Petitioner having filed a proper notice of dismissal pursuant to Florida Rule of Appellate Procedure 9.350(b), it is ordered that the petition for review be and the same is hereby voluntarily dismissed.
son#p2542109 S. Ct. 2533, 2542 (1989) (burning the United States flag is not a "direct personal insult").
The instances in which courts have found the imminence required for incitement are accordingly quite rare. Cf. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 579, 121 S. Ct. 2404, 2434 (2001) (noting that cigarette advertisements failed Brandenburg with respect to encouraging under-age smoking); N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 928, 102 S. Ct. 3409, 3434 (1982) (holding that civil rights' leader's speeches indicating boycott violators would be "disciplined" or "have their necks broken" did not satisfy Brandenburg). In one of the few post- Brandenburg Illinois cases factually analogous to the present one, the Illinois Appellate Court affirmed a conviction under Illinois' mob action statute of a woman who had encouraged a crowd to obstruct police officers making an arrest. People v. Montgomery, 179 Ill. App. 3d 330, 335, 534 N.E.2d 651, 654 (1st Dist. 1989). After observing the police attempting to arrest an individual involved in a fight outside a fast food restaurant, the defendant had exhorted fifteen to twenty people: "don't let him/them take that man away." Id. at 332, 534 N.E.2d at 652. Although the defendant had also made comments that "all policemen are no fucking good and they beat up people," the court stressed that the defendant "was not punished for her criticism of the police, but for her unlawful incitement of the crowd." Id. at 335, 534 N.E.2d at 654.
Although infrequently invoking Brandenburg explicitly, other cases have also dealt with citizen-police confrontations in front of a crowd. For instance, the Seventh Circuit stated in one such case considering Illinois' disorderly conduct statute that "arguing with a police officer, even if done loudly, or with profane or offensive language, will not, in and of itself constitute disorderly conduct." Payne v. Pauley, 337 F.3d 767, 777 (7th Cir. 2003) (denying summary judgment where the plaintiff claimed she did not "argue, swear, incite, obstruct, or resist" while objecting to her son's arrest). The presence of a gathering crowd watching the argument is also not dispositive. Id.; see also People v. Nash, 173 Ill.2d 423, 432, 672 N.E.2d 1166, 1171 (Ill. 1996) (citing Brandenburg to hold that "the State cannot punish mere advocacy or forbid, on pain of criminal punishment, assembly with others merely to advocate activity, even if that activity is criminal in nature"). In fact, "the demeanor of the crowd" and the "threat to public order" it poses can raise a genuine issue of material fact for the jury. Payne, 337 F.3d at 777; see also Kies v. City of Aurora, 156 F. Supp. 2d 970, 985 (N.D. Ill. 2001) (cited approvingly in Payne and determining that "whether there was a volatile crowd gathered" at a dispute between a woman and a police officer was a question for the jury); cf. Penn v. Chi. State Univ., 162 F. Supp. 2d 968, 976 (N.D. Ill. 2001), aff'd on other grounds by, 296 F.3d 573 (upholding probable cause for disorderly conduct where the plaintiff, accompanied by 300 increasingly angry fellow students, banged on dormitory windows and yelled obscenities at police inside).
I. Plaintiff's Conduct
Having considered the legal bases for probable cause, we now turn to the facts. There are two possible "acts" that could have provided probable cause for Plaintiff's arrest: Plaintiff's comments and Plaintiff's failure to disperse. (Defs.' ¶¶ 37, 39, 43-46.) 720 ILCS 5/12-5(a). We consider them both in turn.
Throughout their briefs, Defendants focused largely on Plaintiff's "volatile comments to the growing and angry crowd" as providing probable cause. (Defs.' Mem. at 6.) Only in passing do Defendants point to Plaintiff's failure to disperse from the area outside the basketball court. (Defs.' Reply at 8.) The failure to disperse argument creates less potential for the First Amendment pitfalls that exist under the words-as-acts argument on which Defendants focused. There are clear factual reasons why Defendants may have chosen not to prioritize the failure to disperse argument, however, and it is for these reasons that the argument does not support summary judgment for Defendants at this stage.
