at an end. DeVos, 73 Ill. App. 3d at 222, 391 N.E.2d at 166. Therefore, plaintiffs fail to comply with the second requirement, as there has been no termination here. Since no final termination has occurred, the innocence of the accused cannot be determined. The court holds, as a matter of law, that a dismissal with leave to reinstate cannot be the basis for a malicious prosecution claim. See, Blalock v. Randall, 76 Ill. 224 (1875). Accordingly, defendant is granted summary judgment on count III of the complaint.
Count IV of the complaint alleges deprivation of the plaintiffs' fourth amendment rights by actions taken under color of the search warrant obtained by Officer Avila. Such an allegation involves the issue of qualified immunity.
Qualified immunity exists because public officers require some form of immunity from suits for damages. Jackson v. Elrod, 881 F.2d 441 (7th Cir. 1989). Immunity is not justified by the person to whom it attaches but by the function it advances. Elrod, slip op. at p. 6. As a general rule, police officers who apply for search warrants are entitled to qualified immunity. Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986). A search warrant can be obtained if the officer shows, in the "totality of the circumstances", that a warrant should issue. Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). Probable cause is a fluid concept, turning on the assessment of facts in a particular context, and cannot readily be reduced to a neat set of legal rules. Gates, 462 U.S. at 233. In dealing with probable cause, we deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. U.S. v. McCarty, 862 F.2d 143 (7th Cir. 1988) (citing Gates). Thus, only where a warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable will the shield of qualified immunity be lost and the officer liable for damages. Malley, 475 U.S. at 344-45.
The Seventh Circuit has recently set out the framework of a qualified immunity analysis. Polenz v. Parrott, 883 F.2d 551 (7th Cir. 1989). Government officials performing discretionary functions are generally shielded 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. Polenz, slip op. at p. 4. There are two steps to the analysis: 1) Does the alleged conduct set out a constitutional violation?; and 2) were the constitutional standards clearly established at the time in question? Id. Id. at slip op. p. 5.
Applying this test to the case before the court, the court holds that plaintiffs have not shown that the defendant's conduct sets out a constitutional violation. Plaintiffs allege that Officer Avila used false information in obtaining the search warrant for the plaintiff's home. However, affidavits in support of a warrant are presumptively valid. Perlman v. City of Chicago, 801 F.2d 262 (7th Cir. 1986), cert. den., 480 U.S. 906, 94 L. Ed. 2d 520, 107 S. Ct. 1349 (1987); Harden v. Peck, 686 F. Supp. 1254 (N.D.Ill. 1988). A plaintiff must make a substantial showing that the affiant deliberately made misstatements of material fact, or omitted material facts from, the affidavit. Perlman, 801 F.2d at 264-65; Harden, 686 F. Supp. at 1261. Summary judgment is proper when the plaintiff fails to meet this burden. Id. at 265.
Plaintiffs attempt to show that Officer Avila "lied" in obtaining the warrant by pointing out inconsistencies between his warrant affidavit and his affidavit on summary judgment. First, plaintiffs point out that, in his warrant affidavit, Officer Avila states he was "on the perimeter" of the house at the time his partner purchased the drugs. Plaintiff's Opposition, p. 11-12. However, in his affidavit on summary judgment, Avila states he "waited out of sight of the home of 6635 South Paulina approximately two blocks from the premises." Plaintiff's Opposition, p. 12. It can hardly be said that such a semantic difference constitutes a "substantial showing that the affiant deliberately made misstatements" of material fact. Thus, plaintiffs fail to carry their burden on this contention. Likewise, the plaintiffs' other "contradiction", involving the confidential source, falls far short of a substantial showing of deliberate misstatement.
The plaintiffs have failed to show conduct on the part of Officer Avila which would amount to a constitutional violation. Defendant Avila is entitled to summary judgment on count IV.
Plaintiffs' last claim is based upon the search conducted by Officer Avila and the other defendants at the residence. Plaintiffs claim the police used unnecessary force in executing the warrant. As this claim also involves police conduct, the principles of qualified immunity outlined above are also applicable.
As a general rule, police acting under color of a facially valid warrant are immune from damages for violation of civil rights. Bezdek v. City of Elmhurst, 70 F.R.D. 636 (N.D. Ill. 1976). However, property damage to the place searched is subject to a judicial review of reasonableness. Dalia v. United States, 441 U.S. 238, 60 L. Ed. 2d 177, 99 S. Ct. 1682 (1979). Officers may be liable under § 1983 for conducting an unreasonable search. Tarpley v. Greene, 221 U.S. App. D.C. 227, 684 F.2d 1 (1982).
The plaintiffs have failed to make a substantial showing that the conduct of the officers in making the search amounted to a constitutional violation. The actions alleged by plaintiffs were well within the scope of reasonableness. See, Bates v. City of Ft. Wayne, Ind., 591 F. Supp. 711, 722 (N.D.Ill. 1983). As noted by the Supreme Court, officers executing a search must occasionally damage property in order to perform their duty. Dalia, 441 U.S. at 258. Therefore, the defendants are entitled to summary judgment on count IV.
In sum, the court grants the defendants summary judgement on counts III and IV of the complaint.
IT IS SO ORDERED.
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