Simmons v. Pryor

• Citation: 26 F.3d 650
• Decision Date: 08 June 1994
• Docket Number: No. 92-2462,92-2462
• Parties: Robert SIMMONS, Plaintiff-Appellant, v. Ronald PRYOR and City of Evanston, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 650

26 F.3d 650

Robert SIMMONS, Plaintiff-Appellant, v. Ronald PRYOR and City of Evanston, Defendants-Appellees.

No. 92-2462.

United States Court of Appeals Seventh Circuit.

Argued April 2, 1993.

Decided Sept. 9, 1993.

Opinion Corrected June 8, 1994. ^*

Kenneth N. Flaxman (argued), Chicago, IL, for plaintiff-appellant.

Jack M. Siegel (argued), Brian C. Witter, Jeremy D. Margolis, Altheimer & Gray, Chicago, IL, for defendants-appellees.

Before CUDAHY and ROVNER, Circuit Judges, and REAVLEY, Senior Circuit Judge. ^**

CUDAHY, Circuit Judge.

Robert Simmons brought this Sec. 1983 action alleging, inter alia, deprivations of his Fourth and Fourteenth Amendment rights in being arrested without probable cause. The district court granted defendants' motion for summary judgment on the ground that his arrest did not lack probable cause because a state judicial officer found probable cause in the complaint against Simmons. Because we find that the record establishes that there is no genuine issue of fact as to the existence of probable cause, we affirm.

I.

On the morning of October 14, 1989, City of Evanston police officers Duane Struchen and Jacqueline Collins responded to a report of a domestic disturbance. When they arrived at the designated address, the officers discovered Robert Simmons, whom they knew as a fellow Evanston police officer, and a woman identified as his wife, Patricia, involved in an altercation. After the officers separated the two and controlled the situation, both husband and wife complained of battery by the other. Patricia informed Officer Collins that her father was Lieutenant Ronald Pryor of the Evanston Police Department, that she had an order of protection against Simmons from a prior incident and that she wanted to sign a complaint against him.

Sergeant Charles Wernick then arrived on the scene. After evaluating the situation, Wernick called Lieutenant Pryor, who was the Watch Commander on duty at the time, and informed him of the situation. Wernick told Pryor that the order of protection had expired and that he thought it best that everyone go to the police station to sort out the incident. Wernick and Pryor agreed that, given his relationship to the parties, Pryor should let Wernick handle the case.

Upon arriving at the police station, Officer Wernick called Assistant State's Attorney Steve Laramore, who, after being informed of the circumstances, suggested that criminal charges not be brought but that the matter be left to the civil court that had issued the protective order. Pryor overheard part of this phone conversation, and when informed of the prosecutor's advice, initially went along with the recommendation. Simmons, who had been waiting at the police station for a number of hours, was told that he could leave, and Officer Collins told Patricia that no charges would be filed.

Patricia then went to her father, told him what had happened and insisted upon filing a criminal complaint against Simmons. Pryor spoke with his grandson, Robert, Jr., and another relative, Dawn Byrd. Robert, Jr., told Pryor that his father had come to pick him up for football practice, but upon seeing a car belonging to one of Patricia's friends, drove around the block, parked the car, retrieved a gun from his trunk and forced Robert, Jr., to open the door to the house. Both Robert, Jr., and Dawn Byrd told Pryor that Simmons had entered the house and that a fight ensued. Neither Dawn nor Robert, Jr., however, were able to tell Pryor who instigated the altercation.

Realizing the situation he was in, Pryor attempted to call his immediate superior, Commander Schroeder, but Schroeder could not be reached. Pryor then contacted Deputy Chief James Edwards who instructed Pryor to follow the department's general order involving complaints of domestic violence. ¹ According to Deputy Chief Edwards, if there is probable cause for a complaint to be signed, the order instructs that a complaint should be signed. The general order, which is patterned on the Domestic Violence Act, 750 ILCS 60/304 (1992), also instructs officers that the victim should be informed of his or her rights and encourages the police to get more involved in calls relating to a domestic disturbance in order to persuade more victims of domestic violence to file complaints.

When Edwards came into the station, Pryor and Sergeant Wharton told him that a complaint and emergency order of protection were being drawn up. Patricia was then taken to the home of Judge Loverde of the Circuit Court of Cook County, where she told him of the events of that morning. Judge Loverde signed the emergency order of protection and found probable cause for the complaint. Simmons was arrested but was acquitted of the battery charge on May 3, 1990.

