The opinion of the court was delivered by: Judge Feinerman
MEMORANDUM OPINION AND ORDER
In this action, Plaintiff Steven Thomas London brings a Fourth Amendment false arrest claim against Veterans Administration ("VA") police officers John Harris and Daniel Athearn under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and a malicious prosecution claim against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq.,which provides in relevant part that common law malicious prosecution claims seeking money damages against federal law enforcement officers for actions undertaken in the course of their official duties can and must proceed only against the United States. Id. §§ 2679(b)(1), 2680(h); see Sobitan v. Glud, 589 F.3d 379, 382-83 (7th Cir. 2009); Nguyen v. United States, 556 F.3d 1244, 1250-57 (11th Cir. 2009); Alexander v. Mt. Sinai Hosp. Med. Ctr., 484 F.3d 889, 891 (7th Cir. 2007). Defendants have moved for summary judgment. The motion is granted as to the Fourth Amendment claim and denied as to the malicious prosecution claim.
The facts are stated as favorably to London as the record permits. On September 5, 2008, London parked in the wrong lot at a VA hospital outside Chicago, visited his physician, and returned to find Officers Harris and Athearn standing near his car, a ticket on his windshield, and a tow truck approaching. Athearn was just outside of the driver's side door, while Harris was positioned fifteen feet away. In an effort to avoid the tow, London hurried towards the scene, grabbed the ticket off the windshield, opened the driver's side door, and entered the car. No words were exchanged as London approached and entered the car.
What happened as London passed Athearn and opened the door is the subject of some dispute. Defendants assert that London's right elbow struck Officer Athearn's arm. London concedes that some physical contact was made, but he asserts that the contact was, at most, an unintentional and inadvertent brushing. Doc. 38 at 5. At his deposition, London denied that he made contact with his elbow, but when pressed for the basis for his denial, he replied, "I'm not exactly sure. I can't be a hundred percent positively sure if my elbow, you know, touched him. It could've been another part of my body." Doc. 39-3 at 44-45.
After London was seated in the car, Officer Athearn held open the door and asked him where he was going. London replied that he was going to leave before his car was towed. Athearn ordered London out of the car, and Harris stated, "Didn't you see him brush you? That's battery." Doc. 39-3 at 41. The officers arrested London for battery under Illinois law. London elected a bench trial; the state trial judge denied London's motion for a directed verdict after the prosecution rested, but acquitted London after hearing all the evidence. London then brought this suit.
Defendants have moved for summary judgment on the Fourth Amendment claim against Harris and Athearn and on the malicious prosecution claim against the United States.
I. Fourth Amendment False Arrest Claim
Harris and Athearn contend that they are entitled to qualified immunity on London's Bivens claim. "The doctrine of qualified immunity protects government officials from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010) (citing Pearson v. Callahan, 555 U.S. 223 (2009)). "When confronted with a claim for qualified immunity, [the court] must address two questions: whether the plaintiff's allegations make out a deprivation of a constitutional right, and whether the right was clearly established at the time of defendant's alleged misconduct." Ibid.
The first question in the qualified immunity analysis is whether, construing the record in the light most favorable to London, the arrest violated the Fourth Amendment. To prevail on a Fourth Amendment false arrest claim, a plaintiff must demonstrate that the arrest was made without probable cause. See McBride v. Grice, 576 F.3d 703, 707 (7th Cir. 2009) ("Probable cause is an absolute bar to a § 1983 claim for false arrest."). "A police officer has probable cause to arrest if a reasonable person would believe, based on the facts and circumstances known at the time, that a crime had been committed." Ibid.; see also Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009) ("A police officer has probable cause to arrest a person 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.'") (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). "Probable cause is a common-sense determination, measured under a reasonableness standard. . It is an objective test, based upon factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Humphrey v. Staszak, 148 F.3d 719, 726 (7th Cir. 1998) (internal quotation marks omitted).
"Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law. Federal law asks only whether the officers had probable cause to believe that the predicate offense, as the state has defined it, has been committed." Williams v. Jaglowski, 269 F.3d 778, 782 (7th Cir. 2001) (internal quotation marks omitted). At the time of the incident, the Illinois battery statute provided that "[a] person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of insulting or provoking nature with an individual." 720 ILCS 5/12-3 (2008); see Gonzalez, 578 F.3d at 538-39; Chelios v. Heavener, 520 F.3d 678, 686 (7th Cir. 2008). Because Athearn suffered no "bodily harm," this case concerns the "insulting or provoking" type of battery. "[A] particular physical contact may be deemed insulting or provoking based upon factual context in which it occurs," regardless of whether there was a specific intent to insult or provoke. People v. Peck, 633 N.E.2d 222, 223-24 (Ill. App. 1994) (internal quotation marks omitted). Illinois courts have found insulting or provoking a parent angrily poking his finger into his son's teacher's chest, see People v. Dunker, 577 N.E.2d 499, 502 (Ill. App. 1991), a person spitting in a police officer's face, see Peck, 633 N.E.2d at 223, and a person sitting unnecessarily close to a former friend and placing his knee against her hip, see People v. DeRosario, 921 N.E.2d 753, 755-56 (Ill. App. 2009).
To survive the first prong of the qualified immunity analysis, London must "raise a genuine issue regarding whether the officers had probable cause to arrest him" for battery. Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir. 2000). Athearn and Harris contend that no reasonable jury could find that they lacked probable cause, even accepting London's contention that he merely brushed Athearn on his way into the car. "As a general matter, physical contact between an arrestee and a law enforcement officer, however minor, can provide probable cause for an arrest for battery." Adeszko v. Degnan, 2006 WL 3469541, at *5 (N.D. Ill. Nov. 29, 2006); see Chelios, 520 F.3d at 686 (poking police officer in the chin). But that proposition is true as a general matter, not categorically. It cannot be that any contact with a civilian-an accidental brush at Taste of Chicago, an inadvertent bump on the El, or an incidental shoulder while exiting Wrigley Field-may be deemed an insult or provocation sufficient to justify an arrest for battery. See Mihalko v. Daley, 2002 WL 726917, at *6 (N.D. Ill. Apr. 24, 2002) (denying summary judgment on false arrest claim where, viewing the facts in plaintiff's favor, the only contact was an "unintentional brushing against [the officer] with [plaintiff's] clothing").
The Seventh Circuit has instructed that "[t]he probable cause determination must be made by a jury if there is room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them." Chelios, 520 F.3d at 686 (emphasis added). If a jury credits London's version of the facts regarding the nature of his contact with Officer Athearn, it then could infer that the facts known to an officer in Athearn's and Harris's shoes demonstrated that London was the car's owner, that he was in a panicked rush to leave before the tow truck arrived, and that he inadvertently brushed up against Athearn while entering his car. To be sure, a reasonable jury need not accept London's version of the facts and, even if it did, it need not draw the foregoing inference. But because a ...