The opinion of the court was delivered by: GEORGE MAROVICH, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Scott R. Axelrod ("Axelrod") filed a Complaint
against Officer A. Mercado ("Mercado") and Officer Flores
("Flores") ("collectively Defendants") alleging unlawful seizure
pursuant to federal law (Count I); false arrest pursuant to state
law (Count II); false imprisonment pursuant to state law (Count
III); malicious prosecution pursuant to state law (Count IV); and
malicious prosecution pursuant to federal law (Count V). Axelrod
voluntarily dismissed Counts II and III. Mercado and Flores now
seek summary judgment on Counts I, IV, and V. For the reasons set
forth below, Defendants' Motion for Summary Judgment is granted
in part and denied in part.
On April 19, 2000, Axelrod was traveling back from a business
trip in Michigan on the Chicago Skyway. There was no one else on
the road and he claims that his cruise control was set at 75 mph.
(Pl.'s Dep. at 131-32.) While nearing the toll plaza, Axelrod
passed a Chicago police vehicle which pulled out and proceeded
with lights and no siren behind Axelrod. When the police car pulled behind him, Axelrod claims that he tapped
his breaks to deactivate the cruise control. (Pl.'s Dep. at 143.)
Mercado, the officer following Axelrod, flashed his spotlight on
Axelrod's car and Axelrod took it as an indication to move over.
These events all occurred within a matter of seconds. After
Axelrod pulled over and came to a stop, Mercado approached
Axelrod's vehicle and asked for his drivers license and proof of
insurance. Axelrod asked Mercado if the speed limit was 55 mph
and Mercado responded that because it was a construction zone, it
was reduced to 45 mph. After Axelrod gave Mercado his licensee
and insurance, he asked Mercado if he could only write the ticket
for 20 over because he believed 30 over the speed limit might
jeopardize his employment. Mercado used abrasive language in
response to Axelrod's request. Axelrod then inquired about the
use of profanity and asked for Mercado's supervisor's name and
star number. In response, Mercado told Axelrod if he said one
more word, he would be placed under arrest. Axelrod then asked
what he would be arrested for and Mercado ordered him out of the
car and placed him under arrest. Mercado said that Axelrod was
being arrested for disorderly conduct. Axelrod was then placed in
Mercado's vehicle and he claims that Mercado showed him the radar
that read 75 mph. (Pl.'s 56.1 Stmt ¶ 20.)
When they arrived at the police station, Axelrod was handcuffed
to the bench while Mercado prepared paperwork. Flores arrived in
the room and had a conversation with Mercado in the hallway
outside the room where Axelrod remained. Flores told Mercado that
under a new law, a person could be charged with a misdemeanor if
they were speeding in excess of 40 miles or more over the speed
limit. Flores stated that the new Illinois Statute, 625 Il Comp.
Stat. 5/11-601.5, had gone into effect in January 2000. (Pl.'s
56.1 Stmt ¶ 26.) Then, Flores suggested to Mercado that he charge Axelrod with fleeing and alluding. (Pl.'s
56.1 Stmt ¶ 17.) When Axelrod was released he was given no
paperwork until he asked the sergeant to make photocopies of the
ticket so he would know what the charges were. Axelrod's ticket
was for: (1) driving 85 mph in a 45 mph zone; 625 Il Comp. Stat.
5/11-601.5, (2) not wearing his seatbelt, 625 Il. Comp. Stat.
5/12-603.1; (3) failure to keep in lanes, 625 Il. Comp. Stat.
5/9-12-050 B; and (4) alluding and fleeing the police, 625 Il.
Comp. Stat. 5/11-204.1. (Pl.'s 56.1 Stmt ¶ 30.) Driving 40 miles
over the speed limit is a Class A misdemeanor and is punishable
by up to one year in the county jail and a $1000.00 fine. (Pl.'s
56.1 Stmt ¶ 32.) Axelrod alleges that the ticket issued by
Mercado checked the box for 20-30 mph over the speed limit.
Axelrod also contends that Mercado changed the 75 mph box to 85
mph by writing over the 7 to make it an 8. Axelrod alleges that
the 8 written over the 7 is different from all other 8s on the
ticket. (Pl.'s 56.1 Stmt ¶ 33.) Mercado claims that he wrote 85
and did not change any numbers. Mercado also testified at trial
and at his deposition that he checked the box marked "20-30 mph
over limit" by accident. (Pl.'s 56.1 Stmt. ¶ 34.) On May 31,
2001, a jury found Axelrod not guilty of all charges against him.
