The opinion of the court was delivered by: Honorable Marvin E. Aspen U.S. District Court Judge
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Defendants Brian J. Hansen, David R. Zacek, Dennis G. Davis, Charles E. Flynn, Joseph W. Boisso, and the City of Chicago have filed a motion for summary judgment on all counts brought by Plaintiff Taneysha Bass in her Amended Complaint in the above-titled case. Plaintiff has also filed a motion for partial summary judgment on Count I and Count VII of her Amended Complaint.
This case arises from Plaintiff's arrest for certain statements she made after the Chicago Police broke up a community basketball tournament in her apartment complex. We deny in part and grant in part Defendants' motion for summary judgment. We also deny Plaintiff's motion for partial summary judgment.
I. STATEMENT OF FACTS*fn1
A. The Chicago Police Break Up a Basketball Tournament at the Ickes Complex.
On July 22, 2007, Plaintiff Taneysha Bass attended a basketball tournament at the outdoor court near her apartment in the Harold Ickes Housing Complex ("Ickes Complex"). (Defs.' 56.1 Facts ¶ 4--5, 7, 23; Pl.'s 56.1 Facts ¶ 7, 15.) The Chicago Housing Authority ("CHA") owned and managed the Ickes Complex at that time, although much of the Ickes Complex has since been torn down. (Pl.'s 56.1 Facts ¶ 5--6.) The tournament was quite popular and had drawn a crowd between 100 and 500 people, some of whom did not live in the Ickes Complex. (Defs.' 56.1 Facts ¶ 7; Pl.'s Resp. ¶ 7, 15.)
The tournament also attracted the attention of the Chicago Police Department. Defendants contend that a stabbing at a similar event at the Ickes Complex one week prior and CHA complaints about security at these events had created cause for concern.*fn2 (Defs.' 56.1 Facts ¶ 13--14; Riley Dep. at 35.) The tournament organizers had also failed to obtain a written permit to hold the basketball tournament, although Plaintiff vehemently denies that a written permit was necessary. (Defs.' 56.1 Facts ¶ 6; Pl.'s 56.1 Facts ¶ 12.)
Regardless, at approximately 7 p.m. on the day of tournament, at least twenty Chicago police officers arrived at the Ickes Complex to break up the tournament. (Pl.'s 56.1 Facts ¶ 17; Defs.' 56.1 Facts ¶ 20.) The officers ordered everyone in the crowd to leave the basketball court. (Defs.' 56.1 Facts ¶ 23; Pl.'s 56.1 Facts ¶ 24.) Some officers also ordered non-residents to leave the Ickes Complex. (Zacek Dep. at 65; Hansen Dep. at 78.) Residents could remain on the premises, however, so long as they stayed outside the basketball court.*fn3 (Pl.'s 56.1 Facts ¶ 25.)
The decision to break up the tournament was not popular with those in attendance, including Plaintiff. (Pl.'s 56.1 Facts ¶ 23; Defs.' 56.1 Facts ¶ 29.) Disgruntled tournament-goers objected to the police's action saying, for example, "Why you always fucking with us?" (Defs.'56.1 Facts ¶ 29.) Defendants claim it took thirty to forty minutes to clear the basketball court. (Defs.' 56.1 Facts ¶ 27.) Defendants also claim that several people in attendance refused to leave the area outside the basketball court. (Defs.' 56.1 Facts ¶ 28.) As Defendants' acknowledge, Plaintiff, as an Ickes Complex resident, was free to remain in the area outside of the basketball court and did not have to go home. (Defs.' 56.1 Resp. ¶ 25--26; Hansen Dep. at 78.)
B. Plaintiff Voices Her Objections to the Police's Action to Those Around Her.
It was in the area outside the basketball court that the incident at the core of this lawsuit took place. (Zacek Dep. at 73; Bass Dep. at 59--60.) There, Plaintiff made statements that ultimately lead to her arrest by Defendant Officers Hansen and Zacek three days later. (Defs.' 56.1 Facts ¶ 37--44, 52--59.) The parties dispute the substance, context, and effect of these statements.
The parties jointly acknowledge that Plaintiff, while standing approximately twenty-five feet from Officers Hansen and Zacek in the area just outside basketball court, stated to a group of at least five people that the police would not have broken up the tournament if white people had been involved. (Defs.' 56.1 Facts ¶ 35, 37, 42; Pl.'s 56.1 Facts ¶ 33--34.) Officer Hansen recounted Plaintiff as saying, "If this was a white party, that there wouldn't be any problems." (Hansen Dep. at 66.) Plaintiff recalls stating that, "If it was white people, they wouldn't do that to them." (Bass Dep. at 61.) Plaintiff also admits making other comments critical of the police, including stating that the police "get away with so much" and that they are "crooked." (Bass Dep. at 62--63.) The parties also agree that Plaintiff made these statements loud enough for Officers Hansen and Zacek to hear them, which they in fact did. (Defs.' 56.1 Facts ¶ 41--42; Bass Dep. at 64.)
The parties disagree ardently as to what else, if anything, Plaintiff said. Most significantly, Officer Hansen claims that, in addition to her statements about the police being discriminatory and "crooked," Plaintiff yelled to the people standing around her, "Why you niggers putting up with this shit? Kick their-Go kick their asses." (Hansen Dep. at 67.) The case incident report written that day by Officers Hansen and Zacek recounts Plaintiff exhorting others around her to "beat those cops['] asses." (Defs.' Ex. 23 at 1, 3.) Officer Zacek also testified at his deposition that Plaintiff said, "Let's get together and beat their white police asses." (Zacek Dep. at 76.) Plaintiff denies making these statements. (Pl.'s 56.1 Facts ¶ 39; Bass Dep. at 156.)
The parties also disagree about the size of Plaintiff's audience. Plaintiff claims that, despite her volume, she was speaking in the context of a "small discussion" among five to seven female acquaintances. (Pl.'s 56.1 Facts ¶ 35; Bass Dep. at 62.) Officer Zacek recalled Plaintiff standing in front of a group of fifty predominantly male people, although he could not identify "who was with her or not." (Zacek Dep. at 74, 90.)
The effects of Plaintiff's words are also in dispute. Officer Zacek testified at his deposition that Plaintiff's words caused others nearby to start yelling, "Yeah, she's right. Fuck these white police." (Zacek Dep. 76.) Officer Zacek further testified these individuals, some of whom had begun to disperse prior to Plaintiff's protestations, "stopped in their tracks and made the crowd even larger." (Id. at 77.) Both Officers Zacek and Hansen also recalled that Plaintiff's statements immediately preceded two bottles and some rocks being thrown from the crowd in their direction. (Id.; Hansen Dep. at 67--69.) Officer Lomax, who was also nearby, described the crowd as "feeding off of" Plaintiff's words, even though he could not recall precisely what she said. (Lomax Dep. at 52--53.) Officer Lomax noted that members of the crowd became "bolder" in that they started "getting too close to us." (Id. At 53--54.) Officer Zacek added that, "[A]t one point, we were almost totally surrounded by a large crowd." (Zacek Dep. at 77.) As the situation supposedly deteriorated, Officer Zacek recalled being ordered to "pull back and regroup" in the interest of "officer safety," although he did not recall from whom or how he received this order. (Zacek Dep. at 80.) Other officers did not recall having to retreat. (Davis Dep. at 82; Lomax Dep. at 61.)
Plaintiff claims her words elicited cheers but nothing more from the people around her. (Pl.'s 56.1 Facts ¶ 42.) Plaintiff particularly denies that anything was thrown at the police, that the police became surrounded, or that the police had to retreat. (Id. ¶ 46; Pl.'s 56.1 Resp.¶ 44--45.) Even if members of the crowd threw things at the police, Plaintiff points to Officer Lomax's testimony that he could not "connect any specific words [Plaintiff] said with the bottles being thrown." (Lomax Dep. at 60.) The parties agree that the police suffered no other violence that day besides the disputed bottle- and rock-throwing. (Hansen Dep. at 72, 76.)
Plaintiff also asserts that the most notable reaction to her statements came from Officer Hansen, who supposedly responded by pointing at Plaintiff and saying he was "going to get that motherfucker" or "that bitch." (Pl.'s 56.1 Facts ¶ 60; Vance Dep. at 32--33; Fleming Dep. at 63.) Officer Hansen recalls saying "something" to Plaintiff but does not recall the substance other than to note that he did not use profanity. (Hansen Dep. at 71--72.)
After Plaintiff's statements, Plaintiff and the other people outside the basketball court eventually dispersed. (Id. at 78.) Plaintiff remained in the area outside the basketball court for thirty to forty-five minutes before walking home. (Bass Dep. at 67--68.)
