McBride v. Grice

• Decision Date: 11 August 2009
• Docket Number: No. 08-3556.,08-3556.
• Citation: 576 F.3d 703
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: Dytaniel McBRIDE and Englewood TP Corporation, Inc., Plaintiffs-Appellants, v. Brian E. GRICE and City of Peoria, Illinois, Defendants-Appellees.

576 F.3d 703

Dytaniel McBRIDE and Englewood TP Corporation, Inc., Plaintiffs-Appellants, v. Brian E. GRICE and City of Peoria, Illinois, Defendants-Appellees.

No. 08-3556.

United States Court of Appeals, Seventh Circuit.

Argued July 7, 2009.

Decided August 11, 2009.

Richard L. Steagall (argued), Nicoara & Steagall, Peoria, IL, for Plaintiffs-Appellants.

L. Lee Smith, Garth Madison (argued), Hinshaw & Culbertson, Clifton J. Mitchell, City of Peoria, Peoria, IL, for Defendants-Appellees.

Before POSNER, KANNE, and SYKES, Circuit Judges.

PER CURIAM.

Dytaniel McBride sued police officer Brian Grice and the City of Peoria, Illinois, under 42 U.S.C. § 1983 and state law, for events stemming from an allegedly unlawful arrest. A magistrate judge, proceeding with the parties' consent, granted summary judgment for the defendants. The judge concluded that the undisputed evidence established that Grice had probable cause to arrest McBride for battery. McBride appeals, and we affirm the judgment.

I. Background

McBride's solely owned corporation operates a clothing store, Tha Place, located in Peoria. On October 9, 2004, McBride had a disagreement with an employee, Lushonda Guyton, who responded by calling him a shyster and telling customers not to spend their money in his store. McBride activated the store's alarm to summon the police, and then he took it upon himself to physically remove Guyton from the store. After a scuffle, McBride successfully ejected Guyton from the store, and she headed home. On the way home, Guyton changed her mind, called the police herself, and returned to the store to meet the police in the parking lot. Officer Grice responded to the alarm and arrested both McBride and Guyton after interviewing each and watching part of a security video.

The State's Attorney dismissed the charges against McBride a year later, and McBride then initiated this lawsuit claiming that Officer Grice violated his Fourth and Fifth Amendment rights (as well as state law) by arresting him and filing a complaint without probable cause. McBride also named the City of Peoria in his state law claims under a theory of respondeat superior. In his complaint,¹ McBride asserted that it became necessary to remove Guyton from his store because she was throwing clothes onto the floor, turning over clothes racks, and breaking clothes hangers while shouting profanities at him. By his account, he removed her without harming her by placing both arms around her, lifting her up, and escorting her out. McBride alleged that he explained these circumstances to Grice and showed him a surveillance video corroborating his version of events, but, according to McBride, the officer "intentionally and falsely stated in his police report that the video images of the encounter between McBride and Guyton were unclear," leading to his allegedly unlawful arrest and prosecution.

The defendants answered the complaint and, after discovery, moved for summary judgment. They argued that all of McBride's claims are foreclosed because Officer Grice had probable cause to arrest him for battery. Grice related in a deposition that when he first arrived at the store he spoke to McBride, who acknowledged that an argument between himself and Guyton had escalated into a physical altercation. McBride showed Grice a scratch on his arm that he attributed to Guyton. Grice recalled that he next went to the parking lot to interview Guyton, who told him that McBride had hit her on the left side of her head with a closed fist and had dragged her out of the store. Grice recounted that Guyton's left eye had some minor swelling and that there was a small scratch on her forehead. At that point, Grice explained, he went back into the store where McBride showed him the video recording from one of the store's security cameras.

That video, which is part of the evidence at summary judgment, does not show McBride striking Guyton, but the combatants were not always in range of the camera. Grice testified at his deposition that in watching the video he saw Guyton come into view as she fell onto the floor at the bottom of the screen and that, as she was falling, McBride was stepping towards her from off-screen into the camera's view. According to the defendants, Guyton can be seen in the video getting up from the floor and then touching her forehead and looking into a mirror. They argued that a reasonable officer could have concluded that McBride had struck Guyton and caused her to fall, and that she was checking the mirror to see if she had been injured. Grice then noted that the two were out of range of the camera again, but a little later he saw clothes racks falling over as McBride was dragging Guyton out of the store. Grice added that the act of dragging Guyton against her will could also be characterized as insulting conduct constituting a battery.

