2d 202, 106 S. Ct. 2505 (1986). The court finds that Bullock has succeeded in demonstrating the existence of sufficient evidence to support a verdict in his favor.
Because the facts that are significant to Bullock's claim against the City differ from those that are material to his claim against the individual defendants, the court will consider the motion as it relates to each set of defendants separately. Bullock's claim against the City is premised primarily upon the Chicago Police Department's General Order 78-1, § 6, P 2, which explicitly authorizes investigative officers to make a request to a superior to keep an arrestee under detention for "a period of time longer than that which might routinely be expected." Several judges of this court have held this extended detention policy to be facially unconstitutional under the holding of Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1970). Willis, 726 F. Supp. at 1125; Robinson, 638 F. Supp. at 191-93; see Bostic v. City of Chicago, 1991 U.S. Dist. LEXIS 7345, *9 n.1 (May 21, 1991), aff'd on other grounds, 981 F.2d 965 (7th Cir. 1992). Gerstein held that one taken into custody without a warrant had a fourth amendment right to "a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." 420 U.S. at 114. Following Gerstein courts have permitted those arrested without warrant to bring suit against police who detained them for unreasonable amounts of time without taking them before a judicial officer for a probable cause hearing. Whether the length of a particular detention between arrest and a probable cause hearing exceeds constitutional limits is determined by the reasonableness standard that courts generally use to judge claims arising under the fourth amendment. See Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1351 (7th Cir. 1985), cert. denied, 481 U.S. 1028 (1987). In denying the City's motion for summary judgment on Bullock's first amended complaint, Judge Marovich, applying the prevailing fourth amendment standard, concluded that there was room for a difference of opinion as to whether Bullock's pre-hearing detention was reasonable under the circumstances. The City here reiterates many of the same arguments that Judge Marovich earlier rejected. The court sees no need to revisit those contentions.
One significant event since Judge Marovich's last opinion in this case does require comment - the Supreme Court's decision in County of Riverside v. McLaughlin, 500 U.S. 44, 114 L. Ed. 2d 49, 111 S. Ct. 1661 (1991). McLaughlin undertook the task of defining what was "prompt" within the meaning of Gerstein. Remarking that the Gerstein requirement of a prompt determination of probable cause following a warrantless arrest had resulted in a plethora of systemic challenges to city and county practices, the Court recognized the need "to articulate more clearly the boundaries of what is permissible under the Fourth Amendment." Id. at 1670. Weighing competing interests of the individual against the administrative needs of local authorities in processing those arrested, the Court created a presumption that a jurisdiction which provided probable cause determinations within 48 hours of arrest would be exempt from having its post-arrest procedures subject to fourth amendment scrutiny in a systemic challenge. Id. If a suspect arrested without warrant was not given a probable cause hearing within 48 hours, however, "the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance." Id.
Asserting that Bullock was provided with a probable cause determination within 34 hours of his arrest, the City maintains that the length of his pre-hearing detention was presumptively reasonable under McLaughlin. The problem with this argument is that it finds no factual support in the record. According to the record as it now stands, Bullock appeared for a bond hearing slightly more than twenty-four hours after his initial arrest. Defendants provide no evidence to show that the judicial officer conducting the bond hearing made a finding of probable cause. Although Bullock did eventually receive a preliminary hearing to establish probable cause, that hearing did not take place until May 12, a week after Bullock's arrest. Therefore, under the McLaughlin presumptions, the length of Bullock's detention without a determination of probable cause was constitutionally unreasonable. The burden remains with the City to come forward with evidence justifying the seven-day delay. It has not done so.
Of course the mere fact of the delay is not itself enough to establish liability on the part of the City. Bullock must still link the delay to some City policy or custom. Although Bullock argues that the delay in his case was occasioned by the City's policy of extended detention as expressed in General Order 78-1, he provides scant evidence to support a finding that his custody was actually continued pursuant to General Order 78-1. Nonetheless, following Sivard v. Pulaski County, 959 F.2d 662 (7th Cir. 1992), the court concludes that he has made a sufficient showing of policy to preclude summary judgment at this time.
