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Andersen v. Village of Glenview

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

September 9, 2019

VILLAGE OF GLENVIEW et al, Defendants.


          John J. Tharp, Jr., United States District Judge.

         This opinion addresses the last remaining claims arising from an unfortunate chapter in a long-running saga of divorce and ensuing battle for custody of the couple's children. Plaintiff Barbara Andersen brought suit pursuant to 42 U.S.C. § 1983 asserting various claims and theories of liability premised on an alleged scheme involving her ex-husband, defendant Rick Gimbel, and defendant Detective Jacob Popkov of the Glenview Police Department (“GPD”) to have Andersen arrested and detained overnight to facilitate Gimbel's efforts to obtain custody of the couple's children. After most of Andersen's claims were dismissed for failure to state a claim, both defendants moved for summary judgment on the remaining claims pertaining to her overnight detention after being arrested on charges harassment and stalking charges. While Andersen's pique at being detained on criminal charges-all of which were unsuccessful-brought at the instigation of her former husband is quite understandable, she has failed to adduce sufficient evidence to sustain a jury verdict that her overnight detention on those charges was unconstitutional or that Gimbel's conduct was extreme and outrageous. Accordingly, the defendants' summary judgment motions are granted.


         For purposes of this motion, the story begins on Tuesday, September 8, 2015 when Detective Popkov was assigned to investigate a complaint made by Rick Gimbel alleging that his ex-wife Barbara Andersen had made a series of threatening phone calls to Gimbel and others.[2]Popkov's Statement of Facts (“SOF”) ¶ 7, ECF No. 216. It is undisputed that Popkov and another officer interviewed Gimbel on the night of September 8, id. ¶ 11, and that Popkov spoke with various other parties referenced in Gimbel's complaint the next day, September 9. Id. ¶ 13. On the evening of September 9, Gimbel sent an e-mail to Popkov stating that it was “[g]oing to be interesting on Friday” if Andersen were not arrested. Id. ¶ 29. According to Popkov, he did not know what Gimbel meant and disregarded the statement; according to Andersen, Gimbel and Popkov had reached an understanding to have Andersen arrested prior to September 11, 2015 so that Gimbel could take his minor children (as to whom Andersen then had custody) to a football game over Andersen's objection.[3] Andersen has not, however, adduced evidence of any response by Popkov to Gimbel's message or, indeed, any evidence that Popkov knew anything about a football game.

         On 1:00 p.m. on Thursday, September 10, 2015, Detective Popkov arrested Andersen at her home[4] for misdemeanor telephone harassment as defined by 720 ILCS 5/26.5-2. This Court concluded in its prior ruling on the defendants' motions to dismiss that Popkov had probable cause for this warrantless arrest. See Andersen v. Vill. of Glenview, 17-CV-05761, 2018 WL 6192171, at *1 (N.D. Ill. Nov. 28, 2018). Popkov then took Andersen to the police station and by 1:30 p.m. began interviewing her. The interview lasted for approximately an hour and ten minutes, id. ¶ 17, during which time Popkov told Andersen that she would be detained overnight. Id. ¶ 18. Popkov also told Andersen that she would likely face felony stalking charges in addition to the misdemeanor telephone harassment charges, but that under Illinois law felony charges had to be approved by the State's Attorney. See 725 ILCS 5/111-2(a) (“All prosecutions of felonies shall be by information or indictment” while all others may be by information, indictment, or complaint); Brown v. City of Chicago, 713 F.Supp. 250, 251 (N.D. Ill. 1989) (Illinois Felony Review process requires the State's Attorney to review felony charges prior to probable cause hearing).

         After the interview, Popkov reviewed additional materials provided by Gimbel and at some point called the Cook County State's Attorney. Andersen maintains that Popkov “purposefully wasted considerable time” by waiting until late that afternoon to initiate the felony review process. Pl.'s Resp. Br. 11, ECF No. 227. At 4:45 p.m., Felony Review Assistant State's Attorney Joseph Carlson arrived at the police department, spoke with Popkov, interviewed witnesses, and reviewed the case materials. Popkov's SOF ¶ 20. At approximately 8:00 p.m., Carlson approved a felony stalking charge. Andersen was then processed and placed in a holding cell overnight. At 7:35 a.m. the next morning, she was taken to court. Finally, at 1:30 p.m., a little more than 24 hours after her initial arrest, she was released on her own recognizance with various conditions of release imposed. Id. ¶¶ 23, 24. The charges against her were ultimately resolved in her favor: the felony stalking charges (2 counts) were nolle prossed and Andersen was acquitted of the misdemeanor telephone harassment charge.

         Andersen subsequently filed a 12-count complaint alleging, among other things, that Popkov conspired with Gimbel to arrest, detain, and prosecute her on trumped up felony stalking charges as part of Gimbel's ploy to win custody of their minor children in violation of the Fourth Amendment. The Court dismissed much of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) but concluded that Andersen had adequately stated a claim against Popkov for unconstitutionally prolonging her post-arrest detention and against Popkov and Gimbel for conspiring together to do so. The Court also concluded that Andersen stated a claim against Gimbel for state law intentional infliction of emotional distress ("IIED") arising out of his alleged campaign to have Andersen arrested and prosecuted. Shortly thereafter, Popkov and Gimbel each moved for summary judgment.[5]


         I. Motion to Strike

         Before addressing the merits of the summary judgment motions, the Court turns briefly to Andersen's motion to strike various exhibits submitted by the defendants. Specifically, Andersen seeks to exclude 1) video recordings of Andersen at the Glenview Police Department, 2) an e-mail and transcripts from third-party witnesses offered to support Gimbel's contention that his complaints about Andersen were made in good faith, and 3) audio recordings of the voice messages left by Anderson. Because the Court does not rely on any of the challenged exhibits in granting the defendants' motions for summary judgment, it is not necessary to rule on the motion to strike. The motion is accordingly denied as moot.

         II. Motion for Summary Judgment

         Moving on, then, to the motions for summary judgment: summary judgment is warranted where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). To survive summary judgment, the nonmovant must come forward with “specific facts showing that there is a genuine issue for trial.” Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 694 (7th Cir. 2006). A mere “scintilla” of evidence in support of the nonmoving party's position is insufficient; the nonmovant must present evidence which could support a jury verdict in her favor. Id.

         The primary issue here is whether Detective Popkov unreasonably prolonged the length of Andersen's post-arrest, pre-probable cause hearing detention. While officers may detain suspects for brief periods after warrantless arrests made pursuant to “on-the-scene” probable cause assessments, “the Fourth Amendment requires a [prompt] judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” Gerstein v. Pugh, 420 U.S. 103, 114 (1975). A delay of 48 hours or less is presumed to be reasonable, County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), so it is Andersen's burden to establish that her 24-hour period of detention was unreasonable. Portis v. City of Chicago, Ill., 613 F.3d 702, 704 (7th Cir. 2010). She has not done so.

         Popkov maintains in his motion for summary judgment that it was reasonable to hold Andersen overnight because a judge was required to set bond before Andersen could be released given the nature of the charge and that could not happen until the following day. As explained by Popkov, while the Illinois Supreme Court may prescribe “a uniform schedule of amounts of bail” in misdemeanor cases such that arrestees charged with minor offenses can bond out from the police station without having to appear in court, see 725 ILCS 5/110-15 and People v. Zlatnik, 29 Ill.App.3d 498, 499, 331 N.E.2d 1, 3 (4th Dist. 1975), Illinois Supreme Court Rule 528 provides that bail for certain misdemeanor domestic offenses must be set by a judge. Ill. S.Ct. R. 528. Although Andersen does not raise this issue, it is worth noting that Rule 528 states only that a judge must set bail “for the offense of domestic battery, a violation of an order of protection, or any similar violation of a local ordinance.” Id. It says nothing about the Illinois misdemeanor telephone harassment statute. Had Andersen been charged ...

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