Lund v. City of Rockford et al

Filing 71

MEMORANDUM Opinion and Order Signed by the Honorable Frederick J. Kapala on 4/23/2019:mailed notice(pg, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
William Lund,
Plaintiff,
v.
City of Rockford, et al.,
Defendants.

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Case No: 17 C 50035

Judge Frederick J. Kapala

MEMORANDUM OPINION AND ORDER
Plaintiff, William Lund, brings an action against defendants, Officer Sean Welsh, Officer
Timothy Campbell, Sergeant Eddie Torrance, and the City of Rockford, arising out of plaintiff’s
arrest for obstructing an undercover prostitution detail in violation of 720 ILCS 5/31-1(a) and for
driving a motor vehicle on the wrong side of the road in violation of 625 ILCS 5/11-708(b). For the
reasons that follow, defendants’ motion for summary judgment is granted.
I. BACKGROUND
The facts are taken from the pleadings, the parties’ statements of undisputed facts, the parties’
responses thereto, the parties’ supplemental briefing as ordered by the court, and the evidence
submitted in support. All the facts detailed are undisputed unless otherwise stated.
Plaintiff is a freelance reporter and administrator for the Rockford Scanner, a business that
reports on breaking and notable news. Plaintiff writes articles for the website and, for at least some
of his articles, appears on-site to capture photographs.
On May 25, 2015, the Rockford Police Department conducted a prostitution detail in the
City’s Midtown District, an area known for high levels of prostitution. This detail included
undercover female police officers posing as prostitutes while other officers provided surveillance
and security for the undercover officers. Two of those other officers were Officers Welsh and
Campbell who were in a black unmarked squad car near where the undercover officers were located.
At one point in the evening one of the undercover officers contacted Welsh and Campbell and
“expressed concern that there was a man riding around on a motorized bicycle taking pictures of her
and the other undercover officer,” which “weirded out” the undercover officer and made her feel
“[un]comfortable.”
Upon receiving this information Welsh and Campbell approached plaintiff observing him
on his bicycle on Broadway (a street in the area of the prostitution detail) in an alley. While the
parties dispute various characteristics of the bicycle, it is plaintiff’s contention that it was a lowspeed gas bicycle that he had modified to travel no more than 19 or 20 miles per hour.
The officers approached plaintiff, who at that time was between half a block and one block

away from the undercover officers. Campbell told him “you are in the middle of our investigation
. . . we are running a detail and you are interfering with it so if you refuse to leave, I’m going to arrest
you for obstruction . . . you are in the middle of our investigation photographing everything we’re
doing,” and then instructed him to be “out of sight . . . at least six blocks away.” Plaintiff began to
comply with this instruction by leaving the area on his bicycle. However, as plaintiff left, he said
“Goodbye, Officers” while waving at either the undercover officers or Welsh and Campbell. While
it is disputed to whom plaintiff’s statement was directed, it is undisputed that plaintiff said this in
a tone that was loud enough to be heard while plaintiff’s bicycle motor was running.
Welsh and Campbell then decided to arrest plaintiff based on their concern that plaintiff was
obstructing the prostitution detail. The officers began pursuing plaintiff. When they caught up with
him, plaintiff turned the wrong way on a one-way street. The officers then “paced”
plaintiff—meaning that Welsh, who was driving, measured plaintiff’s speed by looking at his own
speedometer. Welsh determined that plaintiff was traveling 24 miles per hour. Because of the
presence of the motor on the bicycle and the speed at which Welsh clocked him, Welsh believed that
plaintiff was driving a “motor vehicle” for purposes of Illinois law. Thus, because plaintiff was
driving on the wrong side of the road, the officers concluded that plaintiff was operating a motor
vehicle in violation of Illinois law.
The officers stopped plaintiff and arrested him. Incident to the arrest, the officers seized
plaintiff’s cellular phone because they believed it contained photographs and/or videos of the
undercover officers. Sergeant Torrance would later approve of the arrest.
Plaintiff’s action includes eight claims against defendants: (1) false arrest under § 1983; (2)
unreasonable search and seizure under § 1983; (3) failure to intervene under § 1983; (4) supervisory
liability under § 1983; (5) First Amendment retaliation under § 1983; (6) conspiracy under § 1983;
(7) malicious prosecution under § 1983; and (8) malicious prosecution under Illinois common-law.1
Defendants seek summary judgment on all counts.
II. ANALYSIS
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).
In evaluating such a motion, the court’s role is not to weigh the evidence and determine the truth of
the matter, but to determine whether there is a genuine issue for trial. Preddie v. Bartholomew
Consol. Sch. Corp., 799 F.3d 806, 818-19 (7th Cir. 2015). “A genuine issue exists as to any material
fact when the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Fidlar Techs. v. LPS Real Estate Data Sols., Inc., 810 F.3d 1075, 1079 (7th Cir. 2016). Further, the
object of summary judgment procedures “is not to replace conclusory allegations of the complaint
or answer with conclusory allegations of an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888 (1990).

