United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
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.
BACKGROUND[1]
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]
DISCUSSION
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 ...