Irons v. Village of Dolton et al
MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 9/5/2017. Mailed notice(air, ) Modified on 9/5/2017 (air, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
CINDY C. IRONS,
VILLAGE OF DOLTON, a municipal
corporation, MARLON HARRIS, LEWIS
LACEY, and JOEL McQUEEN,
No. 15 C 04315
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Cindy C. Irons sues the Village of Dolton and three of its police officers in
connection with her arrest at her daughter’s high school in April 2015. The Amended Complaint
alleges three Counts and seeks compensatory and punitive damages. Though the Complaint itself
does not identify the bases for those Counts with perfect clarity, Irons asserts in her Response
brief—and language in the Complaint supports her assertions—that Count I brings a state law
claim for false arrest and imprisonment against the three officers (and the Village of Dolton
based on the theory of respondeat superior); Count II asserts a state law claim for battery, again
against the three officers and the Village as their employer; and Count III brings a claim pursuant
to 42 U.S.C. § 1983 for violation of her rights under the Fourth and Fourteenth Amendments
against the three officers only, both in their individual and official capacities. See Am. Compl.,
ECF No. 15; Pl. Resp. at 2, ECF No. 56. Defendant Lewis Lacey seeks summary judgment in his
favor as to all three Counts. Defendant Marlon Harris seeks summary judgment in his favor on
Count II, and on the excessive force component of Count III. Defendant Joel McQueen seeks
summary judgment as to Irons’ false arrest claims, and further argues that any claims Irons
brings against him in his official capacity must be dismissed as redundant of Irons’ claims
against the Village.
The issue of whether the police officer defendants had probable cause to arrest Irons is
riddled with material questions of fact that impact all of Irons’ claims. Because of that pervasive
factual problem, the defendants’ Motions for Summary Judgment largely fail. Lacey is granted
summary judgment only as to Count II and the excessive force component of Count III. In all
other respects, the Motions are denied.
This story begins at Thornridge High School. On April 23, 2015, Plaintiff Cindy Irons
drove her daughter the school, dropping her off between 7:00 and 7:15 a.m. Harris and Lacey’s
Statement of Facts (“Defs. SOF”) ¶ 1, ECF No. 49; see also McQueen SOF ¶ 1, ECF No. 46.
Shortly thereafter, Shavona called Irons in a panic to say that other girls had “tried to jump on
me” and that she had just been involved in a fight. Irons Dep., 18:7-10, Apr. 28, 2016, ECF No.
46-1; Defs. SOF ¶ 2; McQueen SOF ¶ 3. Irons returned to the school, where she met with
Shavona and Steve Valant, a school administrator, in Valant’s office area. Defs. SOF ¶ 3. Irons’
daughter had previously told Irons, before Irons arrived back at the school, that she had been
suspended for ten days as a result of the fight, and Irons asked Valant upon her arrival why her
daughter had been “suspended for defending herself.” Irons Dep., 26-28; see also Defs. SOF ¶ 3;
McQueen SOF ¶¶ 5-6. While Irons was talking to Valant, she also had her phone to her ear with
her own mother on the line. Irons Dep., 29:17-20; Defs. SOF ¶ 4.
Three uniformed police officers—defendants Harris, Lacey, and McQueen—then arrived
and entered the inner office where Irons, Shavona, and Valant were gathered. Defs. SOF ¶ 5.
Officer McQueen testified at his deposition in this case that when he arrived at the school, he
heard “[l]ots of shouting, yelling, [and] profanities.” McQueen Dep., 54:22-23, May 12, 2016,
ECF No. 46-2; McQueen SOF ¶ 8. Irons denies the accuracy of that description; she testified at
her own deposition that she was not angry when she asked Valant about the suspension but that
she then “got angry when the police came.” Irons Dep. 28:20-22; see also Pl. Resp. to Defs. SOF
¶ 8, ECF No. 57. Lacey asked Irons for her name, to which Irons replied, “Cindy,” while she still
had her own mother on the phone. Defs. SOF ¶ 6. Irons then hung up with her mother, saying she
would call her back, and gave the officers her last name. Defs. SOF ¶ 7. Irons and the officers
left Valant’s inner office and moved into the administrative outer office. Id. Lacey asked Irons to
step out into the hallway with Harris and McQueen, which Irons did; Lacey, meanwhile,
remained in Valant’s office. Defs. SOF ¶ 9; McQueen SOF ¶ 11. Irons began complaining about
the fact that Lacey and Valant were now in the office meeting with Shavona without Irons. Defs.