In Sivard, the plaintiff was arrested for battery and held for seventeen days before being charged before a judicial officer. He alleged that his wrongful detention was the result of a custom and practice of the county. The county filed a motion for summary judgment to which plaintiff did not respond. Although the court noted that plaintiff's allegations of policy approached "the level of boilerplate vagueness," it concluded that the summary dismissal of the claim against the county was unwarranted in light of the undisputed fact that the county had detained plaintiff well beyond the 48-hour guideline of McLaughlin and the county's failure to proffer any reasonable explanation for the delay. Id. at 668-69. The court concluded in noting that:
summary judgment is a carrot to encourage the prompt resolution of meritless cases, not a stick to punish a plaintiff for not conducting discovery when the factual basis for his cause of action is admitted by the defendants. Mr. Sivard must develop more facts to prevail, but he should be allowed to proceed.
Id. at 669.
Like the defendant in Sivard, the City has proffered no explanation for its delay in processing Bullock. Unlike plaintiff in Sivard, Bullock is proceeding without the benefit of counsel. Moreover, it appears from a motion to compel that Bullock has pending, that he also has attempted to conduct discovery to obtain proof to support his policy claim. The status of his discovery requests is unclear. It appears that defendants have postponed response pending ruling on their dispositive motions. In any event, it would be premature at this time for the court to conclude that Bullock has no evidence to support his claim that the City's policy was the cause of his extended detention.
The City also argues that Bullock's claim should be dismissed because he suffered no actual damages. It reasons that because a court eventually found probable cause and because Bullock could not make bond, he suffered no cognizable loss of liberty as a result of his pre-hearing detention. This argument, however, presumes that Bullock's claim arises under the due process clause of the fourteenth amendment. It does not. The right to a prompt judicial determination of probable cause as a prerequisite to an extended detention following a warrantless arrest arises under the fourth amendment as applied to the states by the fourteenth amendment. See McLaughlin, 111 S. Ct. at 1665. The issue is whether "the detention is reasonable in light of all the circumstances accompanying the detainee's arrest." Patrick v. Jasper County, 901 F.2d 561, 567 (7th Cir. 1990). To accept the City's position would render nugatory the substantive fourth amendment rights of those too poor to post bond. The reasonableness of one's post-arrest detention should not turn one's ability too pay. Nor does the protection of the fourth amendment extend only to those who are innocent. Unreasonable delay includes delay "for the purpose of gathering additional evidence to justify the arrest." McLaughlin, 111 S. Ct. at 1670. It makes little sense to say that the fourth amendment forbids a police officer from holding a suspect in prolonged custody solely to build a case against him and then allow him to escape liability on the grounds that a court subsequently found probable cause on the basis of evidence that was the fruit of the illegal detention. That Bullock would have remained in custody regardless of the timing of the probable cause hearing therefore does not defeat his fourth amendment claim.
The City is entitled to summary judgment on Bullock's claim for injunctive and declaratory relief. First, the claims for equitable relief appear to be moot as the policy that Bullock challenges has since been rescinded. Moreover, Robinson v. City of Chicago, 868 F.2d 959 (7th Cir. 1989), cert. denied, 493 U.S. 1035, 110 S. Ct. 756, 107 L. Ed. 2d 773 (1990) compels a finding that plaintiff lacks standing to assert his claims for equitable relief. To establish standing, plaintiff must show more than past exposure to illegal conduct, he must show that he is in immediate danger of sustaining direct injury. The possibility that Bullock will again encounter police and be illegally detained is too speculative to give him standing to litigate his claims for equitable relief. Accordingly, the court grants defendants' motion for summary judgment as to those claims.
B. Dioguardi and O'Hara6
The facts as they apply to the individual police officers requires a different analysis than that used to judge the adequacy of Bullock's claim against the City. The individual officers disclaim any responsibility for Bullock's custody following the time of his delivery to the watch commander, some sixteen hours after his arrest. Of course, if defendants had asked the watch commander to extend Bullock's detention to continue their investigation as authorized under General Order 78-1, then they would also be responsible for any delay prompted by the decision to hold Bullock beyond the time he normally would have appeared for a judicial determination of probable cause. But in any event, it is doubtful that the record could support a finding that defendants were responsible for holding Bullock beyond the 48-hour period considered presumptively permissible under McLaughlin. The question then is whether the facts are sufficient to allow a jury to overcome the presumption of reasonableness that attends a detention of less than 48 hours.
As this court noted in Arnold v. City of Chicago, 776 F. Supp. 1259, 1264 (N.D.Ill. 1991), McLaughlin clearly allows a plaintiff to present facts to rebut the presumptive reasonableness of providing a probable cause hearing within 48 hours of arrest.
[A hearing provided within 48 hours] may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake.