based on the investigation and criminal complaint of Decker. In the surveillance operation conducted jointly by the Village Police Department and the Postal Service, Decker was an eyewitness to Debra's alleged May 26 theft from the Totosian mailbox (Decker Aff. P16). Familiar with Debra from an earlier neighborhood incident on the 100 block of Hunters Path (Decker Aff. P3), Decker was able to "positively identify" Debra as the culprit (Decker Aff. P20). Decker recorded his May 26 surveillance of Debra on videotape (Defs.' Ex. B), confirmed with Totosian that Debra had no permission to remove mail from the Totosians' mailbox and later signed a criminal complaint against Debra (Decker Aff. P23). Debra has identified no issue of material fact to suggest that Wright was unreasonable in relying on Decker's investigation for the July 12 arrest.
With Wright and Decker having moved for summary judgment and having offered evidence as to probable cause supporting their actions, Debra must come forward with some evidence to show that there is an issue of fact on that score ( Simmons v. Pryor, 26 F.3d 650, 653 (7th Cir. 1993)). Those efforts end in utter failure. No issue of fact as to probable cause can be said to exist regarding Debra's arrest for Totosian's theft just because Decker, rather than Totosian, signed a criminal complaint--Decker was an eyewitness to the alleged theft. Additionally, no issue of fact is presented because Debra is not identifiable from the surveillance film alone--Decker was able to identify Debra first-hand on May 26 from a "clear and unobstructed view" (Decker Aff. P20). Finally, Wright's decision to postpone Debra's arrest for the Callahan theft until the conclusion of the joint surveillance does not present an issue of fact as to the probable cause for that arrest--both because Wright continued his own investigation after May 5 (Wright Aff. PP9-12) and because Nielsens have suggested no reason why Joseph Callahan's eyewitness account might have become less credible in the interim.
Nielsens' final challenge to the existence of probable cause is an attack on the authenticity of Joseph's signature on his written statement to Wright (J. Callahan Aff. I P14, Ex.). They present the testimony of "questioned document examiner" Darlene Hennessy ("Hennessy"), who concludes "based on a reasonable degree of scientific certainty" that the signature on Joseph's May 5 statement to the Village Police Department was not written by the same person who signed Joseph's August 25, 1995 affidavit.
As defendants have pointed out, the reliability of Hennessy's conclusion is suspect in her own terms,
let alone under a Daubert-type analysis. Nonetheless it will be taken as true for purposes of the current motion.
Accordingly this opinion will proceed on the assumption that Joseph did not in fact personally sign his May 5 statement to Wright. But that does not create an issue of material fact as to whether Wright had probable cause to arrest Debra. It is undisputed that Joseph reported his detailed observations of the May 5 mail theft to his mother, that he travelled to the Police Department and that he discussed those same observations orally with Wright. Nielsens identify no evidence to suggest that those matters--as reported by Callahan (Callahan Dep. 21), Joseph (J. Callahan Aff. I PP13-14), and Wright (Wright Aff. P8)--have been fabricated. Thus even if Joseph's May 5 written statement were to be totally excluded from the record, Wright had ample evidence based on his conversation with Joseph and on his independent investigation for a more than reasonable belief that Debra had committed the May 5 theft. Consequently Nielsens have identified no issue of material fact as to Wright's possession of probable cause for the arrest.
What of the question as to Wright's objective authority to arrest Nielsen on July 12? Or as the question was put in Trigg, 878 F.2d at 1041 and repeated in Woody, 55 F.3d at 1268, "was the arresting officer authorized by state and or municipal law to effect a custodial arrest for the particular offense"? Nielsens attempt to challenge Wright's authority in two respects.