In response to the defendants' motion for summary judgment, McBride argued that Illinois law, 720 ILL. COMP. STAT. 5/7-3, gave him the right to escort a disruptive person out of his store and that a different video from a second camera clearly shows the entire incident. He stated in his deposition that Officer Grice refused to watch the second video, which, according to McBride, would have demonstrated to the officer that he had acted lawfully. McBride also pointed to Guyton's deposition in which she said that she fell because she resisted McBride's effort to push her towards the door. According to McBride, the altercation ended after he "came up behind Guyton, wrapped his arms around her so she could not resist, picked her up, and walked her to the door" or, in other words, he "gave Guyton a bear hug, lifted her up lightly, and walked her 15 feet to the door." McBride faulted Grice's investigation, arguing that the officer closed his eyes to facts that would have shown there was no probable cause to arrest him.

In reply, the defendants asserted that nothing would have changed if Officer Grice had watched the second video, which McBride introduced as an exhibit. According to the defendants, both videos contradict McBride's version of events. The defendants also contended that the videos actually show McBride engaging in unreasonable conduct that exceeds the bounds permitted by Illinois law.

In granting summary judgment for the defendants, the magistrate judge observed that the image quality of the two videos is too poor to establish the accuracy of either version of events. But the remaining undisputed evidence, according to the judge, shows that Officer Grice developed probable cause to arrest McBride for battery. And once Grice had probable cause, the judge added, the officer had no duty to watch a second video or otherwise continue investigating.

II. Analysis

On appeal Smith vigorously argues that Officer Grice, not himself, bore the burden of persuasion on the issue of probable cause, and he faults the magistrate judge for not holding Grice to his purported burden. According to McBride, it was up to Grice to submit evidence establishing the existence of probable cause, whereas, McBride insists, the magistrate judge thought it was his burden to show the absence of probable cause. In support, McBride cites to Jacobs v. City of Chicago, 215 F.3d 758, 770-71 (7th Cir.2000), in which we held that, on the facts alleged in the complaint in that case, the police-officer defendants could not rely on qualified immunity as a ground for dismissal on a motion under Federal Rule of Civil Procedure 12(b)(6). The plaintiffs had alleged that the officers searched their apartment without a valid warrant, and their complaint included no factual allegations suggesting the existence of exigent circumstances or another exception to the warrant requirement. Id. at 768, 770. In concluding that the complaint was sufficient to state a claim under § 1983, the Jacobs panel observed that, in this context, "the burden is on the Defendant Officers to show that they had probable cause." Id. at 770.

McBride offers no reason why Jacobs would apply to his case, and he is altogether silent about other decisions that reject his position. In this circuit the allocation of the burden of persuasion in a § 1983 case claiming a Fourth Amendment violation is clear: a plaintiff claiming that he was arrested without probable cause carries the burden of establishing the absence of probable cause. See Woods v. City of Chi., 234 F.3d 979, 996 (7th Cir.2000) ("[I]n order to survive summary judgment, [the plaintiff] needed to raise a genuine issue regarding whether the officers had probable cause to arrest him."); Simmons v. Pryor, 26 F.3d 650, 654 (7th Cir.1993) ("In order to prevail in an unlawful arrest action, the plaintiff must show lack of probable cause."); see also Parsons v. City of Pontiac, 533 F.3d 492, 500 (6th Cir.2008) ("In order for a wrongful arrest claim to succeed under § 1983, a plaintiff must prove that the police lacked probable cause."), cert. denied, ___ U.S. ___, 129 S.Ct. 2432, 174 L.Ed.2d 227 (2009); Beck v. City of Upland, 527 F.3d 853, 864 (9th Cir.2008) ("Ordinarily ... the plaintiff bears the burden of proving the absence of probable cause ... in a Fourth Amendment false arrest case. Proving lack of probable cause is usually essential to demonstrating that the plaintiff's Fourth Amendment rights were violated."); Valance v. Wisel, 110 F.3d 1269, 1278-79 (7th Cir.1997) (holding that plaintiff in § 1983 suit bears burden of proving that his oral and written consents to search car were involuntary, even though police officers would bear burden in criminal case).

Similarly, McBride is also incorrect in arguing that Officer Grice bore the burden of establishing the existence of probable cause on the state-law claims. The case he cites, McKendree v. Christy, 29 Ill.App.2d 195, 172 N.E.2d 380, 381-82 (1961), was interpreting an Illinois statute authorizing police officers to make warrantless arrests for crimes committed outside their...