alleges that he told Cortese and Kajari that independent witnesses would corroborate his contention that Cherny was bringing a false and retributive claim. Spiegel contends that based upon Cherny's alleged grudge against him, Cortese and Kajari should have found Cherny's reliability suspect and, therefore, had a duty to further investigate Spiegel's contentions before arresting him.
A Police Officer's Duty To Conduct Further Investigation
Because probable cause is fact-specific, it follows that the degree of investigation necessary to determine probable cause is completely dependent upon the circumstances of each case. Although defendants are correct in asserting that there is no "constitutional or statutory requirement that before an arrest can be made the police must conduct a trial," Gramenos, 797 F.2d at 439, citing Morrison v. United States, 491 F.2d 344, 346 (8th Cir. 1974), a police officer's duty to investigate until a reasonable belief can be formed that a crime has been committed is clearly established. Because the "reasonableness" standard of the fourth amendment links the constitutional obligation to prudent conduct, when information an officer receives warrants further investigation a prudent officer must do more to determine probable cause. Hebron v. Touhy, 18 F.3d 421, 422-23 (7th Cir. 1994).
The duty to investigate and look behind an officer's reliance on the veracity of a victim or witness has been clearly established in this circuit since at least 1994. In Hebron tenants complained to police that their landlords had cut off their water and refused to allow them to use their washer-dryer in the basement. After learning that the tenants were being evicted and may have bore a grudge against their landlords, the court noted that police properly recognized the questionability of the complaint and needed to investigate further. Id at 423. The officers visited the apartment building and confirmed that the tenants had no hot water. They discovered that the landlord had working water, that the landlord's claim that the tenants received the same water she did was false and that the landlord admitted denying access to the washer and dryer. Id. The court found that after an initially questionable complaint a reasonable investigation was conducted which accumulated enough evidence to support an arrest. Id.
Similarly, in an earlier case cited by Hebron, this circuit admonished officers for not conducting a sufficient investigation when a restaurant owner complained to police that patrons had left without paying their bill. Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1345 (7th Cir. 1985). Based solely upon the owner's claim, the police arrested the plaintiffs after asking only one question--whether they were present at the restaurant that evening. Id. The court rebuked the officers' lack of common sense in conducting no further investigation into the dispute over the bill when information was readily available and stated that, if explanations had been sought, the dispute may have been solved in a reasonable manner
Id. at 345-46.
Other circuits have also established that factual circumstances may require a police officer to conduct more than a superficial investigation before determining probable cause. Sevigny v. Dicksey, 846 F.2d 953, 957-58 (4th Cir. 1988) (no probable cause when the officer unreasonably failed to interview witnesses at the scene of an accident who would have corroborated plaintiff's story); Merriman v. Walton, 856 F.2d 1333, 1335 (9th Cir. 1988), cert. denied, 491 U.S. 905, 105 L. Ed. 2d 696, 109 S. Ct. 3188 (1989) (further inquiry required for probable cause when a kidnapping suspect was arrested after the police knew the victim was safely at home, the suspect was the victim's long time boyfriend and voluntarily called and cooperated with the police upon learning of the charge); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1432 (10th Cir. 1984) vacated on other grounds sub nom., City of Lawton, Okla. v. Lusby, 474 U.S. 805, 88 L. Ed. 2d 33, 106 S. Ct. 40 (1985), aff'd after reconsideration, 796 F.2d 1307 (10th Cir.) cert. denied, 479 U.S. 884, 93 L. Ed. 2d 251, 107 S. Ct. 275 (1986) (no probable cause when officer refused to interview cashier at scene of shoplifting who would have confirmed plaintiff paid for the merchandise).