SOF ¶ 10. At some point, Irons resumed her phone conversation with her mother and told her
that, “they’ve got her in there by herself and they’re questioning her and they’ve got me out here
in the hallway.” Id. ¶ 11; see also Irons Dep. 41:2-5.
Harris told Irons to get off the phone, but Irons instead stepped into the girls’ bathroom,
where she continued her phone conversation. Defs. SOF ¶ 12. When Irons came out of the
bathroom, Harris said to her, “Didn’t I tell you to hang up your phone?” Id. ¶ 14. Irons responded
that she did not have to hang up her phone, that she was “grown,” and that Harris did not pay her
bill. Id. Irons admits that she was probably “pretty loud” when she told Harris, “You don’t pay
my bill.” Pl. Resp. to Defs. SOF; Irons Dep. 46:22-23. At that point, while standing in the
hallway in front of the door to Valant’s office area, Harris grabbed Irons’ arm and told her she
was under arrest. Defs. SOF ¶ 15. Harris began to handcuff Irons’ left arm while Irons held her
phone in her right hand. Id. ¶ 16. McQueen had been in the restroom during the start of the arrest
process, but now emerged from the restroom, grabbed Irons’ right arm and brought it behind her,
and said that Irons was resisting arrest, a point Irons disputed. Id.; McQueen SOF ¶ 22; Irons
Dep. 48:15-22. McQueen also took Irons’ phone out of her right hand. Defs. SOF ¶ 19. Harris
completed handcuffing Irons’ left hand, but Irons is not sure who completed cuffing her right
hand. McQueen SOF ¶¶ 23-24.
Lacey then came into the hallway, and Harris and McQueen walked Irons down the
hallway. Id. ¶ 25; Defs. SOF ¶ 21. Lacey never touched Irons. Defs. SOF ¶ 21. Irons testified that
there was nothing painful about “what Harris was doing,” but also testified that McQueen was
holding her right arm too tightly, and that McQueen held her arm the entire walk from the school
building to the police squad car that was parked outside. Defs. SOF ¶¶ 23-24; Irons Dep. 56:5–
57:16. Irons testified that McQueen exerted “[a] lot of pressure” and that “[i]t was painful.” Irons
Dep. 56:17-21. The defendants all deny that McQueen exerted too much pressure or caused Irons
pain. McQueen Resp. to Pl. SOF ¶ 5, ECF No. 69; Defs. Resp. to Pl. SOF ¶ 5, ECF No. 67. Once
outside and near the squad car, Harris told Irons, “[Y]ou just need to calm down, because your
daughter is in there, you need to get back to her.” Defs. SOF ¶ 25; Irons Dep. 60:4-6.
Either Harris or McQueen asked Irons for her driver’s license, and after Irons indicated to
that the license was in her jacket pocket, Harris removed it and handed it to McQueen. Defs.
SOF ¶ 26; Pl. Resp. to Defs. SOF ¶ 26. At some point, Irons sat in the back of the squad car, with
the door left open and her feet still outside the vehicle. Defs. SOF ¶ 27; Pl. Resp. to Defs. SOF
¶ 27. Lacey then joined the other officers and Irons, and instructed Harris to remove the
handcuffs from Irons, which Harris did. Defs. SOF ¶ 28; McQueen SOF ¶ 28. Lacey told Irons
that she needed to calm down, and that Harris was going to issue her a ticket for disorderly
conduct because she was “too emotional.” Defs. SOF ¶ 29; Pl. Resp. to Defs. SOF ¶ 29;
McQueen SOF ¶ 29. Irons complained about McQueen’s conduct after Harris removed the
handcuffs and while Harris was writing out her ticket. Defs. SOF ¶ 30; Pl. Resp. to Defs. SOF
¶ 30. Irons testified that she told Lacey that “he abused me” and that “[h]e had my arm too tight,”
and testified that she took her jacket off and showed Lacey that her arm was red.” Irons Dep.
63:8-14; Pl. SOF ¶ 6.