First, their Mem. 6 suggests that it was illegal for Wright to arrest Nielsen for a misdemeanor that was not committed in his presence. In that respect Nielsens cite Gramenos, 797 F.2d at 441 for the common law rule that "an officer may make a custodial arrest for a misdemeanor only if the crime was committed in his presence." That argument is no better than frivolous. Just one paragraph beyond that quoted language, Gramenos, id. continues:
Illinois is among that states that have altered the common law rule. It allows a full custodial arrest for any crime on probable cause. Ill. Rev. Stat. ch. 38 § 107-2(1)(c) [now 725 ILCS 5/107-2(1)(c)].
That statute expressly permits an arrest where the officer "has reasonable grounds" to believe that the person is committing or has committed an offense" (emphasis added). Clearly there is no requirement that Wright must have witnessed the crimes personally. And just as plainly Wright was authorized by Illinois law to arrest Nielsen for mail theft based on reliable eyewitness accounts.
Second, Nielsens challenge Wright's authority to arrest Nielsen for a state crime pertaining to the theft of United States mail. Here they point to the Illinois Circuit Court opinion that dismissed criminal charges against Nielsen after finding that "federal [mail theft] statutes have preempted the field" (Nielsens' Ex. 9).
Once again their argument falls short. They ignore the relevant statute in terms of examining Wright's authority. As just mentioned, 725 ILCS 5/107-2(1)(c) authorizes Wright to effect a custodial arrest if probable cause existed for considering that Debra had committed "an offense." In that respect the jurisdictional validity of the underlying Illinois theft statute with which Debra was charged (720 ILCS 5/16-1) is relevant only insofar as its proper application to a mail theft charge was one of the "facts and circumstances" known to Wright at the time of the arrest ( Michigan v. DeFillippo, 443 U.S. 31, 40, 61 L. Ed. 2d 343, 99 S. Ct. 2627 (1979)). In other words, the probable validity of the criminal statute for charging Debra is simply one factor to be evaluated in determining whether Wright had probable cause to arrest.
On that score Nielsens have presented no issue of fact to suggest that Wright should have known that the Illinois theft statute had been preempted by federal mail theft law. Quite to the contrary, the record reflects Wright's reasonable reliance on that facially applicable statute. Postal Inspector Smith had told Wright that the United States Attorney's Office for this Northern District of Illinois would be unlikely to prosecute a claim with a financial value of less than $ 15,000 (Smith Dep. 31-33). Smith has further testified that although "the federal government does have control and overriding jurisdiction" in mail theft matters, he believed that "there is nothing to forestall the state from filing on the same charge" (Smith Dep. 133). Indeed, "98, 99 percent" of the investigations Smith performed were "prosecuted at the state level exactly the same way" as was Debra's arrest and prosecution (id.).
Hence Wright had a sound basis for believing that arrest and prosecution of Nielsen for mail theft under 720 ILCS 5/16-1 was perfectly appropriate. As taught in Ryan v. County of DuPage, 45 F.3d 1090, 1094 (7th Cir. 1995)(citations omitted), where probable cause exists to arrest a defendant for violating an apparently valid statute, a defendant's ultimately successful challenge to that statute does not render the arrest unreasonable:
If there is probable cause to believe that the defendant has committed a crime by violating some rule, the rule's invalidity, while a defense to a conviction for the crime, is not a ground for his challenging the arrest for violating the rule under the Fourth Amendment, unless the invalidity of the rule was or should have been plain to the arresting officers.
This then concludes the relevant Fourth Amendment analysis as to Wright--and the same conclusion follows a fortiori as to Decker, whose action was based on his own personal observation of Debra. Although defendants have also set forth an argument of qualified immunity (at least with regard to Decker's actions), this opinion has chosen to address directly the underlying existence or nonexistence of a valid Section 1983 claim. That is, instead of examining the affirmative defense of qualified immunity, this Court has first looked at whether a Section 1983 charge was sufficiently established to require resort to such a defense. This path was chosen for two reasons.
