Murphy v. Salgado et al

Filing 26

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 1/13/2014:Mailed notice.(jlj)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANDREW MURPHY,
Plaintiff,
vs.
ROCIO SALGADO, ROBERT LONG, and THE CITY
OF CHICAGO,
Defendants.

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13 C 4566
Judge Feinerman

MEMORANDUM OPINION AND ORDER
Andrew Murphy brought this suit against the City of Chicago and Chicago Police
Officers Rocio Salgado and Robert Long, alleging claims under 42 U.S.C. § 1983 for excessive
force, unreasonable seizure (i.e., false arrest), and failure to intervene, and claims under Illinois
law for battery, false imprisonment, malicious prosecution, willful and wanton conduct, and
indemnification. Doc. 1-1. Defendants have moved to dismiss the federal unreasonable seizure
claim, the state law false imprisonment claim, and the state law willful and wanton claim. Doc.
18. The motion is granted in part and denied in part.
The allegations of the complaint pertinent to the motion are as follows. In the early
afternoon of June 9, 2012, Murphy was riding his bicycle on a sidewalk in the City of Chicago.
Doc. 1-1 at ¶ 8. An unmarked Chicago Police Department vehicle driven by Salgado and Long,
“suddenly and without warning, pulled onto the curb in front of [Murphy] and at least one officer
exited the vehicle.” Id. at ¶ 9. When Murphy rode his bicycle “into the street to avoid contact
with the police officer,” “a different, marked Chicago Police Department squad car … was
stopped facing northbound” on the street. Id. at ¶¶ 9-10. “The marked squad vehicle, without
provocation or cause, suddenly and without warning, turned toward [Murphy], accelerated

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toward [Murphy], and struck [Murphy] on two occasions, forcing him to fall to the ground.” Id.
at ¶ 11. The officers then arrested Murphy, took him into custody, and charged him with
resisting a police officer and other offenses. Id. at ¶¶ 12, 15. The charges were dismissed, with
the exception of the charge that Murphy violated the Chicago Municipal Code by riding a
bicycle on the sidewalk. Id. at ¶ 17.
Murphy’s federal unreasonable seizure claim is properly characterized as a Fourth
Amendment false arrest claim. See Gonzalez v. Vill. of W. Milwaukee, 671 F.3d 649, 655 (7th
Cir. 2012) (“‘False arrest’ is shorthand for an unreasonable seizure prohibited by the Fourth
Amendment.”). Defendants argue that the false arrest claim should be dismissed because the
officers had probable cause to believe that Murphy was violating the Chicago Municipal Code by
riding his bicycle on the sidewalk. Doc. 18 at 2-4. Defendants are correct that the officers had
probable cause to believe that Murphy was violating the Chicago Municipal Code—Murphy
admits in his complaint that he was riding his bicycle on the sidewalk, Doc. 1-1 at ¶ 8, and riding
a bicycle on the sidewalk violates the Code, see Chi. Mun. Code § 9-52-020. In Atwater v. City
of Lago Vista, 532 U.S. 318 (2001), the Supreme Court held that so long as an officer has
probable cause to believe that an individual “has committed even a very minor criminal offense
in his presence,” the officer may arrest the individual without violating the Fourth Amendment.
Id. at 354. So, Defendants conclude, Atwater defeats Murphy’s Fourth Amendment false arrest
claim.
In response, Murphy argues that Atwater does not apply because riding a bicycle on a
sidewalk is not a jailable offense, as the maximum penalty that the Code specifies for the offense
is a small fine. Doc. 22 at 3-5. Murphy’s argument cannot be reconciled with Atwater, which
expressly rejected the argument that “nonjailable traffic offenses” should fall outside the scope

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of its holding. 532 U.S. at 349. The Seventh Circuit confirmed the point in Thomas v. City of
Peoria, 580 F.3d 633 (7th Cir. 2009), holding that “the Fourth Amendment does not forbid an
arrest for a ‘nonjailable’ offense,” and adding that “[e]ven arrests for violations of purely civil
laws are common enough, and usually unexceptionable—examples that spring to mind are
arrests for civil violations of the immigration laws (such as overstaying a visa) and for civil
contempt.” Id. at 638. It follows that Murphy’s Fourth Amendment false arrest claim must be
dismissed.
The court notes that Defendants have not moved to dismiss Murphy’s excessive force
claim, which alleges that the manner of his arrest violated the Fourth Amendment. Any such
motion would have been denied. “The existence of probable cause is necessary but not sufficient
for an arrest to be reasonable; the reasonableness of an arrest depends both on its justification
and the manner in which it was effectuated.” Gutierrez v. Kermon, 722 F.3d 1003, 1008 (7th
Cir. 2013) (emphasis added); see also United States v. Watson, 558 F.3d 702 (7th Cir. 2009)
(“There are cases in which, although the police have every right to … arrest a person …, the
manner in which they do so violates the Fourth Amendment. The usual case is that of the use of
excessive physical force to effect an arrest.”). “The nature and extent of the force that may
reasonably be used to effectuate an arrest depends on the specific circumstances of the arrest,
including ‘the severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.’” Cyrus v. Town of Mukwonago, 624 F.3d 856, 861 (7th Cir. 2010) (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)). Murphy plausibly alleges that the manner of his
arrest, being stricken twice with a police car, violated the Fourth Amendment in light of the
relatively non-serious nature of his infraction. See Abbott v. Sangamon Cnty., 705 F.3d 706, 730

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(7th Cir. 2013) (collecting cases); Austin v. Fornoff, 2011 WL 4738316, at *7 (N.D. Ill. Sept. 30,
2011) (holding that the plaintiff, who alleged that he “was struck eight to nine times in the back
of the head and punched in the eye … after being handcuffed” while “being apprehended in
response to a seatbelt checkpoint,” stated a viable Fourth Amendment claim).
Murphy’s false imprisonment claim is the state law analog to his Fourth Amendment
false arrest claim, and it fails as well. “Probable cause is an absolute bar to a claim for false
imprisonment.” Poris v. Lake Holiday Property Owners Ass’n, 983 N.E.2d 993, 1007 (Ill.
2013); see also Stokes v. Bd. of Educ. of the City of Chi., 599 F.3d 617, 626 (7th Cir. 2010)
(“Lack of probable cause is a common element of the Illinois claims of false arrest, false
imprisonment, and malicious prosecution.”). As noted above, the officers had probable cause to
believe that Murphy violated the Code by riding his bicycle on the sidewalk. And the Code
expressly provides that Chicago police officers have power to arrest for any violation of the
Code. See Chi. Mun. Code § 2-84-230 (“The members of the police department shall have
power … to arrest or cause to be arrested, with or without process, all persons who … are found
violating any municipal ordinance”); Williams v. Jaglowski, 269 F.3d 778, 783-84 (7th Cir.
2007) (citing § 2-84-230 for the proposition that “the Chicago Municipal Code … specifies that
Chicago police officers have the power to arrest for any violation of the Code”). Murphy’s false
imprisonment claim accordingly fails as a matter of law. See Jackson v. Parker, 627 F.3d 634,
638 (7th Cir. 2010) (holding that probable cause to arrest the plaintiff under the Chicago
Municipal Code defeated the plaintiff’s false arrest claim); Haywood v. City of Chicago, 378
F.3d 714, 717 (7th Cir. 2004) (same).
Finally, Defendants argue that Murphy’s willful and wanton claim should be dismissed
because there is no such tort under Illinois law. Doc. 18 at 4-5. Defendants are correct that

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“[t]here is no separate and independent tort of ‘willful and wanton’ misconduct.” Ziarko v. Soo
Line R.R., 641 N.E.2d 402, 406 (Ill. 1994); see also Drakeford v. Univ. of Chi. Hosps., 994
N.E.2d 119, 126 (Ill. App. 2013) (same). However, as the Supreme Court of Illinois recently
explained, “willful and wanton conduct is regarded as an aggravated form of negligence,” and
“[i]n order to recover damages based on willful and wanton conduct, a plaintiff must plead and
prove the basic elements of a negligence claim—that the defendant owed a duty to the plaintiff,
that the defendant breached that duty, … that the breach was a proximate cause of the plaintiff's
injury,” and that the defendant had “a deliberate intention to harm or a conscious disregard for
the plaintiff's welfare.” Jane Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of Dirs., 973 N.E.2d
880, 887 (Ill. 2012) (citation omitted); see also Doe-2 v. McLean Cnty. Unit Dist. No. 5 Bd. of
Dirs., 593 F.3d 507, 514 (7th Cir. 2012); Krywin v. Chi. Transit Auth., 938 N.E.2d 440, 452 (Ill.
2010); Perez v. Town of Cicero, 2011 WL 4626034, at *9 (N.D. Ill. Sept. 30, 2011).
Accordingly, Murphy’s willful and wanton claim will be deemed to be the type of aggravated
negligence claim recognized by Illinois law. And because Defendants offer no other reason to
dismiss the claim—aside from an argument that it duplicates Murphy’s other claims, which is
premature on the pleadings and may be renewed either at summary judgment or prior to trial—
the claim survives dismissal.
To summarize, the Fourth Amendment false arrest claim and the state law false
imprisonment claim are dismissed, while the state law “willful and wanton” claim, reframed as
an aggravated negligence claim, may proceed.

January 13, 2014
United States District Judge

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