Holmes, Darius v. Village Hoffman ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2759
DARIUS HOLMES,
Plaintiff-Appellant,
v.
VILLAGE OF HOFFMAN ESTATES and
OFFICER MATTHEW TEIPEL, Star No. 279,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division
No. 05 C 2775—Charles R. Norgle, Sr., Judge.
____________
ARGUED JANUARY 18, 2007—DECIDED DECEMBER 26, 2007
____________
Before BAUER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. After a jury acquitted plaintiff
Darius Holmes of charges that he committed a battery
upon police officers Martin Piatek and Matthew Teipel and
resisted Teipel’s efforts to arrest him, Holmes filed suit
against the officers and their municipal employers under
42 U.S.C. § 1983 claiming false arrest and the use of
excessive force, in violation of his rights under the
Fourth and Fourteenth Amendments, and malicious
prosecution in violation of Illinois law. Holmes settled his
claims against Piatek and the Village of Streamwood,
Illinois, which employed Piatek. The district court entered
2 No. 06-2759
summary judgment against Holmes on the remaining
claims against Teipel and his employer, the Village of
Hoffman Estates, Illinois, prompting Holmes to appeal.
Because the undisputed facts demonstrate that Teipel
had probable cause to believe that Holmes had committed
a battery on Piatek, we affirm the grant of summary
judgment as to Holmes’s claim for false arrest. However,
we conclude that disputes of material fact exist as to
Holmes’s malicious prosecution claim as well as his
excessive force claim, and for that reason we reverse
the grant of summary judgment as to those claims.
I.
Late in the evening of June 4, 2003, Detective Piatek, a
tactical officer with the special operations unit of the
Streamwood police force, was patrolling convenience
stores, liquor stores, and gas stations following a series
of armed robberies of such establishments in Streamwood
and other nearby suburbs northwest of Chicago. Between
11:30 and midnight, Piatek drove by a strip mall contain-
ing a 7-Eleven store that had been robbed earlier that
same day and on another recent occasion. Piatek noticed
an occupied car parked outside the store with its motor
and lights off. Holmes, the driver of the car, was talking
on a cell phone. His friend, Vonnell Landfair, was sitting
next to him in the passenger seat. As Piatek pulled into
the parking lot of the strip mall and drove slowly past the
vehicle, he observed that it was occupied by two African-
American males, one of whom (Landfair) was thin and the
other of whom (Holmes) had a more stocky build. Piatek
would later testify that he decided to investigate the car
and its occupants because he believed the occupants
matched the description of the individuals who had
robbed the 7-Eleven. But there is some question about
whether his belief was accurate as to the race of the two
No. 06-2759 3
suspects. A report concerning one of the robberies origi-
nally indicated that the perpetrators were white, although
the report was subsequently revised to indicate they
were black; a report concerning a second robbery indi-
cated that one of the perpetrators was Hispanic. The
robbers had worn ski masks, thereby limiting the avail-
able information about their appearance.
After he reported by radio that he was investigating
a suspicious automobile, Piatek approached the vehicle
and asked its driver, Holmes, to produce his driver’s
license. Holmes responded by asking Piatek who he was
and why he needed to see Holmes’s driver’s license. Piatek
was driving an unmarked car and was dressed in civilian
clothing and so, according to Holmes, he did not realize
that Piatek was a police officer. The parties dispute
whether Piatek identified himself as such to Holmes.
They also dispute the manner in which both Piatek and
Holmes behaved during their initial dialogue. Holmes
represents that he was polite and cooperative whereas
Piatek was foul-mouthed and confrontational; the defen-
dants have indicated that just the opposite was true.
At this point, Piatek asked Holmes to step out of his car.
Holmes complied with the request. But, according to
Piatek, once Holmes was out of the car, he assumed a
combative stance which, coupled with his alleged belliger-
ence, caused Piatek to be concerned for his safety. Piatek
decided to pat Holmes down to verify that he was not
armed, and he advised Holmes of his intent. Piatek turned
Holmes around, so that he was facing his car, and placed
him against the car in order to frisk him.
By this time, Teipel had arrived on the scene and joined
Piatek on the driver’s side of Holmes’s car. Teipel, an
officer with the Hoffman Estates police department, had
been completing a traffic stop at a gasoline station directly
across the street from the strip mall when he heard
4 No. 06-2759
Piatek’s radio report concerning a suspicious vehicle. In
accord with a custom of providing backup to neighboring
police personnel during late-night encounters, Teipel drove
his car over to the mall in order to assist Piatek. The
parties have given significantly divergent accounts of
what occurred following Teipel’s arrival. For later refer-
ence, we separately recount each of the versions Holmes,
Piatek, and Teipel have given, focusing on the points most
pertinent to Holmes’s claims. Of course, it is Holmes’s
version that we must credit given the obligation we have
at this stage in the proceedings to construe the facts
favorably to him. E.g., Payne v. Pauley, 337 F.3d 767, 773
(7th Cir. 2003).
Holmes gives the following account of events: He was
cooperating with Piatek and was passively facing his car
when Teipel arrived on the scene. As Teipel walked toward
the driver’s side of Holmes’s car, Piatek said to Teipel, “We
have ourselves a smart ass here.” Teipel responded, “Oh,
yeah?”, walked up to Holmes, and slammed Holmes’s
head hard against the roof his car. Teipel instructed
Holmes’s passenger, Landfair, who was still seated in the
car, to look away. Teipel then grabbed Holmes’s left arm
while Piatek held his right harm. Piatek, after whispering
in Holmes’s ear that he was going to hurt Holmes, exe-
cuted a wristlock on his right hand and arm. A wristlock
is a compliance technique that police officers sometimes
use to subdue uncooperative individuals. The technique
involves bending the wrist back toward the forearm,
causing the individual to experience pressure and pain.
The wristlock caused Holmes to cry out that Piatek was
hurting him. Piatek replied, “I know.” While this was
occurring, Teipel continued to hold Holmes’s left arm
behind his back. Piatek then released the wristlock and
said to Teipel, “He hit me. Take him down.” But according
to Holmes, at no time during his encounter with Piatek
and Teipel did he strike, push, or resist either of the
No. 06-2759 5
officers. After Piatek made this remark to Teipel, the
officers threw Holmes to the ground. A smug Piatek told
Holmes that he was on the ground because he had been
“smart” with the officers; he also advised Holmes that
he was under arrest. Teipel handcuffed Holmes and
pressed his knee against Holmes’s face and kept it there.
Holmes advised Teipel that he needed to go to the hospital.
Teipel told him to “shut up” and that the only place he
was going to was jail. Holmes told Teipel repeatedly that
Teipel was hurting him, but each time Holmes said this,
Teipel would grind his knee into Holmes’s face. This
happened more than five times, according to Holmes,
resulting in a gash or cut above Holmes’s right eye in
addition to swelling and redness on the left side of his face.
Holmes ultimately was taken to the police station, where
he was booked and released on bond. Upon his release, he
sought treatment for the injuries to his wrist and face.
His wrist was placed in a soft cast, he was given oint-
ment for the abrasions to his face, prescribed a pain
reliever, and he was advised to have a specialist check his
wrist. No stitches were required, and Holmes later could
not recall whether he ever filled the prescription for the
pain medication. He did follow up with a physician about
his injured arm who advised him that some of the tissues
in his wrist had been torn and that he should not use
the arm for several weeks.
Teipel gives a much different account of what occurred
after Holmes exited his car: Like Piatek, Teipel testified
that he believed that Holmes and his passenger matched
the description of the two individuals wanted in connection
with the recent armed robberies. Teipel observed Holmes
step out of the car, turn around, and place his hands on
the roof of the car as Piatek prepared to pat him down. But
in the midst of the pat-down, Holmes pushed himself
off the car, turned in order to face the two officers, and
then shoved both of them. Piatek then advised Holmes
6 No. 06-2759
that he was under arrest for battery and took hold of
Holmes’s right wrist. Teipel grabbed Holmes’s left wrist
and, as Holmes began to struggle, placed his own hand
against Holmes’s upper back, pushed Holmes against his
car, and told Holmes to stop resisting arrest. But when
Piatek attempted to place handcuffs on Holmes, Holmes
pushed himself backward and caused all three men to
fall to the ground. There, while Holmes continued to
struggle, the officers managed to secure him in handcuffs.
Teipel placed his knees against Holmes’s back and shoul-
der in order to help secure him. Teipel never heard Holmes
cry out in pain, and he denied that he and Piatek had
thrown Holmes to the ground.
Piatek’s recitation of events conforms more closely,
although not precisely, with Teipel’s version: Once Holmes
was facing his car and Piatek began to pat him down,
Holmes either flailed his arms backwards and/or pushed
himself backward off of the car and tried to shove both
Piatek and Teipel (who by now had joined the encounter)
out of the way. Piatek advised Holmes that he was under
arrest for battery and ordered Holmes to put his hands
behind his back. Holmes refused. Piatek and Teipel then
grabbed Holmes’s arms, and Teipel pushed him against
the vehicle. As he did so, Holmes remarked that the
officers could not hurt him because he worked out
every day. Piatek then applied a wristlock to Holmes’s
right arm in an effort to subdue him. When Piatek applied
the wristlock, Holmes pushed himself backward away
from his car, causing all three men to fall to the ground.
While on the ground, both officers struggled to get
Holmes’s hands behind his back so that he could be
handcuffed. Piatek once again performed a wristlock, this
time on Holmes’s left arm. Teipel managed to handcuff
Holmes, who finally stopped struggling. Additional officers
arrived on the scene, and Holmes was placed in a squad
car and taken to the Streamwood police station. Landfair,
No. 06-2759 7
Holmes’s passenger, was patted down and released from
the scene after his identification was checked and verified.
Based on misdemeanor criminal complaints prepared
over the two officers’ signatures,1 Holmes was prosecuted
in the Circuit Court of Cook County for committing a
battery upon both Piatek and Teipel and resisting the
efforts of both officers to arrest him. A jury acquitted
Holmes of the battery charges and also of the charge that
he resisted Teipel’s attempt to arrest him. The jury
was unable to reach a verdict as to the charge that
Holmes had resisted Piatek’s attempt to arrest him, and
the court declared a mistrial as to that charge.
Following his victory in state court, Holmes filed this
lawsuit pursuant to 42 U.S.C. § 1983. Holmes alleged that
Piatek and Teipel were liable to him for false arrest
and for using excessive force, in violation of his Fourth
and Fourteenth Amendment right to be free from unrea-
sonable seizures, and that the officers and their municipal
employers also were liable for malicious prosecution under
Illinois law. After the defendants answered the complaint,
the parties completed discovery and submitted their
pretrial order in anticipation of trial. Holmes settled
with Piatek and the Village of Streamwood shortly be-
fore the scheduled trial date, leaving Teipel and the
Village of Hoffman Estates as the two defendants facing
trial.
Surprisingly, it was on the date that the district court
had set for trial that the court held what amounted to
its first status hearing in the case. Early on in the litiga-
tion, the court unilaterally had scheduled a trial date and
1
Piatek signed his own name to the charges that Holmes had
committed a battery upon Piatek and resisted his efforts to arrest
Holmes, and, with Teipel’s permission, he signed Teipel’s name
to the two companion charges involving Teipel.
8 No. 06-2759
then denied (by mail) an agreed motion to re-set that date.
Thereafter, with the exception of one or two minor proce-
dural motions, the parties proceeded toward trial without
the intervention or oversight of the court. None of the
defendants elected to file a motion for summary judg-
ment. When the scheduled trial date arrived, the parties
appeared before the court ready for trial. But the court
announced that it would not proceed with the trial until
it had first explored the question whether there had been
probable cause to arrest Holmes. Taking the hint, the
defendants sought and obtained the court’s leave to file a
motion for partial summary judgment on that issue.
The district court subsequently entered summary
judgment against Holmes on his false arrest and malicious
prosecution claims, concluding that Holmes’s arrest and
prosecution were supported by probable cause to be-
lieve that Holmes had committed a crime. The court was
satisfied that Piatek, on spotting Holmes’s car parked
near the 7-Eleven, had reasonable grounds on which to
suspect that Holmes might be engaged in criminal activity.
R. 59 at 6. That reasonable suspicion supported Piatek’s
decision to question Holmes, and to demand that Holmes
step out of his car and submit to a pat-down to ensure
Piatek’s safety during the investigative encounter. Id.; see
Terry v. Ohio, 392 U.S. 1, 20-22, 27, 88 S. Ct. 1868, 1879-
80, 1883 (1968). It also supported Piatek’s and Teipel’s
subsequent effort to handcuff Holmes, which the court
viewed as “ ‘appropriate to accomplish the purposes of an
investigatory stop.’ ” R. 59 at 6-7 (quoting Tom v. Voida,
963 F.2d 952, 958 (7th Cir. 1992)); see United States v.
Askew, 403 F.3d 496, 506-07 (7th Cir. 2005). Crediting the
criminal complaints that Piatek and Teipel lodged against
Holmes, along with Teipel’s arrest report, the court went
on to state that while the two officers were attempting
to place handcuffs on Holmes, Holmes had pushed the
officers away from him. R. 59 at 8-9 (citing Exs. C, D, G,
No. 06-2759 9
and H to Plaintiff ’s Statement of Material Facts (R. 50-4,
50-5, 50-8, 50-9)) and 11 (citing Teipel’s arrest report
(R. 50-2 at 23, 24)). The court reasoned that Holmes’s
conduct in shoving the officers supplied them with proba-
ble cause to arrest him for both battery and resisting
arrest. Id. at 8-9. This defeated Holmes’s false arrest
claim against Teipel and also defeated his malicious
prosecution claim against Teipel and the Village of
Hoffman Estates. Id. at 8-9, 11.
At the court’s instruction, the parties then briefed the
remaining claim for excessive force, and on review of their
memoranda, the court entered summary judgment against
Holmes on that claim as well. The court accepted the
notion that Teipel had employed some force in his encoun-
ter. Specifically, the court assumed that it was he rather
than Piatek who had applied a wristlock to Holmes—
although no party has alleged that Teipel did this. R. 75 at
7. Rather, Holmes has averred that Teipel helped to hold
him while Piatek applied the wristlock; he has also
asserted that Teipel himself engaged in separate acts of
force, including slamming Holmes’s head against the
roof of his car and grinding his knee into Holmes’s face.
In any case, the court found that the level of force Teipel
had employed was objectively reasonable. When Teipel
arrived on the scene, the court reasoned, Holmes was
already out of his car and Piatek was attempting to subdue
him. Teipel, aware of the recent string of robberies,
believed that Holmes fit the description of one of the
robbers. The court went on to note that Piatek told Teipel
that Holmes had hit him. And Holmes himself may have
said that he lifted weights every day and that the officers
could not hurt him, although, in the court’s view, this
remark did not materially alter the facts of the case. Id. at
5-6. Under these circumstances, the court reasoned, it
was objectively reasonable for Teipel to apply a wristlock
to Holmes’s arm. “When Holmes resisted and threatened
the officers, a greater amount of force was required, to
10 No. 06-2759
ensure both officer[s’] safety, and that the situation did not
escalate.” Id. at 7. The court did not address Holmes’s
allegations that Teipel had slammed his head down on the
roof of his car or that, once the officers had Holmes on the
ground, Teipel had ground his knee into Holmes’s face.
II.
With Piatek out of the case, Holmes does not challenge
the district court’s determination that Piatek had rea-
sonable suspicion to approach and detain Holmes for
questioning pursuant to Terry and, in conjunction with
that stop, to frisk him in furtherance of the officer’s safety.
Holmes Br. at 4. So we may set that issue aside and
assume that Piatek lawfully detained Holmes for ques-
tioning and subjected him to a pat-down. The focus of
Holmes’s appeal is on what took place after that point in
the encounter, with the arrival of Teipel. We must decide
whether the undisputed facts establish that Teipel had
probable cause to arrest Holmes and that he (and via
respondeat superior, his municipal employer, the Village
of Hoffman Estates) had a legitimate basis on which to
initiate charges against him. We must also decide whether
any force that Teipel may have employed in seizing
Holmes was, as the district court concluded, objectively
reasonable.
A police officer has probable cause to arrest an individ-
ual when the facts and circumstances that are known to
him reasonably support a belief that the individual has
committed, is committing, or is about to be commit a
crime. E.g., Wagner v. Washington County, 493 F.3d 833,
836 (7th Cir. 2007) (per curiam); United States v. Parra,
402 F.3d 752, 763-64 (7th Cir. 2005). Probable cause
requires more than a bare suspicion of criminal activity,
but it does not require evidence sufficient to support a
conviction. Woods v. City of Chicago, 234 F.3d 979, 996
No. 06-2759 11
(7th Cir. 2000) (quoting United States v. Burrell, 963 F.2d
976, 986 (7th Cir. 1992)). Probable cause is assessed
objectively: a court looks at the conclusions that the
arresting officer reasonably might have drawn from the
information known to him rather than his subjective
reasons for making the arrest. Devenpeck v. Alford, 543
U.S. 146, 153, 125 S. Ct. 588, 593-94 (2004); Whren v.
