an alleged violation of 720 ILCS 5/16-1(a)(4)(A).
The ring was identified by Ms. Lewis as being in plaintiff's store's jewelry case. Constructive possession of stolen property is sufficient as an element to establish the crime for which plaintiff was arrested. People v. Piszczek, 404 Ill. 465, 470, 89 N.E.2d 387, 390 (1949). An inference of constructive possession is created when the person has control over the premises where the property is found. People v. Hester, 271 Ill. App. 3d 954, 961, 649 N.E.2d 1351, 1358, 208 Ill. Dec. 690 (4th Dist. 1995). The standard for probable cause is an objective standard of whether a reasonable police officer could have found probable cause for the arrest. Simmons, 26 F.3d at 655. Given the facts known by defendant Commons at the time of plaintiff's arrest, a reasonable police officer could have believed that there was probable cause for plaintiff's arrest. Defendant Commons was not required to conduct a trial to determine what actually transpired in this case. Gramenos, 797 F.2d at 439. Defendant Commons relied on the facts provided to him in the witnesses' statements. Such facts were sufficient to warrant a prudent person in believing that a crime had been committed.
Plaintiff also claims that defendant Commons harbored ill will toward plaintiff and that this demonstrates that there was no probable cause for his arrest. Whether the arrest was made with malicious motives is irrelevant if there was probable cause for the arrest. Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89, 116 S. Ct. 1769, 1774 (1996); Simmons, 26 F.3d at 654; Fernandez v. Perez, 937 F.2d 368, 371 (7th Cir. 1991). What is relevant is the information known to the police officer at the time of the arrest and whether a reasonable officer could have concluded that probable cause existed to justify the arrest.
Plaintiff's final argument is that defendant Commons did not adequately investigate the incident to determine plaintiff's version of the truth before arresting plaintiff. Once a police officer has sufficient facts to establish probable cause, there is no constitutional obligation to conduct a further investigation to uncover exculpatory evidence. Forman v. Richmond Police Dep't, 104 F.3d 950, 962 (7th Cir. 1997). "The question is whether [the police] have reasonable grounds on which to act, not whether it was reasonable to conduct a further investigation." Gramenos, 797 F.2d at 439. Therefore, in this case defendant Commons was not obligated to continue investigating this incident after he obtained the witnesses' statements that led to the conclusion that probable cause existed for plaintiff's arrest. The information within defendant Commons' knowledge at the time of plaintiff's arrest came from four individuals who gave no indication that the information they provided was not trustworthy. That information was enough to warrant a reasonable person to conclude that plaintiff had committed a crime.
Defendant Commons' arrest of plaintiff was supported by probable cause. Accordingly, defendant Commons' motion for summary judgment on Count I of plaintiff's complaint as against defendant Commons in his individual capacity is granted.
III. Equal Protection (Count III and Count IV)
A. Count III
1. Defendant Commons in his Individual Capacity
Count III of plaintiff's complaint alleges that defendant Commons in his individual capacity violated plaintiff's right to equal protection. Defendant Commons asserts that he is entitled to immunity from suit on Count III of plaintiff's complaint based on the doctrine of qualified immunity. Qualified immunity shields government agents from liability for civil damages if 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). "Thus, the defendant is immune from suit if the conduct at issue did not violate a right that was clearly established when the conduct occurred, so that the defendant would not have been on notice that his [or her] behavior was 'probably unlawful.'" Magdziak v. Byrd, 96 F.3d 1045, 1047 (7th Cir. 1996) (quoting Montville v. Lewis, 87 F.3d 900, 902-03 (7th Cir. 1996), cert. denied, 136 L. Ed. 2d 847, 117 S. Ct. 961 (1997)).
To determine whether qualified immunity is applicable in a case, the court must make a two part inquiry: (1) does the alleged conduct set out a constitutional violation; and (2) were the constitutional standards clearly established at the time in question. Hill v. Shelander, 992 F.2d 714, 717 (7th Cir. 1993). Intent is relevant to the first part of the inquiry, but not to the second part. Wade v. Hegner, 804 F.2d 67, 70 (7th Cir. 1986). Thus, the defendant's subjective state of mind is relevant only to the determination of whether a constitutional violation exists but not in deciding if the constitutional standard was clearly established. Auriemma v. Rice, 910 F.2d 1449, 1453 (7th Cir. 1990), cert. denied, 501 U.S. 1204, 111 S. Ct. 2796, 115 L. Ed. 2d 970 (1991). A negative answer to either of the two prongs of this inquiry will conclude the issue and lead to the determination that qualified immunity is applicable. Forman, 104 F.3d at 957.
