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August 14, 1981


The opinion of the court was delivered by: Getzendanner, District Judge.


On August 2, 1979, defendant McKittuick, a Chicago police officer, stopped plaintiff Bobby Williams for a traffic violation. The defendant initiated a computerized warrant search. This was a routine police procedure. The warrant search revealed that an arrest warrant had been issued in the name of "Bobby Williams" for a series of parking violations. The parties now agree that the warrant did not apply to the plaintiff but to a different Bobby Williams.

When informed by Officer McKittuick of the warrant's existence, plaintiff immediately protested that he was a victim of mistaken identity. Though the complaint is vague on this point, plaintiff appears to allege that at the time of the arrest Officer McKittuick was aware of various pieces of information describing the wanted "Bobby Williams," all of which information conflicted with information the defendant had concerning plaintiff.*fn1 Plaintiff was nevertheless arrested and taken to a police lock-up. There he remained for seventy-two hours during which time the defendant City of Chicago allegedly "refused and/or thwarted efforts on the part of members of the plaintiff's family to post bond and obtain his release." Complaint ¶ 8. Eventually plaintiff was brought before a magistrate and released.

Claiming that both the original arrest and later denial of bail were unconstitutional, plaintiff now seeks damages from Officer McKittuick and the City. The defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted. This motion is granted as to the allegations against the City. The motion is denied, however, as to the allegations concerning Officer McKittuick.*fn2

I. Original Arrest

Several courts have subsequently held that Baker forecloses any recovery on facts similar to those in this case. See Johnson v. City of St. Paul, 634 F.2d 1146, 1147 (8th Cir. 1980) (per curiam); Lopez v. Modisitt, 488 F. Supp. 1169, 1172 (W.D.Mich. 1980); Givens v. Tovo, No. 79 C 1999 (N.D.Ill., Dec. 17, 1979). The question for this court is whether Baker applies to the facts in this case which are materially different from the facts in Baker.

There is language in the Baker opinion suggesting that plaintiff Williams has no claim. "The Constitution," wrote Justice Rehnquist, "does not guarantee that only the guilty will be arrested." 443 U.S. 137 at 145, 99 S.Ct. 2689 at 2695, 61 L.Ed.2d 433. More specifically,

  given the requirements that arrest be made only on
  probable cause and that one detained be accorded a
  speedy trial, we do not think a sheriff executing an
  arrest warrant is required by the Constitution to
  independently investigate every claim of innocence,
  whether the claim is based on mistaken identity or a
  defense such as lack of requisite intent.

Id. at 145-6, 99 S.Ct. at 2695. Justice Rehnquist in addition specifically disparaged the lower court's claim "that the sheriff or arresting officer has a duty to exercise due diligence in making sure that the person arrested and detained is actually the person sought under the warrant and not merely someone of the same or similar name." McCollan v. Tate, 575 F.2d 509, 513 (5th Cir. 1978). Such a contention, Justice Rehnquist argued, sounds in tort and not constitutional law. Baker, supra, 443 U.S. at 146, 99 S.Ct. at 2695.

These statements, however, are best viewed as pure dictum. For in Baker, all that was challenged was a detaining authority's failure to investigate an already incarcerated plaintiff's claim of mistaken identity. Both sides in Baker conceded that the initial arrest itself was proper. And indeed it was given that the arrest warrant there in issue actually did order the plaintiff's arrest. The Baker arrest, in other words, was simply the product of a proper execution of a valid warrant. Here, by contrast, there was a valid warrant but it did not command the arrest of plaintiff Williams. The warrant applied to another person. The plaintiff was not arrested "pursuant" to a valid warrant for his arrest.

This is not to say that Officer McKittuick is necessarily liable, for policemen do not make arrests at their absolute peril. On the contrary, all the above analysis indicates is that this arrest was not made "pursuant" to a warrant. Rather, it was warrantless and thus constitutional only if made with probable cause. Meiners v. Moriarity, 563 F.2d 343, 348 (7th Cir. 1977). Officer McKittuick's liability, in short, turns on whether or not he had probable cause to arrest plaintiff.*fn3 His motion to dismiss can accordingly be granted only if plaintiff has alleged no set of facts pointing to a lack of probable cause. On these allegations, such a conclusion could in turn be reached solely by holding that policemen are always entitled to arrest those whose names match the title listed on an arrest warrant. Yet, surely an officer cannot look simply at names and disregard all other pertinent information. At some point, an arrest becomes unconstitutionally unreasonable when made in the face of known discrepancies between a suspect's characteristics and those of a similarly-named fugitive. I cannot now say with certainty, taking the plaintiff's allegations as true, that this point has not been reached in this case. The motion to dismiss the charges against Officer McKittuick, therefore, is denied.

The City of Chicago's liability for these acts poses different questions. Under the now familiar teaching of Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a city is liable for the constitutional torts of its agents when

  the action that is alleged to be unconstitutional
  implements or executes a policy statement, ordinance,
  regulation, or decision officially adopted and
  promulgated by that body's officers. Moreover, . . .
  [a city] may be sued for constitutional deprivation
  visited pursuant to governmental "custom" even though
  such a custom has ...

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