrested. R. 121 ¶ 32.
In addition to the dispatch and Dunlap’s accusation, the officers also could add
into the probable-cause mix Hodges’s reaction when they approached him. The moment
the officers tried to ask Hodges a few questions, Hodges began to run away. R. 121
¶¶ 35-37. Officers Szczurowski and Niedzwiecki gave chase, and Dunlap yelled out that
Hodges had a gun. Id. ¶¶ 37-38.

8

These were more than enough facts to justify the warrantless entry. One of the
exceptions to the warrant requirement is exigent circumstances. Exigent circumstances
include situations where officers are in hot pursuit of a fleeing felon. United States v.
Lenoir, 318 F.3d 725, 730 (7th Cir. 2003). Hot pursuit means some sort of chase but
need not extend to “an extended hue and cry in and about the public streets.” United
States v. Santana, 427 U.S. 38, 42 (1976). The amount of information the police are
required to gather before establishing probable cause for a warrantless entry is a
function of the gravity of the crime and the threat of its imminent repetition. Mason
v. Godinez, 47 F.3d 852, 855 (7th Cir. 1995). Courts also weigh factors such as whether
there was a clear showing of probable cause and whether the arresting officer
reasonably believed that the suspect was armed. United States v. Acevedo, 627 F.2d 68,
70 (7th Cir. 1980).
Here, the officers were in hot pursuit of someone accused of hitting a victim,
running away from officers, and having a gun. Those facts readily support exigent
circumstances to chase Hodges into, from what the officers could observe, an
apartment that could have occupants vulnerable to an armed suspect.
Notwithstanding the danger, the Armstrongs argue that even if Dunlap did
accuse Hodges of hitting her, the officers could not take her accusation at face value.
R.129 at 8–10. Instead, Plaintiffs contend, the officers had the duty to conduct follow
up investigations before making an arrest. Id. at 9. To be sure, a “police officer may not
close her or his eyes to facts that would help clarify the circumstances of an arrest.
Reasonable avenues of investigation must be pursued especially when . . . it is unclear
9

whether a crime had even taken place.” BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir.
1986). In BeVier, two police officers saw two young children sitting in a ravine in direct
sunlight while the temperature was over 100 degrees. The officers also saw a teenage
girl sitting in the shade, who said she was watching the children as a babysitter. Id.
at 125. The officers accompanied the children to the hospital, and when the parents
arrived, the officers arrested them immediately. Id. No charges were filed against the
parents, however, and the two were released soon after. The parents filed a § 1983 suit
against the two officers. The Seventh Circuit noted that the officers failed to gather
information before the arrest: they did not speak to the babysitter nor did they
interview the parents. Id. at 127. Moreover, there were no exigent circumstances that
justified an immediate arrest. BeVier explained that “[t]here was no fear that [the
plaintiffs] were about to flee, and the investigation would not have significantly
interfered with [the arresting officer’s] police duties.” Id. But as flagged by that last
quoted sentence, BeVier is easily distinguished from this case, where (a) there was a
direct accusation from the victim and (b) Hodges fled from the officers.
For the officers’ summary judgment motion, the evidence is viewed in the
Armstrongs’ favor, and in that light, there is a jury question over whether there was
probable cause to arrest Hodges and to chase him into the apartment. Dunlap denies
ever telling the police that Hodges hit her. R.121, Exh. B (Hodges Dep. at 89). Although
it is unfortunately true that victims of domestic violence commonly recant truthful
accusations, see United States v. Young, 316 F.3d 649, 655 (7th Cir. 2002), when viewed

