520 F.3d 678 (7th Cir. 2008), 06-4125, Chelios v. Heavener

Docket Nº:06-4125.
Citation:520 F.3d 678
Party Name:James CHELIOS, Plaintiff-Appellant, v. Lindsey HEAVENER, Sergeant, David L. Gerdes, Police Chief, and City of Joliet, a Municipal Corporation, Defendants-Appellees.
Case Date:March 21, 2008
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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520 F.3d 678 (7th Cir. 2008)

James CHELIOS, Plaintiff-Appellant,


Lindsey HEAVENER, Sergeant, David L. Gerdes, Police Chief, and City of Joliet, a Municipal Corporation, Defendants-Appellees.

No. 06-4125.

United States Court of Appeals, Seventh Circuit.

March 21, 2008

Argued December 4, 2007.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 C 909-Charles R. Norgle, Sr., Judge.

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Basileios J. Foutris (argued), Foutris Law Office, Chicago, IL, for Plaintiff-Appellant.

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Kimberly A. Fladhammer (argued), Office of the Corporation Counsel, Joliet, IL, for Defendants-Appellees.

Before RIPPLE, MANION and WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

James Chelios filed this action under 42 U.S.C. § 1983 against Lindsey Heavener, a City of Joliet police officer, David Gerdes, the police chief, and the City of Joliet (collectively, the "defendants"). He alleges that the defendants violated his Fourth and Fourteenth Amendment rights by unlawfully arresting him and using excessive force to effectuate the arrest. The complaint also includes a battery claim based on Illinois law. The district court granted the defendants' motion for summary judgment. Mr. Chelios timely filed a notice of appeal.

For the reasons set forth in this opinion, we reverse the judgment of the district court and remand the case for further proceedings.




In the early morning hours of February 20, 2005, Sergeant Heavener was parked at a liquor store located one block west of Dimitri's Bar & Grill, a business owned by Mr. Chelios. Sergeant Heavener heard eight to ten gunshots and believed them to have come from an area east of his position. He then went to Dimitri's and ordered Mr. Chelios to shut down his business for the remainder of the evening because the Sergeant believed that the gunshots had been fired from Dimitri's parking lot. Mr. Chelios complied with Sergeant Heavener's request; he told the DJ to stop playing music, and he ordered his security personnel to usher everyone out.

After closing his business, Mr. Chelios walked outside. Many patrons had left Dimitri's but remained outside in the parking lot. Mr. Chelios encountered Sergeant Heavener and explained that no shooting could have taken place in his parking lot because he had been standing in the vestibule of his business watching a camera focused on the parking lot and had not seen any shooting. Sergeant Heavener maintained that the shooting might have occurred in the parking lot.

William Moton, a bouncer at Dimitri's, approached Mr. Chelios and told him that he should to go to another area of the parking lot to hear what a witness was telling another police officer. Mr. Chelios did so; he claims that he heard a witness telling a female police officer that the shooting had not occurred in Dimitri's parking lot.

At this point, Mr. Chelios' and Sergeant Heavener's stories diverge. According to Mr. Chelios, he asked the female officer to inform Sergeant Heavener that the shooting had not occurred in the parking lot. He and Moton then began walking toward the entrance of Dimitri's. On the way, the two men encountered Sergeant Heavener, who was leaning against the building with his arms folded and one leg resting against the building. Mr. Chelios told Sergeant Heavener that he should speak to the female officer regarding the witness' statement that the shooting had not occurred in his parking lot. According to Mr. Chelios, Sergeant Heavener told him, "Get out of my face." R.40 ¶ 19, at 12. Mr. Chelios responded in kind to the officer. Mr. Chelios claims that he and Moton then walked away from Sergeant Heavener and toward the entrance of the bar. As the two men walked away, Mr. Chelios claims

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that Sergeant Heavener shouted several times, "If you ever walk up on me again like that, I will lock your ass up." Id. ¶ 22, at 12. Sergeant Heavener followed the men.

Once they were a few feet from the entrance, Mr. Chelios asked Sergeant Heavener, "Why don't you leave me alone?" R.35 ¶ 23, at 4. In response, Sergeant Heavener said, "Did you hear me? You know what, you're under arrest." Id., Ex. 2 at 83. Sergeant Heavener then put his arms around Mr. Chelios' neck, grabbed his shoulders and spun Mr. Chelios around. Two other officers had joined Sergeant Heavener, and Mr. Chelios claims that all three of them jumped on him and threw him on the ground.

