John Tebbens v. Dennis Mushol , 692 F.3d 807 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2400
JOHN T EBBENS,
Plaintiff-Appellant,
v.
D ENNIS M USHOL, Officer,
Star No. 8246, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cv-03227—Blanche M. Manning, Judge.
A RGUED F EBRUARY 16, 2012—D ECIDED A UGUST 30, 2012
Before P OSNER, R IPPLE and W ILLIAMS, Circuit Judges.
R IPPLE, Circuit Judge. John Tebbens brought this
action under 42 U.S.C. § 1983 in the United States
District Court for the Northern District of Illinois,1
1
The district court had jurisdiction over the federal claim
under 28 U.S.C. §§ 1331 and 1343(a)(3). It had jurisdiction
over the state claim under 28 U.S.C. § 1367(a).
2 No. 11-2400
alleging that Chicago Police Officer Dennis Mushol ar-
rested him without probable cause in violation of his
Fourth Amendment rights. He sought indemnification
against the City of Chicago under state law. The district
court granted summary judgment in favor of the defen-
dants. It concluded that Officer Mushol had probable
cause to arrest Mr. Tebbens for violating the terms of
his court-ordered supervision. The court further con-
cluded that, even if probable cause did not exist,
Officer Mushol nevertheless was entitled to qualified
immunity because a reasonable officer could have
b e li e v e d t h at t h e r e w a s p r o b a b l e c a u s e t o
arrest Mr. Tebbens for violating the supervision order.
Mr. Tebbens timely appealed, 2 and we affirm the judg-
ment of the district court.
I
BACKGROUND
A. Facts
Each party presents a drastically different version of
the facts. We therefore note, at the outset, that, although
we also recount Officer Mushol’s testimony with
respect to each of his encounters with Mr. Tebbens, we
must view the facts in the light most favorable to the
nonmoving party, Mr. Tebbens. See Valenti v. Qualex, Inc.,
970 F.2d 363, 365 (7th Cir. 1992).
2
We have jurisdiction under 28 U.S.C. § 1291.
No. 11-2400 3
In 2002, Mr. Tebbens, then a Chicago city firefighter,
started a not-for-profit charitable organization called
“Helping Children of Abuse.” 3 Mr. Tebbens left his posi-
tion as a firefighter in 2004, but continued his work
with the charity. In order to raise money for the
charity, M r. Tebbens solicited donations from
motorists by standing on a Chicago street corner and
collecting money with a yellow and black rubber boot.4
During his time as a city firefighter, Mr. Tebbens often
had participated in soliciting money for charities in a
similar fashion, using a firefighter’s black boot as the
collection container. He found that the boot provided
an efficient method for collecting donations because
paper money did not blow away, and it was easier for
passersby to give change because the coins always
fell to the bottom. He therefore chose to use the same
method when he began collecting money for his
own charity.
In October 2005, Officer Mushol and his partner,
Officer Michael Delahanty, received a radio call that
a man was soliciting money with a firefighter’s boot
at the intersection of Lincoln, Belmont and Ashland
Avenues in Chicago. When he arrived at the intersection,
Officer Mushol, who was aware of the firefighters’ long-
3
The name of the organization subsequently has been
changed to “Helping Children.”
4
The boot was approximately twenty to twenty-one inches
tall. On it was taped a piece of paper, eight and one-half by
eleven inches, with “Helping Children of Abuse” printed on it.
4 No. 11-2400
standing practice of collecting charitable donations
using their boots, saw Mr. Tebbens soliciting dona-
tions with what he believed to be a firefighter’s boot.
Officer Mushol approached Mr. Tebbens and asked
him to produce identification.
Mr. Tebbens testified at his deposition that he
initially provided Officer Mushol with his Illinois
driver’s license as identification. He contends that
Officer Mushol then requested that he hand over his
wallet, in which Officer Mushol discovered what
the officer mistakenly believed to be a firefighter’s iden-
tification card. 5 Mr. Tebbens then explained to
Officer Mushol that he had resigned his position as a
firefighter and that the plastic card that Officer Mushol
had removed from his wallet, which included a picture
and an identification number, was a souvenir that had
been given to him by the fire department personnel office.
Officer Mushol called dispatch in an attempt to verify
the information given to him by Mr. Tebbens. Upon
providing the Chicago Fire Department (“CFD”) iden-
tification number that was on the card, he was told that
the computer system did not return any information
corresponding to the number on the card. Because
Officer Mushol was unable to verify Mr. Tebbens’s
status with the fire department at that time, he filled out
5
By contrast, Officer Mushol testified that Mr. Tebbens volun-
tarily produced a firefighter’s identification card and told
Officer Mushol that he was a former firefighter who had
been injured in the line of duty. R.62-5 at 4 (Mushol Dep. 8).
No. 11-2400 5
a contact card to record his encounter with Mr. Tebbens,
on which he included Mr. Tebbens’s driver’s license
number and the information printed on the CFD iden-
tification card.
Approximately one week later, Officer Mushol called
the Office of Emergency Management Communications
(“OEMC”) to inquire about the identification card.
The individual with whom he spoke verified that
Mr. Tebbens was neither with the fire department nor
on disability. The OEM C employee also told
Officer Mushol that, although the CFD records were
unclear, it appeared that Mr. Tebbens had been fired by
the fire department.
At the direction of the OEMC, Officer Mushol
contacted an investigator in the CFD Internal Affairs
Division, who verified that Mr. Tebbens was not
permitted to possess an active firefighter identification
card. The investigator also informed Officer Mushol
that the CFD’s records showed that Mr. Tebbens had
reported a lost identification card while he was still
employed with the CFD. In addition, the investigator
told Officer Mushol that the Internal Affairs Division
would cooperate in any prosecution of Mr. Tebbens
with respect to his possession of the identification card.
On April 1, 2006, Officer Mushol again saw Mr. Tebbens
soliciting funds for his charity with a large yellow and
black boot at the intersection of Lincoln, Belmont and
Ashland Avenues. According to Mr. Tebbens, after
Officer Mushol and his partner, who were in a police
wagon, motioned for him to come towards them, the
6 No. 11-2400
two officers “came out” and “rushed over, grabbed
each one of [his] arms and elbows, and pushed [him]
into the back of the paddy wagon.” 6 Mr. Tebbens
further testified that neither Officer Mushol nor his
partner asked him any questions or requested that
he produce identification, but instead referred to him
as “un[-]American” and made comments suggesting
that he was “collecting money for terrorists.” 7
Mr. Tebbens was taken to the police station and ulti-
mately was charged with theft related to the fire-
fighter identification card. Officer Mushol also issued
Mr. Tebbens two tickets, one for not having a valid city
permit to solicit funds on behalf of his charity and one
for failing to display a city permit, both of which eventu-
ally were dismissed.8
On June 9, 2006, Mr. Tebbens appeared for a hearing
on the theft charge. According to his deposition testi-
mony, a representative from the fire department
6
R.62-3 at 10 (Tebbens Dep. 88).
7
Id. (Tebbens Dep. 89). Officer Mushol maintains that he
asked Mr. Tebbens for identification and that Mr. Tebbens once
again produced the fire department identification card. R.62-5
at 8 (Mushol Dep. 28).
8
Mr. Tebbens contends that, at the time of his arrest, he
was displaying a valid city permit on his vest. R.62-3 at 12
(Tebbens Dep. 99). The defendants now admit that, at all
relevant times, Mr. Tebbens indeed had valid permits to
solicit donations on behalf of his charity, issued by the City
of Chicago.
No. 11-2400 7
appeared at the hearing and stated that the card was not
a CFD identification card. Mr. Tebbens further testified
that, when the prosecutors indicated that they would
dismiss the theft charge, Officer Mushol “was outraged
and became red in the face,” insisting that Mr. Tebbens
be charged with a crime.9 According to Mr. Tebbens, in
light of this development, the charge was not dismissed,
and he agreed to an order of supervision.
According to the terms of the supervision order,
Mr. Tebbens was prohibited from “hold[ing] himself out
as a member of the [CFD] and . . . collect[ing]
money/donations on the street with a fireman’s (or one
similar) boot in the name of the Chicago Fire Dept.” 1 0
Mr. Tebbens testified at his deposition that he initially
did not want to agree to the conditions restricting his
ability to solicit with a boot similar to a firefighter’s boot
“because that is what the collection container looks like
for Helping Children.” 1 1 However, he eventually agreed
to the terms of supervision after his attorney explained
to him that, given the way the order was written, he
“would have to be doing all three of th[o]se things”—
(1) holding himself out as a member of the fire depart-
ment, (2) collecting money using a boot similar to a
firefighter’s boot and (3) soliciting money in the name
9
Id. (Tebbens Dep. 100).
10
R.62-6 at 2.
11
R.62-3 at 13 (Tebbens Dep. 102) (internal quotation marks
omitted).
8 No. 11-2400
of the CFD—“at the same time” in order to violate the
terms of the order.12
On May 30, 2007, Mr. Tebbens again was soliciting
funds at the same intersection, using a large boot, when
Officer Mushol pulled up in his police car. Officer Mushol
testified at his deposition that he approached Mr. Tebbens
because he was “pretty certain” 1 3 that Mr. Tebbens was
in violation of the order of supervision, and he believed
that he had the authority to arrest Mr. Tebbens for such
a violation. Although Officer Mushol admitted that he
did not know whether Mr. Tebbens was telling people
on the street that he was a firefighter, he maintained
that, by using the boot, Mr. Tebbens was setting it up
for people “to draw their own conclusions” that he was
a firefighter.14
Officer Mushol approached Mr. Tebbens on foot and
signaled Mr. Tebbens to come towards him. According to
Mr. Tebbens, Officer Mushol began making disparaging
remarks about him and his father, who also had been
a firefighter. During the course of the conversation,
Mr. Tebbens told Officer Mushol that, based upon
his conversations with the prosecutor, he was doing
nothing wrong as long as he did not hold himself out
as a firefighter or solicit money on behalf of the fire
department. Mr. Tebbens also claims that Officer Mushol
12
Id. (Tebbens Dep. 103) (internal quotation marks omitted).
13
R.62-5 at 11 (Mushol Dep. 51).
14
Id. (Mushol Dep. 52).
No. 11-2400 9
said that he did not know how Mr. Tebbens avoided
the earlier charges, but that “he was going to make them
stick this time” because he was “going to say that
[Mr. Tebbens] hit [him].” 1 5 Mr. Tebbens yelled to a
group of bystanders waiting at a nearby bus stop
to call the police because “a police officer . . . [wa]s threat-
ening an innocent person” and because Officer Mushol
was going to say that Mr. Tebbens hit him.1 6
Officer Mushol testified at his deposition that he
wanted Mr. Tebbens to accompany him to the police
station because he believed that Mr. Tebbens was in
violation of his supervision order and because he
wanted to see if Mr. Tebbens could be charged with the
violation.17 Officer Mushol further testified that, as he
was explaining to Mr. Tebbens that it was his intention
to arrest him and put him in the back seat of the police
car, he began to do a protective patdown.1 8 Mr. Tebbens
15
R.62-3 at 16 (Tebbens Dep. 124) (internal quotation marks
omitted).
16
Id. (internal quotation marks omitted).
17
R.62-5 at 12 (Mushol Dep. 54).
18
Id. (Mushol Dep. 56). Notably, Officer Mushol’s testimony at
the hearing on the Motion to Quash Arrest and Suppress
Evidence regarding the May 30, 2007 encounter is inconsistent
with his deposition testimony. At the hearing, Officer Mushol
stated that Mr. Tebbens began calling him names, leading him
to conduct a protective patdown for his own safety, given the
nature of his prior encounters with Mr. Tebbens. See R.66-2 at 7-
(continued...)
10 No. 11-2400
testified that Officer Mushol grabbed him by the arm
with one hand and tried to reach around to his back
pocket with the other hand.1 9 Mr. Tebbens told
Officer Mushol, “You can’t search me,” and backed away.2 0
Officer Mushol radioed for assistance and, within
moments, several officers arrived on the scene.
Mr. Tebbens testified that, when the additional officers
arrived, they “grabb[ed] [Mr. Tebbens], and it was
like—like a cartoon where they were all just around
18
(...continued)
8. He further testified that, at the time he conducted the
patdown of Mr. Tebbens, Mr. Tebbens was not under arrest. Id.
at 12. He explained that Mr. Tebbens was not under arrest until
he resisted the patdown by shoving Officer Mushol and backing
away from him. Id. By contrast, Officer Mushol testified at his
deposition that, from the outset, he intended to “bring [Mr.
Tebbens] into the station.” R.62-5 at 12 (Mushol Dep. 54). He
further testified at his deposition that, before Mr. Tebbens
allegedly “sharply turned” and “shove[d him] in the chest,” he
informed Mr. Tebbens that he was going to arrest him and that
he was going to conduct a patdown. Id. (Mushol Dep. 56). As we
explain infra at pages 14 to 16 and note 26, these differences are
largely irrelevant.
19
R.62-3 at 16 (Tebbens Dep. 125).
20
Id. (internal quotation marks omitted). According to Officer
Mushol, Mr. Tebbens then shoved him in the chest, R.62-5 at 12
(Mushol Dep. 56)—a point that Mr. Tebbens denies.
No. 11-2400 11
[him] and bumping, and it was just all elbows.” 2 1 He
explained that he “was trying to keep [his] ground
and listen to what the [bus driver] was saying and
thinking that [he] wasn’t going to get arrested because
a whole busload of people was saying [he] didn’t do
anything.” 22 Mr. Tebbens also testified that, as the
officers were trying to move him along into the police
wagon, he “was resisting the movement by just be-
ing—just with [his] legs, not trying to get pushed by
these people,” at which point, “somebody hit [him] with
a baton in the thigh and just disabled [him].” 2 3 According
to Mr. Tebbens’s testimony, the officers then “grabbed”
him and “shoved” him into the van.2 4
Mr. Tebbens was taken to the police station and
charged with two counts of aggravated battery/harm to
a peace officer, two counts of false impersonation of a
firefighter and one count of possession of a fictitious
license. The charges eventually were dropped after
Mr. Tebbens successfully moved to quash his arrest.
21
R.62-3 at 16 (Tebbens Dep. 125).
22
Id. at 16-17 (Tebbens Dep. 125-26).
23
Id. at 17 (Tebbens Dep. 126).
24
Id. Officer Mushol maintains that he did not participate in
restraining Mr. Tebbens or placing him in the police wagon.
R.62-5 at 13-14 (Mushol Dep. 61-63). He testified that he
watched as the other officers apprehended Mr. Tebbens
and placed him in the police wagon and that he did not see
any of the officers hit Mr. Tebbens with a baton or any other
object. Id. at 14 (Mushol Dep. 63).
12 No. 11-2400
B. District Court Proceedings
Mr. Tebbens filed this lawsuit against Officer Mushol,
seeking recovery under 42 U.S.C. § 1983 for false arrest
in violation of the Fourth Amendment. He also sought
indemnification against the City of Chicago under state
law. The defendants moved for summary judgment,
and the district court granted the defendants’ motion,
ruling that Officer Mushol had probable cause to arrest
Mr. Tebbens for violating the terms of his court-ordered
supervision. The court also concluded, in the alterna-
tive, that, even if probable cause did not exist,
Officer Mushol was entitled to qualified immunity
because a reasonable officer could have believed, albeit
mistakenly, that there was probable cause to arrest
Mr. Tebbens for violating the court order.2 5 Mr. Tebbens
now appeals.
II
DISCUSSION
A. Standard of Review
We review a district court’s decision to grant a motion
for summary judgment de novo, construing all the facts
in the light most favorable to Mr. Tebbens as the
nonmoving party. See Goodman v. Nat’l Sec. Agency, Inc.,
25
Because the district court granted summary judgment in
favor of Officer Mushol on the § 1983 claim, it also entered
judgment in favor of the City of Chicago with respect to the
state law indemnification claim.
No. 11-2400 13
621 F.3d 651, 653 (7th Cir. 2010). Summary judgment is
proper where 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).
B. False Arrest
The record in this case is fraught with ambiguities.
Fairly read, however, the amended complaint, in con-
junction with the plaintiff’s briefs, makes clear that
Mr. Tebbens primarily contends that his arrest was
illegal because Officer Mushol knew that he lacked proba-
ble cause for the arrest. Mr. Tebbens maintains that
Officer Mushol therefore intentionally manufactured a
situation that would lead to an arrest based upon a
false allegation that Mr. Tebbens shoved him.
“Probable cause to arrest is an absolute defense to
any claim against police officers under § 1983 for
wrongful arrest, even where the defendant officers al-
legedly acted upon a malicious motive.” Wagner v. Wash-
ington Cnty., 493 F.3d 833, 836 (7th Cir. 2007) (per curiam).
Whether Officer Mushol had probable cause depends
on the facts known to him at the time of arrest. See
Devenpeck v. Alford, 543 U.S. 146, 152 (2004); see also
Carmichael v. Vill. of Palatine, 605 F.3d 451, 457 (7th Cir.
2010). Therefore, before we turn to the probable cause
inquiry, we must determine when the arrest took place.
An arrest occurs “when a reasonable person in the
suspect’s position would have understood the situation
to constitute a restraint on freedom of movement of the
14 No. 11-2400
degree which the law associates with formal arrest.”
Ochana v. Flores, 347 F.3d 266, 270 (7th Cir. 2003) (internal
quotation marks omitted). Therefore, the subjective
intent of both Officer Mushol and Mr. Tebbens is
irrelevant to our inquiry into the nature of Mr. Tebbens’s
detention. Cf. Whren v. United States, 517 U.S. 806, 813
(1996) (“Subjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis.”).2 6 We
may consider, however, facts known to the parties at
the time, and we therefore turn to the facts surrounding
Mr. Tebbens’s encounter with Officer Mushol on May 30,
2007, as recounted in Mr. Tebbens’s deposition testimony.
Mr. Tebbens’s deposition testimony, fairly read, sup-
ports the conclusion that a reasonable person under
the circumstances would have understood his freedom
to be so constrained that he was under arrest. Of vital
importance to our analysis is Mr. Tebbens’s statement
that, prior to placing his hands on Mr. Tebbens,
26
Because our inquiry into the nature of the detention is
governed by an objective standard, we need not consider
Mr. Tebbens’s argument that Officer Mushol testified at the
hearing on the Motion to Quash Arrest and Suppress Evidence
that Mr. Tebbens was not under arrest until he resisted the
protective patdown by shoving Officer Mushol and backing
away from him. See R.66-2 at 12. Similarly, Mr. Tebbens’s
statement at his deposition that he was “thinking that [he]
wasn’t going to get arrested because a whole busload of
people was saying [he] didn’t do anything,” R.62-3 at 16-17
(Tebbens Dep. 125-26), is also irrelevant to our Fourth Amend-
ment analysis.
No. 11-2400 15
Officer Mushol told him that he was “going to make [the
charges] stick.” 27 According to Mr. Tebbens’s testimony,
Officer Mushol then informed him that he intended to
do so by saying that Mr. Tebbens hit him. Id. Mr. Tebbens
reiterated this account in his brief, arguing that “the
evidence shows that Officer Mushol did not believe he
had probable cause to arrest [Mr. Tebbens] for violation
of his terms of supervision, but rather intended to
make a felony charge against [Mr. Tebbens] ‘stick’ by
falsely accusing [Mr. Tebbens] of striking him.” 2 8 Although
Officer Mushol’s unstated intentions with respect to
his confrontation with Mr. Tebbens may be irrelevant
to our analysis, Officer Mushol’s statement to
Mr. Tebbens—that he was “going to make [the charges]
stick” 29 —is certainly a factor to consider in assessing
whether a reasonable person in Mr. Tebbens’s position
would have concluded that he was under arrest. See
United States v. Mendenhall, 446 U.S. 544, 555 n.6 (1980);
see also Ochana, 347 F.3d at 270. We believe that Officer
Mushol’s stated intentions support our conclusion that
Mr. Tebbens was aware from the early stages of his en-
counter with Officer Mushol that the officer intended to
charge him with a crime. In addition, we believe that
Officer Mushol’s subsequent act of placing his hands on
Mr. Tebbens, viewed in conjunction with his earlier
statements, further conveyed his intent to restrain
27
R.62-3 at 16 (Tebbens Dep. 124).
28
Appellant’s Br. 19.
29
R.62-3 at 16 (Tebbens Dep. 124).
16 No. 11-2400
Mr. Tebbens’s freedom of movement in order to effect
an arrest. We therefore conclude that, under the circum-
stances, a reasonable person would have understood
his freedom to be so constrained that he was under
arrest at the time Officer Mushol made physical contact
with Mr. Tebbens.
We next turn to the question whether the arrest was
supported by probable cause. Mr. Tebbens first asserts
that the district court erred in concluding that the
Illinois statute governing probation and supervised
release provides a statutory basis to arrest an in-
dividual who allegedly has violated the terms of his
supervision. Mr. Tebbens further contends that the
Illinois statute governing supervision similarly does not
provide such authority. Finally, even if the statute gov-
erning supervision could be construed to permit an
arrest for violating the terms of supervision, Mr. Tebbens
maintains, Officer Mushol did not have probable cause
to believe that Mr. Tebbens was violating the terms of
his supervision.
We believe that Mr. Tebbens’s first contention has
merit. The Illinois statute relied upon by the district
court, 730 ILCS 110/11, provides that police officers
“may, anywhere within the state, arrest on view any
probationer found by them violating any of the condi-
tions of his or her probation.” For purposes of this provi-
sion, probation is more narrowly defined as “a sentence
or disposition of conditional and revocable release
under the supervision of a probation officer.” 730 ILCS 5/5-
1-18. It is clear from the record that Mr. Tebbens was not
No. 11-2400 17
sentenced to a term of probation or supervised release
in connection with the charge of theft of a firefighter’s
identification card. The district court, therefore, incor-
rectly relied upon the Illinois probation statute in de-
termining that Officer Mushol had the statutory
authority to arrest Mr. Tebbens for violating the terms
of his supervision.
The question whether Officer Mushol had the
authority to arrest Mr. Tebbens for violating the court
order instead must be evaluated under 730 ILCS 5/5-6-4.1,
the Illinois statute that governs an alleged violation of
supervision. In contrast to probation, for which a
sentence is imposed, the Supreme Court of Illinois has
explained that supervision is “a disposition of condi-
tional and revocable release without probationary super-
vision, but under such conditions and reporting require-
ments as are imposed by the court, at the successful
conclusion of which disposition the defendant is dis-
charged and a judgment dismissing the charges is en-
tered.” People v. Bushnell, 461 N.E.2d 980, 981-82 (Ill.
1984) (internal quotation marks omitted). Supervision is
applied “where the court finds the offender is not likely
to commit further crimes, the defendant and the public
would be best served if the defendant did not receive
a criminal record and in the interest of justice super-
vision is more appropriate than a sentence otherwise
provided under [state law].” Hajawii v. Venture Stores,
Inc., 465 N.E.2d 573, 575 (Ill. App. Ct. 1984). Supervision
is thus intended to provide “a mild disposition without
the stigma of a criminal record.” Id. at 576.
18 No. 11-2400
The Illinois supervision statute provides that, upon a
motion by the state or the court alleging a violation of
a condition of supervision, the court may issue a
notice, summons or warrant. See 730 ILCS 5/5-6-4.1(a).3 0
Here, the defendants acknowledge that there was no
petition filed and that Officer Mushol’s actions were not
30
The statute provides, in relevant part:
(a) In cases where a defendant was placed upon super-
vision or conditional discharge for the commission of
a petty offense, upon the oral or written motion of the
State, or on the court’s own motion, which charges
that a violation of a condition of that conditional
discharge or supervision has occurred, the court may:
(1) Conduct a hearing instanter if the offender
is present in court;
(2) Order the issuance by the court clerk of a
notice to the offender to be present for a hear-
ing for violation;
(3) Order summons to the offender to be pres-
ent; or
(4) Order a warrant for the offender’s arrest.
The oral motion, if the defendant is present, or the
issuance of such warrant, summons or notice shall toll
the period of conditional discharge or supervision until
the final determination of the charge, and the term
of conditional discharge or supervision shall not run
until the hearing and disposition of the petition for
violation.
730 ILCS 5/5-6-4.1.
No. 11-2400 19
in keeping with the procedural measures prescribed by
Illinois law.
Contrary to Mr. Tebbens’s assertions, however, it is
firmly established that the Fourth Amendment permits
an officer to make an arrest when he or she has
probable cause to believe that an individual has com-
mitted or is committing an act which constitutes an
offense under state law, regardless of whether state law
authorizes an arrest for that particular offense. See
Virginia v. Moore, 553 U.S. 164, 176 (2008); Thomas v. City
of Peoria, 580 F.3d 633, 638 (7th Cir. 2009). The Fourth
Amendment permits an arrest for any conduct con-
stituting a criminal offense, even a minor one, under
state law. See Atwater v. City of Lago Vista, 532 U.S. 318,
354 (2001). We therefore may limit our inquiry to
whether a violation of the terms of court-ordered super-
vision indeed constitutes an “offense” under state law.
As an initial matter, Mr. Tebbens is correct in his as-
sertion that there is no Illinois statute that provides
that a violation of a term of supervision is a crime. The
supervision statute provides, however, that upon viola-
tion of a condition of supervision a court “may impose any
other sentence that was available . . . at the time of initial
sentencing.” 730 ILCS 5/5-6-4.1(e). In other words, upon
a showing that the defendant has violated the terms
of supervision, the court may revoke supervision and
impose a fine or any other sentence that was available
at the time of initial sentencing, including imprison-
ment. See City of Urbana v. Andrew N.B., 813 N.E.2d 132,
143 (Ill. 2004) (“When a court imposes supervision, it
20 No. 11-2400
strikes a deal with the defendant. The judge, in effect,
says, ‘Abide by the terms of your supervision, or the
court will lift the de facto continuance and sentence you.’ ”).
Mr. Tebbens initially was charged with, and accepted an
order of supervision with respect to, theft. See 720 ILCS
5/16-1.31 As a Class A misdemeanor,3 2 theft carries a
possible determinate sentence of less than one year and
a possible fine of up to $2,500. See 730 ILCS 5/5-4.5-
55. Consequently, any violation of the terms of
Mr. Tebbens’s supervision could have resulted in a fine
or imprisonment for less than one year. “[C]onduct for
which a sentence to a term of imprisonment or to a fine
is provided by any law of this State” is an “offense” for
purposes of the Illinois sentencing statutes. See 730 ILCS
5/5-1-15.33 Consequently, Mr. Tebbens’s violation of the
31
Mr. Tebbens admits that he was charged with “theft,” see R.65
at 4; neither party, however, identifies the applicable
theft provision of the Illinois code.
32
There are several gradations of “theft” under the Illinois code.
See 720 ILCS 5/16-1. “Theft of property not from the person and
not exceeding $500 in value is a Class A Misdemeanor.” Id.5/16-1(b)(1). “Theft . . . of governmental property” not exceeding
$500 is a Class 4 felony. See id. 5/16-1(b)(1.1). Again, the parties
do not specify the subsection that provided the basis for
Mr. Tebbens’s charge. We therefore employ the least
serious violation of the theft provision for purposes of our
analysis.
33
Moreover, as noted above, the underlying offense—theft—fits
squarely within the definition of “offense” under the Illinois
(continued...)
No. 11-2400 21
terms of his supervision would qualify as an “offense”
under this definition.
Additionally, we note that the fact that state law autho-
rizes an arrest for a violation of supervision, even if only
on a warrant, further supports our conclusion that
conduct in violation of a supervision order, issued in
lieu of sentencing on criminal charges, constitutes
an offense under state law.
Having concluded that Officer Mushol had the
authority to arrest Mr. Tebbens for violating the terms
of his supervision, we next must consider whether
Officer Mushol had probable cause to believe that
Mr. Tebbens was in violation of the court order. In assess-
ing the record before us, we must examine Officer
Mushol’s actions objectively—not in terms of his state
of mind. See, e.g., Whren, 517 U.S. at 812-13. The reason-
ableness of Officer Mushol’s actions does not depend
on his subjective motivations. See Simmons v. Pryor,
26 F.3d 650, 654 (7th Cir. 1993). Rather, the existence of
probable cause depends on whether the “ ‘facts and cir-
cumstances within the officer’s knowledge . . . are suffi-
cient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that
the suspect has committed, is committing, or is about
to commit an offense.’ ” Gonzalez v. City of Elgin, 578 F.3d
526, 537 (7th Cir. 2009) (quoting Michigan v. DeFillippo,
33
(...continued)
criminal code. See 720 ILCS 5/2-12 (“ ‘Offense’ means a viola-
tion of any penal statute of this State.”).
22 No. 11-2400
443 U.S. 31, 37 (1979)) (alteration in original). Therefore,
in evaluating whether Officer Mushol had probable
cause, we “must consider the facts as they would have
reasonably appeared to [Officer Mushol] seeing what
he saw, hearing what he heard at the time of the inci-
dent.” Driebel v. City of Milwaukee, 298 F.3d 622, 643 (7th
Cir. 2002) (internal quotation marks omitted).
Here, it is undisputed that Officer Mushol was aware
that, as a result of his prior arrest of Mr. Tebbens for
theft of the firefighter’s identification card in April 2006,
the court had issued an order of supervision, imposing
certain restrictions on Mr. Tebbens’s ability to solicit
donations on behalf of his charity. On May 30, 2007,
Officer Mushol again saw Mr. Tebbens soliciting dona-
tions using a boot similar to a firefighter’s boot. In other
words, Officer Mushol saw Mr. Tebbens engaging in
the same activity that he had been engaging in a year
earlier when Officer Mushol had arrested him for theft.
We have observed in prior cases that “[p]robable
cause requires only that a probability or a substantial
chance of criminal activity exist.” Purvis v. Oest, 614 F.3d
713, 722-23 (7th Cir. 2010). The evidence of record, there-
fore, need not establish that Officer Mushol’s belief that
Mr. Tebbens was in violation of the court order was
“more likely true than false.” Id. at 723. Here, to be sure,
the language of the supervision order lacks precision.
It does not speak in concrete terms as to what actions
constitute holding oneself out as a member of the
Chicago Fire Department or soliciting in the name of
the Department. Indeed, Mr. Tebbens testified at his
No. 11-2400 23
deposition that he initially did not want to agree to the
conditions of supervision because he believed it would
restrict his ability to solicit with a boot similar to a firefighter’s
boot.34 According to Mr. Tebbens, he only agreed to the
terms of supervision after his attorney reassured him
that, given the way the order was written, he “would
have to be doing all three of th[o]se things”—holding
himself out as a member of the fire department, collecting
money using a boot similar to a firefighter’s boot and
soliciting money in the name of the CFD—“at the same
time” in order to violate the terms of the order.3 5 Neverthe-
less, we believe that a reasonably prudent person could
have read the supervision order without the nuances
suggested by Mr. Tebbens’s attorney.
Even assuming, however, that probable cause did not
exist to arrest Mr. Tebbens, Officer Mushol nevertheless
is entitled to qualified immunity. We recently have reiter-
ated that “[t]he question of whether [an officer] had
probable cause to arrest . . . is separate from the question
relating to qualified immunity.” Fleming v. Livingston
Cnty., 674 F.3d 874, 879 (7th Cir. 2012). Qualified immunity
protects officers who are “reasonable, even if mistaken” in
making probable cause assessments. See Hunter v. Bryant,
502 U.S. 224, 229 (1991). It shields public servants from
“liability for damages if their actions did not violate
clearly established rights of which a reasonable person
would have known.” Fleming, 674 F.3d at 879 (internal
34
See R.62-3 at 13 (Tebbens Dep. 102-03).
35
Id. (Tebbens Dep. 103).
24 No. 11-2400
quotation marks omitted). In determining whether a
right is “clearly established,” “we must look at the right
violated in a ‘particularized’ sense, rather than ‘at a
high level of generality.’ ” Roe v. Elyea, 631 F.3d 843, 858
(7th Cir. 2011) (quoting Brosseau v. Haugen, 543 U.S. 194,
199 (2004) (per curiam)). We particularly are concerned
that “[t]he official . . . have fair warning that his conduct
is unconstitutional.” Id. at 859 (internal quotation marks
omitted). In the context of a Fourth Amendment claim
based on lack of probable cause, we have stated that
an officer is entitled to qualified immunity “when a
reasonable police officer in the same circumstances . . .
and possessing the same knowledge as the officer in
question could have reasonably believed that probable
cause existed in light of well-established law.” Fleming,
674 F.3d at 880 (emphasis in original) (internal quotation
marks omitted).
Here, determining whether probable cause existed
involved the interpretation of Mr. Tebbens’s super-
vision order. The order stated that Mr. Tebbens was
prohibited from “hold[ing] himself out” as a member of
the CFD and soliciting “in the name of” the CFD. 3 6
Officer Mushol interpreted this to mean that Mr. Tebbens
was not permitted to solicit donations “in any[ ]way with
any type of equipment that might resemble or lead
people to believe that he might be a firefighter.” 3 7
We believe that Officer Mushol’s interpretation is not
36
R.62-6 at 2.
37
R.66-2 at 10.
No. 11-2400 25
unreason ab le u n d er t h e c irc u m st an c es. W hen
Officer Mushol encountered Mr. Tebbens on May 30, he
was engaged in the same activity—soliciting funds at an
intersection using a boot that bore a close resemblance to
a firefighter’s boot—that led to the conditions of
Mr. Tebbens’s order of supervision following his
original arrest. Moreover, Mr. Tebbens’s initial under-
standing of the supervision order, prior to consultation
with counsel, was that it would prohibit him from using
a boot to solicit funds for his charity. We do not believe
we should fault Officer Mushol for interpreting the
order in the same manner as Mr. Tebbens did and the
way a reasonable officer could have.
Indeed, we have held that an officer who makes an
arrest based on a reasonable understanding of a court
order is entitled to qualified immunity. See, e.g., Wagner v.
Washington Cnty., 493 F.3d 833 (7th Cir. 2007). In
Wagner, a harassment injunction required the plaintiff to
“ ‘avoid . . . any premises temporarily occupied by
[specific individuals].’ ” Id. at 837 (first alteration in
original). The plaintiff was attending a meeting at the
town hall when the individuals with whom he was pro-
hibited from having contact arrived. Those individuals
contacted the local police, who requested that the
plaintiff leave the premises. When he refused, he was
arrested. The plaintiff later brought a § 1983 action
against the officers for, inter alia, arresting him without
probable cause. We concluded that, although the
defendant deputies did not have probable cause to
arrest the plaintiff for violating the terms of his harass-
ment injunction, they nonetheless were entitled to
26 No. 11-2400
qualified immunity. Id. We explained that, “[e]xamining
the facts, not as an omniscient observer would perceive
them but as they would have appeared to a reasonable
person in the position of the arresting officers,” we could
“understand how the deputies could believe that [the
plaintiff] was violating a harassment injunction that
required him to ‘avoid . . . any premises temporarily
occupied’ by [specific individuals] when he remained in
the town hall after the [specific individuals] arrived.” Id.
(third alteration in original).
Similarly, as detailed previously, the record here is
replete with evidence that Officer Mushol had a factual
basis for believing that Mr. Tebbens was in violation
of the terms of his supervision. Given the imprecise
language of the order, Mr. Tebbens’s own reasonable
interpretation of the order, and Officer Mushol’s
prior observations of Mr. Tebbens, we believe that
Officer Mushol reasonably could conclude that, in solicit-
ing funds on the intersection using a large rubber boot,
Mr. Tebbens was holding himself out as a firefighter
and soliciting on behalf of the Chicago Fire Department.
“[T]he qualified immunity defense . . . provides ample
protection to all but the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335,
341 (1986). On the record before us, we cannot say that
Officer Mushol’s May 30 arrest of Mr. Tebbens placed
No. 11-2400 27
him in either category. We therefore conclude that
Officer Mushol is entitled to qualified immunity.3 8
Conclusion
For the foregoing reasons, the judgment of the dis-
trict court is affirmed.
A FFIRMED
38
Given our conclusion that Officer Mushol had probable cause
to arrest Mr. Tebbens for violating the terms of his supervision,
we need not address the defendants’ argument that, because
Mr. Tebbens resisted Officer Mushol’s efforts to effect an
arrest, there was probable cause to arrest him for resisting a
peace officer, in violation of 720 ILCS 5/31-1(a).
Furthermore, because the argument was not raised by the
defendants, we have no occasion to consider whether
Officer Mushol’s actions leading to the arrest could be con-
sidered an investigatory stop or whether Mr. Tebbens’s
efforts to avoid these actions would violate 720 ILCS 5/31-1(a).
8-30-12