1

The complaint also contains a ninth count against the City of Rockford titled “indemnification,” which, as
defendants correctly point out, is not really an independent cause of action, but rather a request for relief from the City
of Rockford. Because the court finds that there is no underlying liability based on the conduct of the defendant officers,
Count IX is dismissed as moot.

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The court must consider the record evidence in the light most favorable to the nonmovant
and draw all reasonable inferences from that evidence in favor of the nonmovant. Skiba v. Ill. Cent.
R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). The moving party initially bears the burden of
“identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine
issue of material fact.” Spierer v. Rossman, 798 F.3d 502, 508 (7th Cir. 2015) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “If a party moving for summary judgment has properly
supported his motion, the burden shifts to the nonmoving party to come forward with specific facts
showing that there is a genuine issue for trial.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 951
(7th Cir. 2013) (emphasis omitted).
A. False Arrest (Count I)
Defendants move for summary judgment on plaintiff’s claim that defendants falsely arrested
him. Specifically, defendants claim that they had two bases for probable cause—that plaintiff
obstructed their investigation in violation of 720 ILCS 5/31-1(a), and that plaintiff drove his motor
vehicle on the wrong side of the road in violation of 625 ILCS 5/11-708(b).2 The court focuses its
analysis on the latter basis.
Under § 1983, a federal remedy exists against anyone who, under color of state law, deprives
a citizen of his or her rights under the Constitution. See Planned Parenthood of Ind., Inc. v. Comm’r
of Ind. State Dep’t of Health, 699 F.3d 962, 972 (7th Cir. 2012). One such right is the right not to
be seized by the government without probable cause. Fox v. Hayes, 600 F.3d 819, 832 (7th Cir.
2010) (“It is well-established that an arrest without probable cause violates the Fourth
Amendment.”). Thus, the existence of probable cause is an absolute defense to a § 1983 claim for
false arrest. Gibbs v. Lomas, 755 F.3d 529, 537 (7th Cir. 2014).
“An officer has probable cause to make an arrest only when the facts and circumstances
within his knowledge and of which he has reasonably trustworthy information are sufficient to
warrant a prudent person in believing that the suspect has committed an offense.” Id. Probable
cause requires only a probability or substantial chance of criminal activity rather than the certainty
of it. United States v. Carroll, 750 F.3d 700, 706 (7th Cir. 2014). In making the probable cause
determination, the court looks only to what facts defendants knew at the time of the arrest.
Kelley v. Myler, 149 F.3d 641, 646 (7th Cir. 1998).
The record indicates that, after the officers began following plaintiff, plaintiff began driving
on the wrong side of the street. Welsh then paced plaintiff and clocked him at 24 miles per hour.
Based on these facts, a reasonable officer would have believed that he had probable cause to stop and
arrest plaintiff for violating 625 ILCS 5/11-708(b), which states that “[u]pon a roadway so
designated for one-way traffic, a vehicle shall be driven only in the direction designated.” A
reasonable officer also would have believed that plaintiff’s bicycle constituted a “motor vehicle,”
rather than a “low-speed gas bicycle,” which is defined as “[a] 2 or 3-wheeled device with fully

2

Regarding defendants’ argument that they had probable cause to arrest plaintiff because he was operating a
motor vehicle with a revoked license, the court will not consider this basis for probable cause because, according to the
record, Welsh and Campbell discovered that plaintiff’s license had been revoked after they arrested him.

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operable pedals and a gasoline motor of less than one horsepower, whose maximum speed on a
paved level surface, when powered solely by such a motor while ridden by an operator who weighs
170 pounds, is less than 20 miles per hour.” 625 ILCS 5/1-140.15; see id. §1-146 (excepting “lowspeed gas bicycles” from the definition of a “motor vehicle”).
Plaintiff does not dispute that he was driving on the wrong side of the road. Rather, plaintiff
disputes that his gas-powered bicycle had the capacity to go beyond 19 or 20 miles per hour. While
plaintiff testified that the motor was 80cc in size, capable of going up to 30 miles per hour, he further
testified that he modified the motor to only be able to go up to 20 miles per hour.
This factual dispute is not material. What matters for the court’s analysis is not whether the
bicycle actually had the capability to travel at least 20 miles per hour, but rather whether the officers
could make a reasonable determination that plaintiff’s bicycle was going at least 20 miles per hour.
Welsh testified that plaintiff’s bicycle had a motor on it, alerting them to the possibility that the
bicycle met the threshold for a “motor vehicle.” Welsh further testified that he looked at his own
vehicle’s speedometer and observed that he and plaintiff were moving at the same speed. And, it
is undisputed that plaintiff was driving the bicycle on a flat area of the street, negating the concern
that he was traveling fast simply because he was going downhill. That Welsh may have been wrong
about the exact speed plaintiff was traveling does not vitiate the reasonableness of his determination
that there was a probable or substantial chance that plaintiff’s bicycle was traveling at least 20 miles
per hour. With the facts at hand, the court finds that no reasonable jury could conclude that
defendants did not have a basis for believing, to a reasonable degree of certainty, that plaintiff’s
bicycle was traveling fast enough to violate § 11-708(b).3
Aside from the dispute about the bicycle’s speed, plaintiff simply argues that Welsh and
Campbell did not “rely on” plaintiff’s violation of § 11-708(b) when making the arrest, but rather,
only on his purported obstruction of their investigation. But whether Welsh and Campbell “relied
on” plaintiff’s breaking of the law by driving a vehicle on the wrong side of the road as the basis for
3

Additionally, it is not clear that the 20 miles per hour threshold should be considered a hard-and-fast rule for
determining that a particular device is or is not a “low-speed gas bicycle” exempted from the statutory definition of a
“motor vehicle.” In People v. Plank, the Supreme Court of Illinois heard a constitutional challenge on vagueness grounds
to the statutory definition of a “low-speed gas bicycle.” 2018 IL 122202, ¶ 2. Specifically, the defendant argued that
the definition only applied to drivers who weighed exactly 170 pounds and therefore the statute was vague as applied
to drivers that have different weights. Id. ¶ 16. However, the Court agreed with the State’s interpretation—that the
statute’s reference to the weight of the driver served the simple purpose of “clarify[ing] how powerful a vehicle’s engine
must be for the vehicle to qualify as a ‘motor vehicle’ and that an engine’s capability is the same regardless of any
particular driver’s weight.” Id. ¶ 17. Based on the statute’s phrasing, the Court interpreted the statute to “mean that a
defining characteristic of a low-speed gas bicycle is an engine that is incapable of transporting 170 pounds at 20 miles
per hour without help from gravity or pedaling. A bicycle’s motor will either have this capability or not, regardless of
the weight of any particular driver.” Id. ¶ 18.
Following Plank, it stands to reason that the statute’s reference to “20 miles per hour,” like its reference to 170
pounds, is meant only to “clarify” the type of device that would constitute a low-speed gas bicycle under the statute.
Thus, the exact speed plaintiff traveled may not be dispositive as a matter of statutory construction. (And as to his
weight, we know from plaintiff’s deposition testimony that on the day in question he weighed approximately 170 pounds.
From this fact the court may infer that the police officers had probable cause to believe it looked like he weighed at least
170 pounds.) However, as the court has found that defendants’ determination that they had probable cause to arrest
plaintiff was reasonable, the court need not apply the rule in Plank to the facts at hand.

