Honorable Edmond E. Chang, United States District Judge.
In May 2015, Michael Harris and Javon Upshaw, then police officers for the Village of Robbins, visited Graciela Tenorio's tire shop to follow-up on a complaint that four tire rims displayed for sale at the stop were in fact rims that had been reported stolen several months ago. While the officers were at the shop, they handcuffed Tenorio and put her in a squad car for several minutes. Tenorio filed this civil-rights lawsuit under 42 U.S.C. § 1983, claiming that Harris and Tenorio seized her without probable cause in violation of her Fourth and Fourteenth Amendment rights.
In deciding the Defendants' motion for summary judgment, the Court views the evidence in the light most favorable to Tenorio. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The incident at issue in this case occurred at Tenorio's business, the Highway Tire shop in Harvey, Illinois. R. 38, Defs. Resp. Pl. Statement Add. Facts ¶ 18.
Ziadah had originally reported that three tire rims were stolen from his shop, including "one orange lip Ashanti rim, one white lip Ahsanti rim, and one non-brand white lip rim." Pl. Resp. DSOF ¶ 13. He estimated that the rims, in total, were worth around $10,000. Id. ¶ 14. Sometime after the original complaint was filed— Harris does not remember exactly when— Harris says that he followed up with Ziadah and clarified exactly what had been stolen. R. 31-1, Harris Dep. Tr. at 96:5-21.
Harris visited Tenorio's shop that same day. See Pl. Resp. DSOF ¶¶ 19-22. On Harris's first visit there, he contends, he saw the rims that Ziadah had reported stolen. Id. ¶ 20; Harris Dep. Tr. at 57:21-23. Harris also spoke with Tenorio, who provided him with a copy of the ID of the person who sold her the tires, as well as other information about the sale. Defs. Resp. Pl. Statement Add. Facts ¶ 21 (stating that Tenorio provided Harris with a copy of the purchaser's ID the first time that Harris visited the shop); Harris Dep. Tr. at 61:18-23, 64:1-4 (acknowledging that the document offered by Tenorio reflected a copy of the seller's driver's license, and the amount that Tenorio paid for the tires). Harris then left Tenorio's shop. Pl. Resp. DSOF ¶ 22.
Later the same day, Harris returned to Tenorio's shop, this time with Upshaw. Pl. Resp. DSOF ¶ 22-24. Upshaw and Harris spoke to Tenorio about the rims, with the help of Tenorio's employee, Jose Andres Rocha, who provided some language-interpretation assistance between Spanish and English. See Defs. Resp. Pl. Statement Add. Facts ¶ 15; R. 31-4, Rocha Dep. Tr. at 19:19-20:21; Harris Dep. Tr. at 79:3-7; R. 31-2, Upshaw Dep. Tr. at 76:23-77:3.
The parties disagree about exactly what happened during this conversation. Harris and Upshaw both assert that Tenorio became angry, began walking back and forth, and "bumped" or "pushed" Upshaw. DSOF ¶ 32 (citing Upshaw Dep. Tr. at 68:7-11, 71:1-2); DSOF ¶ 33 (citing Harris Dep. Tr. at 73:8-10). For her part, Tenorio "categorically denies" any physical contact with the officers. Pl. Resp. DSOF ¶¶ 32-33 (citing R. 37-5, Tenorio Aff. re: Events ¶ 3 ("At no point did I make any physical offensive contact with the officers, push them, or in any way resist them or pull away as they placed me in handcuffs.")); R. 37, Pl. Statement Add. Facts ¶ 36. Additionally, both Tenorio and Rocha have testified that Tenorio never began pacing back and forth, but simply asked for proof that the rims were stolen, and then was immediately handcuffed. See R. 31-3, Tenorio Dep. Tr. at 22:6-24, 23:1-24:4; Rocha Dep. Tr. at 14:21-17:21.
There is a video from outside of Tenorio's shop that depicts part of the encounter, but it does not include an angle showing the inside of the tire shop, where the parties spent around two minutes. See Pl. Statement Add. Facts, Exh. G at 17:56-17:58. By the time the parties walked out of the tire shop, Tenorio was already handcuffed. Id. at 17:58. On the outdoors footage, Tenorio does not appear to push or bump either of the officers. Id.
In any case, the parties agree that Tenorio was handcuffed and placed in the back of Upshaw's squad car. Pl. Resp. DSOF
Summary judgment must be granted "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). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In evaluating summary judgment motions, courts must "view the facts and draw reasonable inferences in the light most favorable to the" non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (cleaned up).
