The opinion of the court was delivered by: Getzendanner, District Judge.
MEMORANDUM OPINION AND ORDER
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
The defendants vigorously contend that the initial arrest and
detention were constitutionally proper, citing Baker v. McCollan,
443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433
(1979). In Baker, the plaintiff was similarly taken into custody
when a warrant search following a traffic citation informed the
arresting officer of the existence of an outstanding warrant. In
actuality, the warrant was intended for the plaintiff's brother.
At the time of the brother's prior arrest, however, he had been
carrying a copy of the plaintiff's driver's license, causing him
to be booked under the plaintiff's name. Consequently, when the
brother's bond was later revoked and the arrest warrant issued,
the warrant, on its face, applied to the plaintiff. On these
facts, the Supreme Court held that since the plaintiff was
arrested pursuant to a facially valid warrant, his resulting
eight-day detention was immune from constitutional attack.
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
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 ...