shortage (id. ¶ 31). Gerritson verified that the safe log was
in Robinson's handwriting and in her control (id. ¶¶ 32, 33)
and further confirmed that Robinson had failed to make log
entries documenting certain Brinks deliveries, even though there
were receipts for those deliveries signed by Robinson or other
hotel employees (id. ¶ 35). For example, documents revealed
that Robinson had logged $930 Brinks deliveries twice a week
from the start of her employment in September 1999 until January
2000 (id. ¶ 18). Then on February 18 Robinson personally
signed for a $930 Brinks delivery, but there is no record of
that delivery in the safe log (R. Dep.Exs. 2, 8). Other hotel
employees signed receipts for Brinks deliveries on February 25
and March 10, but the log does not reflect deposit of that money
in the change safe (R. Dep.Exs. 2, 9, 10). And although an April
30, 2000 memorandum authored by Robinson said that she had
stopped the Brinks deliveries as of March 15 because the funds
were not needed (R.-G. Add.St. ¶ 9), receipts signed by other
hotel employees showed that Brinks deliveries were accepted
(though not logged in) on March 17 and May 5 (R. Dep.Exs. 2, 11,
After the December 6 meeting Gerritson decided that he had
probable cause to arrest Robinson (G.St. ¶ 36). On January 3,
2001 he wrote a report documenting numerous unsuccessful
attempts to "pick up" Robinson over the preceding month (id. ¶
38). Then on January 12 Gerritson decided to go to Robinson's
house and arrest her (id. 39), asking Officer DeVries to
accompany him, although he did not discuss the evidence against
Robinson with DeVries (id. ¶ 40; D. St. ¶ 43). Both men rode
to Robinson's home in a police car, and they arrested her at
about 5 p.m. as she was getting out of her car (id. ¶ 42).
DeVries handcuffed Robinson and placed her in the back of the
police car, and they all returned to the police station (id. ¶¶
At the station Gerritson asked telecommunicator Reda to search
Robinson (G.Dep. 88). Before Reda took Robinson into a separate
room to be searched, Reda and Gerritson had a conversation
(R.-G. Add. St. ¶¶ 22, 25; G. St. ¶ 45). No one else was present
in the room during the search, and the door was closed (G.St. ¶¶
47-48). Robinson claims that she was subjected to a strip search
in which Reda required her to open her blouse, lift up her bra,
pull down her pants and take off her boots (R.-G. Add.St. ¶ 28).
After the search Robinson declined to give Gerritson a
statement, and Gerritson placed her in a holding cell (G.St. ¶¶
5154). He then went to obtain statements from some of Robinson's
former coworkers. At that time Gerritson was aware that the
State's Attorney's office in the Sixth District, of which
Village is part, expected police officers at least to attempt to
obtain a statement from an accused before seeking the approval
of charges by an Assistant State's Attorney (id. ¶ 56).
Gerritson maintains that he was also aware that if obtaining a
statement from an accused was not possible, he was expected to
obtain statements from other witnesses before calling the
State's Attorney's office (id. ¶ 57). But Alzetta
Bozeman-Martin ("Bozeman-Martin"), the Assistant State's
Attorney involved in the case, testified only as to an
expectation regarding statements from "suspects or proposed
defendants" (Bozeman-Martin Dep. 34-37). No evidence (other than
Gerritson's own statement) was presented as to any expectation
regarding statements from witnesses.
While Robinson remained in the holding cell, Gerritson
obtained written statements from two of her former coworkers
(G.St. ¶¶ 59-60). Then he gave Robinson another opportunity to
make a statement (which she refused) before going off duty on
morning of January 13 (id. ¶¶ 61-62). Gerritson obtained a
written statement from a third former coworker on the afternoon
of January 13 (id. ¶ 63). None of the coworkers said that he
or she believed Robinson took the money (G.Dep.Exs. 15, 16, 17).
After Robinson was informed of those statements, she still
refused to give a statement herself (G.St. ¶¶ 64-65).
At about 7:45 p.m. on January 13, Gerritson telephoned
Bozeman-Martin and told her about the documents, the three
witness' statements and Robinson's refusal to give a statement
(id. ¶ 66). Bozeman-Martin refused to approve charges, noting
in her report the inability to prove that Robinson had exclusive
control over the missing funds and the absence of any statement
from Robinson (R.-G. Add.St. ¶ 19). At 8:22 p.m. Robinson was
released from custody (G.St. ¶ 68).