United States, 517 U.S. 806, 812-13, 116 S. Ct. 1769, 1774
(1996). In making that assessment, the court must con-
sider the facts as they reasonably appeared to the arrest-
ing officer, seeing what he saw, hearing what he heard,
and so forth. Wagner, 493 F.3d at 836; Parra, 402 F.3d
at 764. A police officer may of course exercise common
sense and draw upon his training and experience in
evaluating the totality of the circumstances confronting
him, and a court must likewise make allowance for such
judgments in deciding what the arresting officer reason-
ably might have concluded about the facts. See United
States v. Reed, 443 F.3d 600, 603 (7th Cir.), cert. denied,
127 S. Ct. 183 (2006). If the officer had probable cause to
believe that the person he arrested was involved in
criminal activity, then a Fourth Amendment claim for
false arrest is foreclosed. Morfin v. City of E. Chicago,
349 F.3d 989, 997 (7th Cir. 2003) (coll. cases).
Based on facts that Holmes does not dispute, we con-
clude that Teipel had probable cause to arrest Holmes
for battery. Our conclusion does not rest on the version of
the facts underpinning the district court’s analysis. The
district court asserted that Holmes had pushed Piatek and
Teipel while the two officers were attempting to secure
Holmes in handcuffs in furtherance of the Terry stop. R. 59
at 8-9. In this respect, the court assumed the truth of the
officers’ criminal complaints against Holmes along with
Teipel’s arrest report. Holmes’s act of pushing the two
officers, the court concluded, supplied Teipel as well as
Piatek probable cause to arrest Holmes for both battery
12 No. 06-2759
and resisting arrest. Id. at 8-9, 11. But Holmes, like the
officers, has personal knowledge of what occurred during
the encounter, and he unequivocally denies that he struck,
pushed, or resisted either officer. We are obliged to accept
Holmes’s version of events on summary judgment. See
Payne, 337 F.3d at 773. The defendants, recognizing the
problem with the district court’s analysis, posit an alter-
nate basis for the arrest. They contend that Teipel had
probable cause to arrest Holmes for battery once Piatek
told Teipel that Holmes had struck him. We agree.
When Piatek told Teipel, “He (meaning Holmes) hit me.
Take him down.”, he gave Teipel reason to believe that
Holmes had broken the law by committing a battery on
Piatek. See 720 ILCS 5/12-3. In making a decision to arrest
someone for criminal conduct that he did not witness, a
police officer may rely on information provided to him by
the victim or by an eyewitness to the crime that the officer
reasonably believes is telling the truth. Pasiewicz v. Lake
County Forest Preserve Dist., 270 F.3d 520, 524 (7th Cir.
2001); Gramenos v. Jewel Cos., 797 F.2d 432, 439 (7th Cir.
1986). “So long as a reasonably credible witness or victim
informs the police that someone has committed, or is
committing, a crime, the officers have probable cause to
place the alleged culprit under arrest . . . .” Jenkins v.
Keating, 147 F.3d 577, 585 (7th Cir. 1998). Fellow law
enforcement personnel are among the witnesses whose
accounts the arresting officer may rely upon. See Spiegel
v. Cortese, 196 F.3d 717, 726 (7th Cir. 1999); see also
United States v. Ellis, 499 F.3d 686, 690 (7th Cir. 2007);
Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006).
Having just arrived on the scene, Teipel was entitled to
rely on Piatek’s statement as to what had already occurred
and to make an arrest on that basis.
Holmes contends that there is a factual dispute as to
whether Piatek actually made this statement to Teipel, but
No. 06-2759 13
the record does not bear him out on this point. Holmes
himself testified that Piatek made the statement. R. 50-10
at 15 (Holmes Dep. at 54). It is true, as Holmes points out,
that neither Piatek nor Teipel testified to this state-
ment at Holmes’s criminal trial or in their depositions or
wrote of it in their arrest reports and post-arrest memo-
randa. But this does not mean that the fact of the state-
ment is disputed; on the contrary, neither of the two
officers ever denied Holmes’s recollection on this point.
More to the point, in response to Teipel’s statement of
undisputed facts below, Holmes admitted that Piatek
made this statement, R. 49 ¶ 18; indeed, he included
Piatek’s statement in his own additional statement of
undisputed facts, R. 48 ¶ 20. He is in no position now to
contend that the district court should have ignored his
own admission that Piatek’s statement was an undis-
puted fact. See Tobey v. Extel/JWP, Inc., 985 F.2d 330, 333
(7th Cir. 1993).
The lack of evidence that Teipel heard Piatek’s state-
ment is no barrier to summary judgment, as Holmes next
argues. Piatek was speaking to Teipel when he made the
statement, so it is reasonable to infer that Teipel heard
what Piatek said. Nothing in the record suggests that
Teipel, who was standing right next to Piatek when he
made the statement, might have been unable to hear the
statement. Indeed, by Holmes’s account, immediately
after Piatek told Teipel that Holmes had hit him and to
“[t]ake him down,” Teipel joined Piatek in throwing
Holmes to the ground. R. 48 ¶ 20. The natural (and
reasonable) inference is that Teipel heard the statement.
Holmes’s final contention, that Teipel knew (or should
have realized) that Piatek was lying, lacks record support.
Even if we assume, consistent with Holmes’s version of
events, that Piatek was abusive to him from the start of
the encounter and that Teipel joined in the abuse immedi-
ately upon his arrival, there is no evidence to support the
14 No. 06-2759
notion that Teipel would or should have realized that
Piatek was dissembling when he told Teipel that Holmes
had hit him. Having just joined the encounter, Teipel’s
knowledge was limited. Crediting Holmes’s own version of
the facts, Teipel knew only that Piatek was investigating
someone parked at a robbed 7-Eleven, that Piatek was
frisking him, that Piatek told him “[w]e have ourselves a
smart ass here,” and then that “he (Holmes) hit me.” R. 48
¶¶ 14-20; R. 53 ¶¶ 14-20. These facts did not give Teipel
reason to doubt Piatek’s veracity. Nor does Teipel’s own
conduct suggest that he could not rely on what Piatek told
him as a basis to arrest Holmes. Holmes, of course, has
averred that Teipel himself began to physically abuse him
almost immediately upon joining the encounter—as by
allegedly slamming Holmes’s head against the car after
Piatek told him that “[w]e have ourselves a smart ass
here.” Teipel’s alleged misconduct certainly is relevant
to the excessive force claim, which we discuss below. But
his use of force does not support the inference that he
could not or did not believe the information that Piatek
conveyed to him. It is possible for a police officer to use
excessive force to make what is otherwise a legitimate
arrest supported by probable cause. See Lenard v. Argento,
808 F.2d 1242, 1246 (7th Cir. 1987) (“False arrest and
excessive force are unrelated except in forming a sequence.
Arresting a person on probable cause does not justify
beating him up, and the beating does not invalidate the
arrest.”); see also Cortez v. McCauley, 478 F.3d 1108, 1127
(10th Cir. 2007) (en banc); Calvi v. Knox County, 470
F.3d 422, 431 (1st Cir. 2006).
Teipel thus had probable cause to arrest Holmes based
on his fellow officer’s description of what Holmes had done.
Holmes’s seizure was therefore not contrary to the Fourth
and Fourteenth Amendments. On that basis, Teipel was
entitled to summary judgment on the false arrest claim. It
does not matter that this was not the basis for summary
No. 06-2759 15
judgment articulated by the district court. Because our
review is de novo, we may affirm the judgment on any
basis that is supported by the record before us. E.g.,
Winters v. Fru-Con Inc., 498 F.3d 734, 743 (7th Cir. 2007).
Probable cause to arrest Holmes for committing a
battery on Piatek would also defeat the state-law claim for
malicious prosecution insofar as the claim might have been
based on that particular battery charge. Among the
elements that Illinois law requires a plaintiff to estab-
lish in support of a malicious prosecution claim is the
absence of probable cause for the prosecution. See, e.g.,
Ross v. Mauro Chevrolet, 861 N.E.2d 313, 319 (Ill. App. Ct.
2006). Consequently, a finding of probable cause is an
absolute bar to such a claim. E.g., Mannoia v. Farrow, 476
F.3d 453, 459 (7th Cir. 2007) (applying Illinois law);
Johnson v. Target Stores, Inc., 791 N.E.2d 1206, 1219-20
(Ill. App. Ct. 2003). Because Teipel had probable cause
to believe that Holmes had struck Piatek based on
Piatek’s statement, Teipel and Hoffman Estates could
not be held liable for initiating the prosecution of Holmes
on that charge.
However, Holmes was not prosecuted for battery against
Piatek alone. He was also tried (and acquitted) on charges
that he committed a battery on Teipel and resisted Teipel’s
efforts to arrest him; indeed, those were the two charges
that Teipel lodged against Holmes. Holmes emphasizes
that his malicious prosecution claim against Teipel and
Hoffman Estates is based solely on those latter two
charges. And those charges, because they sprang from
Holmes’s alleged actions against Teipel, were distinct from
the charge that Holmes committed a battery against
Piatek. Yet, Teipel and Hoffman Estates have assumed
that probable cause as to the charge for the alleged bat-
tery on Piatek bars the malicious prosecution claim
entirely, even to the extent that the claim is based on the
other charges for which Holmes was prosecuted. Holmes
16 No. 06-2759
contends that the assumption is incorrect. He argues, as
he did below, that because he was prosecuted on multiple
charges, the basis for each charge must be examined
separately, and if probable cause was lacking as to any
charge, the defendants still may be held liable for his
prosecution on that unsupported charge. He is correct.
As several of our sister circuits have concluded, probable
cause to believe an individual committed one crime—and
even his conviction of that crime—does not foreclose a
malicious prosecution claim for additionally prosecuting
the individual on a separate charge. See Johnson v. Knorr,
477 F.3d 75, 83-85 (3d Cir. 2007); Uboh v. Reno, 141 F.3d
1000, 1005 (11th Cir. 1998); Posr v. Doherty, 944 F.2d 91,
100 (2d Cir. 1991); see also Rivera-Marcano v. Normeat
Royal Dane Quality A/S, 998 F.2d 34, 38 (1st Cir. 1993).
In this respect, a malicious prosecution claim is treated
differently from one for false arrest: whereas probable
cause to believe that a person has committed any crime
will preclude a false arrest claim, even if the person was
arrested on additional or different charges for which there
was no probable cause, see Devenpeck v. Alford, supra,
543 U.S. at 153, 125 S. Ct. at 593-94; Pourghoraishi v.
Flying J, Inc., 449 F.3d 751, 762 (7th Cir. 2006), probable
cause as to one charge will not bar a malicious prosecution
claim based on a second, distinct charge as to which
probable cause was lacking. Johnson, 477 F.3d at 84-85.
Logic supports the distinction. An arrested individual is
no more seized when he is arrested on three grounds
rather than one; and so long as there is a reasonable
basis for the arrest, the seizure is justified on that basis
even if any other ground cited for the arrest was flawed.
See Devenpeck, 543 U.S. at 153-55, 125 S. Ct. at 594;
Johnson, 477 F.3d at 84. But when it comes to prosecution,
the number and nature of the charges matters: the accused
must investigate and prepare a defense to each charge,
and as the list of charges lengthens (along with the
No. 06-2759 17
sentence to which the accused is exposed), the cost and
psychic toll of the prosecution on the accused increase. See
id. at 84, 85; Jacob Paul Goldstein, Note, From the
Exclusionary Rule to a Constitutional Tort for Malicious
Prosecutions, 106 COLUMBIA L. REV. 643, 645 (2006)
(quoting Savile v. Roberts, 91 Eng. Rep. 1147, 1149-50
(K.B. 1698) (Holt, C.J.) (describing the various injuries
underlying a malicious prosecution claim)). At the same
time, when an officer prepares and signs a criminal
complaint, he typically will have more of an opportunity to
reflect on the nature and ramifications of the accused’s
conduct than he did in making the arrest. It is reasonable
to demand that each charge that a police officer elects to
lodge against the accused be supported by probable cause.
Otherwise, police officers would be free to tack a variety
of baseless charges on to one valid charge with no risk
of being held accountable for their excess. See Posr, 944
F.2d at 100; accord, Johnson, 477 F.3d at 84.
We recognize, of course, that because the malicious
prosecution claim is one founded on state law, our obliga-
tion is to apply Illinois law and, where there are gaps in
the pertinent case law, to predict what the Illinois Su-
preme Court would hold. E.g., Rodrigue v. Olin Employees
Credit Union, 406 F.3d 434, 441 (7th Cir. 2005). We have
found no Illinois Supreme Court case that squarely
addresses whether probable cause supporting one crim-
inal charge will foreclose a malicious prosecution claim
as to one or more additional charges. However, the Illinois
Appellate Court has held that when a malicious prosecu-
tion claim is founded on a civil suit, the claim is not
foreclosed by fact that the entirety of the suit has not
yet been resolved in the plaintiff ’s favor. March v.
Cacioppo, 185 N.E.2d 397, 402 (Ill. App. Ct. 1962).
It would not be just to hold that the defendants must
be absolved from liability simply because a small part
18 No. 06-2759
of their suit might end in judgment for them, when the
far larger part, the equivalent of a separate claim,
has been decided against them, and where there is
reason to believe that this separate claim has been
prosecuted with malice and without probable cause.
Id. (emphasis ours). The March decision reflects the same
claim-by-claim (or charge-by-charge) analysis that our
sister circuits have employed. Our colleagues in the
Northern District of Illinois, in a series of decisions
addressing malicious prosecution claims sounding in
Illinois law, likewise have recognized that probable cause
(or a conviction) as to one charge will not preclude a
malicious prosecution suit based on a separate charge. See
Trusty v. McCall, No. 99 C 3992, 1999 WL 787628, at *2
(N.D. Ill. Sept. 24, 1999) (Kocoras, J.) (coll. cases). We have
no reason to doubt that the Illinois Supreme Court, if
presented with the question, would follow the same
approach.
To the extent that this court’s dictum in Penn v. Harris,
296 F.3d 573, 576-77 (7th Cir. 2002), suggests a contrary
rule, we now disavow it. The malicious prosecution claim
at issue in Penn had been brought as a federal claim under
42 U.S.C. § 1983. However, our then-recent decision
in Newsome v. McCabe, 256 F.3d 747, 750-52 (7th Cir.
2001), had held that because there is no constitutional
right not to be prosecuted without probable cause, a
plaintiff could not state a section 1983 claim simply by
showing that he was wrongly prosecuted but rather
must establish that he was deprived of a specific constitu-
tional right, such as the right to a fair trial. The plaintiff
in Penn had failed to do this, and for that reason we
concluded that his section 1983 claim was defective and
the district court had properly disposed of it on summary
judgment. 296 F.3d at 576. We noted that although
Newsome was fatal to a malicious prosecution claim under
No. 06-2759 19
section 1983, such a claim could nonetheless be pursued
under Illinois law. Id. Penn had not asserted a state-law
claim. Id. But even if he had, we went on to say, the
defendants would still have been entitled to summary
judgment on that claim. In relevant part, we reasoned that
the undisputed facts revealed there had been probable
cause to arrest Penn for disorderly conduct. Id. at 577. In
our view, probable cause to believe that Penn had engaged
in the crime of disorderly conduct foreclosed Penn’s
malicious prosecution claim, notwithstanding the fact
that Penn had neither been arrested for nor charged
with that offense. “The officers arrested Penn for battery
rather than disorderly conduct, but ‘even if probable
cause did not exist for the crime charged [battery], proof
of probable cause to arrest the plaintiff on a closely re-
lated charge [disorderly conduct] is also a defense’ to a
state law claim of malicious prosecution.” Id. (quoting
Kelley v. Myler, 149 F.3d 641, 647-48 (7th Cir. 1998)). This
portion of Penn was quite clearly unnecessary to the
result, given that Penn had not asserted a state-law claim
for malicious prosecution, and therefore amounts to a
dictum that does not bind us in this case. When it sug-
gested that probable cause as to one charge foreclosed a
malicious prosecution claim on a related charge, the court
also departed from the holdings of our sister circuits,
whose decisions it did not mention. Moreover, the passage
from Kelley v. Myler that the court relied upon did not
concern a malicious prosecution claim. The language
quoted from Kelley instead dealt exclusively with a false
arrest claim. 149 F.3d at 647-48. Although a malicious
prosecution was also at issue in Kelley, it was resolved on
an entirely different basis. See id. at 649. The court in
Penn simply assumed, without discussion, that the exis-
tence of probable cause has the same effect on a malicious
prosecution claim as it does upon a false arrest claim. For
the reasons we have discussed, that simply is not the case.
20 No. 06-2759
See also Sparing v. Village of Olympia Fields, 266 F.3d
684, 692 (7th Cir. 2001) (“We are aware of no Illinois case
that adopts the closely related offense rule, which we
apply in qualified immunity cases, in state law malicious
prosecution tort cases.”).
Consequently, although there was probable cause to
support the charge that Holmes had committed a battery
against Piatek, we must separately consider whether
there was probable cause to support the other charges for
which Holmes was prosecuted. Again, Holmes has made
clear that his malicious prosecution claim against Teipel
and Hoffman Estates is based solely on the criminal
charges that Teipel caused to be brought against him, i.e.,
the charges that he committed a battery against Teipel
and that he resisted Teipel’s attempt to arrest him.
Holmes Reply Br. at 9-10. We therefore focus our atten-
tion on those two claims.
Our analysis may be brief, as it is readily apparent
that there are disputes of material fact as to the charges
that Teipel initiated. In contrast to the battery charge
involving Piatek, these two charges are based on events
that Teipel himself witnessed rather than anything
Piatek may have told Teipel. Thus, according to Teipel,
after he arrived at the scene and came to Piatek’s aid in
subduing Holmes, Holmes twice pushed himself back-
ward off of his car and against the two officers. The sec-
ond time Holmes did this, according to Teipel, it caused
both the officers and Holmes to fall to the ground. As the
officers continued their efforts to handcuff Holmes, he
continued to struggle with them, Teipel averred. If we
were to credit Teipel’s account, we have no doubt that
these facts would supply ample cause for the charges that
Holmes committed a battery on Teipel and resisted
Teipel’s attempts to arrest him. See 720 ILCS 5/12-3
(indicating that a person commits the offense of battery
when he “intentionally or knowingly without legal justifi-
No. 06-2759 21
cation and by any means . . . makes physical contact of an
insulting or provoking nature with an individual”); 720
ILCS 5/31-1(a) (indicating that a person commits the
offense of resisting a peace officer when he knowingly
resists or obstructs the performance by one he knows to
be a peace officer); Payne v. Pauley, supra, 337 F.3d at
776 (noting that resistance must be physical in nature).
However, Holmes disputes Teipel’s account and specifically
denies that he ever pushed, struck, or resisted either
Teipel or Piatek; Holmes avers that he was cooperative
at all times. Again, we must credit Holmes’s account at
this juncture. Id. at 773. Assuming that Holmes did not, in
fact, push himself back against Teipel and Piatek or
struggle with them as they attempted to place him
under arrest, Teipel would have lacked any reasonable
basis on which to believe that Holmes had committed a
battery upon the officer or resisted arrest.
For these reasons, the district court erred in granting
summary judgment to Teipel and Hoffman Estates on the
malicious prosecution claim. The existence of probable
cause to support the two charges that Teipel initiated
depends on whether Holmes actually pushed Teipel and
resisted Teipel’s attempt to arrest him. The factfinder
must resolve whether it is Holmes or Teipel who is telling
the truth in this respect.
Finally, we come to the excessive force claim. This claim,
because it arises in the context of a seizure of a free
citizen, is governed by the Fourth Amendment’s reason-
ableness standard. Graham v. Connor, 490 U.S. 386, 394-
95, 109 S. Ct. 1865, 1871 (1989); see also Brosseau v.
Haugen, 543 U.S. 194, 197, 125 S. Ct. 596, 598 (2004) (per
curiam). The force employed by a police officer is deemed
excessive if, in light of the totality of the circumstances,
it was greater than was reasonably necessary to effectuate
the seizure. Payne v. Pauley, 337 F.3d at 778 (quoting
Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir.
22 No. 06-2759
1987)). To assess the degree of force that was justified, a
court considers the severity of the crime for which the
plaintiff was being detained or arrested, whether he posed
a threat to the safety of the officers or to other persons,
and whether the plaintiff was resisting the officers and/or
attempting to flee. Graham, 490 U.S. at 396, 109 S. Ct.
at 1872. We examine the facts as they would have ap-
peared to a reasonable officer on the scene, ibid., keeping
in mind that an officer often must make a split-second
judgment based on rapidly evolving circumstances, id. at
396-97, 109 S. Ct. at 1872; Abdullahi v. City of Madison,
423 F.3d 763, 768 (7th Cir. 2005); Lawrence v. Kenosha
County, 391 F.3d 837, 843 (7th Cir. 2004).
We cannot sustain the entry of summary judgment as
to the excessive force claim on the grounds articulated
by the district court. The court assumed that the only
force Teipel allegedly had employed was a wristlock and
concluded that Teipel was justified in using this degree of
force in helping Piatek to subdue an individual whom
Teipel believed was potentially implicated in a recent
series of armed robberies. But it was Piatek, not Teipel,
whom Holmes avers applied the wristlock (although Teipel
allegedly aided Piatek by holding Holmes). Holmes attrib-
utes other uses of force to Teipel that the district court
failed to consider: Teipel allegedly slammed Holmes’s
head against the roof of his car and later ground his
knee into Holmes’s face once Holmes was on the ground.
Teipel nonetheless contends that summary judgment
was appropriate on the same key fact that we have
agreed justified Holmes’s arrest. Teipel reasons that once
Piatek told Teipel that Holmes had struck him, Teipel
was justified in believing that Holmes was combative
and that a greater degree of force was justified to subdue
Holmes and place him under arrest.
However, taking into account both the chronology that
Holmes describes, along with his averment that he did not
No. 06-2759 23
physically strike or resist the officers, we cannot say as
a matter of law that the entire range of force attributed to
Teipel was reasonable. As Holmes describes the en-
counter, Teipel applied force even before he was told that
Holmes had struck Piatek. According to Holmes, upon
Teipel’s arrival, Piatek remarked that “[w]e have ourselves
a smart ass here,” which caused Teipel to reply “Oh yeah?”
and then to slam Holmes’s head against the roof of the
car. Accepting Holmes’s version of events as true, includ-
ing Holmes’s assertion that he never resisted the officers
and was cooperative, it is difficult to conceive of a reason-
able explanation for Teipel’s conduct, and a jury could
readily conclude that Teipel used excessive force in
knocking Holmes’s head against the vehicle. Cf. Lee v.
Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002) (slamming
plaintiff ’s head against car excessive where plaintiff had
already been secured). Next, according to Holmes, Piatek
applied a wristlock to his right arm, causing him to cry
out in pain, while Teipel held his other arm. A jury could
think Teipel, by holding Holmes, helped Piatek apply
excessive and gratuitous force if we assume, as Holmes
represents, that he was not resisting the officers and
particularly if Teipel heard Piatek whisper “I’m going to
hurt you.” See Yang v. Hardin, 37 F.3d 282, 285-86 (7th
Cir. 1994). At that point, Teipel knew (or believed) only
that Piatek was investigating Holmes in connection with
recent robberies and that Holmes had been a “smart ass”
to Piatek, not that Holmes had done or said anything
manifesting resistance or the need for the officers to
employ increased force. See Payne v. Pauley, 337 F.3d at
777 (police officers are expected to be thick-skinned and to
exercise restraint in dealing with public). Proceeding
according to Holmes’s chronology, it was only after that
point that Piatek said to Teipel, “He hit me. Take him
down.” Even if we assume, based on this statement, that
Teipel reasonably concluded in light of Piatek’s state-
24 No. 06-2759
ment that more force would be necessary to control Holmes
and place him under arrest, a factfinder might con-
clude that Teipel proceeded to employ more than was
reasonably necessary. It was at that moment, according to
Holmes, that the officers threw him to the ground and
Teipel ground his knee into Holmes’s face and kept doing
so despite Holmes’s complaints. The finder of fact could
conclude that once the two officers had Holmes on the
ground and in handcuffs, there was no need for Teipel to
grind his knee into Holmes’s face, particularly if, as
Holmes testified, he was not physically resisting the
officers. See id. at 780; Lanigan v. Village of E. Hazel
Crest, Ill., 110 F.3d 467, 475 (7th Cir. 1997); Clash v.
Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996).
We have not forgotten Holmes’s alleged statement that
he worked out every day and that the officers could not
hurt him. The district court thought that this added little
to the analysis, and we agree that it does not for summary
judgment purposes. It was Piatek who attributed this
statement to Holmes. Holmes’s passenger, Landfair, also
recalled him making this statement. Holmes himself did
not recall saying anything along this line, but he allowed
that he might have, and so we may assume that he did
make the statement. What the statement meant, and in
particular, whether it could reasonably have been con-
strued as a threat or as an indicator that the officers
would have to use enhanced force in order to place
Holmes under arrest, is open to question. But even if
we assume that the statement justified a more forceful
response by Teipel and Piatek, under Holmes’s version it
would not have justified gratuitous acts akin to Teipel
grinding his knee into Holmes’s face after Holmes had
been secured in handcuffs. Consequently, the statement
does not support the grant of summary judgment in
Teipel’s favor.
No. 06-2759 25
That Holmes’s injuries may have been minor does not
militate against a finding of excessive force, as Teipel
contends. Certainly the type and severity of injuries
Holmes describes would be relevant to a determination of
the degree of force Teipel employed and whether that
force was reasonable. Meyer v. Robinson, 992 F.2d 734,
739 (7th Cir. 1993). But the fact that Holmes was not
bleeding, did not require stitches, did not require follow-up
treatment for most of his injuries, and could not recall
whether he obtained the pain medication he was pre-
scribed does not rule out the possibility that Teipel
employed force that was not reasonably necessary to
secure Holmes. A factfinder might conclude that Holmes’s
injuries were slight but nonetheless find that Teipel
employed more force than was justified. See, e.g., Lanigan,
110 F.3d at 470 n.3; Rambo v. Daley, 68 F.3d 203, 207 n.2
(7th Cir. 1995); see also Bastien v. Goddard, 279 F.3d 10,
14-15 (1st Cir. 2002) (coll. cases).
Finally, the doctrine of qualified immunity does not
support the entry of summary judgment. Qualified immu-
nity serves to protect those public officials who have
violated a constitutional right when the contours of that
right were not sufficiently clear at the time to enable a
reasonable official to know that his conduct was prohib-
ited. See Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct.
2151, 2156 (2001). At the time of Holmes’s arrest, it was
of course clearly established that a police officer may not
use excessive force in arresting an individual. Teipel
claims that he was not on notice that the types of force
Holmes alleges he employed were impermissible under
the circumstances. However, accepting as true Holmes’s
contention that he did not physically resist the officers,
we cannot say that Teipel could have reasonably
thought the types of gratuitous force Holmes has de-
scribed were justified. No reasonable officer could have
thought that it was permissible to slam Holmes’s head
26 No. 06-2759
against the car simply because his fellow officer deemed
him a “smart ass,” for example, nor could the officer have
thought it proper to continually grind his knee into the
face of an unresisting arrestee. E.g., Payne, 337 F.3d
at 780.
III.
Crediting Holmes’s version of the events culminating
in his arrest, Officer Teipel had probable cause to arrest
Holmes for committing a battery on Detective Piatek based
on Piatek’s statement that Holmes had struck him. For
that reason, we affirm the entry of summary judgment
in Teipel’s favor as to Holmes’s false arrest claim. How-
ever, issues of fact persist as to whether Holmes com-
mitted a battery upon Teipel and resisted Teipel’s efforts
to arrest him, precluding a determination as to whether
Teipel had probable cause to initiate criminal charges
against Holmes for those offenses. Accordingly, we reverse
the grant of summary judgment in favor of Teipel and
the Village of Hoffman Estates on the malicious prosecu-
tion claim. Questions of fact also remain as to the
nature and degree of force that Teipel used in arresting
Holmes. We therefore reverse the grant of summary
judgment as to Holmes’s excessive force claim. The case
is remanded for trial as to those two claims. Because the
district court, in granting summary judgment in favor
of the defendants, improperly resolved a number of
factual disputes in the defendants’ favor, Circuit Rule 36
shall apply on remand. Holmes shall recover the costs
of his appeal.
AFFIRMED IN PART, REVERSED IN PART,
and REMANDED.
No. 06-2759 27
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-26-07