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Torres v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

August 5, 2016

ELIGIO TORRES and IRENE CORREA, Plaintiffs,
v.
CITY OF CHICAGO, HENRY PENA, HECTOR ROMERO, and ANDREW ROWE, Defendants.

          Eligio Torres, Jr., Plaintiff, represented by Amanda Sunshine Yarusso, Lawrence V. Jackowiak, Law Offices of Lawrence V. Jackowiak & Adele D. Nicholas, Jackowiak Law Office.

          Irene Correa, Plaintiff, represented by Amanda Sunshine Yarusso, Lawrence V. Jackowiak, Law Offices of Lawrence V. Jackowiak & Adele D. Nicholas, Jackowiak Law Office.

          City of Chicago, Defendant, represented by Anthony L. Schumann, Quintairos, Prieto, Wood & Boyer P.A., Brett M. Scheive, Enterprise Law Group, LLP, Kenneth M. Battle, Hickey, O'Connor & Battle LLP, Michael B. Cohen, Quintairos, Prieto, Wood & Boyer, P.A. & Ryenne Chantelle Shaw, Karimi & Associates.

          Henry Pena, Defendant, represented by Anthony L. Schumann, Quintairos, Prieto, Wood & Boyer P.A., Brett M. Scheive, Enterprise Law Group, LLP, Kenneth M. Battle, Hickey, O'Connor & Battle LLP, Michael B. Cohen, Quintairos, Prieto, Wood & Boyer, P.A. & Ryenne Chantelle Shaw, Karimi & Associates.

          Hector Romero, Defendant, represented by Anthony L. Schumann, Quintairos, Prieto, Wood & Boyer P.A., Brett M. Scheive, Enterprise Law Group, LLP, Kenneth M. Battle, Hickey, O'Connor & Battle LLP, Michael B. Cohen, Quintairos, Prieto, Wood & Boyer, P.A. & Ryenne Chantelle Shaw, Karimi & Associates.

          Andrew Rowe, Defendant, represented by Anthony L. Schumann, Quintairos, Prieto, Wood & Boyer P.A., Brett M. Scheive, Enterprise Law Group, LLP, Kenneth M. Battle, Hickey, O'Connor & Battle LLP, Michael B. Cohen, Quintairos, Prieto, Wood & Boyer, P.A. & Ryenne Chantelle Shaw, Karimi & Associates.

          MEMORANDUM OPINION AND ORDER

          JOAN B. GOTTSCHALL, District Judge.

         The parties' post-trial motions in this § 1983 case against three City of Chicago police officers and the City of Chicago are before the court. For the following reasons, the plaintiffs' motion for judgment as a matter of law and defendant Henry Pena's motions for judgment as a matter of law, for a new trial, to alter judgment, to amend the judgment, and, in the alternative, for remittitur are denied.

         I. BACKGROUND

         The court begins with observations about the general lack of citations to the record and authority in the defendants' post-trial submissions and then moves on to a recap of the jury's verdict.

         A. The Defendants' Post-Trial Submissions

         The defendants (who are represented by very experienced trial counsel) frequently fail to include citations to the trial transcript in their submissions. The lack of consistent citations to the trial transcript forced the court to hunt through the record in an effort to guess what portions the defendants meant to reference. See Ayala v. Rosales, No. 13 C 4425, 2015 WL 4127915, at *1 (N.D. Ill. July 8, 2015). The court "has attempted to the best of its ability to address [the defendants'] claims on the merits" despite the defendants' decision to provide sporadic record citations. Id. However, "any arguments lacking necessary record support are, in the first instance, denied as waived." Id. (collecting cases holding that a defendant waives an argument to the extent that citation to the record is necessary to support his position and he fails to provide a citation).

         Relatedly, the defendants frequently make conclusory statements, unadorned by explanation, citations to the record, or citations to authority. For example, in their response to the plaintiffs' Rule 50 motion, they assert that "[i]t was reasonable for the officers to believe that Campbell may have fled to his last known address, 3227 W. Pierce, after the shooting." (Dkt. 159 at 8.) Why? And what is this based on? Similarly, in their response to the plaintiffs' Rule 50 motion, they contend that the officers did not seize Torres because he did not know that they had blocked his car with their unmarked squad car. (Dkt. 159 at 7.) Where is the record citation, as well as citations to supporting legal authority and discussion of that authority?

         Underdeveloped, conclusory, or legally unsupported arguments are deemed waived. See, e.g., Johnson v. Bellwood Sch. Dist. 88, No. 14 C 10498, 2016 WL 3476660, at *6 (N.D. Ill. June 27, 2016) (citing C & N Corp. v. Gregory Kane & Ill. River Winery, Inc., 756 F.3d 1024, 1026 (7th Cir. 2014). The court need not "speculate as to the details of [an] unexplained argument." Id. It also declines to conduct legal research in an effort to locate support (to the extent it might exist) for unsupported legal contentions. See, e.g., Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011) (the court is not "obliged to research and construct legal arguments for parties, especially when they are represented by counsel"); United States v. Betts-Gaston, 142 F.Supp. 3d 716, 732 (N.D. Ill. 2015) ("the Court cannot discern... where in the transcript [counsel] is referring, and finds that these arguments are waived").

         The defendants' failure to provide citations to the record and legal authority for each and every assertion of fact and law, respectively, is notable because as discussed below, the defendants ask the court to construe the rules governing the timeliness of post-trial motions strictly and to find that the plaintiffs' post-trial motion is untimely. The defendants cannot request strict construction when it benefits them yet fail to follow the rules themselves. This is especially true given that the defendants' presentation makes it difficult if not impossible for the plaintiffs (as well as the court) to understand the complete basis for all of the defendants' arguments. The court will do as the defendants ask and strictly apply the rules, but will do so across the board for all parties. With this in mind, the court turns to the merits of the parties' post-trial motions.

         B. The Jury Verdict

         Plaintiff Eligio Torres and Irene Correa filed a § 1983 action against the City of Chicago and Chicago police officers Henry Pena, Hector Romero, and Andrew Rowe based on an incident on October 1, 2010. Familiarity with the facts is assumed for the purposes of this opinion; the court will discuss specific portions of the record as necessary below. In a nutshell, after a five-day jury trial, the jury found in favor of Pena and Romero on Torres' unreasonable seizure and excessive force claims and in favor of Pena on Correa's excessive force claim. The jury further found in favor of the plaintiffs on their malicious prosecution claims against Pena. The jury awarded $40, 000 in compensatory damages and $60, 000 in punitive damages to Torres and $30, 000 in compensatory damages and $45, 000 in punitive damages to Correa.

         II. THE PARTIES' MOTIONS FOR JUDGMENT AS A MATTER OF LAW

         Both Torres and Pena have renewed their Rule 50 motions for judgment as a matter of law. In their Rule 50 motion, Torres argues that he is entitled to judgment as a matter of law on his Fourth Amendment claim because the officers seized him when they used their car to block his car into its parking space based merely on his gender and proximity to the address of an alleged shooter. The defendants argue that the plaintiffs' motion is untimely and is thus governed by Rule 60, and that, in any event, it fails on the merits. In his Rule 50 motion, Pena contends that no reasonable jury could find that: (1) he lacked probable cause to arrest and charge Correa with aggravated battery; (2) he lacked probable cause to arrest and charge Torres with aggravated battery; and (3) he acted maliciously in commencing the prosecution of the plaintiffs.

         A. Timeliness

         Under Federal Rule of Civil Procedure 50(a)(1):

If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

         Fed. R. Civ. P. 50(a)(1). A party must file a Rule 50 motion "[n]o later than 28 days after the entry of judgment." Fed.R.Civ.P. 50(b).

         Here, the court entered an amended judgment on December 23, 2015, so pursuant to Rule 50(b), the plaintiffs' Rule 50 motion was due by January 20, 2016. At the defendants' request, however, the court extended the due date for all post-trial motions to February 18, 2016.[1] The plaintiffs filed their post-trial motion on that date. In response, the defendants assert that the court lacked the authority to extend the time to file a Rule 50 motion so the plaintiffs' motion is untimely.

         First, the defendants' arguments about timeliness appear to apply equally to their own post-trial motions. The defendants attempted to avoid the trap they set by affirmatively asking for a sixty-day extension of the date for post-trial motions by filing a five-page motion on January 15, 2016. (Dkt. 144 at 2.) This filing repeated that post-trial motions were due by February 18, 2016, "pursuant to [the] court's briefing schedule" and indicated that the defendants would file a memorandum in support by that date. ( Id. at 2.) Critically, the motion contains a summary of the defendants' arguments with no citations to supporting authority. As discussed above, legally unsupported arguments are waived. See, e.g., Johnson, 2016 WL 3476660, at *6. To the extent that the defendants provided citations to authority and the record, they did so in their memorandum, which they filed on February 18, 2016 (Dkt. 153), as did the plaintiffs (Dkt. 149). The court need not, however, determine if the defendants' cursory initial presentation of their post-trial issues is sufficient as it does not affect the result.

         The plaintiffs agree that the court cannot extend the date to file post-trial motions. See Blue v. Int'l Bhd. of Elec. Workers Local Union, 159, 676 F.3d 579, 582 (7th Cir. 2012); Aponte v. City of Chicago, No. 09 C 8082, 2012 WL 1533309, at *1 (N.D. Ill. Apr. 26, 2012). Nevertheless, they urge the court to grant their post-trial motion based on Rule 60. This relief is available to courts faced with untimely Rule 50 motions. Blue, 676 F.3d at 584-85. A Rule 60 motion does not "affect [a] judgment's finality or suspend its operation." Fed.R.Civ.P. 60(c)(2). Among other things, the court can grant a Rule 60 motion based on "mistake, inadvertence, surprise, or excusable neglect" or the "catch-all" clause ("any other reason that justifies relief"). Fed.R.Civ.P. 60(b)(1) & (6).

         The "mistake' and inadvertence' language of subsection (1)... includes inadvertence on the part of both courts and parties." Mendez v. Republic Bank, 725 F.3d 651, 658 (7th Cir. 2013). Thus, "subsection (1) of Rule 60(b) allows a district court to correct its own errors that could be corrected on appeal, at least if the motion is not a device to avoid expired appellate time limits." Mendez v. Republic Bank, 725 F.3d 651, 659 (7th Cir. 2013). Here, the plaintiffs' late filing (and the date that Pena filed his memorandum supporting his post-trial motions) flowed from the court's inadvertent error in granting the defendants' request for an extension of time for all parties to file post-trial motions. Moreover, the defendants agree that the court may, in an exercise of its discretion, consider the merits of the plaintiffs' motion for judgment as a matter of law based on Rule 60. Thus, the court turns to the merits of the various post-trial motions.

         B. Legal Standard for a Motion for Judgment as a Matter of Law

         Judgment as a matter of law is warranted if "a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on [an] issue." Fed.R.Civ.P. 50(a)(1). When considering a Rule 50(b) motion, the court "construes the evidence strictly in favor of the party who prevailed before the jury and examines the evidence only to determine whether the jury's verdict could reasonably be based on that evidence." Passananti v. Cook Cnty., 689 F.3d 655, 659 (7th Cir. 2012); see also Flournoy v. City of Chicago, ___ F.3d ____, No. 14-3776, 2016 WL 3924378, at *3 (7th Cir. July 21, 2016).

         "[T]he court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). Ultimately, the court must use its discretion to determine if "no rational jury could have rendered" the verdict. See Saathoff v. Davis, ___ F.3d ____, No. 15-3415, 2016 WL 3386780, at *6 (7th Cir. June 20, 2016) (citing EEOC v. AutoZone, Inc., 809 F.3d 916, 919 (7th Cir. 2016)); see also United States v. Funds in the Amount of One Hundred Thousand Dollars, No. 03 C 03644, 2016 WL 3459527, at *2 (N.D. Ill. June 24, 2016) (internal quotations omitted) ("the role of the court is to decide whether a highly charitable assessment of the evidence supports the jury's verdict or if, instead, the jury was irrational to reach its conclusion").

         C. The Plaintiffs' Motion for Judgment as a Matter of Law

         1. Relevant Evidence

         Although much of what occurred on the night of October 1, 2010, is disputed, the parties largely agree on the facts that are relevant to the plaintiffs' motion for judgment as a matter of law.[2] On the evening of October 1, 2010, Officers Pena and Romero were on patrol in the 13th District. The officers heard a flash message on their police radio indicating that a shooting had just occurred near West Augusta Boulevard and North Francisco Avenue. The message indicated that "Corey Campbell" was the shooter and that Campbell resided at 3227 West Pierce Avenue in Chicago. The officers agree that they did not have a description of Campbell (other than his gender, due to the use of the pronoun "he") as the message did not provide any information about Campbell, such as his age, race, height, build, hair color, hair length, facial hair, or clothing.

         Officer Romero testified that the officers were two or three blocks away from the scene of the shooting when they heard the message. They drove "about a mile and a half" to 3227 West Pierce Avenue. (Dec. 15, 2015 Tr. at 79.) When the officers arrived, they entered the alley behind 3227 West Pierce Avenue. From their vantage point in their unmarked car, they did not see anyone exit the house. Instead, they espied a man (who turned out to be Torres) walking from the gangway alongside 3227 West Pierce Avenue towards a car parked in a carport located in the alley behind the residence next door at 3225 West Pierce Avenue. The officers testified that Torres was walking (not running) and that they did not observe him engaging in any illegal activity.

         Due to his gender and propinquity to 3227 West Pierce Avenue, the officers wanted to interview Torres to determine if he was Corey Campbell. Thus, once Torres got into his car, they pulled their car behind Torres's car "to block him in" so he could not leave. (Dec. 17, 2015 Tr. at 5.) According to the officers, they immediately got out of their car-without running the license plates on Torres' vehicle- and approached Torres while yelling, "Chicago Police. Let me see your hands." ( Id. at 6.)

         Torres testified that he did not see the unmarked police car park behind his car. Instead, he saw two individuals (who he did not realize were police officers) approach his car from the rear and go to the driver's and passenger's sides while he was sitting in the driver's seat with the window rolled down. The officers testified that they were not trying to sneak up on Torres and that Torres did not comply with their demand to show them his hands. From there, the situation rapidly escalated.

         2. Torres' Fourth Amendment Seizure Claim

         As the court stated when ruling on the defendants' motion for summary judgment:

The Fourth Amendment protects individuals "against unreasonable searches and seizures." U.S. Const. amend. IV. Ordinarily seizures are "reasonable" only when supported by probable cause to believe an individual has committed a crime. See, e.g., Dunaway v. New York, 442 U.S. 200, 213 (1979); Bailey v. United States, ___ U.S. ____, 133 S.Ct. 1031, 1037 (2013). The longstanding exception to this rule arises under Terry v. Ohio, 392 U.S. 1 (1968), which authorizes brief investigatory detentions based on the less demanding standard of reasonable suspicion that criminal activity is afoot, id. at 21-22; United States v. Baskin, 401 F.3d 788, 791 (7th Cir. 2005). Such a brief detention is permitted when it demands only a limited intrusion into an individual's privacy and rests on "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21. Determining whether such an investigatory detention is constitutional requires balancing the governmental interest in the seizure against the degree to which it intrudes on an individual's personal liberty. See id. at 20-21. And although reasonable suspicion is a less demanding standard than probable cause, such a stop requires at least a minimal level of objective justification and the officer must be able to articulate more than an "inchoate and unparticularized suspicion or "hunch" of criminal activity. Id. at 27; see also Ill. v. Wardlow, 528 U.S. 119, 123-24 (2000). Ultimately, determining whether reasonable suspicion exists is not an exact science, and "must be based on commonsense judgments and inferences about human behavior." Wardlow, 528 U.S. at 125.

Matz v. Klotka, 769 F.3d 517, 522 (7th Cir. 2014).

         "A Fourth Amendment seizure is not a continuous fact'; it is a single act that occurs at a discrete point in time." United States v. Mays, 819 F.3d 951, 955-56 (7th Cir. 2016) (quoting California v. Hodari D., 499 U.S. 621, 625 (1991)). Officers effect a seizure through the use of physical force or "through a show of authority and submission to the assertion of authority." Id. (quoting United States v. Griffin, 652 F.3d 793, 798 (7th Cir. 2011)). "[W]hat may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away." Brendlin v. California, 551 U.S. 249, 262 (2007).

         The plaintiffs argue that they are entitled to judgment as a matter of law as to Torres' Fourth Amendment claim because (1) the officers' decision to block Torres with their unmarked squad car was a seizure[3] and (2) the officers lacked any reasonable suspicion to believe that Torres had committed, was committing, or was about to commit a crime. In response, the defendants argue-without citation to any authority-that Torres could not have believed that his liberty was restrained by the positioning of their squad car because he did not know that the squad car was parked behind his car. The court's consideration of Torres' Fourth Amendment claim begins and ends with the seizure element.