Gerritson and DeVries argue that they are entitled to
qualified immunity against Robinson's claims stemming from her
assertedly unconstitutional arrest and detention. Tangwall v.
Stuckey, 135 F.3d 510, 514 (7th Cir. 1998) (citations and
emphasis omitted) sets forth the operative principle:
The necessity of protecting police officers from
"undue interference with their duties and from
potentially disabling threats of liability" has given
rise to the doctrine of qualified immunity, which
protects "public officials performing discretionary
functions . . . against suits for damages unless
their conduct violates clearly established statutory
or constitutional rights of which a reasonable person
would have known."
Qualified immunity shields defendant police officers from
liability where their conduct (1) did not violate any clearly
established rights and (2) was objectively reasonable (Biddle
v. Martin, 992 F.2d 673, 675 (7th Cir. 1993)).
As for the first of those requirements, the principles just
reconfirmed in Hope v. Pelzer, ___ U.S. ___, 122 S.Ct. 2508,
2514-16, ___ L.Ed.2d ___ (2002) teach that the nature of the
claims at issue here provides no safe harbor for Gerritson. And
as for the second requirement, the plaintiff in a Section 1983
case bears the initial burden of establishing the
unreasonableness of an officer's belief (Tangwall, 135 F.3d at
519).*fn6 As this opinion will reveal, probable cause in this
case is a close question. But where officers of reasonable
competence could disagree, immunity should be recognized
(Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89
L.Ed.2d 271 (1986)). In those terms, the discussion that follows
demonstrates that Gerritson and DeVries are entitled to
qualified immunity against each of Robinson's Section 1983
Assertedly Unconstitutional Arrest
Qualified immunity insulates an officer against Section 1983
liability for an alleged unlawful arrest (a Fourth Amendment
"unreasonable . . . seizure") if a reasonable officer could have
believed plaintiffs arrest to be lawful in light of clearly
established law and of the information that the arresting
officer then possessed (Tangwall 135 F.3d at 514). To avert a
of an unconstitutional arrest, Gerritson must establish two
elements: He had probable cause to believe that Robinson had
committed an offense and he was authorized by law to effect a
custodial arrest for that offense (Ricci v. Arlington Heights,
116 F.3d 288, 290 (7th Cir. 1997), quoting United States v.
Trigg, 878 F.2d 1037, 1041 (7th Cir. 1989)).
Theft consists of a person's knowingly obtaining or exerting
unauthorized control over another's property (720 ILCS
5/161(a)(1)). Theft of property exceeding $300 but less than
$10,000 in value is a Class 3 felony (720 ILCS 5/16-1(b)(4)). In
turn, 725 ILCS 5/107-2(1)(c) expressly authorizes an officer to
make a custodial arrest "when [h]e has reasonable grounds to
believe that the person is committing or has committed an
offense." Hence Gerritson was authorized to arrest Robinson if
he had probable cause to believe that she had committed theft.
Probable cause to arrest exists for a law enforcement officer
when "the facts and circumstances within [his] knowledge and of
which [he has] reasonably trustworthy information [are]
sufficient to warrant a prudent [person] in believing that the
[suspect] had committed or was committing an offense" (Booker
v. Ward, 94 F.3d 1052, 1057 (7th Cir. 1996), quoting as its
ultimate source Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223,
13 L.Ed.2d 142 (1964)). When an officer asserts qualified
immunity in defense of an unlawful arrest claim, the court must
determine whether the officer "actually had probable cause or,
if there was no probable cause, whether a reasonable officer
could have mistakenly believed that probable cause existed"
(Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998)).
Gerritson's principal argument is that he is entitled to
qualified immunity because he had at least "arguable probable
cause" to arrest Robinson, employing the term that our Court of
Appeals has used to describe the second Humphrey scenario (see
Williams v. Jaglowski, 269 F.3d 778, 781 (7th Cir.