Defendants rely on Gerald M. v. Conneely, 858 F.2d 378 (7th Cir. 1988) and Gramenos, 797 F.2d 432, to support their position that a victim or witness's testimony alone is sufficient to establish probable cause and, therefore, negate an officer's duty to conduct further investigation. They are both distinguishable. In Gerald M., a ten year old victim's complaint that his bicycle had been stolen by another ten year old boy and his brother was sufficient to establish probable cause to detain the two boys. Gerald M., 858 F.2d at 381. Like the instant case, there was a history of animosity between the families which, the court noted, may have created a question of the victim's reliability had the police been aware of this animosity at the time of the arrest. Id. But unlike our case, the police in Gerald M. were unaware of the families' squabbles at the time and no other evidence was shown to have given the police any reason not to believe the victim's statements. Id.
In Gramenos, a store security guard was the sole eyewitness to plaintiff's shoplifting charge and his statement alone was used to establish probable cause. Gramenos, 797 F.2d at 439. Although the court noted that a single witness's complaint is sufficient to establish probable cause, the security guard was distinguished as "not just any eyewitness." Id. The distinction was based upon the reasonable reliability that a security guard as a professional in an institutional setting would not bring a claim based on a grudge or without careful consideration. Id. In other words, the police had no reason to question the veracity of the guard's information.
In our case, however, Spiegel presented Kajari and Cortese with information before his arrest that should have questioned the officers belief in Cherny's reliability and prompted a further investigation. Spiegel informed Kajari and Cortese that he had a long-standing dispute with Cherny, that he previously filed a complaint against Cherny and that a delay of almost a month had occurred before Cherny filed a battery complaint against Spiegel. The officers should then have reasonably been aware that Cherny may have had a grudge against Spiegel. Moreover, Spiegel informed the officers that independent witnesses would confirm that Cherny, and not Spiegel, committed the battery. The timing of Cherny's charge, the allegation of retribution and the availability of independent witnesses would have created doubt in a reasonable officer to warrant a further investigation.
We recognize that police officers have a difficult job and it is not their duty to conduct extensive trial-type investigations before conducting an arrest. Nevertheless, with the information Kajari and Cortese possessed, they had a reason to doubt Cherny's reliability and had readily at there disposal independent witnesses who could have clarified whether a crime had been committed at all. Additionally, this case did not deal with any exigent or emergency circumstances. See e.g., Llaguno v. Mingey, 763 F.2d 1560 (7th Cir. 1985) (the amount of information necessary for probable cause is a function of the gravity of the crime and the danger of repetition). The situation here demonstrates no emergency was at hand and, in fact, the police had plenty of time to investigate Cherney's stale complaint and chose not to. As a result, after drawing all inferences in favor of the plaintiff from the well pleaded facts, we find Spiegel has stated a potential cause of action against defendants Kajari and Cortese for wrongful arrest and has overcome their defense of a qualified immunity at this stage of the proceeding.
Defendants' motions to dismiss Count I are accordingly denied with respect to defendants Kajari and Cortese.
False Arrest Claim Against Zeilke
Spiegel contends that Zeilke, an employee of the City of Chicago's Department of Aging, conducted an incomplete and biased investigation. As a result Spiegel charges Zielke with falsely arresting him in violation of his Fourth and Fourteenth Amendment rights. However, Zeilke, in her civilian capacity, has no special power or authority to arrest or charge anyone. 65 ILCS 5/3.1-15-25 (1993); Municipal Code of Chicago, § 2-16-010 (1992). Moreover, Spiegel has not alleged any facts against Zeilke that place Zeilke in a different position than defendants Hennelly, Brannigan and Murphy. Therefore the Court finds that defendant Zeilke is also protected by qualified immunity. Spiegel's Complaint' does not sufficiently state a cause of action against Zeilke and fails to allege facts necessary for a recovery. Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). As a result, defendants' motion to dismiss Count I against Zeilke is granted.
Wrongful Detention Claim
Spiegel challenges the reasonableness of his arrest even if probable cause existed. Spiegel claims that because he was arrested rather than served with a summons and a complaint, and because the police detained him in a cell for an hour subsequent to the arrest, the five police officers and Zeilke violated his Fourth and Fourteenth Amendment rights to be free from unreasonable seizure.
Illinois law allows full custodial arrest for misdemeanors such as the plaintiff was charged. 725 ILCS 5/107-2(1)(c)(1994). The only constitutional perimeters effecting the legislatures decision to allow custodial arrest for different crimes is that the arrest must be based upon probable cause. United States v. Robinson, 414 U.S. 218, 235, 38 L. Ed. 2d 427, 94 S. Ct. 467 (1973). Therefore, Spiegel did not have a constitutional right to be served a summons and complaint rather than be arrested.
Because the lawfulness of Spiegel's detention must focus again upon probable cause, we return to the discussion above in which defendants Hennelly, Brannigan and Murphy were found to be protected by qualified immunity. The officers were entitled to rely on the arrest orders which they were carrying out as being based upon sufficient probable cause. Gordon v. Degelmann, 29 F.3d 295, 300 (7th Cir. 1994). Nothing in the complaint alleges that these officers had any specific knowledge of the facts of the case or that these officers could not reasonably rely upon the arrest orders obtained from their other law enforcement officials. Also as stated above, defendant Zielke had no authority or power to arrest, detain or make a probable cause determination in her capacity as a civilian. The complaint does not sufficiently allege facts upon which Spiegel may recover against Zielke. Accordingly, we grant defendants Hennelly, Brannigan, Murphy and Zielke's motions to dismiss count II of the complaint.
Similarly, because we have found that Spiegel has adequately pled his claim for wrongful arrest against Cortese and Kajari, their motion to dismiss Count II is also denied.
Spiegel contends that the five officers and Zielke conspired together to deprive him of his constitutional rights to be free from unreasonable seizures. In order to state a claim for conspiracy under § 1983, the complaint must establish conspiracy in some detail and provide some factual basis supporting the existence of a conspiracy. Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1206-07 (7th Cir. 1980). Conclusory statements suggesting a conspiracy are not enough to state a claim. Id. "A complaint inadequately alleges conspiracy when the facts it alleges are vague, conclusionary and include no overt acts reasonably related to the promotion of the alleged conspiracy." Kunik v. Racine County, 946 F.2d 1574, 1580 (7th Cir. 1991).
In the instant case, even when the allegations are construed favorably for the plaintiff, as they must be, Spiegel has failed to identify any acts on the part of the defendants which would possibly link them to a conspiracy. Spiegel contends that the overt acts supporting his claim include his arrest, processing and being held in custody while processed, as well as the officers' failure to thoroughly investigate the charge against him. However, these acts provide no details which could reasonably demonstrate a meeting of the minds between any of the individual defendants. No specific conversations or correspondence between any of the officers or Zielke are alleged in which to conclude the defendants conspired together to deprive Spiegel of his constitutional rights.
Rather, the acts relied on by Spiegel merely demonstrate the defendants conducting themselves during the normal course of processing a criminal complaint, irrespective of Cortese and Kajari's poor judgment during their investigation. Therefore, defendants' motions to dismiss the conspiracy claim in Count III is granted for all individual defendants.
Policy Claim Against The City Of Chicago
Count IV of the Amended Complaint alleges that the City of Chicago's Police Department's policies failed to provide for special investigations to be conducted in misdemeanor cases when cross charges are filed and when decisions are made whether or not to proceed by summons or arrest. As a result, Spiegel claims the individual defendants were encouraged to violate his constitutional rights.
There are a number of ways to allege that a governmental policy is involved in an unconstitutional act under § 1983. In the absence of direct evidence such as a written policy, the existence of a governmental policy or custom is usually shown by demonstrating a series of bad acts and inviting the court to infer from them that the policymakers were bound to have noticed what was going on and by failing to do anything must have encouraged or at least condoned the actions. Jackson v. Marion County, 66 F.3d 151, 152 (7th Cir. 1995). In other words, a demonstration of enduring practices of officials or their subordinates may create liability under the statute. Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1326 (7th Cir. 1993). Spiegel has not alleged a series of enduring practices or bad acts, however, but focuses on the single event of his alleged improper arrest and detainment.
An unconstitutional policy can also be inferred when the complaint charges the municipality with having engaged in improper conduct directly, such as a claim that the municipality itself failed to properly train its officers to avoid inflicting unconstitutional injuries. City of Canton v. Harris, 489 U.S. 378, 387, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989). Liability would attach in that case where police, while exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to policymakers who were deliberately indifferent to the need. Id. at 390.