Defendant Commons argues that plaintiff cannot show that the constitutional standard was clearly established at the time in question in this case. In this second part of the inquiry, the court must "determine whether, at the time of the alleged illegal act, the right asserted by the plaintiff was clearly established in the particular factual context presented." Polenz v. Parrott, 883 F.2d 551, 554 (7th Cir. 1989). The plaintiff bears the burden of demonstrating the violation of a clearly established right. Forman, 104 F.3d at 957-58. The unlawfulness of the defendant's alleged act should be clear in light of preexisting law. Jones, 45 F.3d at 183.
Plaintiff alleges that defendant Commons violated his right for police protection by not appropriately responding to an incident that occurred on May 12, 1996. Plaintiff cites a 1995 case from the Eastern District of Michigan, Hakken v. Washtenaw County, 901 F. Supp. 1245 (E.D. Mich. 1995), in support of his asserted alleged clearly established constitutional right. In Hakken, the plaintiff asserted that she was denied equal protection under the law because she and her deceased daughter were victims of domestic assault and the defendant police officers by policy or custom provided less protection for domestic violence victims. Id. at 1249. In ruling on the defendants' motion for summary judgment, the district court held that there was "no definitive Sixth Circuit or Supreme Court decision determining that police policies for handling domestic disputes may violate the victims' right to equal protection on the basis of their sex or status as victims of domestic violence." Id. at 1254. The district court stated that at the time of the alleged incidents "it was not 'clearly established' that the equal protection rights of women and victims of domestic violence was [sic] violated when the police accorded different treatment to their calls for assistance in a domestic dispute." Id. Therefore, the district court determined that the defendant police officers were entitled to qualified immunity and summary judgment was granted for those defendants. Id. In the present case, this court finds that the decision in Hakken clearly does not in any way support plaintiff's alleged clearly established constitutional standard.
Plaintiff in this case claims that defendant Village's police did not appropriately respond to a suspicious individual who was allegedly outside of plaintiff's store on May 12, 1996. Plaintiff argues that defendant Commons had issued an order that defendant Village police officers were not to enter plaintiff's store and that as a result of this order, police officers failed to investigate the matter. First, plaintiff has presented no facts to show that the police officers who were allegedly outside of plaintiff's store did not investigate the suspicious individual. The individual was outside of plaintiff's store and plaintiff has not shown that entering plaintiff's store was necessary to investigate the incident. Plaintiff also has not demonstrated that he received unequal treatment. Furthermore, plaintiff has not shown that defendant Commons acted with such malice as to violate any equal protection right. See Esmail v. Macrane, 53 F.3d 176, 179-80 (7th Cir. 1995). Moreover, plaintiff has not provided evidence that the officers did not enter plaintiff's store because of the alleged order. According to then police chief Miller, he specifically negated defendant Commons' order in his capacity as the senior-ranking officer of defendant Village's police department.
Second, plaintiff has no constitutionally protected, affirmative right to governmental aid. The constitution "confers no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196, 109 S. Ct. 998, 1003, 103 L. Ed. 2d 249 (1989) (holding with respect to the Due Process Clause). The government, however, may not selectively deny services it chooses to provide to individuals on the impermissible basis of discriminating against minorities without violating the Equal Protection Clause. Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886). But discrimination based merely on individual, rather than group, reasons is insufficient to constitute an equal protection violation. New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1481 (7th Cir. 1990).
Plaintiff has not pointed to any closely analogous case law to support his position that there was a clearly established constitutional standard at the time of the incident that he had a constitutional right to police assistance on May 12, 1996. Thus, defendant Commons could not have been on notice that his alleged behavior was potentially unlawful. Plaintiff also has not demonstrated that defendant Commons' alleged conduct violated plaintiff's equal protection right. Defendant Commons is therefore entitled to qualified immunity. Accordingly, summary judgment is granted on Count III of plaintiff's complaint as against defendant Commons in his individual capacity.
2. Defendant Commons in his Official Capacity
Count III of plaintiff's complaint also alleges that defendant Commons in his official capacity violated plaintiff's right to equal protection. A suit against a municipal employee in the employee's official capacity is considered a suit against the municipality itself. Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985). Thus, plaintiff's claim against defendant Commons in his official capacity is considered a claim against defendant Village. "It is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell v. Department of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38, 56 L. Ed. 2d 611 (1978). There are generally three instances in which a municipality may be found to have violated the constitutional rights of a person because of its policies: (1) when an express policy causes a constitutional deprivation; (2) when a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled that it constitutes a custom with the force of law; or (3) when it is alleged that a person with final policymaking authority caused the constitutional violation. Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 735 (7th Cir. 1994).
Plaintiff in Count III of his complaint alleges that defendant Commons instituted a policy that forbade police officers of defendant Village's police department from entering plaintiff's store and that on or about May 12, 1996, defendant Village's police officers failed to investigate a suspicious person in the vicinity of plaintiff's store pursuant to that policy. Plaintiff claims that defendant Commons' alleged policy was a municipal policy and that defendant Commons is a person with final policymaking authority for defendant Village. Plaintiff's own supporting documents, however, lead to the conclusion that defendant Commons did not have final policymaking authority and therefore could not have instituted an express municipal policy.
Plaintiff states that defendant Commons is the acting police chief of defendant Village and therefore has final policymaking authority. Defendant Commons, however, was appointed acting police chief on May 21, 1996, nine days after the alleged May 12, 1996 incident of which plaintiff complains. Both plaintiff and defendants ignore the fact that on May 12, 1996, the police chief for defendant Village was Ken Miller, not defendant Commons. Furthermore, Ken Miller's affidavit explicitly states that he discussed the alleged policy made by defendant Commons with defendant Commons on or about March 20, 1996 and "specifically negated said policy in [his] capacity as the senior-ranking officer for the Village of Winthrop Harbor Police Department." Miller Aff. P 5. Accordingly, any alleged order made by defendant Commons with respect to plaintiff was negated by the senior-ranking police officer of defendant Village. Whatever defendant Commons' order was to the other police officers, it did not constitute an official express policy of defendant Village. Therefore, according to the undisputed facts, defendant Commons' order was not in effect after March 20, 1996. At the time of the May 12, 1996 incident, defendant Commons was a lieutenant in the police force, below then police chief Miller. Plaintiff makes no claim, and cannot sustain a claim, that a lieutenant in defendant Village's police department who is inferior to the police chief could be the final policymaker for defendant Village or could make official express municipal policy.
Furthermore, defendants claim that even the police chief of defendant Village does not have final policymaking authority for defendant Village. A municipality's policymaker is determined by local law. Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir. 1992). Defendants state that defendant Village's Board retains the authority to implement Village rules and ordinances and that the Board is the final policymaker for defendant Village. Plaintiff concedes somewhat that defendant Village's Board is the final policymaker but maintains that defendant Commons, as acting chief of police is the policymaker with respect to the conduct of police investigations. Plaintiff fails to point to any local law that states that the chief of police is the final policymaker for defendant Village. That a police chief may have authority to dictate how a police investigation is conducted does not transform that authority into final policymaking authority for the municipality. "Authority to make a final decision need not imply authority to establish rules." Id. "The discretion to make final decisions to carry out the policies of a local law enforcement entity does not equate to policymaking authority." Eversole v. Steele, 59 F.3d 710, 716 (7th Cir. 1995). Furthermore, as stated previously, defendant Commons was not even the acting police chief during the time in question in this case. Municipalities are answerable only for their own decisions and policies, they are not vicariously liable for the constitutional torts of their agents. Monell, 436 U.S. at 694, 98 S. Ct. at 2037-38.
Therefore, since plaintiff has failed to establish that defendant Commons is a final policymaker for defendant Village or that defendant Village had an express policy that violated plaintiff's constitutional rights, defendants' motion for summary judgment on Count III as to defendant Commons in his official capacity is granted.
B. Count IV
Count IV of plaintiff's complaint repeats each of the allegations in Count III of plaintiff's complaint and merely adds one paragraph that contains a claim against defendant Village under the theory of respondeat superior. The United States Supreme Court, however, has consistently articulated the principle that a municipality may not be held liable under section 1983 on a theory of respondeat superior. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36, 109 S. Ct. 2702, 2722-23, 105 L. Ed. 2d 598 (1989); Monell, 436 U.S. at 691, 98 S. Ct. at 2036. Since Count IV of plaintiff's complaint contains the exact same allegations against defendant Commons as in Count III of plaintiff's complaint and since Count IV only alleges a claim against defendant Village under section 1983 on a theory of respondeat superior, this court must grant dismiss Count IV of plaintiff's complaint.
IV. Plaintiff's State Law Claims
Plaintiff's complaint also contains state law claims for malicious prosecution (Count II) and defamation (Counts V--XII). This court, having granted defendants' motion for summary judgment on Counts I, III, and IV, which are plaintiff's only federal question claims, declines jurisdiction over plaintiff's state law claims. 28 U.S.C. § 1367(c)(3); Hager v. City of West Peoria, 84 F.3d 865, 874 n.7 (1996). Without addressing the merits of plaintiff's state law claims, this court dismisses Counts II and V--XII of plaintiff's complaint.
Based on the above stated reasons, defendants' motion to strike plaintiff's Local Rule 12(N) statement of material facts is DENIED and defendants' motion for summary judgment is GRANTED. This court, having dismissed all of plaintiff's federal question claims, dismisses plaintiff's remaining state claims. This case is dismissed in its entirety. All other pending motions are moot.
JAMES F. HOLDERMAN
United States District Judge
DATED: June 25, 1997
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to a hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that defendants' motion for summary judgment is granted. No monetary award. Remaining state claims are dismissed. This cause of action is dismissed in its entirety.
There being no just reason for delay, this is a final and appealable order.
June 25, 1997