By the time of Robinson's arrest on January 12, Gerritson had
reviewed documentary evidence provided by Lenoch, had met with
Stazde executives for clarification of the documents and
accounting practices and had interviewed one of Robinson's
former coworkers. From his investigation he knew (1) that
Robinson was personally responsible for logging in all Brinks
deliveries and for locking the Brinks money in the safe, (2)
that Robinson had personally signed for a Brinks delivery on
February 18 that was not recorded in the safe log and (3) that
other hotel employees had signed for deliveries on February 25
and March 10 that had also not been logged in. No evidence
indicated that Robinson had either cancelled those Brinks
deliveries or complained about not receiving them as scheduled
(although the April 30 memo suggested that Robinson may not have
known about the receipted but unlogged deliveries made on March
17 and May 5).
Although evidence sufficient to sustain a conviction is not
required, probable cause requires more than mere suspicion
(Bostic v. City of Chicago, 981 F.2d 965, 968 (7th Cir.
1992)). And in a damages suit such as this one, the existence of
probable cause is typically within the province of the jury,
although "a conclusion that probable cause existed as a matter
of law is appropriate
when there is no room for a difference of opinion concerning the
facts or the reasonable inferences to be drawn from them"
(Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir. 1994)).
Because there is certainly room for a difference of opinion as
to what inferences were fairly to be drawn from the information
known to Gerritson and as to whether those inferences supported
more than mere suspicion,*fn8 whether probable cause
actually existed must be resolved by a trier of fact.
But as the earlier quotation from Humphrey teaches,
Gerritson need not establish probable cause as a matter of law
to take shelter within the mantle of qualified immunity. Under
(Humphrey, 148 F.3d at 725) he is also entitled to protection
if it can fairly be said that "a reasonable officer could have
mistakenly believed that probable cause existed." And in this
instance a reasonable officer could have concluded, based on the
facts and circumstances recited above, that there was probable
cause for an arrest — that is, that Robinson had exerted
unauthorized control over funds that she had personally received
but failed to record and had done the same with funds for which
she had not personally signed but that were routinely handed
over to her for log entry and safe deposit.
Robinson is right in saying that Gerritson knew other hotel
employees had access to the funds when Robinson made some of the
Brinks money available to them for making change. It is thus
possible that another employee could be responsible for the
missing funds. But the discrepancies between the safe log and
the receipts, coupled with the absence of any complaints from
Robinson that scheduled deliveries failed to arrive or that the
safe balance (for which she was responsible) was off, provide a
reasonable basis for believing that Robinson had taken the
missing money. This Court does not ask whether another more
reasonable explanation can be constructed after the fact, but
only whether a hypothetical reasonable and equally informed
officer could have acted in the same way under the settled law
in the circumstances (Humphrey, 148 F.3d at 725, citing
Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116
L.Ed.2d 589 (1991) (per curiam)).
Furthermore, Robinson's argument (R. Ans.Mem.3) that Gerritson
had no evidence that she exercised exclusive control over the
missing funds does not control the probable cause issue either.
Theft requires only unauthorized control. Robinson points to no
authority indicating that for probable cause to exist the theft
suspect must have been the only individual with access to the
missing property. And Robinson's contention that qualified
immunity is foreclosed by Gerritson's acknowledgment that he
needed "more" before the prosecutor would approve charges is
similarly nonpersuasive. That statement does not equate, as
Robinson would have it (R. Ans.Mem.4-5), to an admission that
there was no probable cause for the arrest. Although the State's
Attorney's office did expect police to try to obtain statements
from potential defendants before seeking approval of charges,
there is no authority whatever to suggest that the acquisition
of such a statement from an accused is somehow a condition of an
officer's probable cause determination. On that score Robinson
has presented no evidence to support the inference she urges on
this Court: that Gerritson was referring not to the
prosecutorial policy but to probable cause in general when he
made the challenged statement (G.Dep.101-02).
Officers are entitled to summary judgment based on qualified
immunity if their actions were not objectively unreasonable at
the time they were taken (Humphrey, 148 F.3d at 725).
Gerritson's summary judgment motion must be and is granted as to
Robinson's unconstitutional arrest claim because, on the record
here, his belief that she had committed theft was objectively
reasonable, even if mistaken.
As for officer DeVries, he first became involved in the
Robinson investigation when Gerritson asked that DeVries
accompany him to Robinson's residence to assist with her arrest.
DeVries contends that because he was under Gerritson's direction
and control he was entitled to rely on Gerritson's determination
(even if mistaken) that probable cause existed (D.Mem. 1-4).
