The opinion of the court was delivered by: Conlon, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Martin Abrams ("Abrams") sues defendants Kent Walker
("Walker") and Thé Tran ("Tran") (collectively "defendants"),
under 42 U.S.C. § 1983, for malicious prosecution (Count I), and
violations of Abram's rights under the First Amendment of the
United States Constitution (Count II).*fn1 Abrams voluntarily
dismissed his claims against Tran. Walker moves for summary
All facts are undisputed unless indicated otherwise. Walker and
Tran are Illinois state troopers. Walker is sued in his
individual capacity. All acts alleged against Walker occurred
under color of state law. In October 1998, Abrams, who is an
attorney, was at the Boone County courthouse to represent a
client, Trent Forte ("Forte"). Pl.Ex. 1 at 112-13.*fn2 After
Forte's appearance, Abrams followed Forte back to Chicago. Id.
at 116-18. Abrams saw an Illinois state trooper stop Forte's car.
Id. at 117-18. Walker stopped Forte for alleged traffic
offenses. Abrams stopped his car on the roadside near Walker and
Forte. Pl.Ex. 1 at 118. Abrams backed his car up in front of
Forte's car and got out. Id. at 118-19. Abrams did not observe
Forte violate any traffic law. Id. at 117-18. Walker was in
full uniform. Id. at 135. Abrams walked towards Walker and
identified himself as Forte's attorney; he asked Walker why he
stopped Forte. Id. at 119. Walker told Abrams he stopped Forte
for traffic violations. Id. Abrams did not physically obstruct
Walker while he was in the process of issuing traffic tickets to
Forte. Id. at 39-41. However, Abrams asked Walker questions in
an argumentative tone. Id. at 19.
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 ...