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LESTER v. BROWN

April 26, 1995

ROOSEVELT LESTER, Plaintiff,
v.
OFFICER DAVID BROWN, Star #16013, individually, OFFICER JUDITH BUCKNER, Star #5359, individually, and CITY OF CHICAGO, a Municipal Corporation, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Roosevelt Lester brings this one count complaint against Officers David Brown and Judith Buckner under 42 U.S.C. ยง 1983, alleging a violation of his Fourth and Fourteenth Amendment rights. *fn1" Presently before us are the parties cross-motions for summary judgment. For the reasons set forth below, defendants' motion is granted and plaintiff's motion is denied.

 I. Background2

 Larry Strong, a wheelchair-bound man living at 126 East 120th Place in Chicago, was shot and killed in his home on December 12, 1993 at approximately 5:50 p.m. Parties' Statement of Undisputed Facts ("Statement") P 1. Defendants Brown and Buckner responded to the scene at approximately 6:00 p.m., and questioned two eyewitnesses of the crime: the victim's mother, Ethyl Strong, and the victim's twelve year old nephew, William Strong. They described the killer a black male, in his twenties, dark complected, 5' 8" to 5' 10" tall, approximately 160 pounds, with facial hair, wearing a camouflage army jacket, a dark skull cap and jeans. *fn3" Statement P 6. After Officer Brown broadcast this description over his police radio, the two defendants got back in their car drove west on 120th Place towards State Street. Defendants reached the intersection of State and 120th Place, only two and one-half blocks from the murder scene, at approximately 6:20 p.m. and spotted plaintiff crossing the intersection. At that time Lester was wearing a camouflage army jacket, stood approximately 5' 8" tall, weighed approximately 160 pounds, and was dark complected with facial hair. *fn4" Statement P 9. However, in contrast the description given by the eyewitnesses, he wore cream colored corduroy slacks and was hatless. Statement P 19. Defendants stepped out of their unmarked car, and as defendant Buckner drew her weapon they informed Lester that they were investigating a shooting in the area and asked him where he was coming from. Statement PP 11-13. Plaintiff repeatedly asked why he was being stopped, to which defendants responded that the shooting had occurred only a few blocks away from the intersection. Defendants' 12(M) P 1. Plaintiff finally told them that he had just left his home and was on his way to purchase a cigarette lighter from a nearby store. Statement P 14. Defendants then frisked plaintiff and reviewed his identification, which indicated that he was twenty years of age. *fn5" Statement P 15; Plaintiff's 12(M) P 3. Defendants also inspected plaintiff's wallet, and upon finding no money asked him how he planned to purchase a cigarette lighter without any cash. Defendants' 12(M) PP 3-4. Plaintiff responded that he had credit at the store, but defendants apparently were not convinced by this answer. Officers Brown and Buckner handcuffed plaintiff, placed him in their police car, and drove him to the scene of the shooting. Defendants' 12(M) P 5.

 Upon arriving at the victim's, defendants and other police officers sought to have the eyewitnesses identify Lester as the killer. Although Ethyl Strong was too upset to positively identify plaintiff as the assailant, William Strong did identify him as the man who killed his uncle. *fn6" Plaintiff was then transported to the police station, where he was later identified in a line-up by the victim's niece, Latasha Strong. Defendants' 12(M) P 9. Lester was subsequently indicted for first degree murder, attempted armed robbery and home invasion. He was tried in Cook County on October 23, 1993, and was acquitted the following day.

 Plaintiff then filed the instant lawsuit, the only remaining count of which alleges that Officers Brown and Buckner arrested him on December 12, 1992 without probable cause. Although we denied defendants' motion to dismiss this count in our prior opinion, we were limited in our analysis to the allegations made by plaintiff in his complaint. As mentioned above, supra note 2, we may now rely on the parties' Statement of Uncontested Facts, as well as those portions of their Rule 12 statements which have not been challenged. Consequently, we are not bound by our prior characterization of the encounter between plaintiff and defendants, and will evaluate the additional facts and circumstances in order to ascertain whether summary judgment is appropriate.

 II. Summary Judgment Standard

 A motion for summary judgment will be granted if "there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant bears the initial burden of identifying "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 56(c)). Once the moving party has met this burden, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c); see Maxwell v. City of Indianapolis, 998 F.2d 431, 433 (7th Cir. 1993). In deciding a motion for summary judgment, the facts must be read in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 III. Discussion

 Plaintiff moves for summary judgment on his claim, asserting that the undisputed facts indicate that he was arrested without probable cause. Defendants oppose this motion, and also move for summary judgment on the issues of (1) whether they detained Lester in violation of the Fourth Amendment and (2) whether they are entitled to qualified immunity. We begin, and end, our analysis with the applicability of qualified immunity.

 Public officials performing discretionary functions are shielded from civil liability arising out of their official actions so long as such conduct does not violate clearly established law. Burns v. Reed, 44 F.3d 524, 526 (7th Cir. 1995). Qualified immunity will apply if "a reasonable officer could have believed that [the action taken was] lawful, in light of clearly established law and the information the officers possessed." Anderson v. Creighton, 483 U.S. 635, 641, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Estate of Starks v. Enyart, 5 F.3d 230, 233 (7th Cir. 1993). To be "clearly established," a constitutional right "must be identified in a particularized sense with respect to the circumstances of the alleged violation. In other words, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Burns, 44 F.3d at 526 (quoting Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993)). Plaintiff bears the burden of showing that a particular right was both (1) violated and (2) clearly established at the relevant time, and the failure to sustain the burden on either prong will lead to the imposition of qualified immunity. Burns, 44 F.3d at 526-27. The Supreme Court has repeatedly stressed that qualified immunity, which is a question of law, should be resolved at the earliest possible point in the litigation. Hunter v. Bryant, 502 U.S. 224, 112 S. Ct. 534, 536-37, 116 L. Ed. 2d 589 (1991).

 Defendants contend, and plaintiff does not dispute, that their initial questioning of him did not constitute a "seizure" in any constitutional sense. See Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991). Nor can plaintiff seriously challenge his arrest after being identified by William Strong at the scene of the crime. Cf. Hebron v. Touhy, 18 F.3d 421, 422 (7th Cir. 1994) (complaints by witnesses normally establish probable cause). The disagreement between the parties centers on the events that took place just after the initial questioning of Lester, when defendants handcuffed him and drove him to the crime scene for identification. Defendants argue that plaintiff was merely the subject of an investigatory stop, see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), while plaintiff contends that at this point he was arrested and "seized" for purposes of the Fourth Amendment. Although we previously characterized this confrontation as an arrest in our order denying defendants' motion to dismiss, the parties have presented additional facts which warrant our revisiting the issue.

 Police officers need not always have probable cause--a reasonable belief, based on the totality of the circumstances, that a particular individual has committed as crime--in order to detain that person. Where officers can "'point to specific and articulable facts' that give rise to a reasonable suspicion of criminal activity," they may conduct an investigatory stop of the person in order to satisfy their suspicions. United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994) (quoting Terry, 392 U.S. at 21-22). To be sure, police officers may use some amount of force in order to effectuate a Terry stop. See Tom v. Voida, 963 F.2d 952, 958 (7th Cir. 1992). But if the force employed is objectively ...


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