McQueen was sitting in his squad as Harris wrote out the ticket, and Lacey approached
McQueen and spoke to him before McQueen pulled off and drove away. Defs. SOF ¶ 31;
McQueen SOF ¶ 30. Irons asked Lacey for McQueen’s badge number, which Lacey provided to
her. Defs. SOF ¶ 32. Lacey and Harris then left the scene, and Irons returned to the school to
retrieve her daughter and speak with Valant about the terms of her suspension. Id. Irons then left
the school. Id. She went to the emergency room at Ingalls Hospital, where she received an X-ray.
Id. ¶ 33. A doctor told her at the hospital that she had a “sprained [right] arm” in the area of “the
upper middle arm between the elbow and shoulder.” Irons Dep. 67:8-15; Defs. SOF ¶ 33. Irons
also had scratches on her inner arm, and she testified that she believes those scratches resulted
from McQueen’s hands and fingernails. Irons Dep. 67:16-24; 68:1-7; Pl. Resp. to Defs. SOF
¶ 33. Irons had been wearing a thin jacket at the time of her arrest. Irons Dep. 69:9-10. Irons also
visited her own regular physician a few days after the incident, and he told her to continue using
ice packs and to take the ibuprofen pain pills that the hospital physician had prescribed for her if
she experienced pain. Id. 70:15–71:10. Irons admits that Harris did not injure her. Pl. Resp. to
Defs. SOF ¶ 35. She also admits that Lacey did not touch her, or “initially place her under
arrest,” but argues in her filings that he “ratified the charges placed by Harris.” Id. ¶ 36.
A village hearing officer found against Irons on the disorderly conduct charge. Pl. SOF
¶ 15. Irons then pursued administrative review in the Circuit Court of Cook County, Sixth
Municipal District, and a judge in that court found that the charging document was “defective”
and that the Village had failed to prove its case at the hearing. Id. ¶ 17. That court reversed the
ruling against Irons and vacated the $250 fine that the village hearing officer had levied against
Summary judgment is appropriate “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.” EEOC v. CVS
Pharmacy, Inc., 809 F.3d 335, 339 (7th Cir. 2015) (quoting Fed. R. Civ. P. 56(a)). A genuine
dispute as to a material fact exists “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Kvapil v. Chippewa Cnty., 752 F.3d 708, 712 (7th Cir. 2014).
When considering a motion for summary judgment, the Court construes the facts and makes all
reasonable inferences in favor of the non-moving party. Jajeh v. Cnty. of Cook, 678 F.3d 560,
566 (7th Cir. 2012). “[D]istrict courts presiding over summary judgment proceedings may not
weigh conflicting evidence . . . or make credibility determinations.” Omnicare, Inc. v.
UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011) (internal quotations and citation
omitted). Rather, the Court’s role is “to determine whether there is a genuine issue for trial.”
Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014).
I. Constitutional Claims (Count III)
The Court begins its analysis with Count III, the claim asserted under 42 U.S.C. § 1983,
which Irons bases on theories of excessive force and arrest without probable cause. See Pl. Resp.
at 2-3. The Court will consider each theory in turn.
A. Probable Cause for Arrest
“The existence of probable cause to arrest is an absolute defense to any § 1983 claim
against a police officer for false arrest or false imprisonment.” Abbott v. Sangamon Cnty., 705
F.3d 706, 713-14 (7th Cir. 2013). There is probable cause that justifies an arrest where “the
totality of the facts and circumstances known to the officer at the time of the arrest would
warrant a reasonable, prudent person in believing that the arrestee had committed, was
committing, or was about to commit a crime.” Id. at 714. Though this standard requires
something “more than a hunch,” probable cause does not require a determination that “it was
more likely than not that the arrestee was engaged in criminal activity—the officer’s belief that
the arrestee was committing a crime need only be reasonable.” Id. The Court should “examine
the events leading up to the arrest, and then decide whether these historical facts, viewed from
the standpoint of an objectively reasonable police officer, amount to probable cause.” Maryland
v. Pringle, 540 U.S. 366, 371 (2003) (internal quotations omitted). Still, probable cause “depends
not on the facts as an omniscient observer would perceive them but on the facts as they would
have appeared to a reasonable person in the position of the arresting officer—seeing what he
saw, hearing what he heard.” Carmichael v. Vill. of Palatine, Ill., 605 F.3d 451, 457 (7th Cir.
