November 16, and Pasiewicz was acquitted.
Henning and Sandahl argue that the face of the complaint
establishes that they had probable cause to arrest Pasiewicz or
that, at a minimum, they are entitled to qualified immunity for
their actions under Harlow v. Fitzgerald, 457 U.S. 800, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982) and Hunter v. Bryant,
502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). These two
inquiries are closely related. Probable cause to arrest exists if
"`at the moment the arrest was made . . . the facts and
circumstances within their knowledge and of which [the officer]
had reasonably trustworthy information were sufficient to warrant
a prudent man in believing'" that the arrestee had violated the
law. Hunter, 502 U.S. at 228, 112 S.Ct. 534 (quoting Beck v.
Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)).
Even if probable cause did not exist, the arresting officer is
immune from suit if a reasonable officer could have believed the
arrest to be lawful, in light of clearly established law and the
information the officer possessed. Id. at 227, 112 S.Ct. 534.
In other words, a law enforcement official who "`reasonably but
mistakenly conclude[s] that probable cause is present'" is
entitled to immunity. Id. (quoting Anderson v. Creighton,
483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
Defendants ask us to determine these issues in their favor at
the pleading stage. In considering a motion to dismiss, we are
required to construe the complaint's allegations, including any
reasonable inferences from those allegations, in plaintiff's
favor, see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683,
40 L.Ed.2d 90 (1974); Sneed v. Rybicki, 146 F.3d 478, 480 (7th
Cir. 1998), and we may not dismiss the complaint unless it
appears beyond doubt that plaintiff can prove no set of facts in
support of his claim that would entitle him to relief. Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
In this procedural context, defendants' motion essentially asks
the Court to rule that a citizen's accusation always justifies
an arrest or at least entitles the officer making an arrest based
on the accusation to qualified immunity, irrespective of the
reasonableness of the accusation or of an officer's reliance on
it. The cases cited by defendants do not support such a sweeping
proposition. As recently as 1994, the Seventh Circuit spoke of
"the absence of a blanket rule that the police always may arrest
on the basis of a single coherent eyewitness." Sheik-Abdi v.
McClellan, 37 F.3d 1240, 1247 (7th Cir. 1994). See also
Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 439 (7th Cir.
1986), cert. denied, 481 U.S. 1028, 107 S.Ct. 1952, 95 L.Ed.2d
525 (1987), in which the court made it clear that it was not
saying that "police always are entitled to act on the complaint
of an eyewitness."
The law does not provide that a police officer may always avoid
suit if he makes an arrest based on the complaint of a victim or
witness, no matter how absurd or ridiculous that complaint might
be. Rather, what insulates an arresting officer from liability is
reliance on reasonable or trustworthy information from an
eyewitness or crime victim. Probable cause exists when an officer
has "`received his information from some person — normally the
putative victim or an eye witness — who it seems reasonable to
believe is telling the truth.'" Sheik-Abdi, 37 F.3d at 1247
(citing cases, and quoting Grimm v. Churchill, 932 F.2d 674,
675 (7th Cir. 1991)). Similarly, the issue in determining whether
qualified immunity exists in this context is "whether `it seems
reasonable [for] the police to believe that [the putative victim
or] eyewitness was telling the truth.'" Tangwall v. Stuckey,
135 F.3d 510, 519 (7th Cir. 1998) (quoting United States v.
Decoteau, 932 F.2d 1205, 1207 (7th Cir. 1991)). If "`a
reasonably credible witness or victim informs the police that
has committed, or is committing, a crime, the officers have
probable cause to place the alleged culprit under arrest, and
their actions will be cloaked with qualified immunity if the
arrestee is later found innocent.'" Spiegel v. Cortese,
196 F.3d 717, 723 (7th Cir. 1999) (emphasis added) (quoting Jenkins
v. Keating, 147 F.3d 577, 585 (7th Cir. 1998)). But if
"`information from or about a [putative] victim of crime would
lead a reasonable officer to be suspicious,' the officer should
conduct further investigation" before making an arrest. Id. at
724 (quoting Hebron v. Touhy, 18 F.3d 421, 422-23 (7th Cir.
In Hunter v. Bryant, probable cause existed, and the
arresting officers were entitled to immunity, because "they
possessed trustworthy information" indicating that the arrestee
had committed a crime or at least reasonably believed that they
did. 502 U.S. at 228-29, 112 S.Ct. 534. At the present time,
there is no basis to make such a determination in this case.
Pasiewicz may be able to demonstrate that no reasonable police
officer would have relied upon the accusation made by Phillips
and Peterson. If the evidence ultimately shows that their report
was such that a reasonable officer could rely on it, even if
mistakenly, then Henning and Sandahl will prevail. But Pasiewicz
is entitled to an opportunity to offer evidence to show "that it
was unreasonable for an officer to believe [Phillips and
Peterson's] statements." Gerald M. v. Conneely, 858 F.2d 378,
381 (7th Cir. 1988). In sum, there are contestable factual
questions that prevent us from determining as a matter of law
that the officers had probable cause or that they are entitled to
immunity from suit. For this reason, the Court denies defendants'
motion to dismiss.
We reject, however, Pasiewicz's other argument: that there was
no probable cause to arrest because Phillips and Peterson did not
identify any lewd behavior on the part of the man they claimed to
have seen. Evidence that a man was traipsing naked about the
woods, a public place, by itself would constitute probable cause
to arrest him for disorderly conduct, whether or not it would
suffice to arrest him for public indecency. Biddle v. Martin,
992 F.2d 673, 676 (7th Cir. 1993) (probable cause need not have
existed for the charge for which the plaintiff was arrested, so
long as it existed for a closely related charge); Nielsen v.
Village of Lake in the Hills, 948 F. Supp. 786, 792 n. 6