The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendants' motion for summary judgment. For the reasons stated below, we grant the motion in its entirety.
Plaintiffs allege that on October 2, 2005, they were at Plaintiff Antonio Franco's mother's home in Elgin, Illinois, when a friend arrived and told them that his friend's wife was being beaten by a gang member at a nearby restaurant ("Restaurant"). Plaintiffs allegedly went to the Restaurant and found their friend's wife injured and covered in blood. Plaintiffs contend that Defendant Officer Miguel Pantoja ("Officer Pantoja"), Defendant Officer Shaun Schroeder ("Officer Schroeder"), and Defendant Officer Todd Pavoris ("Officer Pavoris") then arrived at the scene in squad cars and attacked Plaintiff Jose Gonzalez. The other Plaintiffs were also allegedly beaten and harassed by police officers that arrived at the scene. According to Plaintiffs, they were then arrested and taunted while in custody. Plaintiffs claim that they were charged with resisting arrest, mob action, and disorderly conduct, and that the charges were either dismissed or nolle prossed, except for Jose Gonzalez, who pled guilty of disorderly conduct.
Plaintiffs brought the instant action and include in their second amended complaint claims alleging violations of 42 U.S.C. § 1983 ("Section 1983"), based on false arrest and unlawful detention theories (Count I), Section 1983 excessive force claims (Count II), Section 1983 equal protection claims (Count III), Section 1983 failure to intervene claims (Count IV), state law malicious prosecution claims (Count V), a state law respondeat superior claim (Count VI), and state law indemnification claims (Count VII). Defendants moved to dismiss Counts V, VI, and VII of the second amended complaint. On November 28, 2007, we granted Defendants' motion to dismiss the indemnification claims (Count VII). We denied Defendants' motion to dismiss the malicious prosecution claims (Count V) and denied the motion to dismiss the repondeat superior claim (Count VI). Defendants now move for summary judgment on the remaining claims.
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment, the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).
Plaintiffs indicate in their answer to Defendants' motion for summary judgment that they have withdrawn certain claims. Plaintiffs indicate that they are no longer pursuing a Monell claim against Defendant City of Elgin and are withdrawing that claim. (Ans. 6 n.2). Plaintiffs also indicate that they are not going to pursue their excessive force claims against Defendant Sergeant James Kelly. (Ans. 6 n.2). In addition, Plaintiffs that had their mob action claims dismissed in February 2006 have decided to withdraw their malicious prosecution claims as to the mob action charges. (Ans. 6 n.2). Plaintiffs are not withdrawing their malicious prosecution claims on other charges and Antonio Franco is not withdrawing any of his malicious prosecution claims. (Ans. 6 n.2).
II. False Arrest Claims (Count I)
Defendants argue that the evidence clearly shows that they had probable cause to arrest Plaintiffs. Defendants contend that Plaintiffs were arrested for either mob action, resisting arrest, obstructing an arrest, or battery. For a Section 1983 false arrest claim "[p]robable cause is an absolute defense. . . ." Chelios v. Heavener, 2008 WL746842 (7th Cir. 2008). An officer is deemed to have probable cause for an arrest "'if, at the time of the arrest, the facts and circumstances within the officer's knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.'" Id. (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)); see also Holmes v. Village of Hoffman Estate, 511 F.3d 673, 679 (7th Cir. 2007)(stating that "[a] police officer has probable cause to arrest an individual when the facts and circumstances that are known to him reasonably support a belief that the individual has committed, is committing, or is about to be commit a crime"). A court determining whether, in retrospect, an officer had probable cause "steps into the shoes of a reasonable person in the position of the officer." 2008 WL 746842; Holmes, 511 F.3d at 679 (stating that "[i]n making that assessment, the court must consider the facts as they reasonably appeared to the arresting officer, seeing what he saw, hearing what he heard, and so forth").
Plaintiffs contend that Defendant Officers improperly charged Plaintiffs with mob action. Plaintiffs point out that a portion of the mob action statute has been found unconstitutional in Landry v. Daley, 280 F. Supp. 938, 946 (N.D. Ill. 1968). (Ans. 8). However, only 720 ILCS 5/25-1(a)(2) ("Section 5/25-1(a)(2)"), which prohibits "'[t]he assembly of 2 or more persons to do an unlawful act,'" has been found unconstitutional due to vagueness. 280 F. Supp. at 946 (quoting 720 ILCS 5/25-2(a)). Although Plaintiffs were charged with violating Section 5/25-1(a)(2), as will be explained below, Defendant Officers also had a basis to charge Plaintiffs for violating 720 ILCS 5/25-1(a)(1) of the mob action statute, which prohibits "[t]he use of force or violence disturbing the public peace by 2 or more persons ...