Butler v. Goldblatt Bros., Inc., 74 C 3000.

• Decision Date: 05 May 1977
• Docket Number: No. 74 C 3000.,74 C 3000.
• Citation: 432 F. Supp. 1122
• Parties: Lawrence BUTLER et al., Plaintiffs. v. GOLDBLATT BROS., INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

432 F. Supp. 1122

Lawrence BUTLER et al., Plaintiffs. v.GOLDBLATT BROS., INC., et al., Defendants.

No. 74 C 3000.

United States District Court, N. D. Illinois, E. D.

April 15, 1977.

As Modified May 5, 1977.

John C. Hendrickson, H. Ayres Moore, Chicago, Ill., for plaintiffs.

Richard L. Curry, Kenneth J. Cortesi, Asst. Corp.Counsel, Julius L. Sherwin, Sherwin & Sherwin, Bernard Rosencranz, Chicago, Ill., for defendants.

MEMORANDUM OPINION

DECKER, District Judge.

I.Background

This action arises out of the warrantless arrest¹ on September 25, 1974, of the eight plaintiffs² for conspiracy to commit murder.The allegations of the complaint have been summarized in detail in this court's memorandum opinion of January 27, 1976.

In brief, the plaintiffs charge that defendant Walker transmitted to the police the false report of a private informant employed by Goldblatts, since revealed to be defendantWayne Young, that the plaintiffs were conspiring to murder him through the instrumentality of a social club in the event that he would testify at a criminal proceeding against another Goldblatts' truck driver.Six days later, following Walker's testimony at that hearing, Walker reported that he had been verbally threatened by one of the plaintiffs, Ernest Lewis.Lewis was promptly arrested, and the other plaintiffs were shortly thereafter either arrested or brought to police headquarters for questioning.The charge of intimidation brought against Lewis was subsequently stricken with leave to reinstate.No criminal charges were ever brought against any of the other plaintiffs, who were all released by 2:00 A.M. on September 26th.

The plaintiffs assert that the defendant police officers ("police defendants") conspired with Walker, Young, Thomas Marsh, the Chief of Goldblatts' Special Service Division, and Dennis McFarland, another employee of that division, and Goldblatts itself (to be collectively called "Goldblatts' defendants") to effect the above arrests.

The suit is in four counts: the first alleges that the defendants acted in violation of 42 U.S.C. § 1983, under color of law to deprive plaintiffs of their constitutional rights; the second count alleges a conspiracy to deprive plaintiffs of equal protection and of their privileges and immunities under the law in violation of 42 U.S.C. § 1985(3); counts three and four are pendent state claims for false arrest and false imprisonment and defamation.

There are now pending before the court two motions for partial summary judgment filed by the plaintiffs.The first seeks summary judgment on liability against the police defendants on Count I (§ 1983 — due process) and Count III (the state claim for false arrest and false imprisonment).The second motion seeks partial summary judgment on liability against the Goldblatts' defendants on Count III.

II.Plaintiffs' Motion Against the Police Defendants

After extensive discovery certain undisputed facts are found in the record.All of the plaintiffs, except Cecil Davis, were formally arrested on September 25th.No warrants were ever obtained, nor were any complaints sworn out prior to the arrests.

The police agree that they were initially contacted in this matter by Marsh and Walker on September 19th.The Goldblatts' security employees stated that an informant had provided them with information regarding an assassination attempt to be made on Walker should he testify on September 25th, against Jesse Green, a Goldblatts' employee charged with grand theft.Marsh and Walker refused to identify their informant.The informant was said to have reported that the plaintiffs had taken up a collection to hire a "hit man" to commit the murder.

Walker was under police surveillance when he testified on September 25th.He reported to the police that Ernest Lewis grabbed him by the arm when he was leaving the courthouse and said, "That's it for you."Although the police officers guarding Walker did not see this incident, they arrested Lewis.Walker safely left the area of the courthouse in his own vehicle, and was kept under police surveillance.

The police then made the decision to arrest the other plaintiffs.The police did not learn of the identity of the informer, nor did they interview him, until after this decision was made and after the arrests had begun.