2010) (quoting Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th Cir.1992) (emphasis in original)).
“The existence of probable cause . . . depends, in the first instance, on the elements of the
predicate criminal offense(s) as defined by state law.” Abbott, 705 F.3d at 715.
McQueen cites to Illinois’ criminal code provision barring disorderly conduct, which
provides that a person commits disorderly conduct when he or she knowingly “[d]oes any act in
such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.”
720 ILCS 5/26-1. Irons’ brief discusses that statute as well, but also notes that Irons was arrested
for violation of a village ordinance barring disorderly conduct, and it is that ordinance, not the
Illinois criminal code, that this Court should consider in evaluating probable cause. The ticket
and notice of violation against Irons cited a Violation of Code 5-5-1-1 of the Village of Dolton
Code of Ordinances. See Compl. for Admin. Rev., ECF No. 58-1. That ordinance provides, in
relevant part, that “[i]t shall be unlawful for any person to engage in disorderly conduct or any
conduct tending toward a breach of the peace. The causing or making of any unnecessary loud
noise and shouting or yelling shall be considered disorderly conduct.” Id. at 9.1 This dispute is
not material, because if there was probable cause to believe that Irons had violated either the
state statute or the Village ordinance, Irons’ false arrest claim would fail. Gill v. City of
Milwaukee, 850 F.3d 335, 342 (7th Cir. 2017) (“We have previously explained that “probable
cause to believe that a person has committed any crime will preclude a false arrest claim, even if
the person was arrested on additional or different charges for which there was no probable
cause,” citing Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007)).
Whether viewed in the context of the state statute or the Village ordinance, the factual
record in this case is not sufficiently developed to enable this Court to determine, as a matter of
law, that the defendant officers had probable cause to arrest Irons, and Lacey and McQueen’s
motions as to this prong of Count III are therefore denied. McQueen, who assisted Harris in
arresting Irons, argues that he had probable cause for the arrest because Irons had been loud and
angry in a school corridor while school was in session and had not complied with police
demands that she hang up her phone. McQueen Mem. at 4, ECF No. 47. But the record fails to
paint an undisputed portrait of Irons’ demeanor and conduct. McQueen testified at his deposition
that he heard “[l]ots of shouting, yelling, [and] profanities” when he arrived at the school. Irons,
It is not entirely clear to the Court why Irons advocates consideration of the Village
ordinance, which is arguably broader than the state statute.
however, denies the truthfulness of that testimony. Harris testified at the underlying municipal
proceedings that he had placed Irons in handcuffs because she had been yelling and he heard her
use profanity, and that the disorderly conduct charge was due to her behavior, demeanor, and the
“nature of the call.” See Record of Proceedings at 94-95, ECF No. 58-2; Defs. Resp. to Pl. SOF
¶ 11. The only arguably relevant admissions that Irons makes in this regard is that she did indeed
refuse to hang up her phone, and that she was probably “pretty loud” when responding to Harris’
demand that she do so.2 It is unclear, however, whether and when Irons was ever “shouting” or
“yelling,” or what the content of any such shouting or yelling may have been. To put it simply,
the nature of Irons’ behavior at the school remains fuzzy, and a definitive finding that the
officers had probable cause to arrest her is inappropriate at this time.3
Lacey argues, meanwhile, that he is entitled to summary judgment on the probable cause
prong of Count III because it is undisputed that he was not involved in arresting or restraining
Irons. Defs. Mem. at 5, ECF No. 51. Irons argues in response that it is undisputed that Lacey, a
Sergeant, was the supervising officer on the scene. Irons also points to her own deposition
testimony that Lacey told her Harris was writing her a ticket because she was too emotional, and
2 Irons makes a fairly extensive argument in her brief that the fact that the disorderly
conduct charge was dismissed on administrative review supports a finding that the police officers
lacked probable cause to arrest her. See Pl. Resp. at 7-9. Dismissal of a charge does not,
however, mean that the charge was unsupported by probable cause. Scruggs v. United States,
929 F.2d 305, 307 (7th Cir.1991) (“Acquittal does not establish the lack of probable cause[.]”).
Further, analyzing probable cause does not depend “on the facts as an omniscient observer would
perceive them” but instead on what would have appeared to “a reasonable person in the position
of the arresting officer.” Carmichael, 605 F.3d at 457 (quoting Mahoney, 976 F.2d at 1057
(emphasis in original)).
