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March 22, 1996

CITY OF CHICAGO; Det. JOSEPH CORTESE # 20868; Det. WILLIAM BRANNIGAN # 24, Sgt. DENNIS MURPHY # 2167; Sgt. FRANK KAJARI # 2116; and HOLLY ZIELKE, Department of Aging of the City of Chicago, Defendants.

The opinion of the court was delivered by: CASTILLO

 Plaintiff Marshall Spiegel filed suit under 42 U.S.C. § 1983 against the City of Chicago, five Chicago Police Officers and an employee of the Department of Aging of the City of Chicago alleging that they unlawfully charged, arrested and confined him in violation of his Fourth and Fourteenth Amendment rights. The defendants' motions to dismiss are presently before the Court.


 On May 29, 1993, Spiegel, along with his wife and son, were in their apartment when they were disturbed by noise emanating from the apartment above. First Amended Complaint, ("Amend. Comp."), P 8. When Spiegel's wife went upstairs to ask their neighbors, Loren Cherny and Mim Bobbin, to stop 'making the noise, an argument ensued. Id., PP 9-10. Spiegel heard the argument, went upstairs and joined in the confrontation which escalated to the point where Cherny and Bobbin both shoved Spiegel. Id., PP 11-12. Spiegel contends that he never made any offensive contact with either Cherny or Bobbin. Id., P 13.

 Two days after the incident, on May 31, 1993, Spiegel filed a battery report with the police against Cherny and Bobbin. Id., P 14. On June 23, 1993, plaintiff obtained summons and complaints against Bobbin and Cherny and Cherny was served with a summons and notified of his court date *fn2" Id. Two days after receiving the summons, Cherny went to the police station, accused Spiegel of battery and demanded Spiegel's arrest. Id., P 16.

 Based upon Cherny's charges, defendant Detective Cortese, called Spiegel's home and informed his wife that he had been charged with battery and that Spiegel must either turn himself in or he would be arrested. Id., P 19. Upon learning of the pending charge, Spiegel called Cortese apparently in an effort to straighten the matter out. Id., P 20. Cortese informed the plaintiff that the battery charge was based on the allegations of Cherny and Bobbin that plaintiff kicked Cherny in the leg during their confrontation on May 29, 1993. Id. Plaintiff denied kicking Cherny and explained to Cortese that he filed a battery complaint against Cherny several weeks earlier, that he was the one who was shoved during the altercation and that Cherny's allegations were simply retaliatory. Id., P 21.

 Spiegel further informed Cortese that the incident arose from a long-standing dispute between the neighbors about noise and that his wife, as well as other independent witnesses, would corroborate his story. Id. Spiegel also requested at this time that he be served with a summons and complaint as Cherny was rather than being arrested. Id. After talking with Cortese, Spiegel spoke with defendant Sergeant Kajari and apprised him of the same information. Id., P 22. No further investigation was conducted after his telephone conversations with Cortese and Kajari. Id., P 23. Spiegel turned himself in later that day and was processed at the police station and placed in a cell for about an hour before being bonded out. Id., PP 24-25.


 A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Triad Assoc. Inc. v. Chicago Housing Authority, 892 F.2d 583, 586 (7th Cir. 1989), cert. denied, 498 U.S. 845, 112 L. Ed. 2d 97, 111 S. Ct. 129 (1990). When considering a motion to dismiss, the Court views all facts alleged in the complaint--as well as any inferences reasonably drawn therefrom--in the light most favorable to the plaintiff. Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir. 1992). A motion to dismiss will be denied unless it appears beyond doubt that the plaintiff can prove no facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).


 Wrongful Arrest Claim

 Spiegel seeks compensatory and punitive damages for injuries he alleges he suffered based on his wrongful arrest at the hands of five Chicago Police Officers and an employee of Chicago's Department of Aging. According to Spiegel, the police lacked probable cause to arrest him because they failed to conduct a sufficient investigation into the facts supporting his arrest.

 Qualified Immunity

 The defendants' motions to dismiss require this Court to resolve the issues of qualified immunity which exist in this case. Courts have been admonished to resolve qualified immunity issues at the earliest possible stage of litigation. Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589 (1981). Qualified immunity protects government officials from civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). To apply this standard, we determine whether the right allegedly violated was clearly established when the challenged conduct occurred, and then evaluate the legal reasonableness of the defendants' conduct. Biddle v. Martin, 992 F.2d 673, 675 (7th Cir. 1993).

 When a warrantless arrest is the subject of a § 1983 action, the defendant officer is "entitled to immunity if a reasonable officer could have believed that probable cause existed to arrest" the plaintiff. Hunter v. Bryant, 502 U.S. 224, 228, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991); Anderson v. Creighton, 483 U.S. 635, 641, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). Probable cause exists when the police have facts and circumstances within their knowledge based upon reasonably trustworthy information that those facts and circumstances are sufficient to allow a prudent person to believe that the suspect has committed or was committing an offense. Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir. 1994), cert. denied, U.S. , 130 L. Ed. 2d 882, 115 S. Ct. 937 (1995). Probable cause is a nontechnical concept which seeks to accommodate the interests of effective law enforcement, on the one hand, versus the privacy and liberty interests possessed by citizens who follow the law. The police, in determining whether probable cause exists, must assess probabilities in specific factual scenarios, and such assessment is not conducive to precise legal rules. Illinois v. Gates, 462 U.S. 213, 232, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). "In recognition of the endless scenarios confronting police officers in their daily regimen, courts evaluate probable cause 'not on the facts as an omniscient observer would perceive them, but on the facts as they would have appeared to a reasonable person in the position of the arresting officer-seeing what he saw, hearing what he heard.'" Sheik-Abdi, 37 F.3d at 1246, citing, Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992), citing, Richardson v. Bonds, 860 F.2d 1427, 1431 (7th Cir. 1988).

 The probable cause objective standard does not imply that "an officer risks his career and his fortune by believing an apparently sober eyewitness to a crime." Gramenos v. Jewel Cos., Inc., 797 F.2d 432, 439 (7th Cir. 1986), cert. denied, 481 U.S. 1028, 95 L. Ed. 2d 525, 107 S. Ct. 1952 (1987). "Even law enforcement officials who 'reasonably but mistakenly conclude that probable cause is present' are entitled to immunity." Hunter, 502 U.S. at 227, citing Anderson, 483 U.S. at 641. The test of qualified immunity for police officers is whether a reasonable officer could have believed that probable cause existed to arrest the plaintiff in light of clearly established law and the information the arresting officers possessed. Anderson, 483 U.S. at 641. ...

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