Glass v. Village of Maywood et al

Filing 102

MEMORANDUM Opinion and Order: The Court grants in full the Defendants' motion for summary judgment 93 . Case dismissed. Civil case terminated. Signed by the Honorable Jorge L. Alonso on 8/30/2024. Notice mailed by Judge's staff (lf, )

Antonio Glass,

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Plaintiff,
Case No. 22 C 164

v.
Village of Maywood and Maywood Police
Officers Illir Shemitraku and John Cohairo,

Judge Jorge L. Alonso

Defendants.

Memorandum Opinion and Order
Before the Court is Defendant Illir Shemitraku (“Shemitraku”), Defendant John Cochiaro
(“Cochiaro,” and together with Defendant Shemitraku, “Defendant Officers”) 1 and Defendant
Village of Maywood’s (“Village,” and together with the Defendant Officers, “Defendants”)
motion for summary judgment (“Motion” or “Mot.”). For the following reasons, the Court grants
the Motion.

Background
In this civil rights action brought under 42 U.S.C. § 1983, Plaintiff Antonio Glass alleges
that the Defendant Officers violated his constitutional rights under the Fourth and Fourteenth
Amendments of the United States Constitution by falsely arresting, unlawfully detaining, and
maliciously prosecuting him. Plaintiff asserts an indemnification claim against the Village for the
actions of the Defendant Officers and names the Village as a defendant in the malicious
prosecution claim on the basis of respondeat superior. The Defendants now move for summary
judgment in their favor on all claims against them.

Although Plaintiff names “John Cohairo” as a defendant in the Amended Complaint, the Court adopts the
Defendant Officers’ spelling of “Cochiaro.”

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I.

Evidentiary Issues 2
As an initial matter, Defendants move to strike Plaintiff’s responses to DSOF that

Defendants contend mischaracterize their statements, consist of improper argument, go beyond
the facts to which he is responding, and lack support in the record. Defendants argue that their
statements of fact should therefore be deemed admitted. Defendants also move to strike PSOF
that Defendants contend lack evidentiary support, misstate the cited record, consist of extraneous
information, and otherwise fail to comply with the rules. Defendants argue that PSOF contain
irrelevant and immaterial statements, cite materials that do not actually support his allegations,
take witness testimony out of context, and cite witnesses with no personal knowledge. Finally,
Defendants move to strike portions of Plaintiff’s response brief (ECF No. 96) that advance
factual statements without record citations or that rely upon mischaracterizations of the evidence.
Local Rule 56.1 outlines the requirements for the introduction of facts parties would like
considered in connection with a motion for summary judgment and states that motions to strike
are disfavored. The Court enforces Local Rule 56.1 strictly. See McCurry v. Kenco Logistics
Servs., LLC, 942 F.3d 783, 790 (7th Cir. 2019) (“We take this opportunity to reiterate that district
judges may require strict compliance with local summary-judgment rules.”); FTC v. Bay Area
Bus. Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005) (“Because of the important function local
rules like Rule 56.1 serve in organizing the evidence and identifying disputed facts, we have
consistently upheld the district court’s discretion to require strict compliance with those rules.”).
At the summary judgment stage, a party cannot rely on allegations; he or it must put forth
evidence. Fed. R. Civ. P. 56(c)(1)(A); see also Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th
Cir. 2017) (“As the ‘put up or shut up’ moment in a lawsuit,’ summary judgment requires a nonThe Court refers to the Defendants’ statement of material facts as “DSOF” (ECF No. 95) and Plaintiff’s statement
of additional material facts as “PSOF” (ECF No. 98).

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moving party to respond to the moving party’s properly-supported motion by identifying
specific, admissible evidence showing that there is a genuine dispute of material fact for trial.”).
Where one party supports a fact with admissible evidence and the other party fails to controvert
the fact with citation to admissible evidence, the Court deems the fact admitted. See Curtis v.
Costco Wholesale Corp., 807 F.3d 215, 218–19 (7th Cir. 2015); Ammons v. Aramark Uniform
Servs., Inc., 368 F.3d 809, 817–18 (7th Cir. 2004). This does not, however, absolve the party
putting forth the fact of the duty to support the fact with admissible evidence. See Keeton v.
Morningstar, Inc., 667 F.3d 877, 880 (7th Cir. 2012). The moving party has the “ultimate burden
of persuasion” to show entitlement to judgment as a matter of law. Raymond v. Ameritech Corp.,
442 F.3d 600, 608 (7th Cir. 2006).
The Court considers the Defendants’ arguments and objections respecting Plaintiff’s
responses to DSOF, PSAF, and Plaintiff’s response brief in conjunction with its analysis of
Defendants’ Motion. In accordance with the law set forth above, to the extent Plaintiff fails to
properly dispute any of Defendants’ asserted facts, the Court deems those facts admitted.
Furthermore, the Court will not consider Plaintiff’s asserted facts that are not supported by
deposition testimony, documents, affidavits, or other evidence admissible for summary judgment
purposes. Where any such facts are material to the Court’s analysis, the Court notes them within
this Opinion.

II.

Factual Background
In resolving a motion for summary judgment, the Court views the evidence in the light

most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). The following facts are taken from the record and are undisputed unless
otherwise noted.

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Plaintiff was at a party from about 8:00 p.m. on June 23, 2020, until approximately 1:00
a.m. on June 24, 2020. (DSOF ¶ 62.) Some time before 2:00 a.m., Aaliyah Howard picked up
Plaintiff and her then-boyfriend Brendan Eiland in her red Chrysler Sebring. (PSOF ¶ 5.) This
was Howard’s second time meeting Plaintiff, whom she knew by his nickname, “Tone.” (Id. ¶ 2.)
Eiland sat in the front passenger seat and Plaintiff was the sole rear passenger.
At approximately 2:04 a.m., Shemitraku was on patrol in an unmarked Maywood Police
Department squad car traveling westbound on Harrison from 8th Avenue when he observed the
Chrysler with an obstructed temporary license plate. (DSOF ¶ 5.) It is undisputed that an
obstructed license plate constitutes a violation of the Illinois Vehicle Code and is grounds to
conduct a traffic stop on a vehicle. (Id. ¶ 6.) Shemitraku activated his emergency lights and siren
to conduct a traffic stop and curbed the vehicle at the 1100 block of West Harrison in Maywood.
(Id. ¶ 7.) The parties agree that Shemitraku curbing the car was lawful.
While curbing the vehicle, Shemitraku had his spotlight on the back of the car and
observed the sole rear passenger (Plaintiff) moving around and making furtive movements in the
back seat. (Id. ¶ 8.) Shemitraku saw Plaintiff turning his upper body, looking back over his right
shoulder, and shifting his whole body several times. (Id. ¶ 9.) Shemitraku testified that the car
was wobbling up and down on the left and right sides from the movement in the car. (Id.) 3 After
the vehicle was stopped, Shemitraku still saw Plaintiff twisting his body while his spotlight was
pointed on him. (Id. ¶ 10.) Shemitraku never saw the backseat passenger move the seat or open
anything. (PSOF ¶ 6.) Plaintiff disputes that turning to look over his shoulder should be
described as “furtive.”

Although Plaintiff disputes that Shemitraku testified that the wobbling of the car was from the movement in the
car, that is the only reasonable inference to draw from Shemitraku’s testimony. (ECF No. 95-11 at 22:16–24:3); see
Washington v. City of Chicago, 98 F.4th 860, 871 (7th Cir. 2024) (Courts “do not draw inferences that are supported
by only speculation or conjecture.” (citation omitted)).
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Shemitraku then exited his vehicle, and as he approached the Chrysler on the driver’s
side, he smelled a strong odor of burnt cannabis coming from inside the vehicle. (DSOF ¶ 11.)
Cochiaro arrived on scene shortly after the vehicle was stopped. (Id. ¶ 12.) Upon his arrival,
Cochiaro approached the vehicle from the rear passenger side, immediately smelled a strong
odor of cannabis coming from inside the vehicle, and stood by as Shemitraku conducted his
traffic stop and investigation. (Id. ¶ 13.) Shemitraku, while speaking with the driver (Howard),
observed a burnt rolled paper cigar (also known as a “roach”), not properly packaged, in plain
view by the gearshift. (Id. ¶ 14.) When Shemitraku inquired about the roach, Howard admitted
that they were smoking weed in the vehicle immediately prior to being stopped. 4 (Id. ¶ 15.)
Shemitraku then asked if there was any more cannabis inside the vehicle, and the front seat
passenger (Eiland) admitted he had a scale and some weed in the center console and showed
Shemitraku the bag of weed. (Id. ¶ 16.) The bag of weed that was shown to Shemitrku did not
have any labels on it, and it is undisputed that it is illegal to have cannabis in a vehicle unless it is
purchased from a cannabis store in an odor-proof bag with a label and a receipt. (Id. ¶ 17.)
Shemitraku and Cochiaro then asked Plaintiff, Howard, and Eiland to exit the vehicle to
further the narcotics investigation. (Id. ¶ 18.) There is no dispute that the search of the vehicle
was lawful. Cochiaro stood by with Plaintiff, Howard, and Eiland while Shemitraku continued
his narcotics investigation. (Id. ¶ 19.) Upon a cursory search, Shemitraku recovered a small black
scale and a clear plastic bag containing a green leafy substance (20 grams) of suspect cannabis
from the center console that was accessible to all three occupants and not in the proper sealed,
odor-proof, child-resistant packaging. (Id. ¶ 20.) Next, Shemitraku searched the rear seat of the