1. Failure to Disperse
As we noted, Illinois law is clear that the word "act" in the reckless conduct statute encompasses a "failure or omission to take actions." Khan, 136 Ill. App. 3d at 759, 459 N.E.2d at 1034. Similarly, the failure to disperse when ordered to do so by a public peace officer gives rise to probable cause to arrest. Jones v. Watson, 106 F.3d 774, 779 (7th Cir. 1997); City of Chi. v. Fort, 46 Ill.2d 12, 15, 262 N.E.2d 473, 475 (Ill. 1970). The First Amendment also does not prevent the police from arresting a person who is engaging in conduct otherwise protected by the First Amendment, such as protesting, for failing to abide by reasonable time, place, and manner regulations of that conduct. Adderly v. Florida, 385 U.S. 39, 47-48, 87 S. Ct. 242, 247 (1966). Such regulations include non-content based orders to disperse from areas in which the speaker or protestor is not permitted to be. Id.; Jones, 106 F.3d at 779. Construing the facts in Plaintiff's favor, however, we are unable to find that probable cause existed to arrest Plaintiff for failing to disperse.
Defendants conceded that Plaintiff, as an Ickes Complex resident, did not have to disperse other than to leave the basketball court on July 22, 2007. (Pl.'s 56.1 Facts ¶¶ 7, 25-26; Defs.' Resp. ¶¶ 25-26; Hansen Dep. at 78.) Defendants do not claim that Plaintiff failed to leave the basketball court. Instead, they rely on the fact that Plaintiff admitted staying in the area outside the basketball court after the police had broken up the basketball game for at least thirty to forty-five minutes. (Defs.' 56.1 Facts ¶ 46; Bass Dep. at 56, 67.) But because Officers Hansen and Zacek knew Plaintiff to be an Ickes Complex resident, Plaintiff's remaining in the area did not suggest a refusal to disperse in the way similar behavior by a non-resident would have. (Hansen Dep. at 85; Zacek Dep. at 98-99.) Thus, Plaintiff's decision to remain outside the basketball court, which was, after all, located in her apartment complex, does not amount to an unambiguous refusal to disperse. Compare Jones, 106 F.3d at 779 (relying on the fact that the arresting officer "directed Jones to the other side of the street and warned him that if he did not go to the other side he would be arrested").
2. Plaintiff's Words
Moving to the primary basis for probable cause that Defendants posit, we now consider whether Plaintiff's comments, standing alone, provided probable cause. Because Plaintiff is the non-moving party, however, we make this determination based solely on the comments Plaintiff admits she made. We must also credit Plaintiff's rendering of the circumstances surrounding her statements to the extent "specific facts" in the record allow us to do so. Fed.R.Civ.P. 56(e).
At her deposition, Plaintiff admitted stating that, "If it was white people, they wouldn't do that to them." (Bass Dep. at 61.) This statement roughly coincides with Officer Hansen's recollection of Plaintiff saying, "If this was a white party, that there wouldn't be any problems." (Hansen Dep. at 66.) Plaintiff also admits complaining that the police "get away with so much" and that they are "crooked." ( Id. at 62-63.) It is important to note, however, that Plaintiff flatly denies saying to those whom she was addressing, "Why you niggers taking this shit?" and "Beat those cops' asses." (Bass Dep. at 216-217.) Other officers present also did not hear Plaintiff make this statement. (Lomax Dep. at 60; Davis Dep. at 76; Riley Dep. at 51.) Thus, Defendants' motion for summary judgment based on the existence of probable cause turns exclusively on her comments about "white people" and "crooked" police.
The circumstances in which Plaintiff made these comments are also disputed. Plaintiff admits she made these comments while standing approximately twenty-five feet from the police to a group of at least five people. (Pl.'s 56.1 Facts ¶¶ 33-34.) Plaintiff testified that she was speaking in the context of a "small discussion" among a group of her female acquaintances. (Pl.'s 56.1 Facts ¶ 35; Bass Dep. at 62.) But Plaintiff also acknowledges that, even though she may have been speaking to a small group, she made these statements loud enough for Officers Hansen and Zacek to hear them, which they in fact did. (Defs.' 56.1 Facts ¶¶ 41-42; Bass Dep. at 64.) Plaintiff also admits that some who heard her statements cheered, but she cites Officer Davis' testimony as proof that cheering was the only reaction. (Pl.'s 56.1 Facts ¶ 42.)
Although we do not rely on their version of the facts at this stage, we note that Defendants describe Plaintiff's audience and their reaction rather differently. Officer Zacek testified that Plaintiff was "working with" a group of fifty to one hundred people "to go against" the police. (Zacek Dep. at 90.) As he explained:
The ones that were finally starting to leave once they heard [Plaintiff's] words, then stopped in their tracks and made the crowd even larger. And at one point, we were almost totally surrounded by a large crowd, who was now being verbally abusive, who was throwing bottles and rocks.
