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March 24, 1989

HENRY BROWN, Plaintiff,

Charles P. Kocoras, United States District Judge.

The opinion of the court was delivered by: KOCORAS


 Plaintiff Henry Brown filed a complaint, individually and on behalf of a class, alleging violations of 42 U.S.C. § 1983. This case is presently before the court on the Plaintiff's and Defendant City of Chicago's ("the City") Cross Motions for Summary Judgment. For the following reasons, Brown's motion is denied and the City's motion is granted.


 On the afternoon of August 4, 1987, Calvin Lee was shot four times. While awaiting surgery, Lee identified Brown from a photo array as the man who ordered his assailant to shoot. Brown was also identified from a photo array by a man named Rice Gibson as being on the scene immediately prior to the shooting.

 At approximately 6:25 p.m. that evening, following these two identifications, the police arrested Brown and took him into custody. While Brown was in custody, the police prepared an arrest report and took Brown's fingerprints and photograph. Although the courts were in session until after midnight that evening, Brown was not taken for his Gerstein probable cause hearing because his fingerprints had not cleared. The Chicago Police Department has a policy and practice of delaying an arrestee's first court appearance until after his fingerprints have cleared. An arrestee's fingerprints clear after they are compared with all other known samples and the arrestee is identified and his record shows no outstanding warrants for his arrest.

 The plaintiff was taken for his Gerstein probable cause hearing the next day, August 5, 1988, at 11:00 a.m. However, the judge refused to hold the hearing because the officers had not filed formal charges against Brown. Thereafter, in accordance with another Chicago Police Department policy, the officers commenced the felony review process by notifying the Assistant State's Attorney of the case. This "Felony Review" process requires the State's Attorney to review the charges prior to the probable cause hearing. Here, the Assistant State's Attorney conducted some interviews before relaying the information on the case to the State's Attorney. Upon receiving this information, the State's Attorney decided not to approve the charges, and Brown was released at approximately 5:00 p.m. Immediately prior to his release, Brown filed a complaint against the City pursuant to 42 U.S.C. § 1983 claiming that he was improperly detained for an unreasonable amount of time.

 On December 4, 1987, plaintiff filed an amended complaint under 42 U.S.C. § 1983 arising out of his arrest and detention for his alleged role in the shooting of Calvin Lee. Plaintiff's amended complaint is composed of two counts, each brought under the fourth and fourteenth amendments. Count I challenges the City's alleged policies of detaining all arrestees without a judicial determination of probable cause (1) until the arrestee's prints have cleared, and (2) in felony cases, until an Assistant State's Attorney has approved the charges. (See amended complaint, Count I, para. 12-16.) Count II is identical but is purportedly brought on behalf of a class. Plaintiff has sought class certification but it has not been granted.

 Plaintiff filed a motion for summary judgment under Fed. R. Civ. P. 56(a) on April 13, 1988. In its motion, the plaintiff contends that the length of its confinement (approximately 24 hours) was unreasonable for two reasons. First, the plaintiff claims that the fingerprint clearing process is not a necessary administrative step, and thus, any delay due to this process was unreasonable and excessive. Second, the plaintiff complains that since review of his charges through the felony review process was not sought until 17 hours after plaintiff's arrest, the City detained plaintiff for more than a "brief period" necessary to perform "administrative steps incident to arrest." The City, in response, has filed a cross-motion for summary judgment under Fed. R. Civ. P. 56(b) because (1) plaintiff has suffered no actual damages, and (2) bringing a person arrested for a violent felony before a judge within 16 1/2 hours for a probable cause hearing is reasonable.


 In Gerstein v. Pugh, the Supreme Court held that the Fourth Amendment permits the delay of a probable cause hearing for a "brief period" in order to take "administrative steps incident to arrest." 420 U.S. 103, 114, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975). The plaintiff first argues that the process of fingerprint clearance does not constitute an "administrative step incident to arrest." Therefore, according to the plaintiff, the delay in bringing the Gerstein probable cause hearing was excessive and in violation of 42 U.S.C. § 1983.

 The defendant argues that detention of felony arrestees during fingerprint clearance is a necessary administrative step because it 1) establishes the positive identification of the arrestee; 2) determines the proper level of the charge; 3) ascertains the presence of any outstanding warrants or stop orders; and 4) aids in evaluating the proper amount of bond and other conditions of pretrial release.

 In response, plaintiff contends that without a judicial determination of probable cause, no charge will exist to upgrade and no bond will be necessary. The plaintiff further maintains that even if an arrestee is not present when his fingerprints clear because no probable cause existed for arrest, the police may still positively identify the arrestee and record this arrest along with any prior arrests on the proper rap sheet. Finally, the plaintiff argues that the clearance policy violates the Fourth Amendment because it allows the police to detain the arrestee while they investigate the arrestee's prior record without having reasonable suspicion that any outstanding warrant or stop order exists. In support of this proposition, plaintiff relies on Davis v. Mississippi, 394 U.S. 721, 22 L. Ed. 2d 676, 89 S. Ct. 1394 (1969), United States v. Hensley, 469 U.S. 221, 83 L. Ed. 2d 604, 105 S. Ct. 675 (1985), and Hayes v. Florida, 470 U.S. 811, 84 L. Ed. 2d 705, 105 S. Ct. 1643 (1985). Nevertheless, this court finds these cases inapposite because in each case the accused was arrested without probable cause, unlike Brown who was arrested based on probable cause.

 Although plaintiff's response has some merit, the court is not convinced that the fingerprint clearance policy is not a necessary administrative step and that it causes unwarranted and excessive periods of detention. The court must strike a delicate balance between the interests of the state in its duty to protect society and the interests of the individual in his freedom of movement. In considering all the factors on both sides, the court is particularly influenced by the fact that Chicago has a high crime rate. In addition, the plaintiff is a felony, as opposed to a misdemeanor, arrestee. This court believes that a felony arrestee has an increased chance of having additional warrants out for his arrest. We hold ...

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