Sergeant Heavener has a different account. According to him, Mr. Chelios approached him after speaking with the female police officer and the witness. He claims that Mr. Chelios called him a liar and said that the police were fabricating the entire incident. Sergeant Heavener claims that Mr. Chelios was upset. At this point, two patrons of the bar began to fight, and Sergeant Heavener claims that he walked away from Mr. Chelios to control the crowd. About five minutes later, Sergeant Heavener claims that Mr. Chelios and Moton approached the entrance of Dimitri's and came upon him. Mr. Chelios began to yell, telling the Sergeant that the gunshots had not been fired from his property and that he should go speak to the female officer.

Sergeant Heavener claims that Mr. Chelios was agitated and had his finger pointed at the Sergeant's face. The Sergeant describes Mr. Chelios as being right up in his face. According to Sergeant Heavener, Mr. Chelios poked him in the chin with his outstretched finger. After the alleged contact, Moton intervened and pulled Mr. Chelios away. At this point, Sergeant Heavener ordered, "Get back here." R.31, Ex. A at 14. Mr. Chelios and Moton, however, continued to walk away. Sergeant Heavener then yelled, "I'm going to lock your ass up." R.40 ¶ 22, at 12. Sergeant Heavener followed the two men and claims that Moton put himself between the Sergeant and Mr. Chelios. Sergeant Heavener told Mr. Chelios that he was under arrest and ordered Moton not to interfere. Moton immediately stepped away. Mr. Chelios then attempted to open the door to Dimitri's; Sergeant Heavener grabbed his right shoulder and informed him again that he was under arrest. Mr. Chelios dropped to his knees; Sergeant Heavener also fell to the ground. Sergeant Heavener handcuffed Mr. Chelios and transported him to the Joliet Police Department.

The State of Illinois filed a criminal complaint against Mr. Chelios in Illinois Circuit Court. The complaint charged Mr. Chelios with battery, a class A misdemeanor. Mr. Chelios was acquitted of the charge. 1 R.1 pp 23-28; R.15 pp 23-27.


In the district court, the defendants moved for summary judgment with respect to the section 1983 counts that allege unlawful arrest and excessive force on the part of Sergeant Heavener and the assault and battery count asserted against Sergeant Heavener and the City of Joliet.2

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During a hearing on the summary judgment motion, the district court and Mr. Chelios' counsel engaged in the following colloquy:

The Court: So here in this case it's the flipside where according to the arresting officer in a statement under oath, his deposition, that is what Chelios did. And so in terms of probable cause, given the nature of the circumstances, that is sufficient to constitute probable cause.

Counsel: Well, your Honor, I mean, that's taking only the officer's version. I mean, that would be--

The Court: Well, with probable cause, one doesn't consider the ultimate defense to the case. It's whether there was a probability of criminality in this case. And the probability of criminality is that an Illinois crime had just been committed under these circumstances.

Counsel: Your Honor, Mr. Chelios denies he ever touched Sergeant Heavener. That's a material fact. In order to have aggravated battery, to have assault, you had to have a threat of battery or you had to actually have a battery. Chelios denies he ever touched him.

The Court: No. You have to have probable cause, the probability that an assault occurred, a probability--

Counsel: Correct.

The Court: --of disorderly conduct, and the probability of a battery, which would become an aggravated battery in Illinois if it were upon a police officer.

Counsel: Your Honor, but that's only if Chelios agreed that he did what Sergeant Heavener says he did. But under the facts as James Chelios says they occurred, I don't see how there was any battery. I think a jury could easily find there was no battery and that there was a false arrest.

The Court: That there was no probable cause for arrest?

Counsel: To believe that there was a battery, correct, Your Honor.

The Court: No probability of criminality under these circumstances?

Counsel: Under James Chelios' version of what occurred, yes, Your Honor.

R.72 at 6-7.

The district court granted the defendants' summary judgment motion in all respects. In its opinion, the court explained that it was taking the "undisputed facts from the parties' Local Rule 56.1 Statements and [that it had] note[d] disputed facts within the text." R.60 at 1 n.1. 3In setting forth the facts, the court stated:

According to Heavener, Chelios walked around the corner of the building and began to yell at Heavener. Chelios pointed his finger in Heavener's face, and eventually poked him in the chin. Heavener describes Chelios as being "right up in my face." As soon as Chelios poked Heavener, William Molton [sic] . . . interceded and pulled Chelios away.

Id. at 3. The opinion does not note that the parties dispute whether Mr. Chelios poked Sergeant Heavener in the chin. Nor did the court grant Sergeant Heavener's request, in his response to...

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