This uncertainty regarding probable cause also forecloses a grant of summary judgment
to McQueen on the basis of qualified immunity. “Often termed ‘arguable probable cause,’
qualified immunity in this context protects officers who reasonably but mistakenly believe that
probable cause exists.” Abbott, 705 F.3d at 714 (internal citations omitted). Because it is
impossible to determine, on the basis of the current record, that the officers had a reasonable
belief that probable cause existed, the doctrine of qualified immunity cannot provide a basis for
granting McQueen summary judgment.
says these things indicate that Lacey “ratified and agreed with the decision to charge [her] with
disorderly conduct.” Pl. Resp. at 7.
It is true that supervising government officials “may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009). Supervisors can be liable, however, where they are
“personally responsible for the deprivation of the constitutional right.” Matthews v. City of E. St.
Louis, 675 F.3d 703, 708 (7th Cir. 2012) (internal quotations omitted). “To show personal
involvement, the supervisor must know about the conduct and facilitate it, approve it, condone it,
or turn a blind eye for fear of what they might see.” Id. (internal quotations omitted). Irons’
argument is a bit off-center; any evidence that Lacey ratified and agreed with the decision to
write her a ticket does not necessarily bear on whether he ratified and agreed with the decision to
arrest her. Lacey did, however, come out into the hallway after the other officers had arrested
Irons there, but before McQueen and Harris led her out of the building. As discussed above, a
jury could reasonably conclude on the basis of the current record that Irons suffered a
constitutional deprivation because Harris and McQueen arrested her without probable cause.
Because it remains unclear from the record whether Lacey condoned or approved of her arrest, it
remains possible for a reasonable jury to conclude that Lacey would also be liable for any such
The Court denies McQueen and Lacey’s motions for summary judgment as to the arrest
without probable cause portion of Count III.
B. Excessive Force
Police officers are entitled to use force in appropriate circumstances, but the use of
excessive force is unconstitutional. See Weinmann v. McClone, 787 F.3d 444, 448 (7th Cir.
2015). In determining whether a use of force is “reasonable” under the Fourth Amendment,
courts must perform “a careful balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing governmental interests at
stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotations omitted). Evaluating
whether the degree of force used was excessive “requires careful attention to the facts and
circumstances of each particular case, 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.” Id. The reasonableness test is an
objective one, but the analysis must allow “for the fact that police officers are often forced to
make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary in a particular situation.” Id. at 396-97.
Officer McQueen does not seek summary judgment on Irons’ excessive force allegations.
Irons, in turn, “concedes to dismissal” of Lacey from the excessive force portion of Count III.
Resp. at 2. At this stage of the litigation, however, Irons cannot avoid judgment on that claim by
voluntarily dismissing it, and in any event has not filed a motion pursuant to Federal Rule of
Civil Procedure 41 to do so. Irons has therefore abandoned her excessive force claim against
Lacey, and summary judgment in favor of Lacey as to that claim is appropriate.
Harris, then, is the only individual defendant the Court need consider in relation to this
claim. Harris argues that he is not liable for excessive force because it is undisputed that he
caused Irons no physical harm. Defs. Mem. at 7. The undisputed facts, Harris asserts, reveal that
this was “a routine handcuffing and escort” and that no constitutional violation occurred. Id. In
her response, Irons argues that Harris’ use of force was excessive in light of the fact that she was
only charged with disorderly conduct under a municipal ordinance. See Pl. Resp. at 14. This was
not a severe crime, Irons argues, adding that there is no evidence that she posed a threat to
anyone’s safety and that Harris’ handcuffing and contact with her was therefore not objectively
reasonable under the circumstances. Id. at 13-14.
The Supreme Court “has long recognized that the right to make an arrest . . . necessarily
carries with it the right to use some degree of physical coercion or threat thereof to effect it.”