One year later, Simmons filed this suit pursuant to 42 U.S.C. Sec. 1983. Count I of the complaint alleged that Simmons was deprived of his Fourth Amendment rights when he was arrested at Pryor's direction without probable cause. Count II alleged that Pryor's misconduct deprived Simmons of substantive due process secured by the Fourteenth Amendment. Count III raised a state law claim for malicious prosecution and added the City of Evanston in its capacity as Pryor's employer.

The defendants subsequently filed a motion for summary judgment arguing (1) that there can be no dispute that there was probable cause for the arrest because the state judge found probable cause for the complaint, (2) that the substantive due process claim was not predicated upon a cognizable property or liberty interest and (3) that the state claim for malicious prosecution was meritless and, in any event, that the court had no jurisdiction to address the pendent claim once the federal claims had been rejected.

The district court granted the defendant's motion and awarded judgment against the plaintiff on each count. The court concluded that the finding of probable cause by the state judge precluded a determination that the defendants acted inappropriately. Thus, the court rejected the false arrest, substantive due process and malicious prosecution claims. No. 91 C 2686, Mem.Op. and Order, 1992 WL 92055 (N.D.Ill. Apr. 23, 1992).

On a motion for reconsideration, the district court distinguished authority cited by the plaintiff that a finding of probable cause at an ex parte state court hearing is not entitled to preclusive effect in a subsequent civil rights action. See Bailey v. Andrews, 811 F.2d 366 (7th Cir.1987). The court noted that the complaint in this case did not challenge the integrity of the evidence presented at the probable cause hearing, but merely the state judge's finding. That finding, the court held, cannot be second-guessed. No. 91 C 2686, Mem.Op. and Order (N.D.Ill. May 21, 1992). The plaintiff appeals.

II.

We review the grant of summary judgment de novo. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). To affirm, we must conclude that the record and all inferences drawn from it, viewed in the light most favorable to Simmons, the non-movant, establish that no genuine issue of a material fact exists. Fed.R.Civ.P. 56(c).

The plaintiff argues that the district court erred in giving preclusive effect to the state judge's finding of probable cause. We agree. The Supreme Court in Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 271 (1986), held that the judgment of a judicial officer finding that probable cause exists does not prevent a suit against the police officer bringing the cause before the judge if a reasonably well-trained officer in the position of the defendant would have known that the action lacks probable cause and that he should not have applied for the warrant. "If such was the case, the officer's application for a warrant was not objectively reasonable, because it created the unnecessary danger of an unlawful arrest." Id. Thus, in a subsequent civil action against the police officer, a judicial officer's finding of probable cause to issue a warrant is not dispositive. See also Bailey, 811 F.2d at 369-70 (plaintiff in Sec. 1983 action not collaterally estopped from challenging ex parte finding of probable cause). Rather, the court must make its own determination whether a reasonable officer in the position of the defendant--"seeing what he saw, hearing what he heard"--would have believed that the person had committed a crime. Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th Cir.1992).

The defendant argues that Malley is distinguishable because in that case the police officer instigated the proceedings leading to the false arrest while in the present case, Patricia was the one who brought the criminal complaint before Judge Loverde. Although such a distinction may implicate the causation requirement necessary for the plaintiff to make out a case against the defendant, it does not speak to the issue of the weight to be accorded the judge's finding of probable cause. In any event, here the plaintiff alleges that Pryor was instrumental in having the complaint go forward. Taken in the light most favorable to Simmons, there is evidence that Pryor ordered that the complaint be drawn up on Patricia's behalf.

Consequently, the district court erred in giving preclusive effect to Judge Loverde's finding of probable cause. Nonetheless, we can affirm the grant of summary judgment on any ground, even one not relied on by the district court, if the record fairly supports that disposition. United States v. Thomas, 934 F.2d 840, 843 (7th Cir.1991). The defendants suggest that the record clearly establishes that there was probable cause to go forward with the complaint.

The plaintiff contends, however, that we must remand the case for trial because the defendants never put the existence of probable cause in issue in their motion for summary judgment. Simmons maintains that the defendants simply argued that Judge Loverde's finding of probable cause precluded...