( Id. at 77.) At one point, the situation became so dangerous for Officers Hansen and Zacek that they claim they had to retreat. (Zacek Dep. at 80, 83-84.)
With the facts now in view, we again reiterate that resting probable cause on Plaintiff's words alone is only appropriate if her words are unprotected speech, namely, incitement. Redwood, 335 Ill. App. 3d at 192, 780 N.E.2d at 763; Cohen, 403 U.S. at 19, 91 S. Ct. at 1785. We conclude that the words Plaintiff admits she said were not incitement. As a threshold matter, it is questionable whether Plaintiff's statements amount to the "advocacy of the use of force or of law violation[.]" Brandenburg, 395 U.S. at 447, 89 S. Ct. at 1829. At best, her statement that the largely black audience was being treated differently because of race by "crooked" police is an implicit call to resistance. While an implicit call to action can suffice under the Brandenburg test, we would have to accept Defendants' version of the circumstances in which Plaintiff spoke to find her words to be implicitly advocating for the use of force or violation of law. United States v. White, 610 F.3d 956, 960 (7th Cir. 2010) (noting that a "coded or implicit" request for criminal action suffices). Criticism of police action does not inherently imply resistance to it. Payne, 337 F.3d at 777. Thus, drawing reasonable inferences in Plaintiff's favor, Plaintiff's criticism of the police was not a call to resistance.
Even assuming for the sake of argument that Plaintiff's words were an implicit call to resist the police, we are unable to determine on Plaintiff's facts that her statements were "likely" to induce "imminent lawless action." Brandenburg, 395 U.S. at 447, 89 S. Ct. at 1829. Defendants treat Plaintiff's invocation of race among a black crowd of disputed number confronted by largely white police officers as if it were a spark to tinder. We are mindful, however, of Johnson's admonition that the government may not "assume that every expression of a provocative idea will incite a riot." 491 U.S. at 401, 109 S. Ct. at 2538. True, Plaintiff made these statements in proximity to a group of people disgruntled by the police's decision to break up their Sunday entertainment and perhaps suspicious of the police's motivation. But we would be indulging exactly the type of assumptions proscribed by Johnson to think that Plaintiff's words were likely to trigger a race riot over a basketball game being broken up. At the very least, as in Payne, the circumstances in which Plaintiff spoke are sufficiently disputed to prevent summary judgment at this stage. 337 F.3d at 778.
Thus, because the undisputed facts do not establish that Plaintiff's comments were unprotected speech or that she refused an order to disperse, we are unable to conclude that there was probable cause to arrest Plaintiff for the events of July 22, 2007.
c. Qualified Immunity
Officers Hansen and Zacek also claim that, even in the absence of probable cause, they are entitled to summary judgment based on qualified immunity. 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." Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). Qualified immunity analysis has two prongs. First, we ask whether the facts, taken in the light most favorable to Plaintiff, show that Defendants violated a constitutional right. Gonzalez, 578 F.3d at 540. Second, we ask whether that constitutional right was clearly established at the time of the alleged violation. Id. Because the doctrine of qualified immunity aims to shield public officials from guessing about constitutional developments at their peril, Plaintiff bears the burden of showing that the right alleged to have been violated was clearly established at the time of incident giving rise to the case. Id. Plaintiff can satisfy this burden by pointing to a "clearly analogous case establishing a right to be free from the specific conduct at issue." Id. (quoting Smith v. City of Chi., 242 F.3d 737, 742 (7th Cir 2001)). Where the qualified immunity determination turns on disputed facts, however, the issue cannot be resolved without a trial. Id.
We have already determined that there was no probable cause to arrest Plaintiff based on the statements she admits she made, which were protected speech. An arrest without probable cause violates the Fourth Amendment. Id. at 541. Supreme Court and Seventh Circuit precedent clearly establishes that mere criticism of police action, even if offered in front of a crowd, does not provide probable cause to arrest. Payne, 337 F.3d at 777; see also City of Houston, Tex. v. Hill, 482 U.S. 451, 462, 107 S. Ct. 2502, 2510 (1987) ("The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.") Only unprotected speech can support an arrest based on mere words. Cohen, 403 U.S. at 19, 91 S. Ct. at 1785. We have also determined that it is at least disputed whether Plaintiff refused the police's order to disperse. Thus, awarding qualified immunity at this stage would be inappropriate. Gonzalez, 578 F.3d at 540. We therefore deny Defendants' motion for summary judgment on Plaintiff's § 1983 false arrest claim with respect to Officers Hansen and Zacek.
2. Plaintiff's Motion for Summary Judgment
We now consider Plaintiff's motion for summary judgment on her § 1983 false arrest claim. Having already dealt extensively with many of the facts above, we need only reference a few key disputed facts, which we must now view in Defendants' favor. See Anderson, 477 U.S. at 255. Those are: what Plaintiff said and the character of the crowd. Unlike above, we must credit the testimony that, in addition to her undisputed statements about the police being discriminatory and "crooked," Plaintiff yelled to the people standing around her, "Let's get together and beat their white police asses." (Zacek Dep. at 76.) In contrast to what Plaintiff described as a small discussion, we must also rely on Defendants' testimony about Plaintiff "working with" a large and unruly crowd to "go against" the police. ( Id. at 77.)
Plaintiff's exhortation to "beat [the] white police asses" clearly satisfies the Brandenburg test for incitement. Id.; 395 U.S. at 447, 89 S. Ct. at 1829. Urging a crowd to commit battery against the police is unambiguous "advocacy of the use of force or of law violation." 395 U.S. at 447, 89 S. Ct. at 1829. Similarly, making these statements to an already-gathered and incensed crowd was also "likely" to cause increased disobedience and even violence. Id. Because they satisfy Brandenburg, the words Officers Hansen and Zacek claim they heard Plaintiff say were incitement. Id. As incitement, Plaintiff's words were unprotected speech and could serve as the basis for probable cause to arrest her. Gower v. Vercler, 377 F.3d 661, 670 (7th Cir. 2004) (upholding probable cause for disorderly conduct based on fighting words). Thus, when we credit Defendants' version of the facts, Officers Hansen and Zacek had probable cause to arrest Plaintiff based on her statements and her § 1983 false arrest claim fails. Therefore, we must also deny Plaintiff's motion for summary judgment on her § 1983 false arrest claim.
Plaintiff argues that her words would be unprotected "only if they had an effect on anyone." (Pl.'s Mem. at 12.) This argument misstates Brandenburg's requirements. Plaintiff's speech need only be " likely" to cause imminent lawless action, but lawless action need not actually occur. Brandenburg, 395 U.S. at 447, 89 S. Ct. at 1829.
B. Count VII: § 1983 First Amendment Claim
We now turn to Plaintiff's § 1983 First Amendment claim. Both Plaintiff and Defendants filed motions for summary judgment on this claim, and as before, we begin by considering Defendants' motion.
1. Defendants' Motion for Summary Judgment
Plaintiff claims Officers Hansen and Zacek arrested her because of her criticisms of the police on July 22, 2007. (Compl. ¶¶ 45-46.) Police retaliation against a citizen for the exercise of a constitutionally protected right violates the Constitution. Morfin v. City of East Chicago, 349 F.3d 989, 1005 (7th Cir. 2003). To prove her claim that the police arrested her for exercising her First Amendment rights, Plaintiff must show: first, that her conduct was constitutionally protected; and second, that her protected conduct was a motivating factor in her arrest. Id.; see also Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009) (requiring plaintiff to prove but-for causation in a First Amendment retaliation claim). At this stage, we evaluate whether Plaintiff has adduced evidence from which a reasonable jury could conclude that she has satisfied these elements. Fairley, 578 F.3d at 526.
The parties indicated that a plaintiff need only prove that the exercise of a constitutional right was a "substantial" factor in the alleged retaliatory action. But the Seventh Circuit has recently interpreted the Supreme Court's holding in Gross as requiring "but-for" causation in First Amendment retaliation claims. Fairley v. Andrews, 578 F.3d 518, 526 (7th Cir. 2009) (interpreting Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009) as holding that "unless a statute . . . provides otherwise, demonstrating but-for causation is part of the plaintiff's burden in all suits under federal law"); see also Kodish v. Oakbrook Terrace Fire Protection Dist., 604 F.3d 490, 501 (7th Cir. 2010) (overruling prior cases for omitting the but-for causation requirement).
Plaintiff has satisfied her burden largely because Defendants admit that they arrested Plaintiff for her words. Officer Hansen testified that Plaintiff's words were her only acts that endangered the bodily safety of others. (Hansen Dep. at 72-73.) Similarly, Officer Zacek admitted that Plaintiff did nothing illegal on July 22 other than speak words. (Zacek Dep. at 86.) Furthermore, when Plaintiff asked Officer Hansen why she was being arrested, she says he said because of "your fucking mouth." (Bass Dep. at 97.) Thus, this claim also turns on what words Plaintiff said and whether they were constitutionally protected. Accepting Plaintiff's version of what she said, which we have already determined to be protected speech, Defendants Hansen and Zacek arrested Plaintiff for exercising her First Amendment rights. Morfin, 349 F.3d at 1005.