Plaintiff disputes that Howard testified that Plaintiff was smoking weed in the car. Howard’s testimony on this
point is ambiguous, but even so, whether Plaintiff was smoking weed in the car is not material to the issues in this
Motion.
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vehicle and observed that the rear right backrest was in a “V” shape and not fully latched to the
trunk frame. (Id. ¶ 21.) Shemitraku used his flashlight to illuminate the area where the seat was
not fully latched to the trunk and saw a black firearm with an extended magazine resting in an
upright position between the back seat and the trunk area. (Id. ¶ 23.)
Although it is undisputed that the backrest was not fully latched to the trunk frame, the
parties dispute whether Shemitraku saw the gun before or after he shifted the backrest down. (Id.
¶ 24.) Shemitraku’s testimony is ambiguous on this point, and so the Court infers in Plaintiff’s
favor that Shemitraku pulled the backrest down before seeing the gun in the trunk. (Id.; Pl.’s
Resp. to DSOF ¶ 24.) Shemitraku did not have to move any of the trunk contents to see the
firearm (DSOF ¶ 24), and it was possible to gain access to the trunk area of the Chrysler from the
rear seat where Plaintiff was sitting. (Id. ¶ 22.) Shemitraku recovered the handgun, which was
loaded with a live round in the chamber and an unknown amount of live rounds in the extended
magazine and had a defaced serial number. (Id. ¶ 25.) Shemitraku asked if Plaintiff, Howard, or
Eiland had a Firearm Owner’s Identification Card (“FOID”) or Concealed Carry License
(“CCL”), and they all said “No.” (Id. ¶ 27.) It is undisputed that it is illegal to possess and
transport a firearm in a vehicle without a valid FOID and CCL. (Id. ¶ 28.)
Shemitraku instructed his assisting officers that everyone was being placed into custody
for further investigation. (Id. ¶ 29.) Plaintiff does not know which officer placed him in
handcuffs. (Id. ¶ 30.) All three subjects were transported to the Maywood Police Department,
and Shemitraku stayed on scene and waited for the tow truck to arrive before proceeding to the
police station and preparing the narrative of his report. (Id. ¶ 32.) Cochiaro transported Eiland to
the Maywood Police Department and assisted by completing property inventory sheets and part

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of the arrest card for Plaintiff. (Id. ¶ 31.) Cochiaro never personally entered or searched the
vehicle and did not recover anything from the vehicle. (Id. ¶ 71.)
Shortly after 4:00 a.m. on June 24, 2020, Howard signed a post-Miranda handwritten
statement (the “Statement”) (id. ¶ 34), which is the subject of disagreement by the parties.
Shemitraku testified that Plaintiff knocked on her cell door to get his attention so that she could
tell him what happened, which Plaintiff disputes based on Howard’s testimony that she was in a
cell for about an hour before two officers came to interrogate her. (Id. ¶ 34; Pl.’s Resp. to DSOF
¶ 34.) It is undisputed that Shemitraku was one of two officers who interviewed Plaintiff, but the
identity of the second officer is disputed. As the Court will discuss in greater detail below, the
identity of the second officer is immaterial.
Next, Shemitraku testified that Howard verbally told him and Rice that “after she noticed
the light she looked back, she was looking back to see if the police car was still behind her and
that’s when she observed Mr. Glass put the object in the back of the car.” (DSOF ¶ 43;
Shemitraku Dep. 39:21–40:1, Jan. 20, 2023, ECF No. 95-11.) Plaintiff disputes this fact based on
Howard’s testimony at Plaintiff’s underlying criminal trial that she did not see who had the gun,
she does not know how the gun got in her vehicle, and she never saw Plaintiff holding the gun.
(Hr’g Tr. 42:12–20, Sept. 27, 2021, ECF No. 98-4.) Howard also testified in her deposition in
this case,
And he said, okay, Tone, did you see Tone get anything out your trunk, and I’m
like no. And that’s when they told me wrong answer. I’m like – they said all you
have to say in your rearview mirror you seen Tone set down your back seat. And
that’s when he stopped me. He was like, oh, change that. Make sure when you say
his name, say Antonio . . . . Say when you looked into your rearview mirror, you
seen your back seat go down, and you seen Tone put something in your trunk. So
they was telling me, like, if I basically write that down in paper, that I could go
home the next morning and they won’t call DCFS on me[.]

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(Howard Dep. 52:18–53:11.) Although Defendants argue that the fact that Howard later recanted
her verbal statement does not create a dispute of fact as to whether Howard actually made the
verbal statement to Shemitraku, the Court finds that it is reasonable to infer from Howard’s
testimony in Plaintiff’s favor that Howard did not make the verbal statement.
Next, the parties dispute whether Howard gave her written Statement freely and
voluntarily. Howard’s written Statement states,
My name is Aaliyah Howard[.] Im [sic] 23 years old. I graduated from Austin
Career Academy, which is my highest level of education. I am giving this statement
freely and voluntarily. No one has threatened me to give this statement. On [J]une
24, 2020 around 2am I was driving up [H]arrison when I was stopped by Maywood
police while smoking cannabis (marijuana) inside the vehicle. When I notice[d] we
were being stopped there was a lot of movement in the backseat. When I turned
around I then notice[d] the person in the back had a hand gun and then placed it in
my trunk. I do not know the guy [sic] full name[.] I know he goes by [T]one. The
weed that was found in my middle cons[o]l was [B]rendens [sic].
(ECF No. 95-4.) The Statement is signed “Aaliyah Howard.” (Id.) Howard testified that her
Statement “wasn’t more of what I told them, it was what they told me to write down.” (Howard
Dep. 42:10–11.)
Defendants submit Shemitraku’s testimony that he and Rice never coerced, threatened, or
pressured Howard, did not tell her what to write in the Statement, and that Howard never
changed her story during the interview or told contradictory stories. (Def. Resp. PSOF ¶ 18.)
Plaintiff stipulated in the underlying criminal trial that, if Shemitraku was called to testify in the
State’s rebuttal case, he would testify that “Howard told Officer Shemitraku and Sgt. Rice that,
when she was pulled over by Officer Shemitraku on June 24, 2020, she observed a lot of
movement in the backseat where Antonio Glass was seated, and, when she turned, she observed
that Antonio Glass had a handgun which he placed in her trunk.” (Id. ¶ 57.) 5 Plaintiff further
The Court disagrees with Defendants that by so stipulating Plaintiff has conceded the substance of Shemitraku’s
testimony.

