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Felder v. City of Chicago

March 19, 2009


The opinion of the court was delivered by: John F. Grady, United States District Judge


Before the court is defendants' motion for summary judgment. We grant defendants' motion for the reasons explained below.


Plaintiff Robert Felder was arrested and charged with soliciting a prostitute - actually defendant Cherron Bady, an undercover police officer posing as a prostitute - on the evening of July 12, 2007. (Def. Local Rule 56.1 Stmt. of Material Facts (hereinafter "Def. Stmt."), ¶¶ 8-10.) In connection with his arrest, the City of Chicago seized and impounded Felder's vehicle pursuant to Municipal Code § 8-8-060. (Id. at ¶ 11; Notice of Vehicle Impoundment, attached at Ex. E to Def. Stmt.)); see also Municipal Code of Chicago § 8-8-060(d)(1) ("A motor vehicle that is used in violation of this section ['Street solicitation for prostitution'] . . . shall be subject to seizure and impoundment under this subsection."). Shortly after he was arrested and released, Felder paid a fine of $1,800.00 - including $600 for outstanding parking tickets - and the City released his car. (Def. Stmt. ¶ 12; Felder Dep., attached as Ex. C to Def. Stmt., at 76.) On July 16, 2007, Bady filed a complaint against Felder in the Circuit Court of Cook County for soliciting prostitution on a "public way." (Def. Stmt. ¶ 13.); see also Municipal Code of Chicago § 10-8-515(a) ("No person may: (i) stand upon, use or occupy the public way to solicit any unlawful business; or (ii) interfere with or impede any pedestrian or anyone in a vehicle on the public way, for the purpose of soliciting any unlawful business."). Three days later, the City's Department of Streets and Sanitation sent Felder an Owner Notification Statement informing him that he was entitled to request a hearing before the City's Department of Administrative Hearings to contest the impoundment. (Id. at ¶ 14; Owner Notification Statement, attached as Ex. G to Def. Stmt.) A default judgment was entered and later vacated after Felder belatedly responded to the Notification Statement and a hearing was scheduled for October 31, 2007. (Def. Stmt. at ¶¶ 15-17.) In the interim, the criminal case against Felder was dismissed. (Def. Resp. to Pl. Local Rule 56.1(a) Stmt. of Material Facts (hereinafter "Def. Resp.") at ¶ 2; see also Felder Dep., attached as Ex. C to Pl.'s Mem., at 80-81.)

The impoundment hearing, held before an Administrative Law Officer ("ALO"), took approximately twenty minutes to complete.

(Audio Recording of Hearing of Oct. 31, 2007, attached as Ex. B to Pl. Local Rule 56.1(a) Stmt. of Material Facts (hereinafter "Pl. Stmt.").) The City called one witness, Bady, who testified that she "made some hand gestures to have [Felder] pull over" and asked him, through the open window of his car, whether he wanted oral sex in exchange for $10. (Trans. of Hearing of Oct. 31, 2007, attached as Ex. A to Pl. Stmt., at 2-3, 5.) According to Bady, Felder said "yes." (Id. at 3.) She also testified that he showed her his wallet or money (or both) to indicate that he had the means to pay. (Id. at 3, 5.) Felder, who represented himself at the hearing, cross-examined Bady and testified on his own behalf. (Id. at 5-10.) According to Felder, Bady "frantically" waved him down from the side of the road and asked him for $10. (Id. at 9.) When he asked her "what was going on," she responded with the same question: "Do you have $10?" (Id. at 7.) When he said "[y]es I have it," Bady and defendant Charles Johnson - Bady's partner that evening - arrested him. (Id.; Def. Stmt. ¶¶ 9-10.) In Felder's version of events, oral sex was never mentioned, (see id. at 7 ("And at no point did she mention anything about giving me any type of oral sex or anything like that.")), although when cross-examining Bady, and in his brief closing argument, Felder appeared to indicate that Bady did offer him oral sex. (See id. at 5 ("FELDER: Who suggested any sexual act? [. . .] FELDER: Who initiated? I didn't - Who initiated?"); id. at 10 (arguing that it was Bady who "initiated any type of verbal act of saying any type of sexual connotations").) The ALO asked questions throughout the proceeding and was evidently skeptical that Felder, driving in a neighborhood purportedly known to harbor prostitutes, innocently pulled over to "see what was going on." (Id. at 2; see also id. at 8.) After hearing closing arguments, the ALO stated her findings of fact - essentially finding that Bady had been truthful and that Felder had not - and concluded that the City had "proven its case by a preponderance of the evidence." (Id. at 10-11 ("There was a conversation between [Bady and Felder] wherein the respondent agreed to pay the officer 10 dollars for head, which is street terminology for oral copulation.").) Felder was found "liable" for violating Municipal Ordinance § 8-8-060. (Id. at 1, 11.) He was entitled to appeal, but chose not to because he "didn't want to spend any more money." (Felder Dep. at 89; Def. Stmt. at 26.)

Felder has filed a three-count complaint in this court requesting damages under section 1983 for violations of his constitutional rights (Count I), and alleging common law claims for false arrest (Count II) and intentional infliction of emotional distress (Count III). Defendants have moved for summary judgment on all three counts, arguing that the ALO's findings preclude Felder from re-litigating whether the defendants had probable cause to arrest him.


A. Legal Standard

Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(c). In considering such a motion, the court construes the evidence and all inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. See Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). "Summary judgment should be denied if the dispute is 'genuine': 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Talanda v. KFC Nat'l Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court will enter summary judgment against a party who does not "come forward with evidence that would reasonably permit the finder of fact to find in [its] favor on a material question." McGrath v. Gillis, 44 F.3d 567, 569 (7th Cir. 1995).

B. Whether the City is Estopped or Otherwise Prohibited from Raising Preclusion.

Felder argues that the City's own rules provide that issues decided by an ALO are not entitled to preclusive effect. He relies on Code § 2-14-130, which provides that,

[n]othing in this chapter shall affect the jurisdiction of the Department of Business Affairs and Licensing, the Chicago Commission on Human Relations, the Zoning Board of Appeals, the Personnel Board, the Board of Ethics, the Police Board, or the Commission on Chicago Landmarks. Municipal Code of Chicago ยง 2-14-130 (emphasis added). Felder reads this provision to permit the City to "ignore" the results of an impoundment hearing and proceed against the same respondent before different agency. (Pl. Mem. at 5.) It would be unjust, he argues, to hold Felder to a different standard. This argument appears to confuse preclusion and jurisdiction. The fact that the authority conferred on the Department of Administrative ...

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