         The plaintiffs' authority all involves shows of authority based on police cars that were visible to individuals who were the subjects of investigatory stops. In United States v. Green, the officers blocked a driveway with their car. 111 F.3d 515, 517 (7th Cir. 1997). After the driver exited, the police yelled that they wanted to speak with him, obtained identification, and asked the passenger, who was still in the car, for identification. Id. They then returned to the squad car to check for warrants and discovered that the passenger had an outstanding warrant. Id. While Green does not specifically state that the occupants of the car were aware that a squad car was parked so that they could not drive away, the chronology of the stop makes clear that they would have seen the squad car. In United States v. Packer, squad cars with illuminated "take down lights" were parked in front and behind the defendant's car. 15 F.3d 654, 657 (7th Cir. 1994). In United States v. Lechuga, squad cars "sandwiched" the defendant's car by blocking him from the front and back. 925 F.2d 1035, 1037 (7th Cir. 1991); see also United States v. Bean, No. 15-CR-146, 2016 WL 3383283, at *4 (E.D. Wis. June 17, 2016) (collecting cases that consider whether officers conducted a seizure by stopping cars using a show of force, such as activating the lights on their squad car or blocking the targets' cars with their own car).

         These cases are all distinguishable because Torres testified that he did not know that the officers had parked their car behind him. This creates an interesting constitutional conundrum-can a seizure occur if an individual is physically blocked from leaving but erroneously believes that he can leave because he is unaware that he has been blocked? The parties' briefs, regrettably, fail to address this question. The court has been unable to find another case addressing this unusual fact pattern but finds guidance in longstanding Fourth Amendment precedent regarding seizures.

         "[A]n officer's conduct may be unreasonable, unjustified, or outrageous, but it is not prohibited by the Fourth Amendment unless it involves a seizure." Price v. Marion Cnty. Sheriff's Dep't, No. 1:12-CV-408-RLY-DML, 2013 WL 5321260, at *5-6 (S.D. Ind. Sept. 23, 2013). Thus, the court's first task is to determine if the officers' conduct caused Torres to be seized. See id. Under "the so-called Mendenhall test, formulated by Justice Stewart's opinion in United States v. Mendenhall, 446 U.S. 544, 554 (1980).... [a] person has been seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Hodari D., 499 U.S. at 627-28 (quoting Mendenhall, 446 U.S. at 554). " Mendenhall establishes that the test for existence of a show of authority' is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person." Id.

         The objective nature of the standard promotes "consistent application from one police encounter to the next, regardless of the particular individual's response to the actions of the police." Michigan v. Chesternut, 486 U.S. 567, 574 (1988). It "allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment" and "ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached." Id. This line of cases suggests that the officers seized Torres because regardless of whether he knew his car was blocked into the carport, the officers knew that they had parked perpendicular to Torres' car so that he could not back out.

         However, a "person is seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained." United States v. Griffin, 652 F.3d 793, 798 (7th Cir. 2011) (citing Mendenhall, 446 U.S. at 553); Brower, 489 U.S. at 599 (an actionable seizure occurs when a person is "stopped by the very instrumentality set in motion or put in place in order to achieve that result"). Thus, while the use of physical force ( i.e., force involving contact) "always constitutes a seizure, a show of authority' alone is insufficient; an officer's show of authority becomes a seizure only if the person at whom it is directed actually submits to that authority." Griffin, 652 F.3d at 798 (citing Hodari D., 499 U.S. at 626); Price, 2013 WL 5321260, at *7. In other words, "a seizure by submission following a show of authority... does not occur unless and until the suspect submits." Id. at 800-01 (emphasis in original).

          Estate of Williams v. Indiana State Police illustrates this principle. 26 F.Supp. 3d 824 (S.D. Ind. 2014), aff'd sub nom. Williams v. Indiana State Police Dep't, 797 F.3d 468 (7th Cir. 2015). In Williams, law enforcement officers arrived at Williams' home. He was locked in his bathroom and threatened to kill anyone who entered. The officers opened the bathroom door and attempted to subdue Williams with a Taser. He responded by advancing towards the officers holding a knife, at which point he was fatally shot. His estate contended that the officers seized Williams when they opened the bathroom door with Tasers and guns trained on him because "[t]his was a seizure by submission to a show of authority through passive acquiescence." Id. at 848.

         The court noted, however, that no evidence showed that Williams acquiesced to the officers' show of authority when they opened the door as the officers deployed their Tasers almost immediately after they opened the door. Indeed, Williams' estate had argued that it was unreasonable for the officers to surprise Williams by opening the bathroom door and then immediately tase him without warning. Thus, the court concluded that Williams did not submit to the show of authority so "there [was] at most an attempted seizure, so far as the Fourth Amendment is concerned." Id. (quoting Brendlin, 551 U.S. at 254).

         Torres' situation is very similar. He testified that two men (two of the defendant officers, as things turned out) approached both sides of his car rapidly from the rear and that from his vantage point in his car, which was parked in a carport, he did not see the police car parked behind him. The presence of the parked car behind Torres' car that would have prevented him from backing out of the carport if he had tried to do so-which is the plaintiffs' basis for claiming that a seizure occurred-thus played no role in the events on the night of October 1, 2010. The officers' decision to block Torres' car using their squad car is, therefore, at best an attempted seizure.[4] See Brendlin, 551 at 254 ("A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission."); Cnty. of Sacramento v. Lewis, 523 U.S. 833, 844 n.7 (1998) (an attempt to effect a seizure does not implicate the Fourth Amendment); Bridgewater v. City of Indianapolis, No. 114CV01370JMSMJD, 2016 WL 1117646, at *8 (S.D. Ind. Mar. 22, 2016) (when the plaintiffs "stopped because the traffic light was red, refused to follow all instructions while there was interaction, and then fled after the light turned green, " a seizure did not occur because the plaintiffs did not submit to a show of authority).

         Accordingly, the placement of the officers' car did not rise to the level of a seizure because regardless of the officers' objective beliefs, there was no submission. Thus, there is no basis for revisiting the jury's verdict. The plaintiffs' motion for judgment as a matter of law is denied.

         D. Pena's Request for Judgment as a Matter of Law

         Pena argues that he is entitled to judgment as a matter of law as to the plaintiffs' malicious prosecution claims because no reasonable jury could have found that: (1) he lacked probable cause to arrest and charge Correa with aggravated battery; (2) he lacked probable cause to arrest and charge Torres with aggravated battery; or (3) he acted maliciously in commencing the prosecution of the plaintiffs.

         1. Probable Cause to Arrest and Charge Correa with Aggravated Battery

         Probable cause is "a state of facts that would lead a person of ordinary care and prudence to believe or to entertain an honest and sound suspicion that the accused committed the offense charged." Sanders v. City of Chicago Heights, No. 13 C 0221, 2016 WL 2866097, at *14 (N.D. Ill. May 17, 2016) (quoting Williams v. City of Chicago, 733 F.3d 749, 759 (7th Cir. 2013)). It turns on the state of mind of the person who commences a prosecution, not "the actual facts of the case or the guilt or innocence of the accused." Williams, 733 F.3d at 759 (quoting Sang Ken Kim v. City of Chicago, 858 N.E.2d 569, 574 (1st Dist. 2006)). The existence of probable cause is a complete defense to a malicious prosecution claim. See, e.g., Logan v. Caterpillar, Inc., 246 F.3d 912, 926 (7th Cir. 2001).

         Pena argues that probable cause supported his decision to arrest Correa for aggravated battery to a police officer because he "had an honest and sound suspicion that Correa knew he was a peace officer" when she hit him, regardless of Correa's subjective belief that Pena was not a police officer.[5] (Dkt. 153 at 4.) According to Pena, "[n]o reasonable jury could have found [his] belief as to Plaintiff's Correa's knowledge of his office to be less than honest or strong, even if mistaken, and Plaintiff points to no evidence before the jury that could possibly support such a finding." (Dkt. 181 at 4.)

         Pena's professed personal belief about what Correa knew, however, is contradicted by Correa's testimony that she pushed Pena in his back and that from this vantage point, she could not tell that he was a police officer. Correa also testified that she realized that Pena was a police officer when he turned around and she saw his vest. Terri Wilson, a neighbor who saw the push, testified consistently that she saw Correa push Pena from behind and heard Correa state, after Pena turned around and punched Correa in the mouth, that she had not realized Pena was a police officer.

         In the context of a motion for judgment as a matter of law, the court must draw all reasonable inferences in favor of Correa and cannot assess credibility or reweigh the evidence. Reeves, 530 U.S. at 150. A rational jury could have believed Correa's testimony-which was supported by Wilson's testimony- that she approached Pena from the back and from that perspective, could not tell that he was a police officer. Pena's argument flies in the face of the standard governing motions for judgment as a matter of law because the jury easily could have accepted Correa and Wilson's testimony as true. At that point, Pena's professed belief that it was reasonable for him to think that Correa knew he was a police officer is unreasonable. See Edwards v. Haritos, No. 09 C 1726, 2012 WL 774531, at *2 (N.D. Ill. Mar. 8, 2012) (denying a motion for judgment as a matter of law because the "defendants overlook... that a jury need not believe the defendants' own testimony about their state of mind, but may infer the defendants' state of mind from other evidence, " including the plaintiffs' version of events). This portion of Pena's motion is denied.

         2. Probable Cause to Arrest and Charge Torres with Aggravated Battery

         The parties dispute whether Torres kicked Pena in the leg or inadvertently touched Pena in a glancing fashion when Torres exited his car on the night of his arrest. Pena argues that he had "a reasonable objective belief that Torres committed the offense of aggravated battery to a police officer regardless of Torres' subjective belief that any physical contact was not intentional" and that the court can evaluate his "objective reasonable belief" without "consider[ing] Torres' subjective state of mind." (Dkt. 153 at 5.)

         This argument suffers from the same defect as Pena's probable cause arguments about Correa. At trial, the parties presented competing versions of the events in the carport. The court must draw all reasonable inferences in favor of Torres; it cannot, as Pena seems to suggest, simply accept Pena's contradictory version of events. Torres' position that he did not make knowing contact with Pena is supported by his testimony. If the jury accepted this testimony, it would necessarily have rejected the defendants' countervailing evidence. This portion of Pena's motion is denied.

         3. Malice

         Next, Pena argues that no reasonable jury could have found that he acted maliciously in commencing the prosecution of the plaintiffs. Specifically, according to Pena:

In this case the plaintiffs themselves admitted to striking [him]. While they may have argued justification or explained why they struck him the fact remains that they struck him. Given the requirements for a probable cause analysis, and the testimony of Defendant Pena, one must conclude that Defendant Pena obviously had probable cause to arrest both Torres and Correa. Further, this Court has heard all the evidence. But for the inflamed emotions of the jury, there is simply no way a jury could find that Defendant Pena acted with malice. He charged crimes he thought were appropriate. Neither he nor any other officer at the scene was hurt badly. They had no prior relationship or knowledge of plaintiffs. Thus, it stands to reason, that he had no reason to act with malice and charge plaintiff's [sic] with a crime he felt they did not commit.

(Dkt. 153 at 7.)

         The "malice" element of malicious prosecution exists when the "the officer who initiated the proceedings was motivated by something other than a desire to bring a guilty party to justice." Seiser v. City of Chicago, 762 F.3d 647, 659 (7th Cir. 2014). Under Illinois law, "[i]t is well established that a jury can infer malice from an absence of probable cause." Williams v. City of Chicago, 733 F.3d 749, 760 (7th Cir. 2013) (collecting cases). Once again, the court cannot elect to accept Pena's version of events at this stage of the proceedings, no matter how vigorously he asserts that the jury's adverse verdict is not supported by the evidence and must be a result of "inflamed emotions."[6] As discussed above, the evidence presented at trial was sufficient for the jury to conclude that Pena lacked probable cause for the charges he instituted against Torres and Correa. This supports an inference that Pena acted based on malice rather than a desire to bring a guilty party to justice. See Anderson v. Landrum, No. 12 C 1902, 2015 WL 1538243, at *6 (N.D. Ill. Mar. 31, 2015) (declining to disturb a verdict after the parties presented "significantly divergent facts" at trial because a reasonable jury could question if probable cause existed).

         As discussed above, a rational jury could have accepted the plaintiffs' evidence that Correa did not realize that Pena was a police officer when she initially saw him from behind and pushed him, thinking he was a mugger intent on attacking her then-boyfriend. It also could have accepted Torres' testimony about the kick. Given that, it could then have questioned Pena's basis for bringing felony aggravated battery charges against Torres and Correa because the plaintiffs' version of events is inconsistent with Pena's good faith in bringing aggravated battery charges. See Edwards, 2012 WL 774531, at *2 (if the jury believed the plaintiffs' testimony about their encounter with the police, they could have concluded that the officers "had fabricated their story to create probable cause when there was none previously" and thus lacked good faith in bringing charges against the plaintiffs). This portion of Pena's motion is denied.

         III. DEFENDANT PENA'S REMAINING POST-TRIAL MOTIONS

         Besides the motion for judgment as a matter of law discussed above, Pena has filed alternative motions for a new trial, to alter ...


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