Tenorio's false-arrest claim would ultimately require her to prove, at trial, that Harris and Upshaw had no probable cause for her arrest. Hurt v. Wise, 880 F.3d 831, 841 (7th Cir. 2018) ("A claim of false arrest is an allegation that a plaintiff was arrested without probable cause, in violation of the Fourth Amendment. Probable cause is an absolute defense to such a claim.") (cleaned up), overruled on other grounds by Lewis v. City of Chi., 914 F.3d 472, 475 (7th Cir. 2019). As a result, if Harris and Upshaw can establish that there is no genuine dispute of material fact as to whether they had probable cause to arrest Tenorio, then they win.
Probable cause for an arrest "exists if the totality of the facts and circumstances known to the officer at the time of the arrest would warrant a reasonable, prudent person in believing that the arrestee had committed, was committing, or was about to commit a crime." Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 714 (7th Cir. 2013). "To determine whether an officer had probable cause for an arrest, [courts] 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." Dist. of Columbia v. Wesby, ___ U.S. ___, 138 S.Ct. 577, 586, 199 L.Ed.2d 453 (2018) (cleaned up). Probable cause is not a high bar; it only requires a "probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates,
In their motion, Harris and Upshaw argue that they had probable cause to arrest Tenorio for three different crimes: aggravated battery, resisting or obstructing a police officer, and receiving stolen property. Defs. Mot. Summ. J. at 6-9. Keeping in mind that the Defendants need only show they had indisputable probable cause for one crime to defeat the false-arrest claim, the Court will evaluate each possible crime in turn.
The question of whether Harris and Upshaw had probable cause to arrest Tenorio for aggravated battery hinges on one crucial, disputed fact: whether Tenorio made physical contact with either officer before they arrested her. Under Illinois law, "[a] person commits aggravated battery when, in committing a battery, . . . he or she knows the individual battered to be . . . a peace officer . . . performing his or her official duties." 720 ILCS 5/12-3.05(d)(4)(i). Battery, in turn, requires that the person "knowingly without legal justification by any means (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual." 720 ILCS 5/12-3. There are no facts to show, and the Defendants do not claim, that Tenorio caused bodily harm to either officer. So to establish probable cause for aggravated battery, they must, at a minimum, show that there is no factual dispute that Tenorio touched one of them (leaving aside whether that touching was "of an insulting or provoking nature").
Harris and Upshaw both maintain that Tenorio bumped into Upshaw. DSOF ¶ 32 (citing Upshaw Dep. Tr. at 68:7-11 ("In the process of her walking back and forth, she ended up bumping me and Detective Harris, which physical contact was made."), 71:1-2 ("I don't recall how she did push, but she did make physical contact.")); DSOF ¶ 33 (citing Harris Dep. Tr. at 73:8-10 (`She pushed past him enough to touch him.")).
But Tenorio "categorically denies" the physical contact that Harris and Upshaw describe. Pl. Resp. DSOF ¶¶ 32-33 (citing Tenorio Aff. re: Events ¶ 3 ("At no point did I make any physical offensive contact with the officers, push them, or in any way resist them or pull away as they placed me in handcuffs."); Pl. Statement Add. Facts ¶ 36 ("Plaintiff never made any physical contact with any officer, pushed any officer, or in any way resisted the officers as she was placed in handcuffs.")). She also points to the depositions of herself and Rocha, in which they both lay out a slightly different timeline than the officers. In that alternative sequence of events, Tenorio never starts pacing back and forth— she just asks for proof that the rims were stolen, and then the officers immediately handcuff her. See Tenorio Dep. Tr. at 22:6-24, 23:1-24:4; Rocha Dep. Tr. at 14:21-17:21.
The only other evidence in the record besides the parties' and Rocha's accounts is the video recording from outside of Tenorio's body shop that she submitted. See Pl. Statement Add. Facts, Exh. G. In the video, Tenorio and the officers are shown talking with another man for a few minutes. During that time, Tenorio does not appear to touch or bump anyone. Then,
The bottom line is that there is a genuine dispute of material fact. The Court cannot grant summary judgment on the premise that there was probable cause to arrest Tenorio for aggravated battery.
Next is the obstruction possibility. Illinois law prohibits "knowingly resist[ing] or obstruct[ing] the performance by one known to the person to be a peace officer . . . of any authorized act within his or her official capacity." 720 ILCS 5/31-1. Liability under the statute requires a physical act. People v. McCoy, 378 Ill.App.3d 954, 317 Ill.Dec. 453, 881 N.E.2d 621, 630 (2008) (explaining the statute prohibits "a physical act that impedes, hinders, interrupts, prevents, or delays the performance of the officer's duties, such as going limp, forcefully resisting arrest, or physically helping another party to avoid arrest."). "Merely arguing with a police officer—even using abusive language— does not constitute resisting a peace officer." People v. Long, 316 Ill.App.3d 919, 250 Ill.Dec. 252, 738 N.E.2d 216, 222 (2000).
