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August 10, 1994


The opinion of the court was delivered by: JOHN F. GRADY

 Before the court are plaintiff's motion for summary judgment and defendants' cross-motions for summary judgment. For the reasons stated in this opinion, plaintiff's motion will be granted as to Count I and denied as to Count II, and defendants' cross motions will be denied.


 On the evening of May 13, 1992, the Skokie Police Department received a call from a dispatcher for PACE, a public bus transit agency. The dispatcher reported that an unnamed PACE bus driver had thought he had seen a drug transaction involving five black men at the Greyhound bus station in Skokie. Defendant Cabrera, a Skokie police officer, arrived at the bus station within about three minutes.

 When she arrived, Cabrera saw four black men standing together outside the bus station. One of them was the plaintiff's brother, Eugene Edwards. Another was the plaintiff, Walter Edwards. Eugene boarded a Greyhound bus, and Walter walked toward a parked car. As Walter walked toward the car, Cabrera approached him and asked him if she could talk to him. Walter complied, although he maintains that Cabrera spoke in "an ordering tone" that made him feel compelled to answer Cabrera's questions. (Cabrera maintains that she simply asked to speak with Walter.) Walter told Cabrera that Eugene was his brother and had boarded the bus to go home to Forest City, Arkansas. Cabrera then asked Walter to accompany him to the bus; the parties again dispute whether she did so in a coercive manner. Walter complied.

 Cabrera, who was in uniform, stepped aboard the bus and asked Eugene, by name, to step off. He did so. Cabrera then asked both Walter and Eugene for identification. Around this time, defendant Redmond arrived at the scene in his marked police car. After Eugene fetched a garment bag and produced his identification, Cabrera and Redmond noticed a large wet spot on the front of Eugene's pants. Cabrera assumed that he had urinated in his pants from being nervous, and Redmond recalled in his deposition testimony that Eugene told him he had been unable to get to a bathroom. As Redmond and Cabrera spoke with Eugene and Walter Edwards, a third Skokie police officer arrived and questioned two black men and a black woman who were standing against a wall at the bus station.

 Meanwhile, Cabrera asked Eugene if she could look in the bag. The parties dispute whether Eugene clearly consented to the request, but Cabrera went ahead and searched the bag. Inside Eugene's bag, Cabrera found two self-sealing plastic bags containing an unspecified amount of a substance that appeared to be marijuana.

 Cabrera and Redmond arrested Eugene. But in an action with particular significance to this case, they also arrested his brother Walter, the plaintiff. Walter and Eugene were transported in Redmond's car to the Skokie police station, but Walter was released an unspecified time later without being charged.

 Walter alleges in Count I and in his summary judgment motion that Cabrera and Redmond violated his constitutional rights in two respects. First, he alleges that when Cabrera first approached him on his way back to his car, her initial questioning of him was an improper investigatory detention under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Second, he alleges that his arrest by Cabrera and Redmond was without probable cause, in violation of his Fourth Amendment right against unreasonable seizure.

 In their cross motions for summary judgment, the officers argue that Cabrera's initial questioning of Walter Edwards was fully consensual and thus need not have met the requirements of Terry, which defendants say was complied with in any event. As to Walter's arrest, they argue they had sufficient probable cause. The defendants also assert the defense of qualified immunity as to both components of Walter Edwards' claim in Count I. As to Count II, they argue they are immune from the state tort claim under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et seq.

 I. The Applicable Legal Standard.

 Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548, (1986). A "genuine issue of material fact exists only where 'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Dribeck Importers Inc. v. G. Heileman Brewing Co., 883 F.2d 569, 573 (7th Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). In considering such a motion, the court must view all inferences in the light most favorable to the nonmoving party. See Regner v. City of Chicago, 789 F.2d 534, 536 (7th Cir. 1986). In other words, although the district court's role on summary judgment is not to sift through the evidence and decide whom to believe, the court will enter summary judgment against a party who does not come forward with evidence that would reasonably permit a finder of fact to find in his or her favor on a material question. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).

 Walter Edwards brings this lawsuit under 42 U.S.C. § 1983, which states in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

 42 U.S.C. § 1983. To establish a prima facie case for a violation of § 1983, a plaintiff must plead and prove: (1) the deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988).

 The question of whether the prima facie case under § 1983 also requires some showing as to the defendant's culpable state of mind has been the source of some confusion among scholars and judges. See Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 3.01 at 136-141 (3d ed. 1991). The proper view is that no state of mind requirement exists independent from the required inquiry under § 1983 into whether plaintiff can establish that a constitutional violation occurred. In Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled in part, Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986), the United States Supreme Court noted that "nothing in the language of § 1983 or its legislative history limits the statute solely to intentional deprivations of constitutional rights." Id. at 534. Therefore a negligent deprivation of a constitutional right is actionable under § 1983. Id.; McKinnon v. City of Berwyn, 750 F.2d 1383, 1391 (7th Cir. 1984); Bell v. City of Milwaukee, 746 F.2d 1205, 1238 (7th Cir. 1984). The important distinction here is between a constitutional deprivation that happens to be negligent, and a negligent act that is not a constitutional deprivation because the applicable constitutional provision is not violated by mere negligence. Once the § 1983 plaintiff establishes that the defendant committed a constitutional deprivation, the plaintiff need not show that the defendant acted with any particular state of mind. But in § 1983 cases predicated on certain constitutional provisions, the plaintiff will not be able to establish that a constitutional deprivation took place unless the plaintiff can show that the defendant's conduct went beyond negligence.

 In § 1983 claims by convicted prisoners for violations of the Eighth Amendment and by pretrial detainees for violations of the Fourteenth Amendment, federal courts similarly have held that prisoners who are negligently subjected to some indignity cannot hold prison or jail officials liable under § 1983 because the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment applicable to pretrial detainees are violated only by deliberate acts or deliberate indifference to the prisoners' suffering. See Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992) (Fourteenth Amendment); Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992) (Eighth Amendment). These cases show how a court's inquiry into a § 1983 defendant's subjective state of mind is folded into the inquiry into whether the plaintiff actually has suffered a constitutional violation, and not whether state of mind is a defense to the violation, once established. See Wade v. Hegner, 804 F.2d 67, 69-70 (1986).

 Therefore, this court must inquire into whether a Fourth Amendment violation requires any particular mental state on the part of the offending officer. The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. In cases involving seizures of persons, there is little doubt that a Fourth Amendment violation at least requires the officer's intentional act of terminating the person's freedom of movement. See Brower v. County of Inyo, 489 U.S. 593, 596-97, 103 L. Ed. 2d 628, 109 S. Ct. 1378 (1989) (stating that Fourth Amendment seizure occurs "only when there is a governmental termination of freedom of movement through means intentionally applied"). But this intent requirement applies to whether a seizure has occurred. For example, a police officer has not made a seizure for Fourth Amendment purposes by unintentionally crashing a squad car into the plaintiff, Apodaca v. Rio Arriba County Sheriff's Dep't, 905 F.2d 1445, 1447 (10th Cir. 1990), but an intentional crash would constitute a Fourth Amendment seizure. Adams v. St. Lucie County Sheriff's Dep't, 962 F.2d 1563, 1570 (11th Cir. 1992), rev'd on other grounds, 998 F.2d 923 (11th Cir. 1993).

 Once a court determines that a Fourth Amendment "seizure" has taken place, the analysis must turn to whether the seizure was "reasonable." Pliska v. City of Stevens Point, 823 F.2d 1168, 1176 (7th Cir. 1987). The reasonableness analysis has never entailed an examination of the officer's state of mind or intent. The reasonableness of a search or seizure is judged by an objective standard, Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), or whether the officer's acts were "objectively reasonable" in light of the facts and circumstances confronting the officer. Graham v. Connor, 490 U.S. 386, 397, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). This reasonableness determination reflects "'a careful balancing of governmental and private interests.'" Soldal v. Cook County, 121 L. Ed. 2d 450, 113 S. Ct. 538, 549 (1992) (quoting New Jersey v. T.L.O., 469 U.S. 325, 341, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985)). "What matters is the intrusion on the people's security from government interference. Therefore, the right against unreasonable seizures would be no less transgressed if the seizure of the house were undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all." Soldal, 113 S. Ct. at 548 (emphasis added); see also Graham, 490 U.S. at 397 (stating in Fourth Amendment use of force case that "an officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional"). Applying Graham to a § 1983 claim alleging unlawful arrest, the Ninth Circuit held that it was error to instruct the jury that the plaintiff had to show the defendant officer specifically intended to violate the plaintiff's Fourth Amendment rights. Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir. 1992). So although a violation of the Fourth Amendment is no less a deprivation if done negligently, the question of the officer's "objective good faith" will come into play during the later stage of the analysis when the court determines whether a remedy is ...

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