10

in Plaintiffs’ favor, the Court must evaluate the officers’ motion by crediting Dunlap’s
denial that she accused Hodges and her denial that she said Hodges had a gun.
Without Dunlap’s accusations, the officers did not have much to justify an
arrest, let alone to justify their belief that Hodges was carrying a gun. To be sure, the
officers present compelling evidence that they at least subjectively believed that Hodges
had a gun. Specifically, Officer Szczurowkski testified that he reported over the radio
that Hodges might have a gun. R. 121 ¶ 72. While this was happening, Officer
Niedzwiecki began to chase Hodges and he too radioed over the air that Hodges might
have a gun. Id. ¶ 54. Strong evidence supports the testimony, namely, records from the
police department’s Office of Emergency and Communications, which houses a
computer database of law-enforcement event descriptions. R.167, Exh. E. For the entry
of January 12, 2007, at 8:31 p.m., the event transcriber wrote, “officers chasing male
offender c/s there’s a great poss he has a gun.” Id. at 16. The event records show that
the officers, at the least, subjectively believed that Hodges possibly had a gun, and the
time-stamped record was made 20 minutes before the officers set foot in the
Armstrongs’ home. See id. at 12. But the evidence must be viewed in the Armstrongs’
favor, which means accepting as true Dunlap’s denial that she told the officers that
Hodges had a gun. If the jury were to credit that denial, then the officers had no basis
for the subjective belief; perhaps it was just baseless speculation. Thus, the officers are
not entitled to summary judgment on this claim.4 Neither side is.

4

Qualified immunity does not apply to bar the claim because if the belief that Hodges
was carrying a gun was baseless (which a reasonable jury could conclude), then a reasonable

11

B.

The Damage to Property & Excessive Force

After entering the Armstrong residence, the officers searched through the entire
apartment. R. 154 ¶ 15. The parties agree that the officers eventually apprehended and
arrested Hodges. R. 114 ¶ 63. According to the Armstrongs, at some point during this
lengthy search, the officers broke Robbin Armstrong’s bed, damaged the railings in the
hallway, and stole $250 from Robbin Armstrong’s bedroom. R. 154 ¶¶ 22, 24. Even
worse, the officers supposedly kicked and stepped on Cordero Armstrong’s face and
back. Id. ¶ 11. The Armstrongs contend that not only did the officers violate their
rights with these actions, the officers who stood by idly and watched everything happen
are also liable for failing to intervene. R. 153 at 4–5.
Although there are circumstances where an officer may be held liable for the
misconduct of others, the general rule is that “[t]o recover damages under 42 U.S.C. §
1983, a plaintiff must establish defendants’ personal responsibility for the claimed
deprivation of a constitutional right.” Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir.
1981). “Liability under § 1983 must be predicated upon personal responsibility.”
Starenski v. City of Elkhar, 87 F.3d 872, 880 (7th Cir. 1996) (citing Schultz v.
Baumgart, 738 F.2d 231, 238 (7th Cir.1984)). Throughout the entire time the officers
were in their apartment, the Armstrongs were face-down on the ground. R. 154 ¶¶ 8–9.
Although they claim to have heard the officers rummaging through their drawers, none
of the plaintiffs actually saw any of the officers. R. 154 ¶ 15. The Armstrongs argue

officer would know that there were no exigent circumstances.

12

that direct identification is unnecessary under Miller v. Smith, 220 F.3d 491 (7th Cir.
2000).
In Miller, three police officers mistakenly arrested the plaintiff at a gas station.
Id. at 492–93. While the plaintiff was face-down on the ground, one of the three
arresting officers beat him and stole money from his wallet. Id. at 493. The district
court granted summary judgment for the officers because the plaintiff was unable to
identify the specific offending officer. Id. The Seventh Circuit reversed, explaining that
all three officers may be liable because whoever did not assault the plaintiff would be
liable for failing to intervene. Id. at 495. But the arrest in Miller involved all three of
the police officers in the physical take-down of the plaintiff. Id. at 492–93. At the time
of the alleged misconduct, all three officers were either standing nearby or standing
over him. Id. In contrast, here, it is not possible to infer that all of the officers were
involved in, directed, or observed (such that they could intervene against) the rough
treatment of Cordero Armstrong, the damage to personal property, or the theft of the
$250. The events occurred in an apartment with at least 5 different rooms. See R.121,
Exh. I (Charles Armstrong Dep. at 63). The officers were moving in and out of these 5
different rooms the entire time. Laverne Armstrong Dep. at 165. As stated earlier, the
Armstrongs were all face-down on the ground the entire time the officers were in the
apartment. Even in the light most favorable to them, the Armstrongs cannot establish
which officers were either personally responsible or were in a position to intervene in

13

the specified misconduct.5 Therefore, their claims regarding these specific acts cannot
survive defendants’ summary judgment motion.6
C.

