The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is Defendant's Motion for Summary Judgment
[Doc. # 38]. Defendant in this case is employed as a trooper with
the Illinois State Police. Plaintiff is an Hispanic male who was
involved in a felony stop initiated by Defendant. Plaintiff
claims that Defendant made an unlawful arrest of Plaintiff, used
unreasonable force in detaining Plaintiff, verbally abused and
harassed Plaintiff, and initiated the stop based upon Plaintiff's
race and ethnicity — all in violation of rights secured by the
Fourth and Fourteenth Amendments of the United States
Constitution. Plaintiff brings this suit based upon
42 U.S.C. § 1983. This Court has jurisdiction pursuant to 28 U.S.C. § 1331
"A motion for summary judgment is not an appropriate occasion
for weighing the evidence; rather, the inquiry is limited to
determining if there is a genuine issue for trial." Lohorn v.
Michal, 913 F.2d 327, 331 (7th Cir. 1990); See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). This Court must "view the record and all
inferences drawn from it in the light most favorable to the party
opposing the motion." Holland v. Jefferson National Life Ins.
Co., 883 F.2d 1307, 1312 (7th Cir. 1989). When faced with a
motion for summary judgment, the non-moving party may not rest on
its pleadings. Rather, it is necessary for the non-moving party
to demonstrate, through specific evidence, that there remains a
genuine issue of triable fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986);
Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.
On April 23, 1991, at approximately 2:25 p.m., Defendant was on
duty in his capacity
as an Illinois State Police trooper. While patrolling on Route 5,
Defendant observed a vehicle owned and driven by Plaintiff.
Plaintiff's girlfriend was with Plaintiff in his car at this
time. Plaintiff's vehicle was a white, two-door Pontiac Firebird.
Defendant maintains that Plaintiff's vehicle was weaving back and
forth across the center line and that Defendant observed that
Plaintiff's vehicle had tinted windows. Defendant radioed his
headquarters to inform them that he was preparing to initiate a
traffic stop of Plaintiff's vehicle. Upon radioing the license
plate number of Plaintiff's vehicle, Defendant was informed that
the plates were reported to be stolen and belonging to a green, 4
door Oldsmobile. This report stated that this information should
be "confirm[ed] with ORA." Approximately eight seconds after this
report, a second report involving the license plate number was
received by Defendant. This report stated that the license plate
number belonged to a 2 door, 1983 Pontiac belonging to Plaintiff
and was not listed as stolen. Defendant, apparently, did not
confirm the information contained in the initial report but,
instead, radioed for assistance from fellow officers to make a
felony stop of Plaintiff's vehicle.
Defendant, with the assistance of at least two other troopers
and patrol cars, initiated a full felony stop of Plaintiff's
vehicle. Defendant, as well as the other officers, approached
Plaintiff's vehicle with their service weapons drawn. Defendant
ordered Plaintiff to exit his vehicle. At this point, Plaintiff's
and Defendant's versions of the events that followed diverge.
Plaintiff claims that he and his girlfriend attempted to explain
that Plaintiff did not speak or understand English, that
Defendant screamed at them to "[s]hut the fuck up," that
Plaintiff exited the vehicle, that Plaintiff at no time resisted
Defendant or the other police officers, that Defendant grabbed
Plaintiff, put his gun to Plaintiff's head, threatened to kill
him, wrenched Plaintiff's arm, and threw Plaintiff across the
hood of his vehicle, that in response to Plaintiff's statement
that Defendant was hurting him, Defendant screamed "[s]hut up"
and continued punching Plaintiff, that Plaintiff was taken back
to Defendant's patrol car, and that Defendant released Plaintiff
Defendant's account of the events occurring during the felony
stop vary greatly from Plaintiffs. Defendant claims that upon
stopping Plaintiff's vehicle, Defendant exited his patrol car,
that he drew his service weapon, that Defendant ordered Plaintiff
several times to exit his vehicle, that Plaintiff did not exit
his vehicle, that Plaintiff's girlfriend jumped out of the
vehicle, that Defendant ordered her to get back into the vehicle
and tell Plaintiff to get out of the vehicle, that Plaintiff's
girlfriend complied and Plaintiff exited the vehicle, that
Plaintiff had his hands in his pockets, that Defendant placed
Plaintiff's hands in the small of his back and conducted a frisk
search of Plaintiff, that Defendant walked Plaintiff back to
Defendant's patrol car and placed him in the front seat, that
Defendant returned to Plaintiff's vehicle to speak to Plaintiff's
girlfriend, that Plaintiff's girlfriend jumped from the vehicle,
swung her fists at Defendant and screamed "[y]ou motherfuckers,
you motherfuckers," that Defendant restrained Plaintiff's
girlfriend, attempted to explain the situation to her and placed
her back into the vehicle, that Defendant returned to his vehicle
and explained the situation to Plaintiff, that Plaintiff stated
that he had been stopped several times before in regard to his
license plates, and that Defendant apologized to Plaintiff for
the inconvenience and told him that he was free to leave.
In response to the events surrounding the stopping of
Plaintiff's vehicle and subsequent treatment by Defendant,
Plaintiff filed the present suit under 42 U.S.C. § 1983.
Plaintiff claims that Defendant deprived him of rights secured by
the Fourth and Fourteenth Amendments of the United States
Constitution. Specifically, Plaintiff claims that Defendant did
not have probable cause to arrest and detain him resulting in an
unreasonable and unlawful arrest, that Defendant used excessive
force in arresting and detaining Plaintiff, that Defendant
verbally abused and harassed Plaintiff, and that Defendant
violated Plaintiff's equal protection rights. Defendant contends
that there is no dispute of material fact in this case and has
moved for summary judgment. The Court shall consider
each of Plaintiff's claims seriatim to determine if summary
judgment is proper in this case.
Defendant contends that probable cause existed for Defendant to
conduct a felony stop of Plaintiff's vehicle and, therefore,
summary judgment is appropriate on the claim of unlawful
arrest.*fn1 Defendant argues that he observed that Plaintiff's
windows were illegally tinted, that he observed Plaintiff's
vehicle drift or veer from the driving lane to the passing and
back again without signalling, and that he was informed that
Plaintiff's license plates were reported stolen by radio
dispatch. As such, Defendant argues that probable cause existed
to conduct a felony stop of Plaintiff's vehicle. Plaintiff's
opposition brief argues that Defendant lacked probable cause to
detain and arrest Plaintiff because Defendant could not have seen
the windows of his car which were tinted because those windows
were rolled down, that Plaintiff did not weave back and forth,
but merely changed lanes and legally returned to his lane, and
that Defendant should have verified the contradictory information
he received regarding the status of Plaintiff's license plates.
As such, Plaintiff contends that Defendant lacked probable cause
and the arrest was, therefore, unreasonable and unlawful.
When a question of probable cause arises in a suit for damages,
"it is a proper issue for the jury if there is room for a
difference of opinion concerning facts or the reasonable
inferences to be drawn from them." Maxwell v. City of
Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993) citing Llaguno
v. Mingey, 763 F.2d 1560, 1565 (7th Cir. 1985) (en banc)
(plurality opinion) and Moore v. Marketplace Restaurant, Inc.,
754 F.2d 1336, 1346-47 (7th Cir. 1985). "Accordingly, a
conclusion that probable cause existed as a matter of law is
appropriate only when no reasonable jury could find" that
Defendant Trooper Tone did not have probable cause to arrest
Plaintiff. Id. The Court notes, however, that Llaguno and
Moore were unusual cases and did not establish that every
individual arrested and subsequently released without being
charged with a criminal offense is automatically entitled to a
trial on whether he should have been arrested. See Gramenos v.
Jewel Companies, Inc., 797 F.2d 432, 438 (7th Cir. 1986). Upon
considering only those facts to which there are no genuine
disputes, the Court finds that Defendant's Motion for Summary
Judgment on Plaintiff's claim of unreasonable and unlawful arrest
must be granted.
The determination of whether an arrest is reasonable for
purposes of the Fourth Amendment turns upon two objective
factors. United States v. Trigg, 925 F.2d 1064, 1065 (7th Cir.
1991); United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir.
1989); Gramenos, 797 F.2d at 440-41. The first factor is
whether the arresting officer had probable cause to believe that
the individual arrested had committed or was committing an
offense. Trigg, 925 F.2d at 1065. The second factor is whether
the arresting officer was authorized by state and or municipal
law to effect a custodial arrest for the particular offense
committed. Id. If these two factors are present, an arrest is
necessarily reasonable under the Fourth Amendment. Trigg, 878
F.2d at 1041. The Court shall examine each of these factors in