United States District Court, Central District of Illinois, Springfield Division
June 30, 1987
JAMES VAN HOUTEN, PLAINTIFF,
TOM BAUGHMAN, DEFENDANT.
The opinion of the court was delivered by: Mills, District Judge:
VanHouten brings a claim under 42 U.S.C. § 1983 alleging that
Officer Baughman, while acting under color of state law, deprived
him of his constitutional rights protected by the Fourth and
We are here on the officer's motion for summary judgment.
Allowed in part and denied in part.
The Court has gleaned the facts from the sworn deposition
testimony of both parties to this action. The two versions of the
incident conflict in some key portions. At these junctures, the
Court must view the evidence in the light most favorable to the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).
Defendant, Tom Baughman, is and was at the time of the incident
in question a police officer employed by the City of Springfield.
He was acting under color of state law when the alleged
deprivation of Plaintiff's constitutional rights occurred.
See e.g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d
During his patrol on July 10, 1981, Officer Baughman pulled
over a vehicle driven by Kate Beasley and attempted to issue her
a citation for running a red light. Plaintiff, James VanHouten,
had observed the traffic stop and believed that Ms. Beasley had
proceeded through a yellow rather than a red light. Seeking to
intervene on her behalf, VanHouten pulled his vehicle in front of
the area where Officer Baughman had stopped Ms. Beasley's auto.
VanHouten then talked to Ms. Beasley and confirmed that she was
receiving a citation for running a red light. VanHouten informed
Officer Baughman that he witnessed the event and that she had not
gone through a red light.
At this point, there are some discrepancies between the
parties' description of the event. VanHouten's version reveals
that at this time he was told by Baughman that "it is none of
your damn business" and directed him to return to his car.
Instead, VanHouten returned to Ms. Beasley's car to inquire about
leaving his name and address. He then went back to the officer's
car where he was again told to leave the scene and threatened
with arrest if he failed to do so. VanHouten then went to his
car. When he began to write down a description of Ms. Beasley's
car, Officer Baughman came over to his car and asked if he was
attempting to interfere with the arrest. VanHouten replied that
he was not, whereupon Officer Baughman asked him to leave.
VanHouten requested Officer Baughman's name. Officer Baughman
pointed to his badge and VanHouten read it. Officer Baughman
started back toward his car, but then returned to VanHouten's
auto, asked him to get out, and placed him under arrest for
interfering with a police officer. VanHouten was handcuffed by
Officer Baughman and taken to the police station by another
officer who was called as a backup. VanHouten stated that he
believed the handcuffs were placed on too tightly but did not
complain at the time. VanHouten exhibited no physical force
against Baughman, nor was there any verbal abuse directed toward
Officer Baughman's story is essentially the same except for two
key points. Although not entirely clear from Officer Baughman's
deposition, it appears that at the time just prior to the arrest,
VanHouten voluntarily got out of his car. On the other hand,
VanHouten maintains that he was ordered out of his car and then
arrested. Officer Baughman also claims, contrary to VanHouten's
version, that VanHouten "got irate and got right up in my face"
in the course of their discussion.
II. Summary Judgment Standard
Under Rule 56(c), summary judgment should enter "if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). Unquestionably, in determining whether a
genuine issue of material fact exists, the evidence is to be
taken in the light most favorable to the nonmoving party. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609,
26 L.Ed.2d 142 (1970). Nevertheless, the rule is also well
established that the mere existence of some factual dispute will
not frustrate an otherwise proper summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). Thus, the "preliminary question for the judge
[is] not whether there is literally no evidence, but whether
there is any upon which a jury could properly proceed to find a
verdict for the party producing it, upon whom the onus of proof
is imposed." Id. at 2511, quoting Improvement Co. v. Munson, 14
Wall. 442, 448, 20 L.Ed. 867 (1872); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265
(1986). In other words, the Court must consider the evidence
"through the prism of the substantive evidentiary burden" in
deciding Defendants' motion. Anderson, 106 S.Ct. at 2513; Carson
v. Allied News Co., 529 F.2d 206, 210 (7th Cir. 1976). Applying
this standard, the Court now turns to the case at bar.
III. Law and Analysis
The motion for summary judgment concerns two counts brought
under 42 U.S.C. § 1983. One count alleges that Plaintiff was
wrongfully arrested in violation of the Fourth Amendment as
applied to the states through the Due Process Clause of the
Fourteenth Amendment. The Fourth Amendment violation is premised
on the allegation that Defendant arrested Plaintiff without
The second count is a so-called "excessive force" claim which
can alternatively sound under two separate theories. One
alternative is to treat the allegation as a violation of the
Fourth Amendment as applied to the states through the Fourteenth
Amendment. Under this approach, the question is whether the
arrest was reasonable within the dictates of the Fourth
Amendment. A second theory would have us analyze the claim as a
direct violation of a substantive right protected by the Due
Process Clause of the Fourteenth Amendment. This theory asks the
question of whether there was a deprivation of liberty without
due process in violation of the Fourteenth Amendment. Both have
support in case law. Compare Tennessee v. Garner, 471 U.S. 1, 105
S.Ct. 1694, 85 L.Ed.2d 1 (1985) (analyzed as a Fourth Amendment
claim) with Gumz v. Morrissette, 772 F.2d 1395 (7th Cir. 1985)
(analyzed as a substantive due process claim).
The majority opinion in Gumz intimates that the two excessive
force theories are not mutually exclusive, but that their
application to a particular case may be dependent on how the
litigants plead and argue the case. Gumz, 772 F.2d at 1399-1400
n. 3. The doctrinal instability in this area of the law creates
a dilemma for both district courts and the litigants before it.
While the litigants are certainly entitled to frame the issues as
they see fit, the question here seems to be one of proper
constitutional analysis rather than of choosing between
litigation strategies. We believe it would be preferrable to
proceed to analyze what are generically termed "excessive force"
claims under a consistent constitutional doctrine.
Indeed, this setting may present two separate causes of action,
one under the Fourth Amendment and another under the Fourteenth,
but at the present stage we feel the law is murky on this point.*fn1
For a district court attempting to choose between the two, the
difference is "subtle but important." Gumz, 772 F.2d at 1404
(Easterbrook, J., concurring).
Nevertheless, the excessive force allegation in this case has
been pled and argued solely as a substantive due process claim.
Thus, we will utilize the analysis detailed in the majority
opinion in Gumz to decide whether summary judgment is proper on
this count. With these preliminaries out of the way, however, we
must first examine whether summary judgment on the Fourth
Amendment claim alleging lack of probable cause is warranted.
The Fourth Amendment claim raises two questions. One, did
Officer Baughman have probable cause to arrest VanHouten for a
violation of Ill.Rev.Stat. ch. 38, ¶ 31-1 (1985)? Two, is Officer
Baughman entitled to immunity because of his reasonable good
faith belief that probable cause existed?
(1) Probable Cause
Whether probable causes exists in a particular case is a fact
dependent inquiry. The test is an objective one and depends upon
whether "the facts and circumstances within [the arresting
officer's] knowledge and of which [he] had reasonably trustworthy
information were sufficient to warrant
a prudent man in believing that the petitioner had committed or
was committing an offense." Moore v. Marketplace Restaurant,
Inc., 754 F.2d 1336, 1345 (7th Cir. 1985), quoting Beck v. Ohio,
379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). The
operative question is whether the officer's actions were
unreasonable under the circumstances. BeVier v. Hucal,
806 F.2d 123, 126 (7th Cir. 1986). Also plugged into the equation is a
consideration of possible exigent circumstances which would
justify quick action on the part of the police officer. BeVier,
806 F.2d at 127. Generally when misdemeanor offenses are
involved, there is no exigency. Reardon v. Wroan, 811 F.2d 1025,
1028 (7th Cir. 1987).
Here, Plaintiff was arrested for a violation of Ill.Rev.Stat.
ch. 38, ¶ 31-1 (1985) which states:
A person who knowingly resists or obstructs the
performance by one known to the person to be a peace
officer of any authorized act within his official
capacity commits a Class A misdemeanor.
The Supreme Court of Illinois has had occasion to interpret the
above-cited statute and has discussed what type of conduct will
violate it. This, of course, impacts on whether Officer Baughman
had a reasonable belief that Plaintiff had committed or was
committing the offense, and consequently whether he had probable
cause to arrest Plaintiff.
The Supreme Court of Illinois has construed the statutory terms
"resists or obstructs" to require some type of physical act on
the part of the person charged as a necessary element of the
crime. People v. Raby, 40 Ill.2d 392, 399, 240 N.E.2d 595 (1968).
The Court has also made it clear that mere argument with a police
officer does not violate the statute, although there may be a
line between argument and a physical act which would violate the
statute. People v. Weathington, 82 Ill.2d 183, 187,
411 N.E.2d 862, 44 Ill.Dec. 496 (1980).
Accepting the facts and reasonable inferences drawn from them
in the light most favorable to the nonmoving party, we conclude
that Plaintiff's conduct could be considered as mere argument and
not violative of the law. Plaintiff's deposition indicates no
physical obstruction on his part and that he was leaving the
scene as instructed by the officer when arrested. If true, a jury
could find that no probable cause existed for the arrest. In
addition, the record reveals no exigent circumstances that would
justify quick action on the part of the officer. There is no
indication in the record that Plaintiff posed any danger to the
community. Also, the arrest was for a misdemeanor crime.
The Seventh Circuit has noted that "courts are generally
hesitant to grant summary judgment in § 1983 actions which raise
the issue of probable cause." Reardon, 811 F.2d at 1027. The
reason for the reluctance is that probable cause depends on the
reasonableness of the officer's conduct, which is "a classic jury
issue." Id. quoting Llaguno v. Mingey, 763 F.2d 1560, 1565 (7th
Cir. 1985). Here, the resolution of the case may indeed turn on
which version of the story the jury believes. Therefore, we hold
that Defendant has failed to meet his burden of establishing the
lack of a genuine issue of material fact and summary judgment is
denied on this count.
Defendant asserts that even if no probable cause existed, he is
entitled to qualified immunity. He is, if "officers of reasonable
competence could disagree" on whether the arrest was reasonable.
Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 1096, 89 L.Ed.2d
271 (1986); see also Bailey v. Andrews, 811 F.2d 366, 370 (7th
Cir. 1987); BeVier, 806 F.2d at 128.
Because this case is before us in the posture of Defendant's
motion for summary judgment, we find that it is inappropriate to
grant immunity to Defendant at this time. As we pointed out in
our discussion of the probable cause issue, viewing the facts
most favorable to the Plaintiff, the conduct of Plaintiff can be
seen as mere argument with Officer Baughman coupled with eventual
cooperation. If this is the case, Defendant would clearly not
have probable cause to arrest. And, there is a
clear statement of Illinois law on point. Weathington, 82 Ill.2d
at 187, 411 N.E.2d 862, 44 Ill.Dec. 496. Any gap left in the law
does not necessarily apply to these facts when they are viewed
most favorably to the Plaintiff. Hence, we cannot say that
Defendant is entitled to immunity as a matter of law. See, e.g.,
Reardon, 811 F.2d at 1030.
Finally, although we need not decide the question at this
stage, this may be a case where the jury's decision on the issue
of probable cause automatically resolves the issue of immunity.
Marketplace Restaurant, 754 F.2d at 1358 (Posner, J.,
concurring). However, there is some disagreement on whether an
additional instruction on immunity should be given. Id. at 1348
(majority opinion of Coffey, J.).
Nevertheless, the granting of immunity at this time is not
This brings us to the question of the excessive force count.
Earlier in the opinion, we noted the discrepancies in the
analysis of excessive force claims. However, since the claim was
argued strictly as a substantive due process claim, we approach
it from that angle.
In Gumz v. Morrissette, the Court of Appeals held that the use
of excessive force is actionable as a deprivation of liberty
without due process only when the conduct of the police during
the arrest "[is] so egregious or intolerable as to shock the
conscience of the court." 772 F.2d at 1400.
To aid the Court in its determination of whether the conduct
shocks its conscience, Gumz developed a three part test. Gumz
held that excessive force violates the Fourteenth Amendment if it
"(1) caused severe injuries, (2) was grossly disproportionate to
the need for action under the circumstances, and (3) was inspired
by malice rather than merely careless or unwise excess of zeal so
that it amounted to an abuse of official power that shocks the
conscience." The Court analyzed these factors as necessary rather
than sufficient conditions. Id. See also de La Paz v. Danzl,
646 F. Supp. 914, 920 (N.D.Ill. 1986).
We do not believe the record read in light most favorable to
the Plaintiff reveals that he suffered severe injuries as
required by Gumz. The most that can be said is that he
experienced some pain in his wrist as a result of the
handcuffing. He still complains of occasional numbness in one of
his hands. We do not believe this rises to the level of severity
as to shock the conscience of the Court. Because Plaintiff cannot
meet this test as a matter of law, Defendant is entitled to
summary judgment on the count alleging excessive force in
violation of the Fourteenth Amendment.
Ergo, Defendant's motion for summary judgment on the count of
the complaint alleging an unlawful arrest in violation of the
Fourth Amendment is DENIED. The motion for summary judgment on
the count of the complaint alleging excessive force in violation
of the Fourteenth Amendment is ALLOWED.
IT IS SO ORDERED.