Officers Hansen and Zacek are also not entitled to qualified immunity for this claim. As we noted above, qualified immunity protects government officials who make reasonable mistakes about whether their conduct violates the Constitution. Gonzalez, 578 F.3d at 540. The two-pronged inquiry asks whether a government official's conduct violated the Constitution and whether a reasonable official would have realized as much. Id. There is perhaps no more obvious constitutional violation than arresting citizens for the content of their protected speech. Bachellar, 397 U.S. at 570, 90 S. Ct. at 1315; see also Crawford-El v. Britton, 523 U.S. 574, 592, 118 S. Ct. 1584, 1594 (1998) (noting the fact that "the First Amendment bars retaliation for protected speech `is clearly established'"). The more relevant inquiry here is whether a reasonable officer would have recognized that Plaintiff's criticisms of the police, standing alone, were protected speech.
We have little trouble answering this question affirmatively. This case is not about difficult First Amendment line-drawing but is instead a factual dispute about what Plaintiff said on July 22, 2007. Cf. Purtrell v. Mason, 527 F.3d 615, 626 (7th Cir. 2008) (awarding qualified immunity where defendant police officer incorrectly interpreted plaintiff's admitted statements as fighting words) (emphasis added). If we credit Plaintiff's testimony, as we must at this stage, then all she did was criticize the police. Supreme Court and Seventh Circuit precedent clearly establishes that mere criticism of police action, even if offered in front of a crowd, is protected speech. Payne, 337 F.3d at 777; see also Hill, 482 U.S. at 461, 107 S. Ct. at 2509 ("[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers."). Thus, Officer Hansen and Zacek's assertion of qualified immunity fails and we deny their motion for summary judgment on Plaintiff's First Amendment claim.
As above, however, we grant Defendants' motion for summary judgment on this claim with respect to Officers Davis, Flynn, and Boisso. None of these officers participated in Plaintiff's arrest, which is the retaliatory act Plaintiff claims she suffered as a result of exercising her First Amendment rights. (Compl. ¶ 45.) Jenkins, 147 F.3d at 583.
2. Plaintiff's Motion for Summary Judgment
We now consider Plaintiff's motion for summary judgment on her § 1983 First Amendment claim. As with Defendants' motion, however, the factual disputes at the core of this case — what words Plaintiff said on July 22, 2007 and the circumstances in which she said them — preclude summary judgment. Officers Hansen and Zacek claim they arrested Plaintiff for urging the unruly crowd at the Ickes Complex on July 22 to "beat their white police asses." (Zacek Dep. at 76; Hansen Dep. at 67.) Accepting this evidence as true, Plaintiff's words were not constitutionally protected, because they were incitement. Brandenburg, 395 U.S. at 447, 89 S. Ct. at 1829. As such, Plaintiff has failed to satisfy the first element of her First Amendment claim, and we therefore deny her motion for summary judgment on this claim. Morfin, 349 F.3d at 1005.
C. Count II: § 1983 Failure to Intervene Claim
Next, we consider Defendants' motion for summary judgment on Plaintiff's claim against Officers Davis, Flynn, and Boisso for failing to intervene to prevent her false arrest. A police officer has a duty to intervene to prevent a false arrest "if the officer is informed of the facts that establish a constitutional violation and has the ability to prevent it." Morfin, 349 F.3d at 1001. We conclude that summary judgment is appropriate for Officers Davis, Flynn, and Boisso on this count. Id.
Although the Complaint does not identify the specific officers against whom Plaintiff brings this claim, we assume she brings the claim only against Officers Davis, Flynn, and Boisso. We make this assumption based on the fact that Officers Hansen and Zacek committed the alleged constitutional deprivation by arresting Plaintiff, and logic dictates that they cannot be liable for failure to intervene in their own actions.
Officers Davis, Flynn, and Boisso all learned of what Plaintiff allegedly said to the crowd at the Ickes Complex from Officers Hansen and Zacek. Although Officer Davis was present at the Ickes Complex on July 22, 2007, he could not make out the words Plaintiff said. (Davis Dep. at 59-60.) Although the record is somewhat unclear on this point, Officer Davis appears to have learned what Plaintiff allegedly said from Officer Hansen, who ordered him to prepare the misdemeanor complaint after Plaintiff's arrest. ( Id. at 88.) Similarly, Officers Flynn and Boisso, neither of whom were present at the Ickes Complex on July 22, 2007, relied on the events as reported to them by Officers Hansen and Zacek after Plaintiff's arrest. (Flynn Dep. at 12-13; Hansen Dep. at 81; Zacek Dep. at 124; Pl.'s 56.1 Facts ¶¶ 75-76.)
Because Officers Davis, Flynn, and Boisso relied on the facts as reported to them by Officers Hansen and Zacek, they were "not informed of the facts that establish a constitutional violation." Morfin, 349 F.3d at 1001. As the Seventh Circuit has held, police officers can rely on a "reasonably credible witness or victim" who says that "someone has committed, or is committing, a crime[.]" Gower, 377 F.3d at 668-69 (quoting Jenkins, 147 F.3d at 585). The fact that the witness may also be a police officer does not change the analysis. See Spiegel v. Cortese, 196 F.3d 717, 726 (7th Cir. 1999). In this case, Officers Hansen and Zacek were "reasonably credible witnesses" who told Officers Davis, Flynn, Boisso that Plaintiff had urged an unruly crowd to "kick the police asses." Id. (Defs.' Ex. 19 at 2.) On this basis, Officers Davis, Flynn, and Boisso would have had reason to believe probable cause to arrest Plaintiff existed. Thus, they had no knowledge of the alleged constitutional violation. Morfin, 349 F.3d 989, 1001. We therefore grant summary judgment for Defendants on Plaintiff's failure to intervene claim.
Although Plaintiff claims Officer Hansen in particular had a grudge against her, she offers no evidence indicating Officers Davis, Flynn, or Boisso knew of this potential bias. Officer Davis, who was a member of Officer Hansen's tactical unit, testified he never heard Officer Hansen call Plaintiff an "ugly bitch," as she claims Officer Hansen did repeatedly. (Davis Dep. at 102; Bass Dep. at 69-70.) Thus, Officers Davis, Flynn, and Boisso had no reason to doubt the credibility of Officers Hansen and Zacek.
D. Count III: § 1983 Unlawful Detention Claim
Plaintiff also claims that her detention violated the Fourth Amendment in that it was unreasonably prolonged as punishment. (Compl. ¶ 28.) We now consider Defendants' motion for summary judgment on this claim, which we grant.
Separate and apart from an unreasonable arrest, an unreasonable detention incident to arrest violates the Fourth Amendment. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S. Ct. 854, 863 (1975). After making an arrest, the police may hold a person for a "brief period of detention to take the administrative steps incident to arrest." Id. The police may not "unreasonably delay" this process, however, in order to punish the arrested person or to gather additional evidence to justify the arrest. Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661, 1670 (1991). Where there is evidence of an improper purpose, the Seventh Circuit has deemed detentions as short as four hours to be potentially unreasonable. Gramenos v. Jewel Cos., Inc., 797 F.3d 432, 436 (7th Cir. 1986). And while detentions even as short as four hours "require an explanation," the plaintiff still "bears the burdens of proof and persuasion in showing that any particular detention was excessive[.]" Id. at 437; Portis, 613 F.3d at 705. In evaluating an unreasonable detention claim, the court "must examine not only the length of a given detention but also the reasons why release was deferred." Portis, 613 F.3d at 705.
In McLaughlin, the Supreme Court established a burden-shifting framework in which detentions less than forty-eight hours prior to a hearing before a neutral magistrate are presumptively reasonable. 500 U.S. at 56, 111 S. Ct. at 1670. We do not apply McLaughlin's framework in this case, however, because the Seventh Circuit has held that it does not apply where the police do not plan to bring the arrested person before a magistrate. Portis v. City of Chi., 613 F.3d 702, 704 (7th Cir. 2010). Although the record is not entirely clear as to whether the police ever intended to present Plaintiff before a magistrate, Defendants appear to concede the point in their Reply. There, they acknowledge that Plaintiff could bring an unreasonable detention claim "where it is not anticipated that [Plaintiff] would appear before a judge before for a bond hearing." (Defs.' Reply at 4.) Defendants go on to argue, however, that Plaintiff's detention was reasonable, because the length of Plaintiff's detention was due to her request for medical treatment. ( Id. at 4-5.)
Furthermore, as with Plaintiff's false arrest claim, we reiterate that each individual Defendant must have "caused or participated in" Plaintiff's alleged constitutional deprivation in order to be individually liable under § 1983. Jenkins, 147 F.3d at 583. Seventh Circuit precedent establishes that an arresting officer is not responsible for any unreasonable detention occurring after the officer transfers custody of the arrested individual. Tibbs v. City of Chi., 469 F.3d 661, 665 (7th Cir. 2006).
In this case, it is undisputed that Officers Hansen and Zacek arrested Plaintiff at 7:20 p.m. on July 25, 2007. (Defs. Facts ¶ 57.) It is also undisputed that the police did not release Plaintiff from custody until early the following morning at approximately 5:00 a.m. (Bass Dep. at 132; Defs.' Ex. 19 at 4.) Thus, Plaintiff remained in police custody for roughly nine hours and forty minutes.
As above, we note Plaintiff's objection to reliance on Defendants' Exhibit 19, which purports to be the police report regarding Plaintiff's arrest. Because Plaintiff herself relies on this exhibit as substantive evidence, we deem her objection waived.
Plaintiff has not offered sufficient evidence from which a reasonable jury could conclude that her detention was unreasonable. Although detentions as short as four hours can be constitutionally problematic, the length of Plaintiff's detention is hardly suspect in light of the fact that she sought medical treatment while in custody. (Bass Dep. at 118-124.) Gramenos, 297 F.2d at 437; Portis, 613 F.3d at 705. Furthermore, Plaintiff's claim that Defendants sought to punish her by unreasonably delaying her release has no merit. (Compl. ¶ 28; Pl.'s Resp. at 7.) The possible evidence of punitive intent attaches only to Officer Hansen, who allegedly promised to "get that bitch" and made other derogatory statements towards Plaintiff. (Pl.'s 56.1 Facts ¶ 60; Vance Dep. at 32-33; Fleming Dep. at 63.) But even assuming Officer Hansen sought to punish Plaintiff, there is no evidence that the other Defendant Officers shared this intent. Furthermore, in the event Officer Hansen sought to punish Plaintiff, he and Officer Zacek only had custody of her for the short period of time between Plaintiff's arrest and her transfer to a holding cell at the police station. (Bass Dep. at 115.) Thus, they had no ability to prolong Plaintiff's detention even if they had wanted to do so. Tibbs, 469 F.3d at 665. Plaintiff has therefore failed to show that any of the Defendants unreasonably prolonged her detention.
Plaintiff cites Illinois statutory law for the proposition that any of the Defendant Officers could have released Plaintiff, given that her charge was a misdemeanor. (Pl.'s Resp. at 7.) But this argument conflates what Defendants could have done with what they were constitutionally required to do. For Fourth Amendment purposes, it is clear that Defendants were free to hold Plaintiff while they completed the administrative tasks incident to arrest, regardless of whether Illinois law gave them the discretion to release Plaintiff. Gerstein, 420 U.S. at 114, 95 S. Ct. at 863.
Plaintiff is correct that there is no bright-line rule as to what length of detention incident to arrest is reasonable. (Pl.'s Resp. at 7.) Portis, 613 F.3d at 704. But the fact that there is no bright-line rule does not obviate Plaintiff's burden of producing evidence that Defendants unreasonably prolonged her detention. Id. at 705. This she has not done. Cf. Gramenos, 297 F.2d at 437 (noting that the detaining officer stated, "[W]e are going to keep you here for four hours"). Thus, we grant Defendants' motion for summary judgment on Plaintiff's unreasonable detention claim with respect to all Defendants.
E. Counts IV and V: Civil Conspiracy Under § 1983 and § 1985
Plaintiff also claims that Defendants conspired to violate her rights in violation of § 1983 and § 1985. We now consider Defendants' motion for summary judgment on these counts, which we grant as to all Defendants.
To establish a conspiracy claim under § 1983, Plaintiff must show: "(1) an express or implied agreement among defendants to deprive plaintiff of his or her constitutional rights and (2) actual deprivations of those rights in the form of overt acts in furtherance of the agreement." Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988). Under § 1985, Plaintiff must also prove that the conspirators acted with racial or other class-based animus. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798 (1971). Circumstantial evidence can be sufficient to establish a conspiracy, but mere speculation can not. Williams v. Seniff, 342 F.3d 774, 785 (7th Cir. 2003). Moreover, the circumstantial evidence must be sufficient to "permit a reasonable jury to conclude that a meeting of the minds had occurred and that the parties had an understanding to achieve the conspiracy's objectives." Hernandez v. Joliet Police Dep't, 197 F.3d 256, 263 (7th Cir. 1999).