There is a substantial factual question on whether Tenorio committed the type of physical act that would be required for resisting a peace officer. Of course, as discussed above, Tenorio denies touching either officer. Pl. Resp. DSOF ¶¶ 32-33. But besides the battery the officers insist that Tenorio committed, they also both assert that she "snatched her arm away" when Upshaw attempted to handcuff her. DSOF ¶ 38 ("When Commander Upshaw attempted to handcuff the plaintiff, she snatched her arm away.") (citing Upshaw Dep. Tr. at 79:15-24 ("[A]s I went to handcuff her, she pulled away from me. . . . She snatched away from me.")). Setting aside the question of whether that "snatch" would necessarily qualify as the requisite physical act,
So here too is a genuine dispute on whether Tenorio committed the sort of physical act that would give the officers probable cause to arrest her for obstruction. The Court cannot grant summary judgment on this basis.
The officers' final—and best— argument is that they had probable cause to arrest Tenorio for theft. Under Illinois law, a person is guilty of theft when she "obtains control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce . . . her to believe that the property was stolen." 720 ILCS 5/16-1(a)(4). This is not necessarily a traditional definition of theft, but rather closer to receiving stolen property, which is what this Opinion will call it. The question of whether the "circumstances" should lead the person to know the property was stolen is evaluated from the perspective of an ordinary person. See People v. Nelson, 336 Ill.App.3d 517, 271 Ill.Dec. 161, 784 N.E.2d 379, 382 (2003) (upholding the defendant's conviction where he bought two electronic items on the street in the middle of the night at far less than their value, and the seller refused to give him a receipt: "Based on these facts, we believe that a person of ordinary intelligence presented with the [goods] under these circumstances would reasonably be induced to believe that the merchandise had been stolen."). The statute prohibits the act of acquiring the stolen goods, or "bring[ing] about a transfer of interest or possession"—not the continuing possession of them afterward. People v. Walton, 371 Ill.Dec. 673,990 N.E.2d 861, 869 (Ill. App. Ct. 2013) ("[S]ubsection (a)(4) proscribes only the initial act by which a defendant first gains control of the property.").
It is a close call, but based on the undisputed facts, the officers also had probable cause to believe that Tenorio bought the tires under circumstances that should have reasonably tipped her off that they were stolen. Most significantly, Harris and Upshaw knew that Tenorio had purchased the tires for far less than the estimated value; remember, Ziadah had reported that he valued the rims at around $10,000 in total. Pl. Resp. DSOF ¶ 14 (citing Harris Dep. Tr. at 49:18-20).
Tenorio argues that Harris has acknowledged that he had no "information tending to indicate that [Tenorio] knew that what she was buying were stolen goods." Harris Dep. Tr. at 64:19-22 (emphasis added); R. 33, Pl. Resp. Br. at 5; see also Defs. Resp. Pl. Statement Add. Facts ¶ 23. But Harris's subjective assessment does not control: the analysis is objective, measured from the standpoint of a reasonable officer. Also, knowledge that the property was stolen is not required by Illinois law. All that a reasonable officer needed was probable cause to believe that the circumstances should have reasonably induced a belief in Tenorio that the rims were stolen. Here, the stark price differential—$10,000 versus $800—supplied probable cause. It is a close question, and no doubt some other police officers would have exercised discretion not to effectuate an arrest. Ultimately, however, probable cause does not require even a preponderance of evidence, and given the price difference the officers were aware of, no reasonable jury could find for Tenorio on this issue.
In arguing for summary judgment, the Defendants did not rely on qualified immunity. It is worth discussing qualified immunity, however, because even if there was a genuine dispute on probable cause—as a straight merits question—the closeness of the question would hand the officers a victory on qualified immunity. To be sure, the Court is not granting summary judgment on the qualified-immunity ground, because the officers did not argue it. But Harris and Upshaw did plead the defense of qualified immunity in their Answer. R. 18, Answer at 7. So they would be entitled to invoke qualified immunity at trial via a Rule 50(a) motion for judgment as a matter of law. The parties and the Court would have prepared for trial, brought a venire for jury selection, presented evidence in Tenorio's case-in-chief to a jury—only to then address qualified immunity. So it is worth discussing it now.
Police officers "are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time." Wesby, 138 S.Ct. at 589 (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012)) (cleaned up). "We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Mullenix v. Luna, ___ U.S. ___, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). The analysis asks whether the specific conduct at issue violates clearly established law, and courts must not define prior law at "a high level of generality." Id. (quoting al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074).
Harris and Upshaw's motion for summary judgment is granted. The officers had probable cause to arrest Tenorio for receiving stolen property. The status hearing of April 19, 2019 is vacated. Final judgment will be entered.
This brings up a factual issue about how Tenorio came into possession of the tires:
