Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


June 3, 1997

Det. JOSEPH CORTESE and Sgt. FRANK KAJARI, Defendants.

The opinion of the court was delivered by: CASTILLO

 Plaintiff Marshall Spiegel originally brought this action against the City of Chicago, five Chicago police officers and an employee of the city's Department of Aging, alleging that he was unlawfully arrested and confined in violation of the Fourth and Fourteenth Amendments. Ruling on the defendants' motion to dismiss, this Court eliminated all but one count and two defendants. Remaining is Spiegel's claim that defendants Detective Joseph Cortese and Sergeant Frank Kajari violated his constitutional rights under 42 U.S.C. § 1983 by arresting him without probable cause. Cortese and Kajari's motion for summary judgment on this issue is presently before the Court.


 We start by presenting the facts, drawing all reasonable inferences in favor of Spiegel, the non-moving party. See Wolf v. Buss America, Inc., 77 F.3d 914, 918 (7th Cir. 1996). It is an unfortunate reality that the genesis of this litigation is a noise dispute between Spiegel and his wife, Carol, and their neighbors, Loren Cherny and Min Bobin. Cherny and Bobin lived directly above the Spiegels in the Hollywood Towers Condominium complex. (Defs.' Facts P 1). On May 29, 1993, the Spiegels were disturbed by noise coming from Cherny and Bobin's residence and went upstairs to complain. (Pl.'s Add'l Facts P 1). Carol began pounding on Cherny and Bobin's door; Spiegel stood nearby, holding his young son. (Cherny Dep. at 38-39; Spiegel Dep. at 12, 17). Cherny and Bobin came out of their condo and into the hallway, inadvertently locking the door behind them. (Cherny Dep. at 43). A heated argument ensued, prompted, each couple claims, by the others' barrage of insults. (Spiegel Dep. at 6-7, 19, 32; Cherny Dep. at 41-42). Hanan Hughes, another Hollywood Towers resident, peered into the hallway from her doorway -- she confirms the argumentative exchange. (Hughes Dep. at 7-8).

 At some point, it appears that the altercation became physical. Spiegel testifies that Cherny rushed toward him and pushed him with both hands. (Spiegel Dep. at 26, 33). Cherny, however, claims that Spiegel, still holding his son, backed Cherny into the corner outside of his locked door and kneed him in the inner thigh. (Cherny Dep. at 42-43). According to Hughes, who was still watching from her doorway, Cherny did shove Spiegel, but the shove was in response to Spiegel's advance toward him. (Hughes Dep. at 8). She denies seeing Spiegel kick Cherny, but did hear Cherny exclaim that Spiegel had kicked him and Spiegel immediately deny having done so. (Id. at 23-24). At last, Eugene Simms, the doorman at Hollywood, arrived at the behest of Hughs' husband and persuaded the Spiegels to return home. (Id. at 6, 8, 38). This incident was the culmination of several noise-related disputes between the couples.

 Cherny and Bobin also went to the police station on June 23, 1993 to file a police report concerning the May 29th incident. (Id. P 12). On June 25, 1993, Kajari assigned defendant Detective Cortese to investigate Cherny and Bobin's report. (Cortese Dep. at 44 & Defs.' Ex. E). Kajari thereafter maintained overall responsibility for supervising the investigation, but does not remember discussing the investigation with Cortese after assigning it to him. (Pl.'s Add'l Facts; Kajari Dep. at 18).

 Cortese interviewed Cherny and Bobin on June 25th. (Pl.'s Add'l Facts P 39). During the interview, Cherny and Bobin described the May 29th incident from their perspective. *fn3" They told Cortese the following: at approximately 6:20 p.m. on May 29, 1993, while Cherny and Bobin were having dinner, they heard loud pounding on their door. (Cherny Dep. at 38-39). When they opened the door, they discovered Spiegel and Carol in the hallway. (Id. at 39). Carol began screaming that she had been disturbed by the continuous noise emanating from Cherny and Bobin's unit. (Id. at 39-40). Meanwhile, Spiegel, holding his child, moved within eight inches of Cherny's face and backed Cherny into the corner outside of his door. (Id. at 42). Spiegel repeatedly said, "Come on you old fart, hit me; hit me!" (Id.) Spiegel then raised his knee and struck Cherny in the inner thigh. (Cherny Dep. at 43; Hennelly Dep. at 45-46). Bobin, after having been insulted by Carol, tried to get back into her condo. (Cherny Dep. at 42-43). Because the door was locked, Bobin could not get in. (Id. at 43). Bobin states she may have informed Cortese that, at this point, Spiegel pushed her and she reacted by pushing him back. (Bobin Dep. at 22, 23, 98). Doorman Simms then arrived, prompting Spiegel and Carol to return to their condo. (Cherny Dep. at 44). Cherny told Cortese that another witness, whom Cortese later found out was Hanan Hughes, had been present for part of the incident. (Cortese Dep. at 111).

 In addition to interviewing Cherny and Bobin for one hour on the 25th, see Pl.'s Add'l Facts P 86, Cortese reviewed a number of documents. From these he learned that the May 29, 1993 incident was not an isolated event, but rather was the culmination of a series of disputes between the Spiegels and Cherny and Bobin. Cortese read Spiegel's May 31, 1993 police report, which alleged that he and Cherny and Bobin had an "ongoing verbal dispute," and that during the May 29th argument, Cherny and Bobin both shoved him -- as witnessed by Spiegel's wife. (Pl.'s Add'l Facts P 44). The report also related that Cherny and Bobin had previously threatened to harm Spiegel physically. (Id. P 45). Corroborating the parties' acrimonious relationship were documents provided by Cherny: Cherny's June 23, 1993 battery case report, two letters from Spiegel to the Hollywood Towers Condominium Association (the "HTCA"), a letter from the HTCA to Cherny and Bobin, and one or two resident incident reports filled out by Bobin. *fn4"

 Cherny and Bobin also furnished Cortese with copies of either one or two residence incident reports filed with the HTCA describing the May 29th altercation. One report bears two dates--June 1, 1993 and June 17, 1993. (Defs.' Facts P 15). The full document contains a two-page summary of May 29th's events, alleging on page two that Spiegel "kicked" Cherny. But Cortese testified that his file contains only the first page -- which does not refer to any physical contact between Spiegel and Cherny. (Id. ; Cortese Dep. at 78, Ex. 4; Pl.'s Facts P 15). Before completing the report dated both June 1, 1993 and June 17, 1993, Bobin had filled out another two-page resident incident report dated only June 1, 1993. (Defs.' Facts P 16; Defs.' Ex. P). While this report also describes the May 29 incident, it does not mention that Spiegel kicked or kneed Cherny. (Defs.' Ex. P). Although the parties suggest that Cortese may have seen this document, it remains unclear whether it was actually presented to him. (Defs.' Facts P 16; Pl.'s Facts P 16). Cherny says that he "possibly" had shown it to Cortese. (Cherny Dep. at 141). Cortese, however, denies having been given this document. (Cortese Dep. at 68).

 Nonetheless, Cherny claims he supplied Cortese with evidence of Spiegel's battery during the June 25th interview by showing him a photograph of his bruised right thigh, which he claims was taken on or about June 1, 1993. (Defs.' Facts PP 19-20). As further proof, Cherny testified that he lowered his pants and showed Cortese and Detective Hennelly, Cortese's partner, the remnants of a bruise that Cherny attributed to Spiegel. (Id. P 32). Cortese could not tell how old the bruise was, but Hennelly thought it was between two-and-a-half and four weeks old. (Cortese Dep. at 106; Hennelly Dep. at 63). Hennelly also testified that the bruise in the 6/1/93 picture appeared to be basically the same age as the actual bruise Cherny showed him on June 25th. (Pl.'s Add'l Facts P 77).

 On the same day he interviewed Cherny and Bobin, Cortese called Spiegel's home to speak with him about the couple's allegations. (Defs.' Facts P 41; Cortese Dep. at 126). Spiegel's wife answered the telephone. (Pl.'s Add'l Facts P 86). Although Spiegel had listed her as a witness on his May 31 police report, Cortese did not question Carol about the incident. (Id.) Cortese simply told Carol that an allegation of wrongdoing was pending against Spiegel and that Spiegel would be arrested at his home if he did not call the police station. (Id. PP 86, 88)

