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August 31, 1989

MICHAEL TARDI, ROBERT TROY, AL VODICKA, CHARLES FORSYTHE, PETER HURST, individually and as Officers of the Hickory Hills Police Department, and THE CITY OF HICKORY HILLS, Defendants

The opinion of the court was delivered by: MAROVITZ


 This case concerns the savage rape and murder of a young woman, and the subsequent police investigation of that brutal crime. In the four decades of experience on the bench, this court cannot recall a case that was such a conglomeration of bizarre facts and circumstances. On December 20, 1982, Susan Marie Schaaf (hereinafter, "Schaaf") was raped and murdered in her Hickory Hills, Illinois apartment. That same afternoon, the Hickory Hills Police Department ("HHPD") began its investigation of the rape and murder of Schaaf.

 On September 5, 1986, plaintiff Glen Dale Simkunas ("Simkunas") was arrested by officers of the HHPD in connection with the Schaaf case. On September 7, 1986, Simkunas was charged with the rape and murder of Schaaf. He was indicted on these same charges on September 8, 1986. On February 6, 1987, the Cook County State's Attorney moved to dismiss all charges against Simkunas. The motion was granted and all charges were dismissed.

 On September 4, 1987, Simkunas filed the instant lawsuit against the City of Hickory Hills and five officers of the HHPD.

 The Complaint alleges that "at all times material hereto, the defendants were aware of plaintiff's innocence of the crimes charged and were in possession of information which exonerated plaintiff." Complaint at 3. Counts I and II of the Complaint are brought under 42 U.S.C. ยง 1983 and allege violations of Simkunas' civil rights; Count III raises a pendent state claim of false arrest; and Count IV charges a pendent state claim of malicious prosecution. Simkunas seeks $ 10 million in damages, plus costs and attorney's fees on each count.

 The parties have informed this court that they "have completed discovery for purposes of the Motion for Summary Judgment." Letter from John L. Hines, Jr. to Hon. Abraham Lincoln Marovitz (Aug. 15, 1989) (copy to Bill Wigoda); Letter from William S. Wigoda to Hon. Abraham Lincoln Marovitz (Aug. 10, 1989) (copy to John L. Hines and Patrick A. Tuite).

 Currently before the court are the motions of the defendants for Summary Judgment. These motions have been fully briefed. This court subsequently ordered the parties to file supplemental briefs on the issue of qualified immunity. The parties have filed with the court such supplemental briefs.

 Upon the suggestion and agreement of the parties, this court recently entered an order of summary judgment in favor of all defendants except Hickory Hills Police Officers Michael Tardi and Robert Troy. Accordingly, this opinion concerns only these two officers.


 Summary Judgment

 As this is a motion for summary judgment, "the record and all reasonable inferences to be drawn from it are viewed in a light most favorable to the party opposing the motion." Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 567 (7th Cir. 1989). However, if the nonmovant bears the burden of proof on an issue . . . he or she may not simply rest on the pleadings; rather, the nonmovant must affirmatively set forth specific facts that show that there is a genuine issue of material fact." Id. Further, "the 'existence of disputed facts' [are] not enough, however, to defeat a motion for summary judgment. . . . Rather, . . . 'the disputed facts must also be material to the legal issues in the case.'" Mark v. Furay, 769 F.2d 1266, 1269 (7th Cir. 1985).

 Qualified Immunity

 Qualified immunity is a doctrine that 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. Qualified immunity is the best attainable accommodation of competing values. In situations of abuse of office, it is not a complete bar to an action for damages, which may offer the only realistic avenue for vindication of constitutional guarantees, as is absolute immunity. On the other hand, it protects the country from the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible public officials, in the unflinching discharge of their duties." Kompare v. Stein, 801 F.2d 883, 886-887 (7th Cir. 1986) (citations omitted). In other words, "Qualified immunity is designed to shield from civil liability 'all but the plainly incompetent or those who knowingly violate the law.'" Hughes v. Meyer, 880 F.2d 967, slip op. at 7 (7th Cir. 1989) (quoting Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986)).

 The protection of qualified immunity is available to those government officials who perform discretionary functions. In that respect, qualified immunity has probably been most used by police officers in cases challenging police conduct relating to arrest. Kompare v. Stein, 801 F.2d at 887.