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stipulated that Shemitraku would testify that “Howard then agreed to memorialize said statement
into a handwritten statement, summarizing the events as described above” and that “Howard
further wrote that she was giving said statement freely and voluntarily, that no one has threatened
her to give said statement, and that she then signed both pages of her handwritten statement.” (Id.
¶ 58.) Plaintiff further stipulated that Shemitraku would testify that “during his interview with
Aaliyah Howard, Sgt. Rice and he never threatened Aaliyah Howard in any capacity, including
threatening to call DCFS to report her and have her children taken away.” (Id. ¶ 59.)
Eiland provided a post-Miranda statement in which he admitted to possessing the weed
and scale, but stated he did not know anything about the gun. (Id. ¶ 47.) Plaintiff was read his
Miranda rights but refused to speak to Shemitraku and Rice at the station. (Id. ¶ 49.) It is
undisputed that Plaintiff is a convicted felon and was at that time. (Id. ¶ 55.) 6 As for when
Shemitraku learned of that fact, Shemitraku testified that he did not look up Plaintiff’s criminal
history prior to interviewing Howard (id. ¶ 51), but there does not appear to be any dispute that
he knew that fact by at the time he contacted felony review and informed the Assistant State’s
Attorney (“ASA”) of all the events that occurred, his report, and the Statement. (Id. ¶ 52.) ASA
Bagnowski approved felony charges for Plaintiff for Unlawful Use of a Weapon by a Felon (720
ILCS 5/24-1.1(a)) and Possession of Defaced Firearm (730 ILCS 5/24-5(b)) shortly after 6:00
a.m. on June 24, 2020. (Id. ¶ 53.) The ASA makes the ultimate decision on whether to bring
felony charges against a suspect, which suspect to charge, and what felony charges to approve.
(Id. ¶ 54.)

Plaintiff objects pursuant to Rule 609 of the Federal Rules of Evidence without further explanation. Absent some
explanation from Plaintiff as to how Rule 609 operates in these circumstances, the Court concludes that that Rule is
inapplicable here where impeachment is not at issue.

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The trial court judge in Plaintiff’s underlying criminal trial found Plaintiff not guilty. (Id.
¶ 60.) Cochiaro did not have any involvement in the criminal proceedings and was never
contacted by the State’s Attorney’s Office regarding Plaintiff’s underlying criminal trial. (Id. ¶¶
72–73.) This lawsuit followed. Plaintiff brings claims against the Defendant Officers under 42
U.S.C. § 1983 for violations of his Fourth and Fourteenth Amendment rights, alleging false
arrest, unlawful pretrial detention, and malicious prosecution. Plaintiff also brings claims for
indemnification, and respondeat superior liability based on the malicious prosecution claim
against the Village. The Defendants now move for summary judgment on all claims asserted
against them.
This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343
because the claims arise under the U.S. Constitution and 42 U.S.C. § 1983. The Court has
supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367.

Legal Standard
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.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). To defeat summary
judgment, a nonmovant must produce more than a “mere scintilla of evidence” and come
forward with “specific facts showing that there is a genuine issue for trial.” Johnson v. Advocate
Health & Hosps. Corp., 892 F.3d 887, 894, 896 (7th Cir. 2018). The Court considers the entire
evidentiary record and must view all the evidence and draw all reasonable inferences from that
evidence in the light most favorable to the nonmovant. Horton v. Pobjecky, 883 F.3d 941, 948
(7th Cir. 2018). The Court does not “weigh conflicting evidence, resolve swearing contests,
determine credibility, or ponder which party’s version of the facts is most likely to be true.”

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Stewart v. Wexford Health Sources, Inc., 14 F.4th 757, 760 (7th Cir. 2021). However, “[t]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
Ultimately, summary judgment is warranted only if a reasonable jury could not return a verdict
for the nonmovant. Id. at 248.

Discussion
I.

False Arrest, Unlawful Pretrial Detention, and Malicious Prosecution (Counts
I, II, and IV)
Plaintiff brings false arrest, unlawful pretrial detention, and malicious prosecution claims

against the Officer Defendants. Defendants argue summary judgment is warranted on these
claims because Plaintiff’s arrest, pretrial detention, and prosecution were supported by probable
cause. The Court agrees.

a. Cochiaro
Defendants argue that Plaintiff’s claims against Cochiaro fail because he lacks the
requisite personal involvement. The Court agrees.
Liability under Section 1983 requires a defendant to have directly caused or
participated in the alleged constitutional deprivation, and an individual is only liable for his
own misconduct. Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017). Although it is
possible to hold multiple officers liable for false arrest, doing so requires the non-arresting
officer “to have undertaken some action prior to, or perhaps at the time of, [the arresting
officer’s] order to arrest . . . to have ‘caused’ or ‘participated’ in it.” Jenkins v. Keating, 147 F.3d
577, 583–84 (7th Cir. 1998). As for malicious prosecution, liability under Illinois law extends to

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officers that played a significant role in causing Plaintiff’s prosecution. Frye v. O’Neill, 520
N.E.2d 1233, 1240 (Ill. App. Ct. 1988).
Here, the undisputed evidence shows that Cochiaro did not curb or search the vehicle,
detain or transport Plaintiff to the station, obtain any witness statements, speak to the ASA that
approved the felony charges, or appear or testify at any of the criminal proceedings. Plaintiff
argues that Cochiaro authored Plaintiff’s arrest report and identified himself as an “arresting
officer,” pointing to Cochiaro’s testimony that his handwriting appears under the term “Arresting
Officers.” (PSOF ¶ 1.) Defendants do not dispute that Cochiaro authored at least part of the arrest
report, although Cochiaro testified that someone else’s handwriting also appears on the arrest
report. (Def. Resp. PSOF ¶ 1.) Cochiaro also testified that the term “arresting officer” on the
arrest report really means that Cochiaro was on scene. (Id.) To defeat summary judgment, a
nonmovant must produce more than a “mere scintilla of evidence” and come forward with
“specific facts showing that there is a genuine issue for trial.” Johnson, 892 F.3d at 894, 896.
Here, the mere fact that Cochiaro was on scene at the time of Plaintiff’s arrest is insufficient
evidence that Cochiaro personally caused Plaintiff’s arrest. Jenkins, 147 F.3d at 583–84; Ortiz v.
City of Chicago, Case No. 09-cv-2636, 2010 WL 3833962, at *8 (N.D. Ill. Sept. 22, 2010)
(officer’s mere presence at the scene fails to provide the requisite personal involvement to
support a false arrest claim). And there is no evidence showing that Cochiaro was personally
involved in Plaintiff’s pretrial detention or prosecution. There is some dispute about whether he
participated in the interview that led to Howard’s Statement, but, as the Court will discuss in
more detail below, that dispute is immaterial. Therefore, Plaintiff’s claims against Cochiaro
(Counts I, II, and IV) are dismissed. The Court proceeds to consider Counts I, II, and IV as
against Shemitraku.

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b. Shemitraku
Plaintiff’s claim hinges on Howard’s testimony purportedly showing that Shemitraku
knowingly fabricated the Statement by threatening to call DCFS to have Howard’s children
taken away if she did not write a statement implicating Plaintiff as being in possession of the
gun. (Am. Compl. ¶¶ 18–20.) Defendants argue that Shemitraku nonetheless had probable cause
to arrest, detain, and prosecute Plaintiff.
The existence of probable cause defeats claims for false arrest, unlawful pretrial
detention, and malicious prosecution. Coleman v. City of Peoria, 925 F.3d 336, 350 (7th Cir.
2019) (“Although [false arrest] is a federal constitutional claim and [malicious prosecution] is a
state tort, the existence of probable cause defeats both.”); Vaughn v. Chapman, 662 F. App’x 464,
467 (7th Cir. 2016) (“[T]he existence of probable cause is a complete defense to malicious
prosecution[.]”); Williams v. City of Chicago, 315 F.Supp.3d 1060, 1070 (N.D. Ill. Jun. 1, 2018)
(“seizure of the plaintiff pursuant to legal process unsupported by probable cause” is an element
to an unlawful pretrial detention claim). Probable cause is not a high bar, Dist. of Columbia v.
Wesby, 138 S.Ct. 577, 589 (2018), and Plaintiff bears the burden of establishing its absence.
McBride v. Grice, 576 F.3d 703, 706 (7th Cir. 2009) (“In this circuit the allocation of the burden
of persuasion in a § 1983 case claiming a Fourth Amendment violation is clear: a plaintiff
claiming that he was arrested without probable cause carries the burden of establishing the
absence of probable cause.”). An officer has probable cause if the totality of the circumstances
known to the officer at the time of the arrest would warrant a reasonable person in believing the
arrestee committed a crime. Gutierrez v. Kermon, 722 F.3d 1003, 1008 (7th Cir. 2013). The
probable cause inquiry “does not require that the officer’s belief be correct or even more likely
true than false, so long as it is reasonable.” Fleming v. Livingston Cnty., 674 F.3d 874, 878–79

