The opinion of the court was delivered by: Gettleman, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Angela Schmidt has filed a sixcount complaint against
defendants City of
Lockport, Illinois ("Lockport"), Officer Donald Wrona ("Wrona"), Officer
Shanna Preikschat ("Preikschat"), and Anthony Konidaris ("Konidaris"),
owner of Anthony's Pancake House in Lockport. Plaintiff alleges that: (1)
Lockport's municipal arrest policy is unconstitutional (Count II); (2)
defendant Preikschat strip-searched plaintiff in violation of her Fourth
Amendment rights (Count I); and (3) defendant Wrona arrested plaintiff
without probable cause (Count III). Plaintiff also brings supplemental
state law claims against defendant Konidaris, alleging: (1) that he was
negligent in preparing a salad (Count IV); (2) false arrest (Count V);
and (3) malicious prosecution (Count VI). Defendants move for summary
judgment on Counts I, II, IV, V, and VI. For the following reasons,
defendants' motions are granted in part and denied in part.
On May 27, 1997, plaintiff was eating lunch at Anthony's Pancake House
when she bit down suddenly on a foreign object, chipping her tooth.
Plaintiff told the waitress about the situation and went to the restroom
to investigate the damage to her tooth. When she returned to the table,
the waitress informed her that she had taken the salad back to the
kitchen, that it had been inspected for the alleged foreign object, and
that no such object had been found. Plaintiff and Konidaris, the owner of
the Pancake House, got into a verbal altercation, during which plaintiff
swore at Konidaris and stormed out of the restaurant. Both plaintiff and
Konidaris called the police. Plaintiff attempted to re-enter the
restaurant, but was denied re-entry.
Soon thereafter, City of Lockport Police Officers Wrona and Kruizenga
arrived on the scene. The officers spoke to several witnesses, and
Konidaris told Wrona that he wanted to sign a criminal complaint against
plaintiff because she had been "yelling and screaming" and had threatened
his wife. Wrona told Konidaris that yelling and screaming in a restaurant
constituted disorderly conduct. Wrona placed plaintiff under arrest for
disorderly conduct in violation of City of Lockport ordinance §
130.03, and told Konidaris that he would be notified of plaintiffs court
Once at the station, Wrona informed plaintiff that she would have to be
searched. At first plaintiff refused to undergo a search, but she
reluctantly agreed to be searched after Wrona told her that he would
charge her with a state crime if she continued to resist. Wrona asked
Officer Preikschat to conduct the search, and Preikschat took plaintiff
into an adjacent room.
Preikschat asked plaintiff to lean forward against some lockers,
unrolled the collar and sleeves of plaintiffs sweater, and inspected her
hair. Plaintiff states in her deposition that Preikschat then proceeded
to place her hands under plaintiffs sweater and to feel over plaintiffs
breasts (which were unsupported by a bra) with the palms of her hands.
According to plaintiff, Preikschat next put her hands inside the elastic
waistband of plaintiffs pants, and used both hands to feel along
plaintiffs buttocks and genital area, and along her legs. It is unclear
from plaintiffs deposition testimony whether she claims that the search
occurred inside or outside her pants, although plaintiff testifies that
Preikschat did not place her hands in plaintiffs underwear and did not
ask plaintiff to remove her pants.
Defendants state that for the purposes of this motion, they accept
plaintiffs version of the search as true. Preikschat testified in her
deposition, however, that she has never placed her hands inside an
arrestee's clothing while conducting a search, that her hands remained
outside plaintiffs sweater at all times, and that she did not search
plaintiffs vaginal area.
1. Illegal Seizure (Count II)
In Count II, plaintiff alleges that she was subject to an illegal
seizure in violation of § 1983. According to plaintiff, Lockport's
arrest policy violates the Fourth Amendment because it allowed Wrona to
effect a warrantless arrest for a misdemeanor even though he was not
present when the alleged offense occurred. The challenged municipal policy
resembles Illinois's law, which states, "A peace officer may arrest a
person when . . . [h]e has a warrant commanding that such person be
arrested; or . . . [h]e has reasonable grounds to believe that the person
is committing or has committed an offense." 725 ILCS 5/107-2(1)(c).
Plaintiff notes that the Supreme Court has stated that, "[in]
determining whether a particular government action violates [the Fourth
Amendment], we inquire first whether the action was regarded as an
unlawful search or seizure under the common law when the amendment was
framed." Wyoming v. Houghton, ___ U.S. ___, ___, 119 S.Ct. 1297, 1300,
143 L.Ed.2d 408 (1999). The common law when the amendment was framed
forbade warrantless arrests for misdemeanors not occurring in the
presence of an officer. See John Bad Elk v. United States, 177 U.S. 529,
534, 20 S.Ct. 729, 44 L.Ed. 874 (1900) ("[A]n officer, at common law, was
not authorized to make an arrest without a warrant, for a mere
misdemeanor not committed in his presence."); see also United States v.
Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) ("The
cases construing the Fourth Amendment thus reflect the ancient common-law
rule that a peace officer was permitted to arrest without a warrant for a
misdemeanor or felony committed in his presence as well as for a felony
not committed in his presence if there was reasonable ground for making
Defendants contend that plaintiffs claim is foreclosed by Ricci v.
Arlington Heights, 116 F.3d 288 (7th Cir. 1997). In Ricci, however, the
Seventh Circuit found that "[t]he arrest in the instant case comports
with the common law rule" because "Ricci committed the offense in the
officers' presence." Id. at 291. Moreover, the plaintiff in Ricci based
his argument on the reasonableness clause of the Fourth Amendment,
whereas plaintiff in the instant case bases her argument on the warrant
clause, a clause the Ricci court explicitly declined ...