First, even if Decker and Wright are able to defend against Debra's Section 1983 claims in qualified immunity terms, that defense is unavailable to Callahan ( Sherman v. Four County Counseling Ctr., 987 F.2d 397, 406 (7th Cir. 1993) (citation omitted), rejecting any qualified immunity defense for private actors who, although working with state officials, "voluntarily engaged in illegal activities in the advancement of their own self-interest"). On the other hand, this Court's conclusions as a matter of law that Wright and Decker had both probable cause and objective authority to arrest Nielsen are also highly relevant to Callahan's nonliability under Section 1983.
Second, as this Court observed recently in Morgan v. Stringer 945 F. Supp. 1129, 1996 U.S. Dist. LEXIS 16913 (1996 WL 661678, at *1 to *3 (N.D. Ill.)), this is the type of case in which it does not make much sense to frame the Village officers' position in terms of qualified immunity. It has always been "clearly established law" that the presence or absence of probable cause is a determining factor as to whether an arrest in "unreasonable." Where (as here) a plaintiff claims that an arrest was lacking in probable cause and the officer claims that he or she had such cause, at the current summary judgment stage this Court has necessarily been compelled to address in a fact-intensive matrix the question whether probable cause must be said to exist as a matter of law. Speaking in terms of qualified immunity neither clarifies nor simplifies the analysis.
To return to the earlier-stated substantive rulings, this Court holds as a matter of law that Wright's July 12 arrest of Debra was a "reasonable" Fourth Amendment seizure. Nielsens have identified no issue of material fact to suggest either (1) that Wright lacked probable cause for the arrest or (2) that Wright was not objectively authorized by law to effect the arrest. Hence a summary judgment of dismissal is appropriate on Counts I and II as advanced against Wright and Decker.
Section 1983 Claim Against Callahan
As stated earlier, private individuals are subject to suit under Section 1983 if jointly engaged with state officials in a prohibited action ( Vickery, 100 F.3d 1334, 1996 WL 676719, at *11). But this opinion has just held as a matter of law that no "prohibited action" took place. Wright's arrest of Debra was a "reasonable" Fourth Amendment seizure, and Decker's involvement was also insulated against Section 1983 attack. Thus even if Callahan were to be found to have acted "under color" of state law as a result of her dealings with the Village Police Department, Debra's arrest provides no basis for an actionable claim. No Section 1983 action lies where there has been no deprivation of a federal right ( Yang v. Hardin, 37 F.3d 282, 284 (7th Cir. 1994)). Summary judgment is also appropriate on Debra's Section 1983 claims against Callahan.
Count III: Municipal Liability
Complaint Count III charges Village with municipal liability under Section 1983 for assertedly violating Debra's same Fourth Amendment right against unreasonable seizure. In the absence of constitutionally violative conduct by Village's decisionmaker (something plainly not present here), any Village liability under Section 1983 must be based on "'a direct causal link between a municipal policy or custom' and the claimed constitutional deprivation" ( Starzenski v. City of Elkhart, 87 F.3d 872, 879 (7th Cir. 1996). Again the earlier ruling that Debra's arrest was reasonable as a matter of law is dispositive of her claim against Village. As Mark v. Furay, 769 F.2d 1266, 1271 (7th Cir. 1985)(emphasis in original) has made plain:
The question of whether a municipality caused a constitutional deprivation does not even arise absent proof that a deprivation in fact occurred.
Because Village's police officers violated no federal right in their treatment of Debra, Village itself faces no possible municipal liability for a "policy or custom" leading to their actions. Summary judgment is appropriate as to Count III as well.
Count V: False Arrest/False Imprisonment under Common Law
Complaint Count V P21 charges defendants under Illinois common law "for their action in their conspiracy for false arrest and imprisonment" of Debra. In that regard Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 474, 564 N.E.2d 1222, 1231, 151 Ill. Dec. 560 (1990) says:
The essential elements of a cause of action for false arrest or false imprisonment are that the plaintiff was restrained or arrested by the defendant, and that the defendant acted without having reasonable grounds to believe that an offense was committed by the plaintiff.