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(7th Cir. 2012). Although mere suspicion is not enough, an arrest can be made without virtual
certainty that a suspect has committed an offense. United States v. Covarrubias, 65 F.3d 1362,
1368 (7th Cir. 1995).
Plaintiff was charged with (1) Unlawful Use or Possession of a Weapon by a Felon and
(2) Possession of Defaced Firearm. In Illinois, it is illegal to knowingly possess any firearm on or
about one’s person after having been previously convicted of a felony offense. 720 ILCS 5/241.1(a). It is undisputed that Plaintiff had been convicted of a predicate offense at the time of his
arrest. There is no evidence in the record that Shemitraku knew this fact when he arrested
Plaintiff, although Shemitraku knew that fact by the time the ASA made the decision to charge
Plaintiff. Nonetheless, “probable cause to arrest on any basis precludes a false arrest claim,”
Taylor v. Hughes, 26 F.4th 419, 432 (7th Cir. 2022), and it is also illegal in Illinois to knowingly
possess any firearm upon which the manufacturer’s serial number has been removed or
obliterated. 720 ILCS 5/24-5(b). It is undisputed that the gun at issue in this case had a defaced
serial number and that Shemitraku observed as much when he pulled the gun from the trunk.
Plaintiff does not argue that Shemitraku lacked knowledge of this fact necessary to arrest him.
The only question, then, is whether Shemitraku had probable cause to believe that Plaintiff
knowingly possessed the gun. 7
For both charges, the possession element can be satisfied by actual or constructive
possession. United States v. Garrett, 903 F.2d 1105, 1110 (7th Cir. 1990). Because there is no
contention that Plaintiff actually possessed the gun, the Court confines its discussion to
constructive possession. Constructive possession can be shown through evidence of the suspect’s
knowledge of the presence of the weapon and his immediate and exclusive control over the area

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Plaintiff does not argue that curbing the vehicle or conducting the narcotics search of the vehicle were unlawful.

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when it was found. Taylor, 26 F.4th at 432; see also Garrett, 903 F.2d at 1110 (constructive
possession exists when a person knowingly has the power and intention at a given time to
exercise dominion and control over an object). Knowledge may be inferred from “(1) the
visibility of the contraband from the [plaintiff’s] location within the car; (2) the amount of time
that the [plaintiff] had to observe the contraband; (3) any gestures or movements made by the
[plaintiff] that would suggest that [he] was attempting to retrieve or conceal the contraband; and
(4) the size of the contraband.” People v. Jackson, 2017 IL App (1st) 150677-U, ¶ 31 (citation
omitted) (finding constructive possession where the officer observed the suspect make furtive
movements and the gun was recovered from under the seat where he was sitting). “Proximity to
the item [or] presence on the property where the item is located, . . . without more, is not enough
to support a finding of constructive possession.” United States v. Morris, 576 F.3d 661, 666 (7th
Cir. 2009); see also United States v. Chairez, 33 F.3d 823, 825 (7th Cir. 1994) (“The mere fact
that both Chairez and the gun were in the same car is an insufficient basis for a factfinder to
determine that Chairez had knowledge of a firearm.”).
The Court agrees with Defendants that Shemitraku had probable cause to believe Plaintiff
had constructive possession of the gun that was recovered from the Chrysler. Plaintiff was the
sole backseat passenger in the Chrysler. When Shemitraku lawfully curbed the Chrysler, he
observed Plaintiff making what Shemitraku considered to be “furtive” movements, looking back
over his right shoulder and turning his body. The Chrysler was wobbling up and down on the left
and right sides from the movement in the vehicle. During the ensuing lawful narcotics
investigation, Shemitraku observed that the rear seat back was in a “V” shape and not fully
latched to the trunk frame. He pulled the seat back down, illuminated the area with his flashlight,

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and saw a gun with an extended magazine in the trunk. The gun was directly behind Plaintiff’s
seat in an area that would have been accessible to him from the back seat.
Defendants rely upon Young v. City of Chicago, 987 F.3d 641, 642 (7th Cir. 2021) and
Henderson v. Rangel, 19 C 6380, 2022 WL 3716263, at *1 (N.D. Ill. Aug. 26, 2022), appeal
dismissed sub nom. Henderson v. City of Chicago, No. 22-2706, 2023 WL 6290743 (7th Cir.
May 17, 2023), which the Court finds persuasive. In Young, the Seventh Circuit concluded on de
novo review of the district court’s summary judgment order that the officers had probable cause
to believe the plaintiff Young possessed a firearm because they found a gun right next to the
plaintiff in the car he was driving. Young, 987 F.3d at 642. The court concluded that certain facts
did not defeat probable cause. First, Young told the officers that the gun belonged to a passenger
who was riding the vehicle, but the court found that “[m]any putative defendants protest their
innocence, and it is not the responsibility of law enforcement officials to test such claims once
probable cause has been established.” Id. at 644 (quoting Spiegel v. Cortese, 196 F.3d 717, 724
(7th Cir. 1999)). Second, the officers saw the passenger handle the gun, but the court found that
the officers had probable cause to believe that Young and the passenger possessed the gun jointly
because Young was sitting next to the gun. Id. at 645. Third, Young alleged that the police
falsified evidence against him after his arrest by destroying his first written statement and
making him write a second, more incriminating version that omitted several exonerating facts.
The court found that even if the police did so, they still had probable cause to detain Young
pending trial because they “found Young with a gun next to him in the car that he was driving”
and “[t]hey didn’t need anything else.” Id.
In Henderson, the district court relied on Young and found that the defendant officers had
probable cause to arrest and detain the plaintiff, Henderson, for unlawful possession of a firearm.

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2022 WL 3716263, at *5. Henderson was driving a vehicle when police officers conducted a
lawful traffic stop because the front passenger was not wearing a seatbelt. Id. at *1. The vehicle
belonged to that passenger. Id. An officer saw Henderson reaching around in the area of his seat
before exiting the vehicle, then found a loaded handgun with an obliterated serial number
underneath the seat where Henderson was sitting. Id. at *4. The district court found that the
officer had probable cause to believe Henderson had constructive possession of the gun based on
Henderson’s furtive movements and the fact that the gun was easily within Henderson’s
dominion and control. Id. The court noted that the “calculus may be different” if the gun had
“been found in the back seat outside Henderson’s reach, or the trunk of the car[.]” Id.
Plaintiff attempts to distinguish Henderson because there, the officers alleged that they
saw the plaintiff reach directly to the location of where the gun was found and there is no such
implication here—Plaintiff simply turned to look when the light was shined and did not reach for
anything. But constructive possession does not require observations that the suspect was
reaching directly to the location of the gun; knowledge can be inferred through gestures or
movements suggesting he was trying to retrieve or conceal it. Jackson, 2017 WL 4274082, at
*5–6; Henderson, 2022 WL 3716263, at *3. Here, Shemitraku testified that, while curbing the
vehicle, he saw Plaintiff moving around, twisting, and making furtive movements in the back
seat, and observed that the car was wobbling from left to right.
Plaintiff also argues, without citation to authority, that there was no constructive
possession because the gun was found in the trunk of a car that Plaintiff did not own, and the gun
was not in plain sight or open view. But as Defendants point out, ownership of the property
where the contraband is found is not essential to a finding of possession beyond a reasonable
doubt, let alone to support probable cause. Garrett, 903 F.2d at 1112 n.8. Nor does constructive

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possession require the gun to be in plain sight. Taylor, 26 F.4th at 432 (constructive possession
can be shown through the suspect’s knowledge of the presence of the weapon and immediate and
exclusive control over the area it was found); Jackson, 2017 WL 4274082, at *5–6 (knowledge
may be inferred from any gestures or movements that would suggest attempts to retrieve or
conceal the contraband). This is not a case where the gun was locked in a trunk or inaccessible to
Plaintiff. Here, as in Young and Henderson, the gun was easily within Plaintiff’s “dominion and
control.”
In support of his argument that there was no probable cause of constructive possession,
Plaintiff cites a number of out-of-circuit criminal cases finding insufficient evidence to establish
constructive possession beyond a reasonable doubt. “But probable cause demands much less than
proof beyond a reasonable doubt.” Washington, 98 F.4th at 876–77 (citing United States v.
Bullock, 632 F.3d 1004, 1022 (7th Cir. 2011)); see also Bullock, 632 F.3d at 1022 (probable
cause determination “does not require evidence sufficient to support a conviction, nor even
evidence that it is more likely than not that the suspect committed a crime” (internal citation
omitted)). The undisputed evidence shows that the totality of the circumstances known to
Shemitraku at the time of Plaintiff’s arrest would warrant a reasonable person to believe that
Plaintiff knowingly had the power and intention to exercise dominion and control over the
defaced gun. Shemitraku therefore had probable cause to arrest Plaintiff for unlawful possession
of a defaced firearm.
Next, Plaintiff’s claims for unlawful pretrial detention and malicious prosecution claims
fail for the same reason that his false arrest claim fails: Shemitraku had probable cause to detain
him. Young, 987 F.3d at 646 (finding existence of probable cause defeated claims for false arrest,
unlawful detention, and malicious prosecution); see also Washington, 98 F.4th at 878 (“Plaintiffs’

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claims for malicious prosecution fail for the same reason that their Fourth Amendment claims
fail—the detectives and courts had probable cause to detain them.”); Coleman, 925 F.3d at 351
(“The undisputed facts show defendants had probable cause to arrest Coleman. This defeats
Coleman’s Fourth Amendment claim and his state law malicious prosecution claim.”); Logan v.
Caterpillar, Inc., 246 F.3d 912, 922 (7th Cir. 2001) (the absence of even one element will
preclude recovery for malicious prosecution). 8
Plaintiff argues that there is a genuine issue of material fact that precludes summary
judgment because the entire basis for the detention and prosecution of Plaintiff was a fraudulent
statement coerced from a witness. The Court notes that under Illinois law the “existence of
probable cause in a malicious-prosecution action is ‘determined by looking to what the
defendants knew at the time of subscribing a criminal complaint’ and not at the (earlier) time of
arrest.” Vaughn, 662 F. App’x at 467 (quoting Gauger v. Hendle, 954 N.E.2d 307, 329 (2011))
(finding probable cause defeated malicious prosecution claim where troopers pulled vehicle that
plaintiff was driving over for speeding and an obstructed windshield, discovered a firearm in the
trunk, and learned from a records search that the plaintiff was a felon and a suspect in an
aggravated assault and armed robbery involving a weapon of the same caliber). Here, the Court
concludes that Shemitraku had probable cause to arrest and detain Plaintiff independent of
Howard’s allegedly coerced statement. See Sang Ken Kim v. City of Chicago, 858 N.E.2d 569,
578 (Ill. App. Ct. 2006) (affirming summary judgment against plaintiff on claims of malicious
prosecution because there was no issue of material fact as to whether probable cause existed at
the time of the arrest independent of plaintiff’s coerced confession).
The Court finds the reasoning of Young instructive on this issue. There, the plaintiff

8

The Court need not reach Defendants’ arguments regarding malice or improper influence.

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argued that the police falsified evidence against him after his arrest by destroying his first written
statement. The court found, “[E]ven assuming the police did so, they still had probable cause to
detain Young pending trial. Once more, at the risk of sounding like a broken record, the officers
found Young with a gun next to him in the car that he was driving. They didn’t need anything
else.” Young, 987 F.3d at 645. The scene of arrest, even accepting the police misconduct as true,
still gave the officers adequate probable cause to detain him. Id.
So too here. Even if, as Howard later testified, Shemitraku coerced Howard to give a
false statement that she observed Plaintiff with a gun in his hand as he placed it in the trunk area,
Shemitraku still had independent probable cause to detain Plaintiff pending trial. In other words,
“[p]robable cause existed as a matter of law even when we give the plaintiffs the benefit of
factual disputes.” Washington, 98 F.4th at 877. 9 For this reason as well, the identity of the second
officer that interviewed Howard is immaterial.
For the foregoing reasons summary judgment is warranted in Shemitraku’s favor on
Counts I, II, and IV, which are dismissed as against Shemitraku.

c. Qualified Immunity
Defendants argue that the Defendant Officers are entitled to qualified immunity for
Plaintiff’s Section 1983 claims. “The doctrine of qualified immunity protects government
officials ‘from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.’”

While the parties do not address whether or when there was a judicial finding of probable cause, the Court
analogizes these circumstances to those cases involving a judicial finding of probable cause. In those cases,
“[k]nowingly or recklessly misleading the magistrate in a probable cause affidavit—whether by omissions or
outright lies—only violates the Fourth Amendment if the omissions and lies were material to probable cause.”
Rainsberger v. Benner, 913 F.3d 640, 643 (7th Cir. 2019). “Materiality depends on whether the affidavit
demonstrates probable cause when the lies are taken out and the exculpatory evidence is added in.” Id. Where, after
eliminating the alleged misrepresentations, undisputed facts show that probable cause would still have existed, the
misrepresentations are not material. Washington, 98 F.4th at 878. Here, if Howard’s false statement is taken out,
probable cause still existed on the remaining undisputed facts and so the false statement is not material.
9

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Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). “In general, once the defendants raise the qualified immunity defense, the plaintiff
must show two things: first, that there has been a violation of one or more of [his] federal
constitutional rights, and second, that the constitutional standards at issue were clearly
established at the time of the alleged violation.” Campbell v. Peters, 256 F.3d 695, 699 (7th Cir.
2001) (citation omitted). “If the plaintiff fails to meet the first prong of the qualified immunity
test, that is, fails to demonstrate that were the allegations established the officials would have
violated a constitutional right, there is no need to consider the second prong.” Bleavins v.
Bartels, 422 F.3d 445, 455 (7th Cir. 2005).
Because Plaintiff fails to show a violation of his constitutional rights, the Defendant
Officers are entitled to qualified immunity on Plaintiff’s Section 1983 claims.

II.

Respondeat Superior and Indemnification (Counts III and IV)
Plaintiff’s indemnification claim against the Village stems entirely from his claims for

false arrest and unlawful pretrial detention against the Defendant Officers. Plaintiff’s respondeat
superior claim against the Village stems entirely from his malicious prosecution claim against
the Defendant Officers. Because Plaintiff’s false arrest, unlawful pretrial detention, and
malicious prosecution claims against the Defendant Officers fail, so too must his derivative
claims against the Village. See Young, 987 F.3d at 646; Coleman, 925 F.3d at 351. The Court
accordingly grants the Defendants’ motion for summary judgment as to Plaintiff’s respondeat
superior and indemnification claims. Count III and the respondeat superior claim against the
Village in Count V are dismissed.

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Conclusion
The Court grants in full the Defendants’ motion for summary judgment [93]. Case
dismissed.
SO ORDERED.

ENTERED: August 30, 2024

_____________________________
HON. JORGE ALONSO
United States District Judge

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