C. The Police Prepare a Case Incident Report Naming Plaintiff on July 22, 2007.
The police left the Ickes Complex on July 22, 2007 without making any arrests. (Pl.'s 56.1 Facts ¶ 31.) Officer Hansen claims, however, that he made the decision to arrest Plaintiff that day but chose to delay the arrest in order to avoid escalating a purportedly dangerous situation. (Defs.' 56.1 Facts ¶ 53; Hansen Dep. at 79; Defs.' Ex. 23 at 3.) By contrast, Plaintiff claims Officer Hansen did not arrest Plaintiff that day because he did not know what charge, if any, for which he had probable cause to arrest Plaintiff. (Pl.'s 56.1 Resp. ¶ 53.)
It is undisputed that Officers Hansen and Zacek prepared a case incident report on the day of the incident. (Defs.' 56.1 Facts ¶ 46.) That report identifies Plaintiff as having committed a "Public Peace Violation," specifically, "Mob Action." (Defs.' Ex. 23 at 2.) The narrative recounts Plaintiff stating loudly to the people around her: "Why are you niggers taking this shit[?] They wrong[.] Beat those cops['] asses." (Id. at 3.) The report also states that the reason for delaying the arrest was to "prevent a possible riot situation." (Id.) The parties also affirmed that Officers Hansen and Zacek knew Plaintiff and where she resided at that time. (Id.; Pl.'s 56.1 Facts ¶ 62.) Thus, the officers believed they could find and arrest Plaintiff at a later date. (Defs.' Ex. 23 at 3; Pl.'s 56.1 Facts ¶ 62.)
D. Officers Hansen and Zacek Arrest Plaintiff on July 25, 2007.
Officers Hansen and Zacek arrested Plaintiff on July 25, 2007, three days after the incident at the Ickes Complex. (Pl.'s 56.1 Facts ¶ 64; Hansen Dep. at 98.) Around 7:20 p.m. on the evening of July 25, Officers Hansen and Zacek encountered Plaintiff walking behind her apartment building with her friend, her babysitter, and her child, Breyonce. (Pl.'s 56.1 Facts ¶ 58; Defs.' 56.1 Facts ¶ 57.) There, the officers stopped Plaintiff and placed her under arrest. (Id.) According to Defendants, Officer Hansen informed Plaintiff he was arresting her for "inciting a riot" at the Ickes Complex three days prior. (Defs.' 56.1 Facts ¶ 59; Hansen Dep. at 99.) Plaintiff recalled that Officer Hansen, after initially refusing to tell her the reason for her arrest, told her she was being arrested for her "fucking mouth." (Bass Dep. at 97.)
Subsequent events indicate that there may have been some confusion as to the appropriate charge to allege. After transporting Plaintiff to the police station, Officer Hansen instructed Defendant Officer Dennis Davis to prepare a misdemeanor complaint against Plaintiff on Officer Hansen's behalf. (Davis Dep. at 88--89.) Officer Davis prepared every aspect of the complaint-including signing Officer Hansen's name as the Complainant-except writing the words "Recless [sic] Conduct" in the place designated for the alleged offense. (Id. at 86; Defs.' Ex. 22 at 1.) Officer Hansen acknowledged that he wrote the words "Recless [sic] Conduct" over a previous, unknown charge that had been whited out. (Hansen Dep. at 123.) The description of the offense on the complaint alleges that Plaintiff, on "25 JUL 2007 [sic]": did knowingly intentionally recklessly, by the use of force and violence, did disturb the public peace in that she incited riot [sic] with other CHA residents (Harold Ickes) and without authority of law, did stated [sic] "Kick the Police Ass". (Defs.' Ex. 22 at 1.) Plaintiff claims this description reads more like a mob action charge than a reckless conduct charge. (Pl.'s 56.1 Facts ¶ 73.)
Officer Hansen also conferred with his watch commander, Defendant Officer Charles Flynn, about what the appropriate charge was. (Hansen Dep. at 80--81; Flynn Dep. at 19.) Officer Hansen testified that Officer Flynn questioned him about whether "inciting a riot," the crime Officer Hansen claims he intended to charge, was still a crime in Illinois. (Hansen Dep. at 81, 122.) Officer Flynn did not recall the substance of his conversation with Officer Hansen. (Flynn Dep. at 19, 50.) Officer Flynn only remembered considering probable cause for the reckless conduct charge listed on the police report. (Id. at 21.) The narrative section of the arrest report describes Plaintiff yelling among a crowd of "over 400 people" to "kick [the] police asses" and "telling all the people out there to ignore [the police's] directions and stand together and to ...