Post-Arrest Seizure and Continued
Occupation of Apartment

The Armstrongs accuse the officers of exceeding the scope of their authority
when they continued to detain the Armstrongs after Hodges’s arrest. R. 153 at 8–9; R.
154 ¶ 18. The officers do not dispute this testimony and make no arguments that they
left immediately (or at least reasonably soon) following Hodge’s arrest.7 According to
the Armstrongs, the officers continued to search the entire apartment even after
Hodges was arrested. R. 153 at 8; Laverne Armstrong Dep. at 165–166. The officers
failed to adequately dispute this fact.8 R. 175 at 6. According to Plaintiffs, the officers
were in the Armstrong apartment for 30 minutes to 1 hour. R. 154 ¶¶ 19, 20. The
officers have presented no arguments as to why, after finding and arresting the fleeing
5

The officers cite Tomasso v. City of Chicago, 782 F.Supp. 1231, 1235 (N.D.Ill. 1991),
rev’d on other grounds, Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981), for the
principle that an officer who is not explicitly identified by the plaintiff cannot be held liable.
R. 125 at 4. But that case was decided before Miller, where the Seventh Circuit approved the
use of failure-to-intervene liability to cover the officers, all of whom could have at least
intervened. 220 F.3d 491.
6

Because the Armstrongs’ claim cannot survive summary judgment even when facts are
viewed in light most favorable to them, of course their cross-motion for summary judgment is
denied.
7

The Court notes that, in his deposition, Officer Niedzwiecki was asked what happened
after Hodges was arrested. Niedzwiecki Dep. at 85. But after page 85 of the deposition, the
page number jumps to 90. Id. The Armstrongs have also failed to include pages 85 to 90 of
Niedzwiecki’s deposition.
8

The officers respond to ¶ 18 by denying that the “entire apartment” was searched. The
denial parses words: the officers argue that Laverne Armstrong said the search continued
through the “house” – as opposed to the “entire apartment.” R. 175 at 6.

14

suspect, the continued occupation of the apartment and the continued seizure of the
Armstrongs was reasonably necessary. It is the Armstrongs who are entitled to
summary judgment on this claim, and trial on this issue will pertain only to damages.9
D.

Robbin Armstrong’s Arrest
1.

False Arrest

Robbin Armstrong also claims that the officers arrested her without probable
cause. Probable cause requires officers to have a “reasonable ground for belief of guilt,”
and the belief must be “particularized” to the person. Maryland v. Pringle, 540 U.S.
366, 371 (2003). The standard is one that is applied with due regard to “‘the factual and
practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.’” Id. at 370 (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)).
Robbin contends that the officers did not have probable cause to arrest her, and she
presents two arguments – one factual and one legal.
Robbin’s legal argument is that even if the officers’ testimony is believed, they
did not have probable cause to arrest her for “Obstruction of a Peace Officer.” R. 129
at 13. Under Illinois law, a “person who knowingly . . . obstructs the performance by
one known to the person to be a peace officer . . . commits a Class A misdemeanor.” 720
ILCS 5/31-1(a). Robbin argues that obstruction under this statute is defined as a
physical act; mere words or false information is not enough. R. 129 at 13 (citing

9

For this claim, there is no specific wrongdoer that must be identified because all of the
officers continued the search and all of the officers are responsible for the continued detention
of Plaintiffs.

15

Williams v. Jaglowski, 269 F.3d 778, 782 (7th Cir. 2001)). Indeed, Illinois courts have
explained that the statute “proscribe[s] only some physical act which imposes an
obstacle which may impede, hinder, interrupt, prevent, or delay the performance of the
officer’s duties . . . .” People v. Raby, 240 N.E. 2d 595, 599 (Ill. 1968). So even under the
officers’ version of events, Robbin argues, she never physically obstructed their
movement, and thus they did not have probable cause to arrest her.
The officers contend that they were not limited to arresting Robbin for
Obstructing a Peace Officer; rather, they had probable cause to arrest her for a
separate violation: “Obstructing Justice.” R.165 at 8. Under that statute, a “person
obstructs justice when, with intent to prevent the apprehension or obstruct the
prosecution . . . of any person, he knowingly . . . furnishes false information . . . .” 720
ILCS 5/31-4(a); see also People v. Childs, 651 N.E.2d 252, 254 (Ill. App. Ct. 1995).
According to the officers, it does not matter whether the officers subjectively believed
that they were arresting Robbin for one obstruction offense or the other; what matters
is that there was probable cause to support an arrest for obstructing justice.
The officers are correct. To be sure, the officers did not have probable cause to
arrest Robbin for Obstructing a Peace Officer (because she committed no physical act
of obstruction), and Officer Maloney did testify that he arrested Robbin based on
“Obstruction,” intending to charge her with “Obstruction of a Peace Officer.” Maloney
Dep. at 82–83; 98–99. But an “arresting officer’s subjective reason for making the
arrest does not need to be the criminal offense as to which the known facts provide
probable cause.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). If there is probable
16

cause for any offense – even one that is not identified at the scene or in the charging
documents – there is no false arrest. Sroga v. Weiglen, 649 F.3d 604, 608 (7th Cir.
2011). Robbin’s legal argument fails, and the officers may rely on probable cause for
the obstruction of justice offense.
This leads us to Robbin’s factual argument. Robbin denies making any of the
misleading statements that the officers say she made. She testified that she believes
the true motivation for her arrest was retaliation for talking back to one of the officers.
R. 114 ¶ 69. Under Robbin’s version of events, when the officers tried to enter the
apartment, she asked one of the officers if he had a warrant and if he could tell her his
badge number. Not only did he refuse, he also called Robbin’s mother “a bitch.” Id. ¶
69. Robbin believes that she was arrested in retaliation for talking back to this officer.
Id.
The officers dispute Robbin’s account of events. According to Officer Maloney,
when he entered the apartment, he asked Robbin where Hodges was.10 She replied by
saying, “He ran out the front door. He’s not here.” Id. ¶ 68. Officer Niedzwiecki also
testified that he heard Robbin say that Hodges “ran out the front door.” R. 121 ¶ 57.
But Robbin denies ever making these statements to the officers. Robbin Dep. at
139–140. Robbin does admit, however, that she told the officers that there were only

10

The officers suggest that it was reasonable to believe that Robbin was the person who
failed to open for the door for the police. R. 125 at 15. But the officers provide no evidence other
than the fact that the voice they heard behind the door was female. Id.

17

5 people in the apartment and named them – but did not list Hodges. Id. at 140. She
claims that she had no idea that Hodges was inside the apartment. Id.
The competing testimony demonstrates that there is a genuine issue of material
fact. If Robbin did indeed tell the officers that Hodges ran out the front door, the
officers could reasonably believe that she was trying to mislead them – which would
give them probable cause to arrest her for Obstruction of Justice. But if Robbin only
named the five people (as she says she did) in the apartment at the time, that
statement does not conclusively establish – as a matter of law – that there was
probable cause to believe that she was trying to mislead the officers. Viewing the facts
in the light most favorable to the respective non-movants, a reasonable jury could find
for either party. Thus, the Court denies both parties’ motions for summary judgment
on the false arrest claim.11 To be clear, the officers who were not involved in the arrest
of Robbin are entitled to summary judgment on this claim; only Officers Maloney and
Chakiet remain subject to this claim. R. 125 at 13, 16.
2.

State Law Claim: Malicious Prosecution

Finally, the officers argue that Robbin’s state-law malicious prosecution claim
is barred by the statue of limitations. In Illinois, the limitations period for malicious
prosecution actions is 1 year. 745 ILCS 10/8-101; see also Evans v. City of Chicago, 434
F.3d 916, 934 (7th Cir. 2006). The officers argue that Robbin’s malicious prosecution

11

Qualified immunity also does not bar this claim, but the Court will monitor the
evidence at trial and if the evidence differs from the summary-judgment discovery record, the
officers may ask for judgment as a matter of law during trial.

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claim accrued on February 26, 2007, the date that her criminal case was “stricken with
leave to reinstate.” According to the officers, because her lawsuit was filed over
seventeen months later, on August 4, 2008, the claim is untimely. R. 125 at 17.
The claim was timely filed. “A cause of action for malicious prosecution does not
accrue until the criminal proceeding on which it is based has been terminated in the
plaintiff’s favor.” Ferguson v. City of Chicago, 820 N.E.2d 455, 459 (Ill. 2004). When a
court strikes a case with leave to reinstate, the proceedings are not definitively
terminated. Id. Thus, the accrual date for Robbin’s claim is not, as the officers argue,
February 26, 2007.
Instead, there are two ways to determine the accrual date for a malicious
prosecution claim. The first way is to look at when the speedy-trial period expires.
Ferguson, 820 N.E.2d at 459. The speedy-trial period ends 160 days after the accused
person makes a speedy trial demand. Id. at 461. But the record contains no evidence
that Robbin ever made a speedy trial demand. The second way to determine the
accrual date is to examine the circumstances and the nature of the prior disposition to
determine whether it was a favorable termination of the proceedings. Velez v. Avis Rent
A Car System, 721 N.E. 2d 652, 656 (Ill. App. Ct. 1999). In the absence of an explicit
court disposition terminating the criminal case, Illinois courts use the date on which
the statue of limitations for the underlying offense expires. Id. Here, Robbin was
charged with a misdemeanor, Obstruction of a Police Officer, 720 ILCS 5/31-1, which

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has a statute of limitations of 18 months.12 That means that Robbin’s claim accrued on
July 12, 2008. Add 1 year to the accrual date, and the result is that her malicious
prosecution claim was filed well within the 1-year statute of limitations.
With regard to the merits of the claim, to establish malicious prosecution,
Robbin must show: (1) the commencement or continuation of an original criminal or
civil proceeding by defendants; (2) termination of the proceeding in favor of plaintiff;
(3) the absence of probable cause for the proceeding; (4) the presence of malice on
defendants’ part, and (5) damages resulting to plaintiff. Ross v. Mauro Chevrolet, 861
N.E.2d 313, 319 (Ill. App. Ct. 2006). The parties do not dispute elements (2) and (5).
R.125 at 18–19. The Court will analyze the other three elements.
The officers first dispute that they commenced or continued the criminal
proceedings. R. 125 at 19. But Robbin correctly argues that because Officer Maloney
prepared and signed a misdemeanor complaint, and the Cook County State’s Attorney
relied on that complaint in charging her, Officer Maloney did commence the
proceedings. R. 153 at 12. With regard to the probable cause and malice, the officers
emphasize that they had probable cause to arrest Robbin (and thus did not act
maliciously) for trying to mislead officers about where Hodges went. R. 125 at 18–19.
Robbin disagrees because she believes that the officers did not have probable cause for
the reasons discussed earlier. Because the malicious prosecution claim is tied up with

12

The officers also indicate that they had probable cause to arrest Robbin for
Obstruction of Justice, 720 ILCS 5/31-4. But that violation is a felony with a statute of
limitations period of three years. 720 ILCS 5/3-5.

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the determination of whether there was probable cause, summary judgment cannot be
granted to either side. If it turns out that the officers did have probable cause, then
Robbin cannot succeed on the claim. Otherwise, if she can demonstrate malice and
commencement of proceedings, Robbin can succeed on this claim. Accordingly, the
Court denies both parties’ motion for summary judgment with regard to the malicious
prosecution claim.
IV.
The officers’ motion for summary judgment [R. 119] is granted in part and
denied in part. The Armstrongs’ motion for summary judgment [R. 113] is granted in
part and denied in part.

ENTERED:

___________________________
Honorable Edmond E. Chang
United States District Judge
DATE: February 21, 2012

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