stopped the van, and arrested Kyle. Id. at 23-26.
This account establishes that the flyer provided Bell with probable cause to arrest Kyle, and the information Patterson received from Alexander, Hynes and Cross justified Patterson's distributing the flyer. Kyle offers no argument to the contrary, and summary judgment is granted for defendants on Kyle's probable cause claim.
B. Detention Before Charges
Kyle was arrested at about 6:00 p.m. on July 19, 1993, a Monday. The next day, July 20, the Cook County State's Attorney's office was called to review and approve murder charges. The charges were not approved until July 21, 1993 at about 5:30 p.m. It was too late to bring Kyle before a judge that day, so Kyle was brought to court for a bond hearing on July 22, 1993 at 7:30 a.m., and his case was heard at about 10:00 a.m. Patterson Aff., Def. Exh. E. Accordingly, 61-1/2 hours passed between his arrest and his appearance in court.
Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975), held that the Fourth Amendment requires a prompt judicial determination of probable cause following a warrantless arrest. In County of Riverside v. McLaughlin, 500 U.S. 44, 114 L. Ed. 2d 49, 111 S. Ct. 1661 (1991), the Supreme Court held that a detention of less than 48 hours is presumed constitutionally acceptable unless the detainee can show that his presentment before a judge was unreasonably delayed. If a suspect is detained more than 48 hours, on the other hand, the government has the burden of demonstrating the existence of a bona fide emergency or other extraordinary circumstance justifying the delay. 500 U.S. at 56-57. The defendants have not offered any evidence of an emergency or extraordinary circumstance, and Kyle's detention therefore violated the Constitution.
Defendants contend that they cannot be liable because they brought Kyle before a judge promptly after charges were approved.
Def. Br. at 9. This is obviously not an acceptable excuse. While it is certainly understandable that defendants would not want to release Kyle, the Constitution does not permit a suspect to be kept indefinitely in custody until a prosecutor gets around to preparing charges. Nor can the defendants take the position that responsibility lies with the State's Attorney's office. Defendants, not the State's Attorney, were responsible for deciding whether to hold Kyle or release him.
Defendants next contend that there was no constitutional violation because Kyle suffered no "prejudice." The court is aware of no authority in support of this position. Defendants cite People v. House, 141 Ill. 2d 323, 380-81, 566 N.E.2d 259, 285, 152 Ill. Dec. 572 (1990), and People v. Williams, 230 Ill. App. 3d 761, 779, 595 N.E.2d 1115, 1127, 172 Ill. Dec. 445 (1st Dist. 1992). These opinions dealt with a very different question, whether a confession obtained during a prolonged detention should be deemed involuntary. Defendants point out that Kyle did not confess nor demand an attorney during this period, but the state is not entitled to hold a suspect indefinitely without charging him even if he does not break down and confess. It does appear that Kyle suffered no real detriment as a consequence of his pre-presentment detention, but that goes to the question of damages, not the existence of the constitutional violation itself. Accordingly, defendants' motion for summary judgment must be denied as to the claim of unlawful pre-presentment detention.
The facts presented by the defendants would support summary judgment in Kyle's favor. Inasmuch as the defendants recognized that McLaughlin states the law and had an opportunity to present evidence that would bring them within its holding, it would not be unfair to enter summary judgment against them. Nevertheless, as summary judgment should not be entered sua sponte without warning, Goldstein v. Fidelity and Guarantee Insurance Underwriters, Inc., 86 F.3d 749, 750-51 (7th Cir. 1996), defendants may, if they wish, offer additional evidence or argument as to why summary judgment should not be entered against them on Kyle's detention claim.
While it appears that Kyle is entitled to judgment in his favor, it does not appear that he would be entitled to more than nominal damages. The evidence constituting probable cause for his arrest was certainly more than enough to hold him in custody. It is unlikely that Kyle would have been released on bail had he received a timely hearing, and Kyle does not claim that he was released on bail when his hearing was finally held.
As far as it appears, Kyle's being charged a day late meant only that he spent that day in the police lockup rather than in Cook County Jail. No doubt the lockup is unpleasant, but so is the jail. A violation of a due process right guaranteed by the Constitution that leaves the plaintiff no worse off entitles him to nominal damages, but only nominal damages. See Carey v. Piphus, 435 U.S. 247, 260, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978); Smith v. City of Chicago, 913 F.2d 469, 472-73 (7th Cir. 1990), cert. denied, 501 U.S. 1217, 115 L. Ed. 2d 994, 111 S. Ct. 2824; Willis v. Bell, 726 F. Supp. 1118, 1126 (N.D. Ill. 1989) (Shadur, J.), affirmed, but reversing award of attorney's fees, 999 F.2d 284 (7th Cir. 1992); cert. denied sub nom. City of Chicago v. Willis, 510 U.S. 1071, 127 L. Ed. 2d 74, 114 S. Ct. 879 (1994).
Just as the defendants are being given a second chance to avoid judgment against them on the matter of liability, Kyle will be given a second chance to avoid a finding that he is entitled to more than nominal damages. Kyle is given thirty days to submit evidence that meets the requirements of Rule 56 that would support an award of more than nominal damages.
Defendants' motion for summary judgment is granted as to Kyle's claim that he was arrested without probable cause. It is denied as to his claim that he was unreasonably detained before being brought before a judge for a hearing as to the existence of probable cause for his continued detention. The court proposes to enter summary judgment in favor of Kyle on this claim and award nominal damages of one dollar. Within thirty days of this order, defendants may, if they wish, submit evidence and argument in opposition to the proposed summary judgment, and Kyle may, if he wishes, offer evidence in support of an award of actual damages. Each side shall have an additional thirty days to respond to the other's submission. The court will rule by mail.
Robert W. Gettleman
United States District Judge
DATE: March 17, 1997