Tangwall, 135 F.3d at 517 (citations and emphasis omitted)
once again teaches the relevant standard:
Indeed, it is a well-established principle of our
[T]he police who actually make the arrest need
not personally know all the facts that constitute
probable cause if they reasonably are acting at the
direction of another officer or police agency. In
that case, the arrest is proper so long as the
knowledge of the officer directing the arrest, or
the collective knowledge of the agency he works
for, is sufficient to constitute probable cause.
Therefore, so long as "the facts and circumstances
within [an agency's collective] knowledge . . .
warrant a prudent person in believing that the
[suspect] had committed or was committing an
offense," an officer of that agency, acting in
good-faith reliance on such "facts and
circumstances," has probable cause to effectuate an
What has already been said demonstrates that a reasonable
officer in Gerritson's position could have believed that
Robinson had committed a crime. Both literally and figuratively,
DeVries simply went along for the ride. Certainly he had no
inkling of any facts to suggest that Gerritson's information
could not be trusted.
This case thus contrasts sharply with situations in which an
officer is held to have an affirmative duty to intervene to
prevent another officer from violating a citizen's
constitutional rights (Yang v. Hardin, 37 F.3d 282, 285 (7th
Cir. 1994)) — after all, DeVries had no reason to believe that an
unlawful arrest or any other constitutional violation was in
process. Because DeVries' reliance on information provided by
Gerritson was in good faith and objectively reasonable, he too
is entitled to qualified immunity. As with Gerritson, his
summary judgment motion is granted as to Robinson's unlawful
Assertedly Unconstitutional Detention
Next Robinson claims that her detention for over 26 hours was
constitutionally unreasonable because "the delay was occasioned
by attempts to gather evidence in order to justify the arrest"
(R. Ans.Mem.11). To be sure, that time period does not cross the
bright line where detention pursuant to a warrantless arrest is
a per se constitutional violation if a judicial determination of
probable cause is not provided within 48 hours (County of
Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114
L.Ed.2d 49 (1991)). But that of itself doesn't save Gerritson,
for a determination made within that time frame may still
constitute a constitutional violation if the arrestee can prove
that "his or her probable cause determination was delayed
unreasonably" (id.) — and for that purpose "delays for the
gathering additional evidence to justify the arrest" are
Even in those terms, Robinson's unconstitutional detention
claim still fails. And that is so for precisely the same reason
that was fatal to her unlawful arrest claim: that a reasonable
officer could have concluded, even if mistakenly, that there was
probable cause to arrest her.
Where an officer already has evidence sufficient to constitute
probable cause, he or she is not precluded from bolstering his
or her case against an arrestee before obtaining a judicial
probable cause determination (United States v. Daniels,
64 F.3d 311, 313-14 (7th Cir. 1995)). This opinion has already held
that even if probable cause to arrest Robinson was in fact
absent, a reasonable officer could have mistakenly believed that
such probable cause existed. Because Gerritson's belief that he
had probable cause was objectively reasonable, it follows that
his belief that he was conducting further investigation to
bolster his already defensible arrest of Robinson (rather than
to justify that arrest post hoc) was also objectively
reasonable. In sum, Gerritson is entitled to qualified immunity
on Robinson's unconstitutional detention claim, and his summary
judgment motion is granted on that issue as well.
False Arrest and Imprisonment Under State Law
Gerritson's qualified immunity from a Section 1983 lawsuit and
liability does not provide a shield against Robinson's state law
claims, which perforce look to state rules of immunity
(Magdziak v. Byrd, 96 F.3d 1045, 1048 (7th Cir. 1996)). Yet
Gerritson has invoked no immunity under Illinois law as to
Robinson's state law false arrest claim. Instead he simply
contends that an action for false arrest cannot lie because "he
had probable cause" to arrest Robinson (G.Mem.11). Because this
opinion has already found that the existence of actual
probable cause (as opposed to the arguable probable cause that
also affords qualified immunity in a Section 1983 action) is for
a trier of fact to determine, that argument is rejected as
premature. Summary judgment is denied as to this state law
As for DeVries, however, he is entitled to summary judgment
under the Illinois Local Governmental and Governmental Employees
Tort Immunity Act (the "Act," 745 ILCS 10/1-101 to
10/10-101),*fn9 as Robinson has essentially conceded (R.
Ans.Mem. 2). Under Act § 2-202 "[a] public employee is not
liable for his act or omission in the execution or enforcement
of any law unless such act or omission constitutes willful and
wanton conduct," which is defined as "a course of action which
shows an actual or deliberate intention to cause harm or which,
if not intentional, shows an utter indifference to or conscious
disregard for the safety of others or their property" (Act §
No reasonable jury could find DeVries willful and wanton for
having done nothing more than following the orders of Gerritson,
his superior officer for purposes of Robinson's arrest (Doe v.
Calumet City, 161 Ill.2d 374, 391, 204 Ill.Dec. 274,
641 N.E.2d 498, 506 (1994)). Count III is therefore dismissed as to
Supervising an Assertedly Unconstitutional Search
Robinson seeks to impose supervisory liability on Gerritson
for the purportedly
unlawful "strip search" conducted by Reda. Because Robinson has
proffered no evidence to create a genuine issue in that respect,
summary judgment must be granted in Gerritson's favor.
To be held liable under Section 1983 for the conduct of a
subordinate, a supervisor must either "know about the conduct
and facilitate it, approve it, condone it, or turn a blind eye
for fear of what they might see" (Jones v. City of Chicago,
856 F.2d 985, 992 (7th Cir. 1988)). Robinson concedes that
Gerritson was not present when she was searched, yet she still
seeks an inference that a strip search was performed at his
direction (R. Ans. Mem. 9-10). In support of that position, she
offers only (1) a police department regulation directing that
"prisoners will be thoroughly searched by the arresting
officer(s)" and (2) the existence of a conversation between
Gerritson and Reda immediately before the search — a
conversation that Robinson observed but admittedly did not
overhear (id.). Any adverse conclusion from those facts would
be sheer speculation, which cannot defeat summary judgment
(Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 931-32 (7th Cir.
1995)). And Robinson has offered no evidence that Gerritson was
informed of and ratified a strip search after the fact.
In opposition to Robinson's unsupported assertions stands
Gerritson's uncontradicted testimony that he asked Reda to
conduct a "female pat-down search" (G.Dep. 88) and that he
neither directed nor later approved a strip search of Robinson
(G.Aff. 2). That version controls under the circumstances.
In short, Robinson has presented no evidence that a reasonable
jury could view as tending to show that Gerritson either
directed or ratified a strip search. Her own unsupported
speculation certainly does not suffice. Gerritson is also
entitled to judgment as a matter of law on Robinson's
supervisory liability claim.
Qualified immunity "gives ample room for mistaken judgments"
by protecting "all but the plainly incompetent or those who
knowingly violate the law" (Hunter, 502 U.S. at 229, 112 S.Ct.
534, quoting Malley, 475 U.S. at 341, 106 S.Ct. 1092).
Gerritson is entitled to take shelter against Robinson's Section
1983 claims under that broad umbrella because even if there was
no probable cause to arrest Robinson, a reasonable officer could
have believed mistakenly that probable cause existed. But
whether probable cause actually existed remains a question for
the trier of fact, so Gerritson is not entitled to summary
judgment on Robinson's state law false arrest claim. Finally,
because Robinson has not carried her burden of creating a
material (that is, outcome-determinative) fact issue on her
supervisory liability claim, Gerritson is entitled to judgment
as a matter of law in that respect. Count I is dismissed as to
DeVries has established his immunity from Robinson's state law
claim as well as from her Section 1983 claim. Consequently his
Rule 56 motion is granted in its entirety. Counts I and III are
dismissed as to DeVries.
Finally, jurisdiction will be retained over Robinson's state
law claim against Gerritson because her federal claims against
other defendants in this action are still pending (see United
Mine Workers v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130, 16
L.Ed.2d 218 (1966)). That completes the partial streamlining of
this action via the present motions.
On April 3, 2002 this Court approved the parties' jointly
submitted Final Pretrial Order, which among other provisions
estimated a trial time of four to five days.
This action is set for a status hearing at 8:45 a.m. on July 16,
2002 to discuss (1) whether that estimate still remains accurate
in light of the partial dismissal of claims in this opinion and
(2) the scheduling of trial of the remaining claims.