Plaintiff has provided no direct evidence of an "express or implied agreement" but instead points to the three-day gap between the incident at the Ickes Complex and her arrest as circumstantial evidence of a conspiracy. Scherer, 840 F.2d at 442. (Pl.'s Resp. at 12.) But whatever inferences one could draw from the three-day gap viewed in isolation recede in light of the fact that Officers Hansen and Zacek decided to arrest Plaintiff on the day of the incident. (Hansen Dep. at 79.) Indeed, Officer Davis heard Officer Hansen say to another officer — while still at the Ickes Complex on July 22, 2007 — that he intended to arrest Plaintiff. (Davis Dep. at 84; Hansen Dep. at 79.) Furthermore, Officers Hansen and Zacek prepared a case incident report that day about the incident after a superior officer told them to do so. (Zacek Dep. at 86-87; Defs.' Ex. 23.) Significantly, the case incident report includes Plaintiff's exhortation to attack the police. (Defs.' Ex. 23 at 3.) Thus, the time frame during which Officers Hansen and Zacek allegedly agreed to falsely arrest Plaintiff is significantly more limited than Plaintiff acknowledges. Given that both Officers Hansen and Zacek said they heard Plaintiff urge the crowd to attack the police, they would have had to come to an agreement about this version of events very quickly. (Hansen Dep. at 76; Zacek Dep. at 75-76.) Plaintiff has adduced no evidence, circumstantial or otherwise, as to how Officers Hansen and Zacek reached an agreement in this short time frame. We therefore grant Defendants' motion for summary judgment on both of Plaintiff's conspiracy claims.
Plaintiff claims to dispute whether Officer Hansen decided to arrest Plaintiff on July 22, 2007. To Defendants statement that "Hansen made [the] decision to arrest Plaintiff on July 22, 2007," Plaintiff responded: "Hansen delayed the arrest out of malice because he could not figure out what crime Taneysha Bass had committed." (Defs.' 56.1 Facts ¶ 53; Pl.'s 56.1 Resp. ¶ 53.) This response does not contest when the decision to arrest occurred. Instead, it contests the reason the arrest was delayed. Furthermore, the confusion about the appropriate charge does not alter the fact that Officer Hansen had already made the decision to arrest Plaintiff. Facts not denied with support from the record are admitted. Smith, 321 F.3d at 683.
G. Count VI: State Law Malicious Prosecution Claim
Plaintiff also brings a state law claim for malicious prosecution. Although they do not argue the issue in this motion, Defendants previously raised the state statute of limitations as an affirmative defense in their Amended Answer. (Dkt. No. 22.) Because the state statute of limitations bars Plaintiff's malicious prosecution claim, we dismiss this claim accordingly.
The statute of limitations for Plaintiff's state law malicious prosecution claim is one year. 745 ILCS 10/8-101. The Illinois Local Government and Governmental Employees Tort Immunity Act states that "[n]o civil action . . . may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued." Id. Plaintiff's malicious prosecution claim accrued on September 12, 2007, when the Circuit Court of Cook County struck her case with leave to reinstate. (Pl.'s Fact ¶ 78.) Ferguson v. City of Chi., 213 Ill.2d 94, 99, 820 N.E.2d 455, 459 (Ill. 2004) (holding that a malicious prosecution claim accrues when "the criminal proceeding on which it is based has been terminated in the plaintiff's favor"); Boyd v. City of Chi., 378 Ill. App. 3d 57, 72, 880 N.E.2d 1033, 1046 (1st Dist. 2007) (holding that striking of case with leave to reinstate constitutes "termination of the proceeding in favor of plaintiff"). Plaintiff did not file her initial complaint until February 19, 2009, a full seventeen months after her state malicious prosecution claim accrued. (Dkt. No. 1.) We therefore dismiss this claim as time-barred.
Because Plaintiff's federal claims are not subject to the Illinois Local Government and Governmental Employees Tort Immunity Act, the statute of limitations for those claims is two years. Long v. Williams, 155 F. Supp. 2d 938, 943 (N.D. Ill. 2001).
IV. CONCLUSION
Whether Plaintiff's arrest was constitutional turns on what words Plaintiff said on July 22, 2007 and the circumstances in which she said them. Because these facts are disputed, they must be decided by a jury. For the sake of clarity, we reiterate that we deny Defendants' motion for summary judgment with respect to Officers Hansen and Zacek on Counts I and VII. We also deny Plaintiff's motion for partial summary judgment on Counts I and VII. We grant Defendants' motion with respect to all other Defendants on all other counts. It is so ordered.
Date: December 7, 2010