Three or four times, Walker asked Abrams to return to his car
for officer safety, but Abrams refused each request. Id. at 19,
20, 143. This interruption delayed Walker's completion of Forte's
traffic citations. Id. at 20, 55-57. The last time Walker
instructed Abrams to return to his car, he told Abrams that if he
did not do so, he would be ticketed also. Id. at 20,120. Walker
then asked Abrams for his driver's license and insurance card.
Id. at 20. Abrams refused to produce either on the grounds that
he is an attorney. Id. at 21. Walker asked Abrams four times
for his license and insurance card, and each time Abrams refused
to produce them. Id. Abrams inquired what tickets he would
receive; Walker responded tickets for parking and backing up on
the tollway, as well as tinted windows. Id. at 120. Abrams
laughed and told Walker his car did not have tinted windows.
Id. at 121. Abrams said he was leaving, and returned to his
car. Id. at 21, 121. Abrams testified he would have left if
Walker did not try to stop him because he felt Walker had no
right to give him a ticket. Id. at 134-36, 138.
Abrams got in his car, and Walker ran over; Walker either
reached for Abrams' keys in the ignition or a button to open the
rear deck of the car. Id. at 121-22, 137. Walker pulled out a
hunting knife laying on the rear deck and placed the knife on the
roof of Abrams' car. Id. at 122-23. Abrams then produced his
license and insurance card. Id. at 21. Abrams warned Walker he
was making a mistake and asked Walker to call his supervisor.
Id. at 125. Walker instructed Abrams to stay in his car, and
not to touch the knife. Id. at 21, 42, 44. As Walker returned
to Forte's car, Abrams nevertheless got out of his car, grabbed
the knife from the roof, and got back into his car. Id. at 21,
124. Walker believed at the time that possession of a large knife
inside a car was a crime. Id. at 41-42. At this point, the only
non-traffic, criminal offense Walker intended to file against
Abrams was unlawful use of a weapon. Id. at 23, 24.
Walker called for assistance. Abrams waited in his car for
about twenty minutes. Walker and Tran then approached him, and
asked him to get out of the car. Id. at 124-25. Abrams told
them both they were making a mistake. Id. at 126-27. Abrams
tried to avoid being cuffed by spinning and twisting away. Id.
at 26-30, 50-54. Walker grabbed Abrams, flipped him around,
forced him against the car, and bent him over the car. Id. at
127, 143. Walker squeezed the cuffs onto Abrams' wrists. Abrams
complained the cuffs were grinding his watch into his hand and
asked if he could take his watch off; Walker denied the request.
Id. at 127. Walker and Tran took Abrams to a police station
where he was charged with obstructing a peace officer and
In February 2000, a state court trial was held on Abrams'
charges. Walker and Tran were witnesses against Abrams. Abrams
was represented by counsel and testified in his defense. Abrams
was found not guilty of all charges arising from his arrest.
Abrams then brought this civil rights suit.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the moving papers and
affidavits show there is no genuine issue of material fact and
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); King v. National
Human Res. Comm., Inc., 218 F.3d 719, 723 (7th Cir. 2000). Once
a moving party has met its burden, the nonmoving party must go
beyond the pleadings
and set forth specific facts showing there is a genuine issue for
trial. Fed. R.Civ.P. 56(e); Silk v. City of Chicago,
194 F.3d 788, 798 (7th Cir. 1999). The court considers the record as a
whole and draws all reasonable inferences in the light most
favorable to the party opposing the motion. Bay v. Cassens
Transp. Co., 212 F.3d 969, 972 (7th Cir. 2000). A genuine issue
of material fact exists when the evidence is sufficient to
support a reasonable jury verdict in favor of the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986); Insolia v. Philip Morris,
Inc., 216 F.3d 596, 599 (7th Cir. 2000).
II. MALICIOUS PROSECUTION
To state a claim for malicious prosecution under § 1983, Abrams
must show: he satisfied the requirements of a state law cause of
action for malicious prosecution; state actors committed the
malicious prosecution; and he was deprived of liberty. Sneed v.
Rybicki, 146 F.3d 478, 480 (7th Cir. 1998); Reed v. City of
Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996) (citing Smart v.
Board of Tr. of Univ. of Ill., 34 F.3d 432, 434 (7th Cir.
1994)). To establish a malicious prosecution action under
Illinois law, Abrams must demonstrate: he was subjected to
judicial proceedings for which no probable cause existed; Walker
instituted or continued the proceedings maliciously; the
proceedings terminated in Abram's favor; and there was an injury.
Sneed, 146 F.3d at 480-81; Reed, 77 F.3d at 1051 (citing
Curtis v. Bembenek, 48 F.3d 281, 286 (7th Cir. 1995)).
Walker argues he had probable cause for arresting Abrams and
therefore Abrams cannot establish malicious prosecution. Probable
cause defeats an action for malicious prosecution under both
Illinois and federal law. Schertz v. Waupaca County, 875 F.2d 578,
582 (7th Cir. 1989); Burghardt v. Remiyac, 207 Ill. App.3d 402,
152 Ill.Dec. 367, 565 N.E.2d 1049, 1052 (1991). The
existence of probable cause is a mixed question of law and fact.
Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657,
134 L.Ed.2d 911 (1996); Humphrey v. Staszak, 148 F.3d 719, 725
(7th Cir. 1998). If facts sufficient to create probable cause are
undisputed, probable cause is a question of law. Potts v. City
of Lafayette, 121 F.3d 1106, 1112 (7th Cir. 1997); People v.
Cooke, 299 Ill. App.3d 273, 233 Ill.Dec. 676, 701 N.E.2d 526, 529
(1998). A dispute concerning some facts relevant to determining
the existence of probable cause does not preclude a finding of
probable cause, so long as the finding survives after adopting
the plaintiff's version of disputed facts supported by the
record. Cervantes v. Jones, 188 F.3d 805, 811 (7th Cir. 1999).
Probable cause requires circumstances that create a reasonable
belief that the person arrested is guilty of the crime.
Cervantes, 188 F.3d at 811. This analysis is based on everyday
factual and practical considerations on which reasonable people
act, not legal technicians. Id. Subjective belief as to the
legal basis of the prosecution is irrelevant; the test for
probable cause is objective. Id. Reasonable mistakes will be
excused. Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir.
Abrams argues that by adopting his version of the disputed
facts, probable cause did not exist for Walker to arrest and
charge him with obstructing a peace officer and resisting arrest.
Abrams asserts he saw Forte unlawfully stopped by Walker, and
stopped his own car to peacefully inquire about the reasons for
the traffic stop of his client. Abrams concludes that he never
obstructed Walker and did not resist when he was handcuffed.
A person commits obstruction of a peace officer or resists
arrest if he resists or obstructs the performance of a known
peace officer acting in his official capacity. 720 ILCS
5/31-1(a). Walker was in his marked squad car, and in full
uniform. Abrams knew Walker was a peace officer. Walker was in
the process of a traffic stop and then Abrams' arrest, authorized
acts regardless of their legality. See People v. Crawford,
152 Ill. App.3d 992, 106 Ill.Dec. 88, 505 N.E.2d 394 (1987) (person
may not resist arrest by known officer, even if arrest is
unlawful); People v. Gilman, 17 Ill. App.3d 827, 308 N.E.2d 666
(1974) (same); People v. Shinn, 5 Ill. App.3d 468,
283 N.E.2d 502 (1972) (same). The only question remaining is whether Walker
had probable cause to believe Abrams obstructed the traffic stop
or resisted arrest.
A. Probable Cause for Obstruction of a Peace Officer
Walker clearly had probable cause to believe Abrams was
obstructing his official duties. All that is required for
obstruction is a physical act that impedes, hinders, interrupts,
prevents, or delays the performance of an officer's duties.
People v. Hilgenberg, 223 Ill. App.3d 286, 165 Ill. Dec. 784,
585 N.E.2d 180 (1991). It is undisputed that Abrams pulled his
car off the highway, backed it up in front of Forte's car, walked
towards Walker and interrupted the traffic stop of Forte. Abrams'
subsequent argument with Walker about Forte's traffic stop does
not by itself constitute resisting or obstructing. People v.
Long, 316 Ill. App.3d 919, 250 Ill.Dec. 252, 738 N.E.2d 216
(2000) (resisting arrest); People v. Martinez, 307 Ill. App.3d 368,
240 Ill.Dec. 442, 717 N.E.2d 535 (1999) (obstruction of
peace officer). But Abrams then repeatedly refused to return to
his car, would not present Walker with identification, and
decided to leave after Walker indicated he was going to issue
Abrams traffic tickets. At that point, Walker did not know
Abrams' identity because Abrams refused to cooperate. Walker
reasonably believed Abrams might flee when he returned to his
car. See People v. Johnson, 94 Ill.2d 148, 68 Ill.Dec. 133,
445 N.E.2d 777 (1983) (flight can be a form of resisting or
obstructing a police officer); People v. Holdman, 73 Ill.2d 213,
22 Ill.Dec. 679, 383 N.E.2d 155 (1978) (same); People v.
Jones, 245 Ill. App.3d 302, 184 Ill.Dec. 327, 613 N.E.2d 354
(1993) (same). While attempting to stop Abrams, Walker found a
large hunting knife in Abrams' car and removed it. Contrary to
Walker's order, Abrams retrieved the knife. Walker was reasonably
concerned about his safety when Abrams disobeyed his instructions
and grabbed the knife. Walker was required to call for
assistance. Abrams' physical acts interrupted and delayed
Walker's traffic stop for over twenty minutes. This is sufficient
probable cause. Martinez, 240 Ill.Dec. 442, 717 N.E.2d at
538-39. The fact that Walker did not immediately arrest Abrams
for obstruction is irrelevant. Id., 240 Ill.Dec. 442, 717
N.E.2d at 539. As long as Walker had reasonable grounds to arrest
Abrams, he had discretion to arrest Abrams immediately, later, or
B. Probable Cause for Resisting Arrest
Walker clearly had probable cause to believe that Abrams
resisted arrest. Abrams did not punch, bite, or kick Walker while
being handcuffed, but he does not dispute that he spun and
twisted. Pl.Ex. 1 at 50-52, 127, 143; Pl. Facts at ¶¶ 29-30.*fn3
This is sufficient to support probable cause
for resisting arrest. People v. Crawford, 152 Ill. App.3d 992,
106 Ill.Dec. 88, 505 N.E.2d 394 (1987). Even if Walker did not
have probable cause to arrest Abrams for resisting, the probable
cause Walker had for obstruction of a peace officer was
sufficient to support Abrams' arrest and prosecution.
Because Walker had probable cause to arrest and prosecute
Abrams, his § 1983 claims fail. Jones by Jones v. Webb,
45 F.3d 178, 181 (7th Cir. 1995); Schertz, 875 F.2d at 582;
Burghardt, 152 Ill.Dec. 367, 565 N.E.2d at 1052.
III. FIRST AMENDMENT RETALIATION
Abrams' First Amendment retaliation claim rests on the same
evidence as his malicious prosecution claim. Abrams argues that
the evidence supports the conclusion that he was handcuffed,
arrested, and charged because he peacefully voiced his concerns
about Walker's stop of Forte. To support his argument, Abrams
cites Norwell v. City of Cincinnati, 414 U.S. 14, 94 S.Ct. 187,
38 L.Ed.2d 170 (1973); DeWalt v. Carter, 224 F.3d 607 (7th Cir.
1999); Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d
303 (1973); and City of Chicago v. Wender, 46 Ill.2d 20,
262 N.E.2d 470 (1970). None of these cases is relevant. Norwell
found that a defendant's objection to a detention he believed
questionable without abusive language or fighting words, is not
punishable as disorderly conduct. 414 U.S. at 16, 94 S.Ct. 187.
Here, Abrams' opinions and concerns about Forte's stop did not
form the basis of Walker's determination of probable cause.
Abrams' defiant and disobedient actions led to his arrest for
obstruction and resisting arrest.
DeWalt concerned a prisoner who filed a grievance and alleged
he was retaliated against by prison officials. The Seventh
Circuit found the prisoner stated a claim sufficient to survive a
motion to dismiss. 224 F.3d at 618-19. Abrams did not file a
complaint with a police department concerning an unlawful traffic
stop. Instead, he pulled off a highway, backed up, parked and
walked up to Walker to personally voice his concerns. Abrams
behaved in an inappropriate way. Hess addressed inciting speech
in the context of an anti-war demonstration, not disobedience of
a police order.
While Abrams characterizes his behavior at Forte's traffic stop
as protected speech, the undisputed facts establish that he was
arrested for obstructing and resisting a law enforcement officer.
The motion for summary judgment is granted.