Traver and Davis support a finding that off duty officers act under color of state law when they respond to situations as police officers, rather than as civilians or security employees.
Here, there is evidence that Lewis identified himself as a Chicago police officer, and carried the weapon he had been authorized to carry as a police officer. In addition, the City had a policy, similar to that in Milwaukee, that police officers are subject to call at any time.
Finally, in addition to being recommended for their positions by supervisors in the Chicago police department, McInerney identified himself to 911 as an off-duty police officer, rather than as a security officer, and followed police procedure by requesting a technical unit and a wagon from the police department after Myatt's arrest. McInerney Dep. at p. 67. There is, then, a genuine issue of fact as to whether, under the totality of the circumstances, Lewis and McInerney acted as police officers when they arrested Myatt.
Accordingly, we deny summary judgment on Myatt's "code of silence" claim.
C. Count II
Count II of plaintiff's complaint charges the individual defendants with malicious prosecution. The common law tort of malicious prosecution, however, does not give rise to a cause of action under 42 U.S.C. § 1983 unless the plaintiff is subject to a deprivation of constitutional magnitude. Easter House v. Felder 910 F.2d 1387, 1408 (7th Cir. 1990); Friedman v. Village of Skokie, 763 F.2d 236, 239 (7th Cir. 1985); Tarkowski v. County of Lake, 775 F.2d 173 (7th Cir. 1985) (court stated that "there hardly seems a pressing need for such a tort," since the state tort law of malicious prosecution may reach malicious federal litigation). Here, Myatt alleges that the alleged malicious prosecution, as well as false arrest and false imprisonment, deprived him of First, Fourth and Fourteenth Amendment rights. Complaint at P 30.
A threshold issue, however, is whether the arrest in question was supported by probable cause. When an arrest is supported by probable cause, the arrestee cannot be said to have suffered a constitutional deprivation. Accordingly, probable cause is an absolute defense to § 1983 claims for malicious prosecution, false arrest, and false imprisonment. Schertz v. Waupaca County, 875 F.2d 578, 582 (7th Cir. 1989) ("Regardless of the defendants' motives toward the plaintiff, the existence of probable cause for arrest is an absolute bar to a Section 1983 claim for unlawful arrest, false imprisonment, or malicious prosecution.")
Probable cause exists if the facts and circumstances at the time of the arrest support a reasonable belief that an offense has been committed. Hughes v. Meyer, 880 F.2d 967, 969 (7th Cir. 1989). Even if the arrestee is later acquitted, reasonable belief that an arrest was lawful will protect an arresting officer. See Baker v. McCollan, 443 U.S. 137, 145, 99 S. Ct. 2689, 2695, 61 L. Ed. 2d 433 (1979); Olson v. Tyler, 825 F.2d 1116 (7th Cir. 1987). The question before the Court, then, is whether a genuine issue of fact exists as to whether Lewis and McInerney had probable cause to arrest Myatt.
Lewis and McInerney arrested Myatt for committing a battery on Lewis and for violating the City of Chicago disorderly conduct ordinance. A battery occurs when a person "intentionally or knowingly without legal justification and by any means . . . (2) makes physical contact of an insulting or provoking nature with an individual." Ill. Rev. Stat. ch. 38, P 12-3(a). Here, it is clear that Myatt struck Lewis in the chest with at least a soft blow. While he contests this fact in his response to defendants' 12(m) statement, Myatt admitted, both at trial and in his deposition, that he struck Lewis in the chest. Criminal Trial Transcript, April 5, 1990 at p. 158; Myatt Deposition at p. 40. No genuine issue, then, remains for the trier of fact on this point.
Nor is there any other issue of material fact. Although there is some dispute as to whether Lewis identified himself as a police officer and placed Myatt under arrest at the beginning of the incident, these are not material facts with respect to the issue of probable cause.
Even if Lewis had not already placed him under arrest, the fact that Myatt hit him created probable cause for a battery arrest.
Nor is any dispute over who started the incident material for the limited purpose of determining whether Lewis had probable cause to arrest Myatt. Instead, the specific circumstances surrounding the incident go to whether excessive force was used and/or whether Myatt acted in self-defense. Accordingly, the defendants had probable cause to arrest Myatt for battery.
D. Count VI
Under Illinois law, as under federal law, the existence of probable cause is an absolute defense to an action for false arrest, false imprisonment, and malicious prosecution. Mosley v. La Mastus, 741 F. Supp. 724 (N.D. Ill. 1990). The test for determining the existence of probable cause is identical to that used in federal cases. People v. Stachelek 145 Ill. App. 3d 391, 398-99, 495 N.E.2d 984, 989, 99 Ill. Dec. 249, 254 (1st Dist. 1986). As set forth above, defendant Lewis could reasonably believe that Myatt had committed a battery. Because plaintiff has set forth no genuine issue as to the presence of probable cause for this arrest, summary judgment is appropriate as to the false imprisonment, false arrest, and malicious prosecution claims in Count VI.
E. Count III
In Count III, Myatt alleges that Lewis and McInerney engaged in a conspiracy to deprive him of his civil rights. A civil conspiracy occurs when two or more persons act in concert to commit an unlawful act, the "principle element of which is an agreement between the parties to 'inflict a wrong against or injury upon another.' Hampton v. Hanrahan, 600 F.2d 600, 621 (7th Cir. 1979), rev'd in part on other grounds, 446 U.S. 754 (1980). To establish a conspiracy, there must be evidence that the alleged conspirators had a meeting of the minds and that each conspirator understood the general objectives of the scheme and agreed to further the scheme. Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). Because it is often difficult to obtain direct evidence of conspiracy, circumstantial evidence may provide adequate proof of conspiracy. However, the circumstantial evidence must be sufficient to "infer that the alleged conspirators had a 'meeting of the minds' and reached an understanding to achieve the illegal objective. Means v. City of Chicago, 535 F. Supp. 455, 463 (N.D. Ill. 1982); Hampton, 600 F.2d at 622.
Under § 1983, there is no such thing as inadvertent or negligent participation in a conspiracy. Jones, 856 F.2d at 993. Thus, a plaintiff must show that the coconspirators acted either knowingly, or with deliberate, reckless indifference. Id.
Here, Myatt has raised a genuine issue of material fact as to whether McInerney recklessly, or with deliberate indifference, participated in a conspiracy to utilize excessive force. First, Myatt has raised a genuine issue of material fact as to whether Lewis used excessive force against him.
Testimony of several witnesses indicates that Lewis hit Myatt on the head with his walkie-talkie. See Myatt Dep. at 41; Harrell Dep. at 58-59; Mallet Dep. at 42-44; Thornton Dep. at 29. Eyewitness testimony further indicates that Lewis pointed a gun at Myatt's head, threatened to shoot him, and repeatedly slammed him into the bleacher seats. See Myatt Dep. at 56-59, 63-65; Harrell Dep. at 69-71, 73, 75-77; Mallet Dep. at 65-67, 69, 72-74; Thornton Dep. at 37, 48-49. Finally, there is evidence that Lewis hit Myatt in the face and chest, kicked him, and stomped on his stomach and shoulder. Myatt Dep. at 74, 80, 82-83; Thornton Dep. at 55-58; Hyde Dep. at 28. This evidence certainly permits a jury to conclude that Lewis used excessive force against Myatt.
Myatt has also raised a genuine issue of fact with respect to whether McInerney conspired with Lewis to use excessive force. If Lewis used excessive force against Myatt, McInerney had a duty to intervene. However, testimonial evidence indicates that not only did McInerney simply stand by and watch the struggle between Lewis and Myatt, he actually told other students in the gym to stay away. McInerney Dep. at 56, 68. Moreover, there is also evidence that, in the middle of the struggle between Lewis and Myatt, McInerney handed Lewis the gun that had fallen from Lewis' ankle holster. Myatt Dep. at 56; Harrell Dep. at 68-69, 81; Mallet Dep. at 61, 64-65; Thornton Dep. at 35, 37; Hyde Dep. at 19. Finally, there is evidence that McInerney was in the room when Lewis hit Myatt with the gun and when Lewis hit him, kicked him, and stomped on his stomach and shoulder. Myatt Dep. at 71, 83, 114-15, 127. While McInerney offers explanations for his behavior, and claims he was absent during some of the events, the evidence raises an inference that he cooperated with Lewis to use excessive force against Myatt. This inference, in turn, makes summary judgment inappropriate with respect to Count III.
F. Count V
In Count V, Myatt alleges that defendants committed an assault and battery against him. Defendants request summary judgment with respect to the assault and battery claim against McInerney, arguing that McInerney did not touch Myatt.
Under Illinois law, a plaintiff may state a claim for assault and battery by showing that the defendant incited, aided, or abetted in the commission of the alleged assault and battery. Carreon v. Baumann, 747 F. Supp. 1290, 1291 (N.D. Ill. 1990). As discussed above, Myatt has raised a genuine issue as to whether McInerney aided and abetted Lewis in his alleged assault and battery of Myatt. Accordingly, summary judgment is denied with respect to Count V.
For the foregoing reasons, we grant defendants' motion to bifurcate the Monell and individual liability issues at trial. Additionally, we deny defendants' motion for partial summary judgment on the Monell claim based on the City's alleged "code of silence. Finally, we grant defendants' motion for summary judgment with respect to Counts II and VI and deny summary judgment with respect to Counts III and V. It is so ordered.
MARVIN E. ASPEN
United States District Judge