MEMORANDUM OPINION AND ORDER
Plaintiff Perry Marshall alleges that he was falsely arrested and maliciously prosecuted by defendants Carl Walker and Robert Grace, Maywood police officers. Presently pending is defendants' motion to dismiss.
On a motion to dismiss, a plaintiff's well-pleaded allegations of fact are taken as true and all reasonable inferences are drawn in the plaintiff's favor. Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 113 S. Ct. 1160, 1161, 122 L. Ed. 2d 517 (1993); Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992). A complaint need not set forth all relevant facts or recite the law; all that is required is a short and plain statement showing that the party is entitled to relief. Fed. R. Civ. P. 8(a); Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996). A plaintiff in a suit in federal court need not plead facts; conclusions may be pleaded as long as the defendant has at least minimal notice of the claim. Fed. R. Civ. P. 8(a)(2); Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995). It is unnecessary to specifically identify the legal basis for a claim as long as the facts alleged would support relief. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992). It is also true, however, that a party can plead him or herself out of court by alleging facts showing he or she has no viable claim. Jackson, 66 F.3d at 153-54; Tregenza v. Great American Communications Co., 12 F.3d 717, 718 (7th Cir. 1993), cert. denied, 511 U.S. 1085, 128 L. Ed. 2d 465, 114 S. Ct. 1837 (1994); Early v. Bankers Life & Casualty Co., 959 F.2d 75, 79 (7th Cir. 1992). Additionally, as long as they are consistent with the allegations of the complaint, a party may assert additional facts in his or her response to a motion to dismiss. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996); Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439-40 (7th Cir. 1994); Hrubec v. National Railroad Passenger Corp., 981 F.2d 962, 963-64 (7th Cir. 1992). The pleading requirements are not modified when a defendant raises the qualified immunity defense in a motion to dismiss. Triad Associates, Inc. v. Robinson, 10 F.3d 492, 497 (7th Cir. 1993).
Plaintiff alleges that he owns an apartment building located on Charles Street in Maywood. On October 1, 1994, he sought police assistance in dealing with a threatening tenant. Defendants responded to the call. In the complaint, only Walker's presence at the October 1 incident is alleged. In an affidavit attached to his answer brief, plaintiff states both defendants were present. Walker warned plaintiff to stop bothering the tenants and also told plaintiff that he would be arrested if he continued to do so. In answering the motion to dismiss, plaintiff also alleges that the officers saw him with a gun on this date and warned him not to bring it to the property again.
On October 12, plaintiff again went to the Charles Street building and discovered storage areas had been broken into. He asked a tenant about this and the tenant began threatening him. Plaintiff again called the police and both defendants responded. Construing the allegations in plaintiff's favor, it could be inferred that the officers had knowledge that plaintiff was the owner of the building. In any event, in his answer brief, plaintiff expressly alleges that they had such knowledge.
In his complaint, plaintiff alleges that, on October 12, he "carried a gun in his holster and both Officers asked Plaintiff why he had a gun. Plaintiff responded that he was on his own property and under law was allowed to carry a gun. Plaintiff added that he had been threatened by tenants in the past and felt the gun was necessary for his safety." While the complaint could be read as alleging that the gun was in a holster in plain view, there is no express allegation to that effect. In the complaint, plaintiff further alleges that Walker then said he "had enough of this" and the officers threw plaintiff to the ground and arrested him for unlawful use of a weapon.
In answering the motion to dismiss, plaintiff provides a somewhat different version of the October 12 incident. In an affidavit, he states:
. . . The officers came to the rear of my building where I was with a tenant. The officers without provocation threw me on a car and started searching me. They found a gun on my possession. At no time did I tell the officers that I was carrying a gun. After finding the gun the officers arrested me. I told the officers that I had a right to carry the weapon on my property.
Although not expressly stated, the only reasonable inference to draw from the affidavit is that the gun was concealed. In his brief, plaintiff does not contend the gun was unconcealed and only refers to it as concealed. For purposes of the present motion, it must be assumed plaintiff is alleging he possessed a concealed weapon.
