234 F.3d 979 (7th Cir. 2000), 99-4069, Woods v City of Chicago et al

Docket Nº:99-4069
Citation:234 F.3d 979
Party Name:ALBERT WOODS, Plaintiff-Appellant, v. CITY OF CHICAGO, OFFICER MAKOWSKI, Chicago Police Officer #16971, OFFICER ALANIS, Chicago Police Officer #5001, Defendants-Appellees.
Case Date:December 08, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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234 F.3d 979 (7th Cir. 2000)

ALBERT WOODS, Plaintiff-Appellant,


CITY OF CHICAGO, OFFICER MAKOWSKI, Chicago Police Officer #16971, OFFICER ALANIS, Chicago Police Officer #5001, Defendants-Appellees.

No. 99-4069

In the United States Court of Appeals, For the Seventh Circuit

December 8, 2000

Argued September 13, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 7092--Charles R. Norgle, Sr., Judge.

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[Copyrighted Material Omitted]

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Before Flaum, Chief Judge, and Bauer, and Kanne, Circuit Judges.

BAUER, Circuit Judge.

Plaintiff- Appellant Albert Woods appeals from the order of the United States District Court for the Northern District of Illinois, Eastern Division, granting summary judgment to defendants-appellees Makowski, Alanis, and the City of Chicago. For the reasons set forth below, we affirm.

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Albert Woods was arrested at his place of employment for misdemeanor assault. After the charges against him were dropped, Woods filed an action under 42 U.S.C. sec. 1983 against the City of Chicago and Chicago police officers Makowski and Alanis, asserting violations of his Fourth Amendment rights. In his complaint, Woods contended that the officers acted unreasonably in arresting him without a warrant for misdemeanor assault one day after Gabriel Flores (the putative assault victim) signed a criminal complaint against him. He also asserted that the officers acted in accordance with a policy of the City of Chicago authorizing its police officers to make a full custodial arrest for a misdemeanor that did not involve a breach of the peace and that had not been committed in the officers' presence. The officers moved to dismiss Woods' complaint against them under Fed. R. Civ. P. 12(b)(6), arguing that Flores' report of the assault to the police (which Woods had referenced in his complaint) gave them probable cause to arrest Woods, and that arrests supported by probable cause are reasonable under the Fourth Amendment subject to a "rare exception" not applicable in Woods' case. The City moved to dismiss on similar grounds, arguing that even if Woods could show that the City had a municipal "policy" authorizing warrantless arrests for misdemeanors not involving a breach of the peace and not committed in an officer's presence, such a policy would not be unconstitutional as applied to Woods' arrest, which was authorized by state law and based on probable cause.

Woods filed a memorandum opposing the City's motion to dismiss, arguing that his complaint did not demonstrate that the officers had probable cause to arrest him. According to Woods, the complaint merely asserted that a citizen had walked into a Chicago police station on July 21, 1997 and stated that on July 18, 1997 he had been "verbally assaulted" by Woods. Woods noted that the complaint did not allege that this information was communicated to the arresting officers. Furthermore, he contended that even if the arresting officers had been aware of the citizen's complaint, it did not provide them with probable cause to arrest because "verbal assault" is not an offense under Illinois law.

The City and the individual defendants jointly filed a reply. Attached to the reply were various exhibits, including a copy of Flores' verified misdemeanor complaint and a copy of the arresting officer's report of Woods' arrest. The verified misdemeanor complaint (signed under oath by Flores) charged Woods with aggravated assault, and stated that "on or about 18 July '97. . . [Woods] while using a deadly weapon, length of a lead pipe, did without lawful authority produce weapon and came at victim yelling I'm going to kill you, which placed Gabriel Flores in reasonable apprehension of receiving a battery." The arrest report essentially repeated this account of the incident, stating that,

[t]he above subject arrested for [a]ggravated assault. On 18 July 97 victim went to truck leasing company where offender is employed to gas up a leased truck. At that time offender got into a verbal arguement [sic] with victim and produced a lead pipe and told victim I'm going to kill you. When offender started to approach victim, victim got into his truck and fled the scene. R/O's interviewed victim who signed complainats [sic], R/O's went to offender's place of employment, placed subject under arrest and advised subject of his rights which he stated he understood.

The arrest report was signed under the statement "I do solemnly, sincerely, and truly declare and affirm that the facts stated herein are accurate to the best of my knowledge."

Woods moved to exclude these exhibits on grounds that such evidentiary material could not be considered during a motion to dismiss. He argued that the court could not consider the exhibits unless it first

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converted the motion to dismiss into a motion for summary judgment under Fed. R. Civ. P. 12(b), and that such a conversion would be inappropriate in this case. Finally, he argued that unless the court excluded these materials, it must give Woods an opportunity to respond, and that in order to do so Woods must be allowed to depose the officers who signed the arrest report "about the report and about the circumstances of the signing of the complaint" as well as "the citizen upon whose alleged complaint plaintiff was arrested." The court granted Woods' motion to exclude the exhibits. Subsequently, the court granted the City's motion to dismiss on the ground that Woods had failed to state a municipal policy, and it gave Woods leave to file an amended complaint.

Woods filed an amended complaint which restated his earlier claim that Flores claimed to have been "verbally assaulted" by Woods, and which explicitly stated that such a claim did not supply the officers with probable cause to arrest Woods. The amended complaint also reasserted that the officers violated Woods' Fourth Amendment rights by arresting him without a warrant for a misdemeanor offense not commited in their presence and not involving a breach of the peace pursuant to a municipal policy authorizing such arrests. Again, the defendants moved to dismiss, arguing that Flores' complaint established probable cause.1 Woods opposed the defendants' motion, again contending that even if the officers had been aware of Flores' complaint (which his complaint did not allege), that complaint did not provide probable cause to arrest because "verbal assault" is not an offense under Illinois law, which defines assault as "conduct which places another in reasonable apprehension of receiving a battery." 720 ILCS 5/12-1.

The court then converted the defendants' motion to dismiss into a motion for summary judgment, noting that the defendants had attached "pertinent evidentiary material" to their reply to Woods' memorandum in opposition to the motion to dismiss Woods' original complaint. Addressing Woods' claim that Flores had complained merely of a "verbal assault," the court quoted the arrest report's account of Flores' complaint, which stated that Woods had brandished a lead pipe during the altercation and which specifically referenced Illinois' aggravated assault statute. The court stated that "the misdemeanor complaint, filed by Gabriel Flores, further indicates that Woods committed an aggravated assault with a deadly weapon while threatening to kill Flores," and that "this evidence indicates that the arresting officers arrested Woods based on information that Woods committed an aggravated assault." In ordering Woods to respond to the motion for summary judgment, the court admonished him to "pay particular attention" to Fed. R. Civ. P. 11(b), and stated that: "Woods' characterization of the altercation as a 'verbal assault' is grossly misleading. Further, his argument that 'nowhere in the complaint does plaintiff allege that any police officer had been informed that plaintiff had engaged in conduct which placed another in reasonable apprehension of receiving a battery' . . .ignores facts and logic in a blatant attempt to survive the motion [to] dismiss."

In Woods' response, he argued that the arrest report and the misdemeanor complaint could not be considered on a motion for summary judgment because: (1) the defendants had not laid any foundation for their admission, (for example, they did not show the date or time of the alleged interview between Flores and the arresting officers in the arrest report); (2) they were unauthenticated; and (3) the police report

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did not fully and fairly set out the facts. In support of the latter argument, Woods attached a Chicago Police Case Report to his response, which he relied upon for its accuracy. The case report stated that "R/O interviewed the victim who related to R/O that. . . offender . . . grabbed lead pipe--told victim to get out of the truck and said 'If I get fired over this, I'm going to kill you.' Victim left thinking offender overreacting. Today's date 21 Dec. '97 offender told two of victim's co-workers (Kenny and Mike) that he was going to 'get' victim because victim filed report. Victim given victim information sheet. R/O advised warrant." Woods argued that the case report demonstrated that the police lacked probable cause to arrest him because it showed that Flores waited three days to report the incident and told the police that he left thinking Woods was "overreacting," and because Flores' account of the incident showed only that Woods had "verbally assaulted" Flores, not that he had placed Flores in reasonable apprehension of receiving a battery. Woods also noted that the police had no documentation showing that they investigated Flores' complaint or made any effort to corroborate it (e.g. by speaking to Flores' supervisor...

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