 Qualified immunity not only protects government officials from liability, but can also save them from the burdens of trial and discovery. Rakovich v. Wade, 850 F.2d 1180, 1204 (7th Cir.) (en banc), cert. denied, 488 U.S. 968, 109 S. Ct. 497, 102 L. Ed. 2d 534 (1988); Green v. Carlson, 826 F.2d 647, 651 (7th Cir. 1987). For this reason, the use of the qualified immunity doctrine in conjunction with the summary judgment tool should be encouraged. Rakovich, 850 F.2d at 1205.

 "This circuit has recently held that, even though pertinent facts may be in dispute, the question whether [qualified] immunity attaches is always one for the judge to decide." Hughes v. Meyer, 880 F.2d at 969, slip op. at 4 (citations omitted); Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988); Rakovich, 850 F.2d at 1201-02. However, while the issue of qualified immunity is a question of law, it cannot be decided in the abstract; the court can only make this determination in reference to the particular facts of the case. Rakovich, 850 F.2d at 1202.

 In order to make this qualified immunity determination, the court looks to how the plaintiff has characterized the defendant's actions in accordance with the facts of the case. The court than compares this characterization to the law at the time that the alleged violation occurred in order to determine if the defendant's actions violated the clearly established law. Id. at 1209. The United States Court of Appeals for the Seventh Circuit has set out the following two prong test for this determination: "'(1) does the alleged conduct set out a constitutional violation? and (2) were the constitutional standards clearly established at the time in question?'" Id. at 1210, quoting Wade v. Hegner, 804 F.2d 67, 70 (7th Cir. 1986). The plaintiff carries the burden of establishing the existence of the "allegedly clearly established constitutional right." Rakovich, 850 F.2d at 1209 (citation omitted).

 The analysis that the court must undertake is to ask itself whether "it was clearly established that under the facts of this case [the police conduct] . . . was improper." Id. at 1211.

 For situations where it is alleged that the police arrested an individual without probable cause, the standard that this court must apply to determine if qualified immunity is available has been phrased several different ways. In Rakovich the court stated that qualified immunity is available to a police officer if "a reasonably well-trained police officer could believe that his conduct did not violate a clearly established right. In other words, viewing it in a light most favorable to [plaintiff], officers of 'reasonable competence could disagree,' Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986), and 'in the light of the preexisting law the unlawfulness [was not] apparent,' Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987)." Rakovich, 850 F.2d at 1214.

 Further, even in cases where there may not be probable cause to arrest, "if officers of reasonable competence could disagree on whether there was probable cause, the defendant would be immune from damages liability." Jones, 856 F.2d at 994 (citation omitted). Put another way, "only if no reasonable police officer could have mistakenly believed that he had probable cause to arrest is the immunity forfeited." Id.

 Most recently, in the Hughes case, the Seventh Circuit commented, "we apply the 'clearly erroneous' standard of review to the district court's determination that a reasonable police officer in like circumstances could have acted as the defendants did." Hughes v. Meyer, 880 F.2d at 969, slip op. at 4 (citations omitted). As such, the standard used in determining an officer's reasonable belief as to validity of probable cause is less stringent than the standard used in determining the existence of probable cause. Id. at 5. Thus, "even in the absence of probable cause for an arrest, qualified immunity provides officers with an additional layer of protection against civil liability." Id. As Judge Coffey has stated, "a distinction exists between the constitutional standards of probable cause and the officer's reasonable belief as to the validity of probable cause." Moore v. Marketplace Restaurant, 754 F.2d 1336, 1348 (7th Cir. 1985).

 Further, in deciding this motion for summary judgment regarding qualified immunity, this court must consider all of the undisputed evidence in the record. Green v. Carlson, 826 F.2d 647, 650 (7th Cir. 1987).

 The court must also consider this concept of "probable cause." What exactly is it? Or more specifically, when do the police have it? This concept was recently expressed this way:

Probable cause for an arrest exists if, at the moment the arrest was made, the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent person in believing that an offense has been committed. Probable cause is to be determined in a "practical, nontechnical" manner. The inquiry into the existence of probable cause raises questions of "probabilities, the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Probable cause requires more than bare suspicion, but need not be based on evidence sufficient to support a conviction, nor even a showing that the officer's belief is more likely true than false.

 Hughes v. Meyer, 880 F.2d at 969, slip op. at 5 (citations omitted); see also, United States v. Lima, 819 ...

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