In their motion to dismiss, defendants contend plaintiff did not have a Firearm Owner's Identification (FOID) Card. However, there is no such allegation in the complaint and plaintiff expressly states in his affidavit attached to his brief that he did have such a card on October 12.
Defendants argue plaintiff's federal claim must fail because either they had probable cause to arrest him or they are qualifiedly immune because the law was not clearly established that they lacked probable cause.
"A law enforcement officer has probable cause to arrest when 'the facts and circumstances within [his] knowledge and of which [he has] reasonable trustworthy information [are] sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense.'" Booker v. Ward, 94 F.3d 1052, 1057 (7th Cir. 1996), cert. denied, 136 L. Ed. 2d 840, 1997 U.S. LEXIS 761, 117 S. Ct. 952 (Feb. 18, 1997) (quoting Jones v. Webb, 45 F.3d 178, 181 (7th Cir. 1995)). "Probable cause requires more than bare suspicion, but need not be based on evidence sufficient to support a conviction, nor even a showing that the officer's belief is more likely true than false." Maltby v. Winston, 36 F.3d 548, 556 (7th Cir. 1994), cert. denied, 132 L. Ed. 2d 827, 115 S. Ct. 2576 (1995) (quoting Hughes v. Meyer, 880 F.2d 967, 969 (7th Cir. 1989), cert. denied, 495 U.S. 931, 110 S. Ct. 2172, 109 L. Ed. 2d 501 (1990)). The determination of probable cause is based on the information available to the officer at the moment of arrest. Jones v. Watson, 106 F.3d 774, , 1997 U.S. App. LEXIS 2225, 1997 WL 50517 *3 (7th Cir. 1997); Booker, 94 F.3d at 1057-58; Maltby, 36 F.3d at 557.
Qualified immunity applies "if a reasonable officer could have believed [plaintiff's arrest] to be lawful, in light of clearly established law and the information the [arresting] officers possessed." Hunter v. Bryant, 502 U.S. 224, 227, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991) (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3040, 97 L. Ed. 2d 523 (1987)); Jones v. Watson, 106 F.3d 774-78, 1997 WL 50517 at *2. Even if a lack of probable cause is adequately alleged, plaintiff still bears the burden of citing the existence of clearly established authority, on closely analogous facts, which, as of the alleged October 1994 arrest, would alert a reasonable police officer that his conduct toward plaintiff was unlawful. Eversole v. Steele, 59 F.3d 710, 717 (7th Cir. 1995); Hannon v. Turnage, 892 F.2d 653, 656 (7th Cir.), cert. denied, 498 U.S. 821, 111 S. Ct. 69, 112 L. Ed. 2d 43 (1990). Qualified immunity analysis is a two-step inquiry: whether the law was clearly established and, if so, whether the conduct was objectively reasonable. Eversole, 59 F.3d at 717; Biddle v. Martin, 992 F.2d 673, 675 (7th Cir. 1993). Malley v. Briggs, 475 U.S. 335, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986), "created room for an immunity defense even in cases where there was no probable cause for the arrest, by holding that 'if officers of reasonable competence could disagree' on whether there was probable cause, the defendant would be immune from damages liability. In other words, only if no reasonable officer could have mistakenly believed that he had probable cause to arrest is the immunity forfeited." Maltby, 36 F.3d at 555 (quoting Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988)). If probable cause did not exist, defendants are nevertheless entitled to qualified immunity if their mistake as to the existence of probable cause for an arrest was reasonable despite the pertinent law that was clearly established as of the October 1994 arrest. Jones v. Watson, 106 F.3d 774, 1997 U.S. App. LEXIS 2225, 1997 WL 50517 at *2; Maltby, 36 F.3d at 557; Eversole, 59 F.3d at 717-18; Burns v. Reed, 44 F.3d 524, 529 (7th Cir.), cert. denied, 132 L. Ed. 2d 832, 115 S. Ct. 2583 (1995). "The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Eversole, 59 F.3d at 717 (quoting Hunter, 502 U.S. at 229.)
Under Illinois law,
(a) A person commits the offense of unlawful use of weapons when he knowingly: