Bertschy v. Janssen

• Court: U.S. District Court — Central District of Illinois
• Writing for the Court: Jonathan E. Hawley U.S. Magistrate Judge
• Decision Date: 07 August 2020
• Docket Number: Case No. 1:16-cv-01036-JEH
• Citation: Bertschy v. Janssen, Case No. 1:16-cv-01036-JEH (C.D. Ill. Aug 07, 2020)
• Parties: AUSTIN J. BERTSCHY, Plaintiff, v. ZACHARY A. JANSSEN, Defendants.

AUSTIN J. BERTSCHY, Plaintiff, v. ZACHARY A. JANSSEN, Defendants.

Case No. 1:16-cv-01036-JEH

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION

August 7, 2020

Order

I

Now before the Court is the Defendant, Zachary A. Janssen's, motion for summary judgment, which the Court grants in part and denies in part for the reasons stated, infra. (D. 64).^{1 2}

In the early morning hours of February 2, 2014, the Plaintiff, Austin Bertschy, and his friend, Jarod Lukehart, went to some bars in downtown Peoria.³ Around 4:00 a.m. when the bars were closing, it was rowdy outside, people were yelling, and Mr. Bertschy walked out of a bar and onto the sidewalk. He then saw Officer Janssen sitting in his marked police car chatting with someone and overheard him say something about "ruining lives and DUI's." (D. 64-2 at ECF pp. 42-43).

Upon hearing this comment, Mr. Bertschy yelled, "Fuck you," (D. 64-2 at 43) and walked north-west, crossing Main Street, and turning right to travel north-east by crossing and continuing along Perry Street. (D. 64 at ECF p. 4). Officer Janssen eventually pulled his police car up next to Mr. Bertschy as he walked. According to Mr. Bertschy, the following exchange then occurred:

The exchange with the officer at the time, which I now believe or now know to be Officer Janssen, said to me, "Excuse me? You said something back there?", in an upper tone as a question, and then said, "Fuck you?", and then proceeded to ask me for my ID, to which I asked him, "Am I being detained, and for what crime?", to which he asked -- asked for my ID. And I asked him a second time, "Am I being detained?" And he did not answer my question.

(D. 64-2 at ECF pp. 48-49).

Officer Janssen describes the encounter slightly differently as follows: "I -- as he was walking across Main Street onto Perry, I pulled up alongside him. I asked, "Is everything all right?" And told him to stop where he was. He continued to walk." (D. 64-1 at ECF p. 84). The officer also asked Mr. Bertschy for some identification, Id. at p. 98, to which Mr. Bertschy responded with, ""I don't have to give you anything. You're out of your jurisdiction." Id. at p. 99-100.

As Mr. Bertschy continued to walk away from Officer Janssen, Officer Janssen then got out of his car, approached Mr. Bertschy from behind, and, without saying anything more since the encounter while he was in his police car, made physical contact with Mr. Bertschy, resulting in Officer Janssen taking Mr. Bertschy to the ground, whereupon Mr. Bertschy's ankle was fractured.

Officer Janssen cited Mr. Bertschy with violating Peoria City Ordinance 15-75 for Noise on a Public way, which involves playing a radio too loudly, which Officer Janssen later claimed to be a mistake—he intending instead to cite Mr. Bertschy with violating Peoria City Ordinance 15-70 for yelling or shouting on apublic street.⁴ Officer Janssen also issued Mr. Bertschy a notice to appear for obstructing/resisting a peace officer.

Ultimately, the State's Attorney charged Mr. Bertschy only with attempted resisting a peace officer, a Class A Misdemeanor. Mr. Bertschy eventually pleaded guilty to an Information on the attempted resisting a peace officer charge, that Information reading:

[H]e with the intent to commit the offense of Resisting a Peace Officer in violation of 720 ILCS performed a substantial step toward the commission of that offense in that he did knowingly attempt to resist the performance of Zachary Janssen of an authorized act within his official capacity being the detention of Clyde Drexler, knowing him to be a peace officer engaged in the execution of his official duties in that he attempted to move his body in a manner that interfered with Zachary Janssen's ability to detain him.

(D. 64-4 at ECF p. 3).⁵ Mr. Bertschy also duly paid his $250 fine for playing a radio too loudly on the street, notwithstanding the fact that, like Clyde Drexler, no radio was involved in the events on the evening in question.

II

Based upon these events, Mr. Bertschy filed a Complaint alleging that Officer Janssen violated his civil rights as protected by 42 U.S.C. § 1983 by falsely arresting him and using excessive force while doing so. (D. 1 at ECF p. 4). Discovery now complete, Officer Janssen moves for summary judgment.

Officer Janssen first argues that the doctrine of collateral estoppel precludes Mr. Bertschy from arguing that he was falsely arrested, for his guilty plea to the Information entails an admission that Officer Janssen was performing "anauthorized act within his official capacity," to wit: arresting Mr. Bertschy based on probable cause. According to Officer Janssen, he at a minimum had reasonable suspicion to investigate why Mr. Bertschy yelled the expletive, and, when Mr. Bertschy refused to stop, he disobeyed a lawful order, creating probable cause for an arrest pursuant to 625 ILCS 5/11-203. In response, Mr. Bertschy argues that his guilty plea is not dispositive on the issue. Rather, the preclusive effect of a guilty plea on facts related thereto is not conclusive, but rather rebuttable, and the facts surrounding Mr. Bertschy's guilty plea demonstrate he pleaded guilty simply to get the incident behind him and avoid the cost of defending himself on the misdemeanor charge.

Officer Janssen next argues that his use of force was reasonable. He argues that because Mr. Bertschy continued to walk away from him after being told to stop and provide identification, he was entitled to use physical force to stop him, and the use of that force was reasonable under the circumstances. Mr. Bertschy disagrees, responding, among other things, that Officer Janssen's use of force was disproportionate to the alleged crime, if any. At a minimum, after getting out of the police car Officer Janssen should have issued a verbal command to Mr. Bertschy to stop before tackling him from behind without warning.

Finally, Officer Janssen argues that even if he fails on these arguments, he is entitled to qualified immunity.

III

A

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp., 477U.S. at 323- 24. Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a genuine issue for trial. Gracia v. Volvo Europa Truck, N.V., 112 F.3d 291, 294 (7th Cir. 1997). "[A] party moving for summary judgment can prevail just by showing that the other party has no evidence on an issue on which that party has the burden of proof." Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1183 (7th Cir. 1993).

B

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Because arrests are "seizures" of "persons," they must be reasonable under the circumstances. See Payton v. New York, 445 U.S. 573, 585 (1980). A warrantless arrest is reasonable if the officer has probable cause to believe that the suspect committed a crime in the officer's presence. Atwater v. Lago Vista, 532 U.S. 318, 354 (2001).

To determine whether an officer had probable cause for an arrest, "we examine the events leading up to the arrest, and then decide 'whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to' probable cause." Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 157 L.Ed.2d 769 (2003) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 134 L.Ed.2d 911 (1996)). Because probable cause "deals with probabilities and depends on the totality of the circumstances," 540 U.S., at 371, 124 S. Ct. 795, it is "a fluid concept" that is "not readily, or even usefully, reduced to a neat set of legal rules," Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983). It "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Id., at 243-244, n. 13, 103 S. Ct. 2317 (1983). Probable cause "is not a high bar." Kaley v. United States, 571 U.S. ----, ----, 134 S. Ct. 1090, 1103, 188 L.Ed.2d 46 (2014).

District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 586 (2018).

"Probable cause is an absolute bar to a claim of false arrest asserted under the Fourth Amendment and section 1983." Stokes v. Bd. of Educ. of City of Chi., 599 F.3d 617, 622 (7th Cir. 2010), citing McBride v. Grice, 576 F.3d 703, 707 (7th Cir. 2009) (affirming summary judgment for defendant police officer). Moreover, "[a]n arrest is constitutional if it is made with probable cause for an offense, even if the arresting officer's stated or subjective reason for the arrest was for a different offense." Muhammad v. Pearson, 900 F.3d 898, 908 (7th Cir. 2018), citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004).

Although the parties focus heavily on the preclusive effect of Mr. Bertschy's guilty plea, that plea is irrelevant if, ignoring his plea, the circumstances still support a finding of probable cause to arrest Mr. Bertschy. Specifically, Officer Janssen argues that probable cause existed to arrest Mr. Bertschy for violating Peoria City Ordinance 15-70.

That Ordinance provides:

No person shall yell, shout, hoot, whistle or sing on the public streets, particularly between the hours of 11:00 p.m. and 7:00 a.m. or at any time or place so as to annoy or disturb the quiet, comfort or repose of persons in any office, or in any dwelling, hotel or other type of residence, or of any persons in the vicinity.

https://library.municode.com/il/peoria/codes/code_of_ordinances?nodeId=CO_CH15HESA.

The...