This deliberate indifference seems to be what Spiegel is aiming for in his complaint. However, Spiegel does not demonstrate more than the one incident complained of where his alleged faulty policy or training created a constitutional violation. As a result, the allegations in the complaint simply do not satisfy the "official policy" requirements. The City of Chicago's motion to dismiss Count IV is granted. Spiegel's 9-102 Claim
Spiegel contends that because the City of Chicago is the employer of the individual defendants and the individual defendants allegedly committed the constitutional violations within the scope of their employment, should they be found liable on any count, pursuant to § 9-102 of the Illinois Tort Immunity Act
, the City would be liable for any judgment entered against its employees.
The City contends that allowing a pre-judgment 9-102 claim would circumvent the restriction of claims based upon respondeat superior set forth by Monell v. Dept. of Social Servs., 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). According to the City, because the issue under 9-102 is the employer-employee relationship, this claim does not arise from a common nucleus of operative facts under which supplemental jurisdiction would apply. However, as noted in Ellis v. Bankhead, 828 F. Supp. 45, 47 (N.D. Ill. 1993), the supplemental jurisdiction statute, 28 U.S.C. § 1367, has broadened the scope of federal jurisdiction to include those claims that are so related to claims in the action already within the court's original jurisdiction that they form part of the same case or controversy. The issue of the City's liability is closely related within the scope of § 1367 to the claims against the individual defendants in this case. Therefore, Spiegel's claim survives the jurisdictional analysis.
The City also contends that this count should be dismissed because a 9-102 action is only applicable after a judgment has been entered against one of its employees. Some confusion has ensued as to whether it is proper to allow a pre-judgment claim under 9-102.
Spiegel asserts that under Ellis, 828 F. Supp. at 47, and Argento v. Village of Melrose Park, 838 F.2d 1483, 1489 (7th Cir. 1988), which rely on Estate of Ahmed v. County of Cook, 146 Ill. App. 3d 719, 497 N.E.2d 346, 100 Ill. Dec. 368 (1st Dist. 1986), a 9-102 claim is properly brought pre-judgment. Spiegel's reliance on this authority is misplaced.
In Ahmed, the court did not address the pre-judgment issue because the case centered around a post-judgment controversy over the interest rate applicable to the award of damages. Estate of Anmed, 146 Ill. App. 3d at 720, 497 N.E.2d at 346. Argento, relying on Ahmed, merely finds that it is proper for a 9-102 claim to be "brought in the same action as the one against the government employee in his individual capacity." Argento, 838 F.2d at 1489. The issue of the propriety of a pre-judgment 9-102 claim was not addressed in Argento either, because plaintiff's claim in that case was also post-judgment. Spiegel next relies heavily upon Ellis, which muddies the waters by seemingly misquoting Argento and allowing pre-judgment 9-102 claims. Ellis, 828 F. Supp. at 47. Nowhere in Argento have we found the portion cited relating to the admissibility of pre-judgment claims.
After closely examining Ellis and Argento, we believe the correct statement of the law was set forth by Chief Judge Aspen in Rosentreter v. Munding, 736 F. Supp. 165, 171-72 (N.D. Ill. 1990), which held that 9-102 claims were strictly relegated to the post-judgment stages of the litigation. We therefore hold that a 9-102 claim cannot be brought prior to a judgment against a City employee. Accordingly, the City's motion to dismiss Count V is granted.
For the foregoing reasons, the Court grants defendants Hennelly, Brannigan, Murphy and Zielke's motions to dismiss Counts I, II, and III. Defendants Cortese and Kajari's motions to dismiss are denied as to Counts I and II, and granted as to Count III. The defendant City of Chicago's motions to dismiss Counts IV and V are granted.
The Court will hold a status hearing on April 25, 1996 at 9:00 a.m. to set an appropriate schedule to address the issues that remain in this case.
United States District Judge
March 22, 1996