Graham, 490 U.S. at 396. But that privilege evaporates if the arrest itself is unlawful, as the
Seventh Circuit has made clear:
[W]hen 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. For they are foreseeable
consequences of the illegal arrest, and the ordinary rules of tort
causation apply to constitutional tort suits.
Herzog v. Vill. of Winnetka, Ill., 309 F.3d 1041, 1044 (7th Cir. 2002); see also Williams v.
Sirmons, 307 Fed. 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.”). If a
jury finds that Harris’ arrest of Irons was unlawful because he lacked probable cause, then any
force Harris used to effectuate that unlawful arrest—including the allegedly offensive contact he
made when he grabbed Irons arm to bring it behind her back—would violate the Constitution.
Because of this Court’s finding that there are material factual disputes regarding probable cause,
therefore, summary judgment is also denied to Harris as to the excessive force claim.
II. False Arrest and False Imprisonment Under State Law (Count I)
Irons also alleges that the police officers’ conduct constituted false arrest and false
imprisonment under state law. In Illinois, the elements of a cause of action for false arrest or
false imprisonment are: “(1) that the plaintiff was restrained or arrested by the defendant; and (2)
that the defendant acted without reasonable grounds (i.e., without probable cause) to believe that
an offense was committed by the plaintiff.” Grainger v. Harrah’s Casino, 18 N.E.3d 265, 276
(Ill. App. Ct. 2014). “For purposes of state-law false imprisonment claims, probable cause is
defined as a state of facts which, if known, would lead a person of ordinary caution and prudence
to believe or entertain a strong and honest suspicion that the person arrested is guilty.” Id. at 276
(internal quotations omitted). Harris does not seek summary judgment as to Count I, but both
McQueen and Lacey do.
This Court has already determined that material factual issues exist regarding the
question of probable cause to arrest Irons for disorderly conduct. Because probable cause is a
required element of false arrest and false imprisonment claims, summary judgment is denied to
those two officers as to Count I.
III. Battery Under State Law (Count II)
The Court next turns to the battery claim Irons brings in Count II. McQueen’s motion
does not seek summary judgment on the battery claim, so this Opinion’s discussion is limited to
Lacey and Harris. Irons again “concedes to dismissal” of Lacey from Count II. Irons has actually
abandoned this claim against Lacey in the same way she abandoned her constitutional excessive
force claim against that defendant. Summary judgment in favor of Lacey as to Count II is
That leaves Harris, who argues that he is entitled to summary judgment on the battery
claim in Count II because that claim is barred by the Illinois Local Governmental and
Governmental Employees Tort Immunity Act (“TIA”), and alternatively, because Irons herself
has admitted that Harris did not cause a harmful contact. Defs. Mem. at 6. Section 2-202 of the
TIA, 745 ILCS 10/1–101 et seq., provides, in relevant part 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. That statute defines “willful and
wanton conduct” as “a course of action which shows an actual or deliberate intention to cause
harm or which, if not intentional, shows an utter indifference to or conscious disregard for the
safety of others or their property.” 745 ILCS 10/1–210. “Although willful and wanton conduct
consists of more than mere inadvertence, incompetence, or unskillfulness, it need not be an
intentional act; rather, it may be an act committed under circumstances exhibiting a reckless
disregard for the safety of others.” Chelios v. Heavener, 5250 F.3d 678, 693 (7th Cir. 2008)
(quoting Carter v. Chi. Police Officers, 165 F.3d 1071, 1080–81 (7th Cir. 1998)) (internal
quotations omitted). While the question of “whether conduct is willful and wanton is ultimately a
question for the jury,” it is “within a court’s province . . . to hold as a matter of law that an
officer’s actions did not amount to willful and wanton conduct when no other contrary
conclusion can be drawn.” Fatigato v. Vill. of Olympia Fields, 666 N.E.2d 732, 739-40 (Ill. App.
Harris argues that the battery claim is barred by the TIA because his conduct was not
willful and wanton. Irons has admitted that Harris did not inflict any pain on her and did not
injure her, Harris argues. Harris also challenges Irons’ argument that the statutory immunity does
not apply because the subsequent overturning of her ordinance violation indicates he was not
“enforcing a law.” If that were the case, Harris asserts, police officers would be subject to tort
claims every time an arrestee ends up not being convicted.
This Court cannot conclude on the basis of the present record that Harris is immune from
Irons’ battery claim under the TIA. It is true that there is no evidence before the Court that
suggests Harris’ conduct was willful and wanton; the record only indicates that Harris “grabbed”
Irons’ arm, took Irons’ hand behind her back to handcuff her, and escorted her out of the
building. Irons admits that Harris’ conduct did not cause her any pain, and there is nothing else
in the record to support a finding that Harris had an “actual or deliberate intention to cause harm”
or that he was indifferent to or consciously disregarded Irons’ safety. But Irons argues that Harris
was not “enforcing the law” as required for TIA immunity to apply. She asserts that because
there “is no indication” that Irons violated any law—pointing in part to the municipality’s
finding that the disorderly conduct ticket was defective and she need not pay the fine—her arrest
was a false one, and that Harris was therefore not acting in the execution or enforcement of any
law. Pl. Resp. at 12-13. Irons’ brief fails to cite a single case to support this proposition. Still, this
Court concludes that because a jury could find that Harris was conducting an unlawful arrest for
which he lacked probable cause, applying TIA immunity to Harris would be inappropriate at this
stage of the case.
Irons argues that the basis for her battery claim against Harris is that he caused an
offensive and unpermitted touching when he grabbed her arm and brought it behind her to
handcuff. See Pl. Resp. at 12. It is true that under Illinois common law, battery “is the
unauthorized touching of another person.” Luss v. Vill. of Forest Park, 878 N.E.2d 1193, 1206
(Ill. App. Ct. 2007). “To be liable for battery, the defendant must have done some affirmative act
intended to cause an unpermitted contact.” Campbell v. A.C. Equipment Services Corp., Inc., 610
N.E.2d 745, 748 (Ill. App. Ct. 1993) (quoting Gaskin v. Goldwasser, 520 N.E.2d 1085, 1094 (Ill.
App. Ct. 1988)). As this Opinion has already noted, a police officer making a lawful arrest may
use reasonable force to effect that arrest, and in those circumstances Harris’ contact with Irons
would not support a claim for battery. But this Court must note once again that disputes of
material fact remain regarding whether Harris had probable cause to arrest Irons. As the Seventh
Circuit has recognized: “Any intentional offensive physical touching is a battery unless
privileged. That is the character of a false arrest in which the arrested person is physically
seized.” Herzog, 309 F.3d at 1044.
Summary judgment is therefore denied to Harris as to Count II.
IV. Village and Official Capacity Claims
Irons also brings her state law claims in Counts I and II against the Village under a theory
of respondeat superior. The Village’s request for summary judgment as to these counts is denied
because the Village’s arguments are undeveloped. See Defs. Mem. at 8. Arguments that are
“perfunctory and undeveloped” are waived. Argyropoulos v. City of Alton, 539 F.3d 724, 738
(7th Cir. 2008).
McQueen’s bid for summary judgment as to any claims Irons brings against him in his
official capacity is also denied. Only Count III names the officers in both their individual and
official capacities. “An official capacity claim against an individual defendant constitutes a claim
against the government entity itself.” Gossmeyer v. McDonald, 128 F.3d 481, 494 (7th Cir.
1997). The portion of Count III that Irons brings against the officers in their official capacities is,
therefore, essentially a claim against the Village itself. See Holloway v. Delaware Cnty. Sheriff,
700 F.3d 1063, 1071 (7th Cir. 2012) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.
55 (1978)). Claims brought pursuant to § 1983 “may be brought against municipalities and other
local governmental entities for actions by its employees only if those actions were taken pursuant
to an unconstitutional policy or custom.” Id. (citing Monell, 436 U.S. at 694). McQueen raises no
arguments regarding the lack of evidence of any such policy or custom, but instead merely states
that the official-capacity claim against him is redundant of the claims against the Village. See
McQueen Mem. at 6. But the claim is not redundant because Irons does not name the Village in
Count III. Because McQueen has failed to develop any other arguments regarding the officialcapacity claim, his motion in that regard is denied.
Sergeant Lacey is granted summary judgment only as to Count II and the excessive force
component of Count III. In all other respects, the Motions for Summary Judgment are denied.
John J. Tharp, Jr.
United States District Judge
Date: September 5, 2017
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