The police defendants appear to base their defense upon an assertion of their "good faith" in making the arrests.The leading Seventh Circuit case of Joseph v. Rowlen,402 F.2d 367(7th Cir.1968), permits a good faith defense for a warrantless arrest only where the police officers can demonstrate that they had a reasonable belief that there was probable cause for the arrest.The mere assertion that the police thought they had probable cause is insufficient.Glasson v. City of Louisville,518 F.2d 899(6th Cir.1975).Thus the police defendants can escape liability for a warrantless arrest only by establishing that they reasonably believed that they had probable cause.

The undisputed facts of the case indicate that these arrests were based solely upon the hearsay recounting of the report of an unidentified private informant, and upon Walker's narration of Lewis' remark.

The court does find that there is a genuine factual dispute as to whether there was probable cause to arrest Lewis on the basis of Walker's claim that he had just been threatened.

The police were familiar with Walker as a reliable individual who had previously provided accurate information leading to convictions.The words purportedly uttered by Lewis might be construed as an immediate threat, particularly in light of Walker's earlier assertions that he had heard of a plot upon his life.It is true that the officers guarding Walker had not witnessed this interchange, but they apparently did not doubt that it could have taken place while they were not looking.

This is not to say that these circumstances clearly justified an immediate arrest.The possibility that Walker had been threatened with imminent harm must be balanced against the fact that he was being guarded by the police.Since Lewis did not pursue Walker, the police had a chance to obtain a warrant, while guarding Walker from possible harm.Furthermore, the reliability of Walker's information must be weighed against the ambiguity of the remark.Whether the entirety of these circumstances provided the police with probable cause to arrest Lewis is therefore a factual question to be resolved by a jury.

The basis for the arrests of the other plaintiffs, however, differs markedly from that of Lewis.While Lewis was arrested upon the immediate report of a perceived threat by a direct witness, the other plaintiffs were connected to the purported conspiracy only by the unverified charge of an unknown informant.In the six days since this hearsay had been presented to the police, the law enforcement officials had attempted no investigation of its veracity.Unlike the case of Lewis, no new report of actual incriminating conduct had been brought against these plaintiffs.

Under Illinois law, "arresting officers may have reasonable grounds for believing a defendant was committing a crime based upon information supplied by an informant if the reliability of the informant has been previously established or independently corroborated."People v. McCray,33 Ill.2d 66, 70, 210 N.E.2d 161, 163(1965)(emphasis added).The Illinois Supreme Court went on to note that "information obtained from a source unknown to the police officer is not sufficient in itself to establish such reasonable grounds for belief as to justify an arrest and incidental search without a warrant."

This accords with the principle that a magistrate cannot issue a warrant without information "from which the officer concluded that the informant . . . was `credible' or his information `reliable'."Aguilar v. Texas,378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723(1964).

While the police may have had reason to trust the reliability of Walker, because he had previously supplied information that had proved accurate, they had no basis for such confidence in the unnamed informant.

The police defendants apparently recognize that the arrests cannot be justified upon the reliability of the informant.They thus state that "it was not the informant that provided the information concerning the plot to kill Mr. Walker but rather Mr. Walker himself and Mr. Marsh".This does not cure the unreliability of the story.Walker and Marsh lacked first-hand knowledge of the truth of their information.There is no shortcut to probable cause.It can be no more obtained by filtering a second-hand tale through a well-known informant than will pure hearsay become admissible because the witness has a reputation for honesty.

Furthermore, it is not without significance that the police defendants failed for six days to either investigate the charges against the plaintiffs, or attempt to secure a warrant.³

It appears that the police initially sought the name of the informant.This, in itself, indicates that they were aware of the importance of confirming his reliability.The failure to pursue this inquiry, or to otherwise substantiate the story indicates that the police did not feel that the Walker hearsay justified any immediate action.Yet it remains true that the evidence against these plaintiffs was no greater at the time of the arrest than on September 19th, when Walker first approached the police.Lewis' purported threat could have no bearing upon these individuals unless the story linking all the defendants in a conspiracy had some independent credibility.

The court must conclude as a matter of law that these arrests were not founded upon probable cause, and that the defendant police officers could not reasonably believe that there was probable cause for these arrests.As a result, the court must conclude that plaintiffs Butler, Jenkins, James, Jackson, and the two Nashes were deprived of due...