United States District Court, N.D. Illinois, Eastern Division
TRINA COLE, LATASHA BILLINGSLEY, TIMOTHY HARRIS, LETICIA COLE-THIGPEN, TERRANCE COLE, and SHERITTA COLE, Plaintiffs,
VILLAGE OF RIVERDALE, RIVERDALE POLICE OFFICERS KOZELUH Star # 143 and JOHNSON Star # 144, Defendants.
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN United States District Court Judge
Trina Cole, Latasha Billingsley, Leticia Cole-Thigpen,
Terrance Cole, and Sheritta Cole brought this action against
the Village of Riverdale and Riverdale police officers
Kozeluh (Star #143) and Johnson (Star # 144), alleging that
Officer Kozeluh used excessive force against Latasha
Billingsley, Sharitta Cole, and Trina Cole (Count I), that
both officers falsely arrested Leticia Cole-Thigpen, Latasha
Billingsley, Terrance Cole, and Trina Cole (Count II), that
Officer Johnson failed to intervene and prevent the excessive
force used against Latasha Billingsley, Sharitta Cole, and
Trina Cole (Count III), and that both officers maliciously
prosecuted Leticia Cole-Thigpen, Latasha Billingsley, Trina
Cole, and Terrance Cole (Count IV). The complaint
additionally sets forth a state law indemnity claim and a
claim for respondeat superior liability against the Village
of Riverdale. The defendants now move for partial summary
judgment on Counts II and IV. For the reasons set forth
below, that motion is granted in part and denied in part.
following facts are undisputed except where otherwise noted.
On January 7, 2012, Latasha Billingsley was moving out of the
home that she shared with Leticia Cole-Thigpen. (Dkt. 112,
¶¶ 1-3). Trina Cole, Timothy Harris, Terrance Cole,
and Sheritta Cole were present to assist Latasha Billingsley.
(Id. ¶ 3). A verbal dispute arose between
Latasha Billingsley and Leticia Cole-Thigpen. (Id.
¶ 4). The argument escalated, and while the other
plaintiffs were gathered in the living room Latasha
Billingsley entered the room brandishing a knife.
(Id. ¶ 9). Latasha Billingsley was subsequently
restrained and the knife removed from her possession.
(Id. ¶ 10). Leticia Cole-Thigpen called the
police and stated that she wanted Latasha Billingsley removed
from her home because she was “disrespecting her”
and that she had “pulled a knife on her.”
(Id. ¶ 11). Officers Kozeluh and Johnson were
dispatched to the house and informed that someone had a
knife. (Id. ¶ 12). Officer Kozeluh arrived on
the scene, parked his vehicle in the middle of the street,
and entered the house. (Id. ¶ 13). The
defendants assert that Leticia Cole-Thigpen and Latasha
Billingsley were engaged in an argument in the kitchen, which
Officer Kozeluh attempted to break up. (Id.
¶¶ 16-18). Officer Kozeluh subsequently observed an
incident in which Leticia Cole-Thigpen grabbed a bag out of
Latasha Billingley's hand, threw it on the ground, and
stomped on it. (Id. ¶ 18). In response to the
continued escalation of the situation, the officers placed
Leticia Cole-Thigpen and Latasha Billingsley under arrest.
(Id. ¶ 21). The parties substantially dispute
what happened next, but it is undisputed that Officer Kozeluh
escorted Latasha Billingsley outside to place her in a
vehicle and that the majority of the plaintiffs followed him
outside. (¶¶ 22-26). It is disputed whether the
plaintiffs were crowding around Officer Kozeluh or physically
interfering with his efforts to place Latasha Billingsley in
his vehicle, although it is undisputed that Timothy Harris
plead guilty to criminal battery against Officer Kozeluh.
(Id. ¶ 33). It is undisputed that during the
course of placing Latasha Billingsley in his vehicle Officer
Kozeluh used OC (pepper) spray on several of the plaintiffs.
(Id. ¶¶ 34-37). Trina Cole and Terrance
Cole were subsequently arrested and charged with
resisting/obstructing a peace officer. (Id. ¶
40). Latasha Billingsley was arrested and charged with
aggravated assault and resisting/obstructing a peace officer.
(Id.). And Leticia Cole-Thigpen was arrested and
charged with domestic battery and resisting/obstructing a
peace officer. (Id.).
judgment is proper when “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 moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). In determining whether a genuine issue of
material fact exists, this Court must view the evidence and
draw all reasonable inferences in favor of the party opposing
the motion. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
However, “[m]erely alleging a factual dispute cannot
defeat the summary judgment motion.” Samuels v.
Wilder, 871 F.2d 1346, 1349 (7th Cir. 1989). “The
mere existence of a scintilla of evidence in support of the
[non-movant's] position will be insufficient; there must
be evidence on which the jury could reasonably find for the
[non-movant].” Anderson, 477 U.S. at 252.
defendants contend that Count II (false arrest) and Count IV
(malicious prosecution) must be dismissed because the
officers had probable cause to arrest the plaintiffs or, in
the alternative, were protected by qualified immunity.
order to prevail on their claims for false arrest under 42
U.S.C. § 1983, the plaintiffs must show that probable
cause for their arrest was lacking. Williams v.
Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007). The
existence of probable cause is an absolute defense to any
claim under section 1983 against police officers for wrongful
arrest. Id. (quoting Mustafa v. City of
Chicago, 442 F.3d 544, 547 (7th Cir. 2006)).
“Police officers possess probable cause to arrest when
the facts and circumstances within their knowledge and of
which they have reasonably trustworthy information are
sufficient to warrant a prudent person in believing that the
suspect had committed an offense.” Williams,
509 F.3d at 398 (internal quotations and citations omitted).
Probable cause is not evaluated by the Court based upon
“the facts as an omniscient observer would perceive
them, ” but instead is determined by the facts
“as they would have appeared to a reasonable person in
the position of the arresting officer.” Id.
(internal quotations and citations omitted).
order to prevail on their claims of malicious prosecution
under Illinois law, the plaintiffs must show (1) the
commencement or continuing of criminal proceedings by the
defendants; (2) the termination of that matter in favor of
the plaintiff; (3) the absence of probable cause for the
proceedings; (4) the presence of malice; and (5) resulting
damages. Gonzalez v. City of Elgin, 578 F.3d 526,
541 (7th Cir. 2009) (citing Swick v. Liautaud, 662
N.E.2d 1238, 1242, 169 Ill.2d 504 (1996)).
[A] malicious prosecution claim is treated differently from
one for false arrest: whereas probable cause to believe that
a person has committed any crime will preclude a
false arrest claim, even if the person was arrested on
additional or different charges for which there was no
probable cause, probable cause as to one charge will not bar
a malicious prosecution claim based on a second, distinct
charge as to which probable cause was lacking.
Holmes v. Village of Hoffman Estate, 511 F.3d 673,
682 (7th Cir. 2007).
defendants assert that they are protected by qualified
immunity. Qualified immunity protects government officials
“from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). To determine
whether qualified immunity exists courts employ a two-step
analysis asking (1) whether the plaintiff has asserted the
violation of a federal constitutional right and (2) if such a
violation did occur, whether the right was so clearly
established at the time of the alleged violation that a
reasonable officer would know that his actions were
unconstitutional. Sornberger v. City of Knoxville,
Ill., 434 F.3d 1006, 1013 (7th Cir. 2006). In false arrest
cases such as this one, the question therefore becomes
whether a reasonable officer could have believed that they
had probable cause to make an arrest. Id. This
standard is thus alternatively known as “arguable
probable cause.” The defendants contend that the
undisputed facts establish that they had probable cause with
respect to each plaintiff named in Count II and IV or,
alternatively, that they are protected from the
plaintiffs' false arrest claims by qualified immunity.
initial matter, this Court turns to the allegations of false
arrest and malicious prosecution brought by Terrance and
Trina Cole, both of whom were charged with resisting or
obstructing a peace officer under 720 ILCS 5/31-1. It is well
established that, under Illinois law, the crime of resisting
or obstructing a peace officer requires physical
resistance-mere argument does not suffice. Payne v.
Pauley,337 F.3d 767, 776 (7th Cir. 2003). Here, it is
undisputed that both Terrance and Trina Cole were outside the
house while Latasha was being arrested and placed in a police
vehicle by Officer Kozeluh. It is hotly disputed, however,
where they were in relation of Officer Kozeluh and Latasha,
whether they interfered with Officer Kozeluh's attempts
to arrest Latasha, whether Officer Kozeluh issued any orders
to back up or disperse, and whether Terrance and Trina Cole
complied with those orders if they were issued. Substantial
material disputes of fact therefore remain as to the
existence of probable cause, or even arguable probable cause,
for Terrance and Trina Cole's arrest. Accordingly, this
Court cannot grant ...