(Df.'s 56.1 Stmt ¶ 6.)
I. Standard for Motion for Summary Judgment
Summary judgment should be granted when the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Fed.R. Civ. P. 56(c).
When making such a determination, the court must construe the
evidence and make all reasonable inferences in favor of the
non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment
is appropriate, however, when the non-moving party fails to make
a showing sufficient to establish the existence of an element
essential to the party's case, and on which that party will bear
the burden of proof at trial. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); See also Courtney v. Biosound,
42 F.3d 414, 418 (7th Cir. 1994).
II. Federal Malicious Prosecution Claim
As to Count V, Defendants note that a federal action for
malicious prosecution will not lie so long as there is a state
law tort for malicious prosecution available to the plaintiff.
Newsome v. McCabe, 256 F.3d 747, 751 (7th Circuit, 2001).
"Relabeling a claim as `malicious prosecution' would not extend
the statute of limitations and if a plaintiff can establish a
violation there is nothing but confusion to be gained by calling
the legal theory `malicious prosecution'." Id. at 751.
Axelrod's claim that there is an exception for a viable federal
claim akin to malicious prosecution depending on the facts and
circumstances of the case is correct. Id. However, Axelrod's
comparison of the Newsome facts (where police withheld
exculpatory evidence from prosecutors) to this case is completely
untenable. Id. Defendants are correct in asserting that
Newsome states that a narrow constitutional claim for violation
of due process under limited circumstances may be preserved, but
that Axelrod did not allege such a claim in his Complaint and
that there is an Illinois tort of malicious prosecution available
to him. Therefore, Defendants' Motion for Summary Judgment is
granted as to Count V.
III. Federal Unlawful Seizure and State Malicious Prosecution
Summary Judgment must be denied for Count I because there are
genuine issues regarding the material facts. The Fourth Amendment
says that the "right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violates." U.S.
Const., Amdt. 4. The "central requirement" of the Fourth
Amendment is one of reasonableness. Texas v. Brown,
460 U.S. 730, 739 (1983). "[N]onetheless . . . there are exceptions to the
warrant requirement. When faced with special law enforcement
needs diminished expectations of privacy, minimal intrusions, or
the like, the court has found that certain general, or
individual, circumstances may render a warrantless search or
seizure reasonable." Pennsylvania v. Labron, 518 U.S. 938,
940-41 (1996). The primary controversial material fact is whether
Mercado used radar to determine Axelrod's speed. In Mercado's
deposition, Mercado stated that he did not use radar to gauge
Axelrod's speed. (Def. Dep. p. 2, ln. 22). However in Axelrod's
deposition, he stated that when he was handcuffed and put in the
police car, Mercado showed him the radar gun that read 75 miles
per hour. (Pl. Dep. p. 165, ln. 21-24). The next material fact
over which the parties disagree is whether the ticket was changed
by Mercado to indicate that Axelrod was driving 85 miles per hour
instead of 75 miles per hour, like Axelrod alleged. (Pl. fact
par. 33). Mercado stated in his deposition that he originally
wrote on the ticket that Axelrod was traveling 85 miles per hour.
(Df. Dep p. 108 ln 6). Because the question of whether Mercado
had probable cause to pull over or arrest Axelrod depends on the
resolution of these factual disputes, summary judgment for Count
I is denied.
Summary judgment must also be denied for the Count IV State
Malicious Prosecution claim. In order to sustain a claim for
malicious prosecution based on a prior criminal prosecution, a
plaintiff must show: (1) the commencement or continuance of an
original criminal or civil judicial proceeding by the defendants;
(2) a termination of proceeding in favor of the plaintiff; (3)
the absence of probable cause for such proceeding; (4) the
presence of malice; and (5) damages resulting to the plaintiff. Zwick v. Liautaud,
662 N.E.2d 1238, 1242 (Ill. 1996). Although, the parties disagree on
what type of damages are stated in the elements of malicious
prosecution set out by Zwick, the dispute is premature. Since
the absence of probable cause is ...