 When Spiegel returned Cortese's phone call, Cortese told Spiegel about the charges against him and instructed him to come to the police station with bond money. (Defs.' Facts P 42; Pl.'s Add'l Facts P 93). Spiegel responded that he had filed similar charges against Cherny and Bobin two days earlier. He explained that Cherny and Bobin were the ones actually guilty of battery, and that there were witnesses who would corroborate Spiegel's story. He mentioned the police report he filed against Cherny and Bobin in May and offered to fax Cortese all pertinent documents. Finally, he told Cortese that Cherny and Bobin's charges were fabricated, filed in retaliation for the summons and complaint that Spiegel had sworn out against Cherny and Bobin two days before. (Defs.' Facts P 43; Pls.' Add'l Facts PP 94, 96-98). Instead of following up on Spiegel's statements, Cortese read him his rights and told him to get a lawyer. (Pl.'s Add'l Facts P 93; Spiegel Dep. at 121-22). Spiegel says that he then asked to speak to Kajari, to whom he repeated this information. (Defs.' Facts P 99; Spiegel Dep. at 239). Kajari, however, refused to interfere in Cortese's investigation. Id. In his deposition, Kajari denies having spoken with Spiegel. (Kajari Dep. at 50).

 Later that same day, Spiegel's attorney called Cortese and informed him that Spiegel would not be providing any more information about the incident. (Pl.'s Add'l Facts P 110; Cortese Dep. at 137, 139). Cortese immediately halted his investigation. (Cortese Dep. at 137, 139). He had not spoken to Hanan Hughes or Carol Spiegel about what they had seen on May 29th, despite having been given their names as potential witnesses. He did not request the names or phone numbers of any other witnesses who might corroborate Spiegel's story. Nor did Cortese talk to anyone from the Hollywood Towers Condominium Association or request documentation beyond what he reviewed during Cherny and Bobin's interview. Following his lawyer's phone call to Cortese, Spiegel went with his lawyer to the police station, where he was arrested for battery. *fn5" (Pl.'s Add'l Facts P 115). He was subsequently tried and acquitted of all charges. (Id. P 118).

 Spiegel brought suit against the City of Chicago, five police officers, and an employee of the Department of Aging, alleging that the police officers failed to adequately investigate Cherny and Bobin's allegations before arresting him. The defendants moved for dismissal. This Court granted that motion in part, dismissing from the suit all defendants except Cortese and Kajari. With respect to Cortese and Kajari, the Court held that Spiegel's allegations stated a claim for wrongful arrest under 42 U.S.C. § 1983. Spiegel v. City of Chicago, 920 F. Supp. 891, 898 (N.D. Ill. 1996). The facts as alleged demonstrated that the officers were aware of information that undermined the reliability of Cherny's allegations that Spiegel battered him on May 29th. Id. We found that "the timing of Cherny's charge, [Spiegel's] allegation of retribution and the availability of independent witnesses would have created doubt in a reasonable officer to warrant a further investigation." Id. Therefore, the complaint, taken at face value, revealed the absence of constitutionally required probable cause for Spiegel's arrest. Id. We also went on to reject, at the dismissal stage, the officers' defense that qualified immunity insulated them from suit. Id.

 Cortese and Kajari now move for summary judgment on Spiegel's remaining claim for wrongful arrest. Cortese maintains that the record shows his investigation was sufficient to uncover probable cause for Spiegel's arrest, while Kajari argues that he is not liable because he did not participate in the arrest. Both officers urge that, should the Court deny summary judgment on probable cause, the defense of qualified immunity still protects them from suit because they reasonably believed that they had probable cause to arrest Spiegel. After considering the parties' arguments, we deny the defendants' motion for summary judgment.


 Summary judgment is proper only if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue for trial exists when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must view all evidence in a light most favorable to the nonmoving party, Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir. 1987), and draw all inferences in the nonmovant's favor. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir. 1990). However, if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50; Flip Side Prods., Inc. v. Jam Prods., Ltd., 843 F.2d 1024, 1032 (7th Cir. 1988). In determining whether a genuine issue exists, the court "must view the evidence presented through the prism of the substantive evidentiary burden." Anderson, 477 U.S. at 254. The court's sole function is to ascertain whether sufficient evidence exists to support a verdict in the nonmovant's favor. Credibility determinations, weighing evidence, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Id. at 255.


 The first argument defendants propound in support of summary judgment is that Spiegel's arrest was lawful because it was supported by probable cause. Reduced to its essentials, defendants' claim is that Cortese acted upon reliable information from Cherny and Bobin and took account of all the evidence readily available to him. Under these ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.