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arresting him is also irrelevant. It is well established that “the fact that the officer does not have the
state of mind which is hypothecated by the reasons which provide the legal justification for the
officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively,
justify that action.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). That Welsh and Campbell may
have decided to arrest plaintiff for obstructing a peace officer does change the undisputed fact that
a reasonably prudent person in their positions would reasonably determine that they had probable
cause to arrest plaintiff for driving on the wrong side of the road in violation of § 11-708(b). And
the Supreme Court has made it clear that “[a]s long as there is probable cause to stop someone for
a crime—even a minor one like a traffic offense—the Fourth Amendment permits an arrest.” Tapley
v. Chambers, 840 F.3d 370, 378 (7th Cir. 2016) (citing Atwater v. City of Lago Vista, 532 U.S. 318,
354 (2001)); see also People v. Taylor, 388 Ill. App. 3d 169, 175 (2009).
Accordingly, “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.” Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 682 (7th Cir. 2007); see
also Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 762 (7th Cir. 2006) (“The actual existence of any
probable cause to arrest precludes a § 1983 suit for false arrest.”). As the court finds that Welsh and
Campbell had probable cause to arrest plaintiff for violating § 11-708(b), the court need not address
probable cause related to the offense of obstructing a peace officer, and the court grants summary
judgment on Count I.
B. Unreasonable Search & Seizure (Count II) &
Malicious Prosecution (Counts VII & VIII)
In light of the court’s finding that defendants had probable cause to arrest plaintiff, the court
also grants summary judgment on Counts II, VII, and VIII.
First, as to plaintiff’s Fourth Amendment claim in Count II, the court has determined that
Welsh and Campbell had probable cause to, on the one hand, seize plaintiff after observing him
driving a motor vehicle on the wrong side of the road,4 see Lewis v. City of Chicago, 914 F.3d 472,
476 (7th Cir. 2019), and on the other hand, seize his cellular phone incident to arrest, see Riley v.
California, 573 U.S. 373, 388 (2014) (noting that officers may seize cell phones incident to arrest);
see also United States v. Brixen, 908 F.3d 276, 282 (7th Cir. 2018) (citing United States v.
Robinson, 414 U.S. 218, 235 (1973)) (noting that evidence seized during a valid search incident to
arrest need not relate to concerns for officer safety or preservation of evidence pertaining to the
subject matter for probable cause).5 Because Welsh and Campbell had probable cause, they are
entitled to an absolute defense to a claim that they illegally seized plaintiff’s person and cellular
phone. Bailey v. United States, 568 U.S. 186, 192 (2013).
Second, as to plaintiff’s malicious prosecution claim under § 1983 in Count VII, plaintiff
4

To the extent plaintiff meant to include the seizure of plaintiff’s person as part of his claims in Count II, such
a claim would be duplicative of plaintiff’s claims in Count I.

0. Plaintiff’s complaint makes a reference to defendants breaking his phone after seizing it, but this
fact is not supported by the record and therefore does not factor into the court’s analysis.
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concedes in a footnote in his complaint that it is well-established that the Seventh Circuit does not
recognize malicious prosecution claims under § 1983. Serino v. Hensley, 735 F.3d 588, 593 (7th
Cir. 2013). Accordingly, plaintiff’s federal malicious prosecution claim must be dismissed.6
Finally, as to plaintiff’s malicious prosecution claim under Illinois law, in order to state a
claim for malicious prosecution in Illinois, a plaintiff must prove that: “(1) the defendant commenced
or continued an original criminal or civil proceeding; (2) the proceeding terminated in the plaintiff’s
favor; (3) the defendant instituted the proceeding without probable cause; (4) the defendant acted
maliciously in initiating or continuing the proceeding; and (5) the plaintiff was injured.” Washington
v. Summerville, 127 F.3d 552, 557 (7th Cir. 1997). In Illinois, “malicious prosecution suits are
disfavored by law because of the potential deterrent effect on the reporting of crime.” Logan v.
Caterpillar, Inc., 246 F.3d 912, 921 (7th Cir. 2001).
Regarding the second prong, the burden is on plaintiff to prove that the nolle prosequi was
entered for reasons indicative of his innocence. Swick v. Liautaud, 169 Ill. 2d 504 (1996); see also
Bowlds v. Viciego, 2015 IL App (2d) 140065-U, ¶ 34 (describing the burden as “substantial”). Here,
the parties identify the dismissal as a nolle prosequi.7 To determine whether proceedings were
terminated in a plaintiff’s favor, courts “must look past the form or title of the disposition and
examine the circumstances surrounding the entry of the nolle prosequi.” Cult Awareness Network
v. Church of Scientology Int’l., 177 Ill. 2d 267, 279 (1997); Treece v. Village of Naperville, 903 F.
Supp. 1251, 1258 (N.D. Ill. 1995) (“When the nature of the dismissal is nolle prosequi, the court
must look to underlying facts to determine whether the dismissal truly indicates innocence.”
(emphasis added)).
Here, the nolle prosequi is bare. It merely says “cases dismissed on motion of state’s
attorney.” “The bare use of a nolle prosequi order does not establish that the criminal proceedings
were terminated in a manner indicative of the plaintiff's innocence.” Logan, 246 F.3d at 926;
Summerville, 127 F.3d at 558 (“A bare nolle prosse without more is not indicative of innocence.
Lack of a recorded reason for the nolle prosequi offers no insight as to the validity or invalidity of
[plaintiff’s] position.”). “The state’s mere abandonment of suit, such as through an entry of nolle
prosequi, does not satisfy the favorable-termination element.” Franklin v. Blackman, No.

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In support of plaintiff’s § 1983 malicious prosecution claim, plaintiff cites Manuel v. City of Joliet, 137 S. Ct.
911, 922 (2017), and Mitchell v. City of Elgin, 912 F.3d 1012, 1015 (7th Cir. 2019). Plaintiff’s application of the
holding of these cases—“that the Fourth Amendment governs a claim for unlawful pretrial detention even beyond the
start of legal process,” Manuel, 137 S. Ct. at 920—is misguided, as these cases do not deal with § 1983 malicious
prosecution claims. In fact, Justice Alito’s dissent in Manuel explicitly notes that the majority chose not to answer a
question embedded in the question set out in the petition for a writ of certiorari, that being,“[w]hether an individual’s
Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious
prosecution claim based upon the Fourth Amendment.” Id. at 924 (Alito, J., dissenting) (“What is perhaps most
remarkable about the Court’s approach is that it entirely ignores the question that we agreed to decide, i.e., whether a
claim of malicious prosecution may be brought under the Fourth Amendment.”).
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A nolle prosequi is a formal entry of record whereby the prosecuting attorney declares that he is unwilling to
prosecute a case. Ferguson v. City of Chicago, 213 Ill. 2d 94, 101 (2004). Typically, a nolle prosequi leaves matters
as if charges had never been filed; if the state wants to bring charges again, it must file a new charging document. People
v. Daniels, 187 Ill. 2d 301 (1999).

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13-CV-470, 2014 WL 6685950, at *6 (N.D. Ill. Nov. 25, 2014). Thus, with a bare nolle prosequi
order, it is plaintiff’s burden to show “circumstances under which the disposition was obtained.”
The only circumstance plaintiff references is in two lines in his opposition to the motion for
summary judgment, stating “Plaintiff’s case was not nolle’d as part of any plea.8 In fact, it was
dismissed the same afternoon it was set for hearing on a motion to dismiss filed by his defense
counsel.” This is simply not enough to create a genuine dispute of fact; plaintiff points to no
authority to suggest that the timing of the nolle prosequi order is “indicative” of innocence.9 See
Rattray v. Caudill, No. 14 CV 8735, 2016 WL 5848913, at *3 (N.D. Ill. Oct. 6, 2016) (“All of the
charges against Rattray were terminated, and the certified statement of disposition states “nolle
prosequi” but does not provide a reason for why it was entered; Rattray admits that the record is
silent on the reason for its entry. This is not sufficient evidence to survive summary judgment.”
(citation omitted)); Bowlds, 2015 IL App (2d) 140065-U, ¶ 35 (“Given plaintiff’s substantial burden,
the evidence raised not a genuine issue of fact, but only a basis for speculation. The nolle prosequi
order was a “bare bones” statement. No other evidence in the record provides insight into the State’s
reason for seeking the dismissal. . . . The State might have concluded that there was no basis to
prosecute plaintiff, but it is equally plausible that the State decided to forgo further criminal
proceedings for reasons that our courts hold do not indicate innocence.”).
Alternatively, regarding the fourth prong, there is the additional problem for plaintiff that to
prove a malicious prosecution claim against police officers plaintiff must show “more than a lack
of probable cause; rather, he must allege that the officers committed some improper act after they
arrested him without probable cause, for example, that they pressured or influenced the prosecutors
to indict, made knowing misstatements to the prosecutor, testified untruthfully, or covered up
exculpatory evidence.” McDade v. Stacker, 106 F. App’x. 471, 475 (7th Cir. 2004); see also Steeves
v. McGrath, No. 99 C 4567, 2000 WL 198895, at *4 (N.D. Ill. Feb. 11, 2000) (“[C]laimants must
allege some police wrongdoing after the arrest that influences the prosecutor’s decision to bring the
case to trial. Examples of post-arrest wrongdoing include giving false testimony or withholding
exculpatory evidence.” (citation omitted)). The record is completely silent as to any improper acts
taken by the officers. This alone is also grounds for dismissal. Defendants’ motion for summary
judgment as to Count VIII is also granted.
C. First Amendment Retaliation (Count V)
Plaintiff also brings a claim under § 1983 for First Amendment retaliation. Specifically,

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It is true that “[t]he state’s decision to dismiss a criminal case is not indicative of innocence when the nolle
prosequi is the result of an agreement or compromise with the accused.” Swick, 169 Ill. 2d at 513. But plaintiff cites
to no authority for the opposite proposition—that a nolle prosequi that is not based on a plea implies that the dismissal
is “indicative” of innocence. In fact, other than Swick—which found that the plaintiff in that case failed to prove the
second prong—plaintiff cites to no other case on this issue.
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The court’s review of the records of the Circuit Court for the 17th Judicial Circuit in the State of Illinois, of
which the court takes judicial notice, reveals that the plaintiff was also charged with driving after revocation in violation
of 625 ILCS 5/6-303(a). But the record in this case does not show how this charge was resolved. Because plaintiff has
the burden of proving favorable termination, plaintiff’s failure to analyze this charge precludes him from making it the
basis of his state-law malicious prosecution claim in Count VIII.

