The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on the Motion for Summary Judgment filed by Defendants John Gillette, the Sheriff's Office of Sangamon County and Sangamon County (d/e 39) (Motion). On August 13, 2004, Defendant Sangamon County Deputy Sheriff John Gillette arrested Plaintiff Eric Hersey for being a deserter from the Illinois National Guard. Hersey spent one night in jail and then was released. Hersey claims Gillette arrested him without probable cause in violation of his rights. Defendants now seek summary judgment. For the reasons set forth below, issues of fact exist regarding whether Gillette had probable cause to arrest Hersey.*fn1 The Defendants' request for summary judgment is denied.
At summary judgment, the Defendants must present evidence that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The Court must consider the evidence presented in the light most favorable to Hersey. Any doubt as to the existence of a genuine issue for trial is resolved against the Defendants. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once the Defendants have produced evidence showing that they are entitled to summary judgment, Hersey must present evidence to show that issues of fact remain. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In this case, Hersey has presented evidence to show that issues of fact exist regarding whether he was arrested without probable cause.
The following is Hersey's evidence of the relevant events. Hersey was a member of the Illinois Army National Guard. In the late spring or early summer of 2004, Hersey transferred to the Washington Army National Guard. He went to Camp Lincoln in Springfield, Illinois, on August 13, 2004, to get his medical records. Hersey worked as a police officer at the University of Illinois Chicago. He arrived at Camp Lincoln in his police uniform and was carrying his service weapon. Plaintiff's Response to Defendants John Gillette, the Sheriff's Office of Sangamon County and Sangamon County's Motion for Summary Judgment (d/e 51) (Response), Exhibit D, Hersey Affidavit, at 1-2.
According to Hersey, Gillette met him at the gate and ordered him to turn over his weapon. Hersey asked why. Gillette stated that there was a warrant for his arrest as a deserter from the Illinois Army National Guard. Gillette said that Hersey was supposed to have reported to Fort Polk, Louisiana, with his unit. Hersey was handcuffed. Illinois Army National Guard Captains Weaver and Trenton Thompson were with Gillette at the gate at the time that he arrested Hersey.*fn2 Hersey told the three men that he was not a deserter. He explained that he transferred to the Washington Army National Guard. Captain Weaver stated that Hersey came up as a "hit" for desertion on the National Crime Information Center (NCIC) database. Id., at 2.
Gillette then put Hersey in the back of his squad car. While Hersey was in the car, Gillette ran a search on the Law Enforcement Agencies Data Base System (LEADS), which was connected to the NCIC. The search did not turn up a warrant for Hersey. Hersey said, "I thought I was being arrested for a warrant." Gillette then said to Hersey, "I know what you're trying to do. I just got back from deployment myself, but these guys want you arrested." Gillette then got out of the car. Id., at 2-3.
Gillette, Weaver, and Thompson then had a discussion outside the car. The car windows were open, and Hersey heard the conversation. Gillette told the other men that there was no warrant for Hersey's arrest. Gillette stated that he "needed something to hold this guy on." Weaver then went into a nearby building and returned in about fifteen minutes. Weaver said, "I talked to someone at Ft. Polk, and there's nothing on this guy. They said if he belongs at Ft. Polk to buy him a ticket and fly him down there." Weaver then said, "His ass might get out but he's going to spend the night in jail anyway." The three men laughed. Gillette then said, "Well that's fine, but I still need something to make this fly." Id., at 3.
Weaver then re-entered the nearby building and returned about fifteen minutes later. Weaver came back with a DD Form 553. Gillette then said,
"I can make this work." Id. The form was entitled, "Deserter/Absentee Wanted by the Armed Forces." Motion, attached Affidavit of Seth Hible, Attachment 5. The form identified Hersey as the person wanted by the Armed Forces. The form was signed by Seth Hible as Company Commander of Company B, First Battalion, 131st Infantry. Id.
Gillette then took Hersey to the Sangamon County Jail. Upon arrival, a woman deputy began yelling at Gillette. She said that Hersey should not be there, that this was not how arrests of military personnel were done, and that Gillette knew this. The woman deputy called Hersey's arrest "bullshit." Gillette responded, "Well, I don't work for you right now, so you're going to house him." The woman deputy gave in and directed Gillette to put Hersey in a cell. Hersey Affidavit, at 3.
While waiting to be booked, Hersey heard someone call to Gillette stating, "Gillette, I've got Ft. Leonard Wood, MO fugitive app's on the phone and they say they don't want him." Hersey understood this statement to refer to the Ft. Leonard Wood fugitive apprehension team. Gillette took the phone and stated, "I spoke to Ft. Polk and the lady who enters warrants wasn't there, they said they would enter the warrant so I'm gonna sit on him and call you back." Id., at 4.
After Hersey was booked and placed in a cell, Gillette left. Hersey never saw him again. The next day, Hersey was released. Id.
Gillette's version of the events is quite different. According to Gillette, he was told by Captain Thompson that officials at Ft. Polk issued a warrant for Hersey's arrest. Thompson told Gillette that MPs from Ft. Leonard Wood were coming to Camp Lincoln to take Hersey into custody. Motion, attached Affidavit of John Gillette, at 1. Gillette conducted a LEADS search and Hersey's name did not turn up. Gillette then called the Provost's Marshall's office at Ft. Polk. The representative of that office told Gillette that the warrant had been issued. Based on this information, Gillette waited at the Camp Lincoln gate for Hersey's arrival. Once Hersey arrived, Gillette took Hersey into custody. Id., at 1.
Hersey told Gillette that he had transferred to the Washington Army National Guard. Gillette called Captain Thompson with this information. Thompson called Gillette back a few minutes later. According to Gillette, Thompson told Gillette that Hersey had not been released from the Illinois Army National Guard, and therefore, was still subject to the Illinois Army National Guard. Id. Gillette then took Hersey to the Sangamon County Jail for booking to await the military police. Gillette states that after he arrived at the Sangamon County Jail with Hersey, ...