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plaintiff claims that defendants retaliated against him for exercising his right to freedom of the press
by arresting him. To demonstrate a prima facie case of First Amendment retaliation, plaintiff must
prove that (1) he engaged in activity protected by the First Amendment, (2) he suffered an adverse
action that would likely deter future First Amendment activity, and (3) the First Amendment activity
was “at least a motivating factor” in defendants’ decision to retaliate. Gekas v. Vasiliades, 814 F.3d
890, 895 (7th Cir. 2016).
Plaintiff’s First Amendment retaliation claim is foreclosed because defendants are shielded
by qualified immunity. “[Q]ualified immunity shields government officials from civil damages
liability unless the official violated a statutory or constitutional right that was clearly established at
the time of the challenged conduct.” Kingsley v. Hendrickson, 801 F.3d 828, 831 (7th Cir. 2015).
An officer does not violate a clearly established right unless the contours of the right were
sufficiently definite to allow a reasonable officer to understand he was violating it; thus, the
applicable law must have placed the legal question beyond debate. See City and County of San
Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015). Further, the right must be established in a
particularized sense “so that the ‘contours’ of the right are clear to a reasonable official.” Reichle
v. Howards, 566 U.S. 658, 665 (2012). This requirement “protects the balance between vindication
of constitutional rights and government officials’ effective performance of their duties by ensuring
that officials can reasonably anticipate when their conduct may give rise to liability for damages.”
Id. at 664 (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)).
In Reichle, the Supreme Court held that an officer was entitled to qualified immunity with
respect to a claim that he made an arrest in retaliation for the arrestee’s exercise of free speech rights
because it was not clearly established “that an arrest supported by probable cause could give rise to
a First Amendment violation.” Id. at 670. The Seventh Circuit agreed with and applied this
principle in Thayer v. Chiczewski, 705 F.3d 237 (7th Cir. 2012), observing that although the
Supreme Court had said that probable cause is a bar to retaliatory prosecution claims, see Hartman
v. Moore, 547 U.S. 250, 260 (2006), “[t]he case law is unsettled on whether probable cause is a
complete bar to First Amendment retaliatory arrest claims,” 705 F.3d at 253. Quoting Reichle, the
Seventh Circuit noted that “neither our circuit nor the Supreme Court has recognized a First
Amendment right to be free from a retaliatory arrest that is supported by probable cause.” Id.
Generally, “existing precedent must have placed the statutory or constitutional question
beyond debate.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Ashcroft v. al–Kidd, 563
U.S. 731, 741 (2011)). That is simply not the case here. Accord Marshall v. City of Farmington
Hills, 693 F. App’x 417, 426 (6th Cir. 2017); Pegg v. Herrnberger, 845 F.3d 112, 119 (4th Cir.
2017); Zaloga v. Borough of Moosic, 841 F.3d 170, 177 (3d Cir. 2016); Galarza v. Monti,
327 F. Supp. 3d 594, 605 (S.D.N.Y. 2018). The court finds that Reichle and Thayer are dispositive
on this issue, cloaking defendants in qualified immunity. Accordingly, the court grants defendants’
motion for summary judgment as to Count V.
D. Failure to Intervene (Count III), Supervisory Liability (Count IV), and
Conspiracy (Count VI)
Having found no underlying constitutional deprivation, plaintiff’s three remaining claims
must also fail. In Count III, plaintiff brings a claim under § 1983 for failure to intervene against
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Officers Welsh and Campbell for their alleged failure to protect plaintiff from false arrest or
unlawful seizure. In the Seventh Circuit,
[a]n officer who is present and fails to intervene to prevent other law enforcement
officers from infringing the constitutional rights of citizens is liable under § 1983 if
that officer had reason to know: (1) that excessive force was being used, (2) that a
citizen has been unjustifiably arrested, or (3) that any constitutional violation has
been committed by a law enforcement official; and the officer had a realistic
opportunity to intervene to prevent the harm from occurring.
Chavez v. Ill. State Police, 251 F.3d 612, 652 (7th Cir. 2001).
The court has already determined that plaintiff was not unjustifiably arrested and that
defendants have qualified immunity on plaintiff’s claim for First Amendment retaliation.
Accordingly, there being no basis by which plaintiff can sustain his failure to intervene claim,
summary judgment is warranted on Count III.
In Count IV, plaintiff brings a claim against Sergeant Torrance for supervisory liability.
While public officials must typically be “personally responsible” for depriving an individual of his
constitutional rights, “a supervisor may still be personally liable for the acts of his subordinates if
he approves of the conduct and the basis for it.” Backes v. Village of Peoria Heights, 662 F.3d 866,
870 (7th Cir. 2011). However, a claim for supervisory liability under § 1983 “requires an underlying
constitutional violation by an officer who was subject to the [supervisor’s] supervision.” Ross v.
Daley, No. 05 C 3665, 2006 WL 2460614, at *2 (N.D. Ill. Aug. 23, 2006) (citing Higgins v. Corr.
Med. Servs. of Ill., Inc., 178 F.3d 508, 513-14 (7th Cir. 1999)). Like in Count III, because there is
no constitutional deprivation to be had, there is no basis for supervisory liability against Sergeant
Torrance, and the court grants summary judgment as to Count IV.
Finally, in Count VI, plaintiff brings a claim for civil conspiracy under § 1983 against
defendants for agreeing to falsely arrest plaintiff and/or commit First Amendment retaliation against
plaintiff. However, “the absence of an underlying constitutional violation dooms the conspiracy
claim.” Akbar v. Calumet City, 632 F. App’x 868, 872-73 (7th Cir. 2015). Thus, summary
judgment is appropriate as to Count VI as well.
III. CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is granted.

Date: 4/23/2019

ENTER:
_________________________
FREDERICK J. KAPALA
District Judge

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