Smith, Michael B. v. Lamz, Douglas

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2130
MICHAEL B. SMITH,
Plaintiff-Appellant,
v.
DOUGLAS LAMZ and the VILLAGE OF ALGONQUIN,
a municipal corporation,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 00-C-50074—Philip G. Reinhard, Judge.
____________
ARGUED DECEMBER 9, 2002—DECIDED MARCH 5, 2003
____________
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
KANNE, Circuit Judge. When Michael B. Smith arrived
at the offices of the Algonquin Dental Associates to col-
lect donations for police unions and other organizations,
he was arrested for the crime of impersonating a po-
lice officer, a felony under Illinois law. The charges
were subsequently dropped, and Smith sued the Village
of Algonquin and the arresting officer, Douglas Lamz,
under 42 U.S.C. § 1983 and applicable state law alleging
malicious prosecution. Lamz and the Village moved for
summary judgment and the district court granted the
defendant’s motion. Smith appeals. Because the uncon-
2 No. 02-2130
tested facts establish that Smith’s arrest was supported
by probable cause, we affirm.
Before we relate the operative facts, we resolve
Smith’s procedural challenge. He argues that the district
court abused its discretion in deeming admitted for pur-
poses of summary judgment all the facts set forth in the
defendants’ statement of material facts. We have consid-
ered Smith’s numerous attacks on this decision, and find
them all unavailing.
Under Local Rule 56.1, the defendants, as movants
for summary judgment, were required to submit in sup-
port of their summary-judgment motion a statement of
material facts, comprised of short numbered paragraphs
with citations to admissible evidence,1 which they did.
In his response materials, Smith was required to re-
spond particularly to each numbered paragraph and, in
the case of disagreement, provide citations to supporting
evidentiary material. Moreover, should there have been
any additional facts, not set forth in the movant’s pa-
pers, which required denial of the defendant’s motion,
1
Local Rule 56.1(a) provides
Moving Party. With each motion for summary judgment . . .
the moving party shall serve and file—
...
(3) a statement of material facts as to which the moving
party contends there is no genuine issue and that entitle
the moving party to judgment as a matter of law . . . .
The statement referred to in (3) shall consist of short num-
bered paragraphs, including within each paragraph spe-
cific references to the affidavits, parts of the record, and
other supporting materials relied upon to support the facts
set forth in that paragraph. Failure to submit such a state-
ment constitutes grounds for denial of the motion.
N.D. ILL. L.R. 56.1(a).
No. 02-2130 3
Smith was required to submit his own concise state-
ment, supported by citations to the record.2 Smith admit-
tedly did not follow this mandatory procedure. He chose
instead—for the court’s convenience—to discuss in his
brief only the “two or three dispositive issues” of the
case, ignoring the remainder of the defendants’ state-
ment (see Smith App. Br. at 19-20). In doing so, he failed
in his obligation to respond with particularity to the
statement of material facts submitted by the defen-
dants. Additionally, Smith sought to support his factual
disagreements by affixing to his brief assorted material,
totaling over one hundred pages. But with his concern for
2
Local Rule 56.1(b) provides
Opposing Party. Each party opposing a motion [for summary
judgment] shall serve and file—
...
(3) a concise response to the movant’s statement that
shall contain:
(A) a response to each numbered paragraph in the
moving party’s statement, including, in the case
of any disagreement, specific references to the
affidavits, parts of the record, and other support-
ing materials relied upon, and
(B) a statement, consisting of short numbered
paragraphs, of any additional facts that require
the denial of summary judgment, including refer-
ences to the affidavits, parts of the record, and
other supporting materials relied upon. All material
facts set forth in the statement required of the
moving party will be deemed to be admitted unless
controverted by the statement of the opposing party.
N.D. ILL. L.R. 56.1(b); see also Brasic v. Heinemann’s Bakeries,
Inc., 121 F.3d 281, 286 (7th Cir. 1997) (finding the nonmoving
party’s response must contain “appropriate specific references
to the record”).
4 No. 02-2130
the court’s convenience apparently waning, Smith did
not provide the court with appropriate citations to any
of it (nor did he ensure that he attached only admis-
sible evidence). Here, he has failed in his obligation to
support controverted or additional facts with citations to
admissible evidence.
Local Rule 56.1’s enforcement provision provides that
when a responding party’s statement fails to controvert
the facts as set forth in the moving party’s statement in
the manner dictated by the rule, those facts shall be
deemed admitted for purposes of the motion. N.D. ILL.
L.R. 56.1(b). We have consistently held that a failure
to respond by the nonmovant as mandated by the
local rules results in an admission. See, e.g., Michas v.
Health Cost Controls of Ill., Inc., 209 F.3d 687, 689 (7th Cir.
2000).
A district court is not required to “wade through
improper denials and legal argument in search of a genu-
inely disputed fact.” Bordelon v. Chicago Sch. Reform Bd.
of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). And a
mere disagreement with the movant’s asserted facts is
inadequate if made without reference to specific support-
ing material. Edward E. Gillen Co. v. City of Lake Forest,
3 F.3d 192, 196 (7th Cir. 1993). In short, “[j]udges are
not like pigs, hunting for truffles buried in briefs.”
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991). Smith’s summary-judgment materials were woe-
fully deficient in either responding adequately to the
defendants’ statement or in setting forth additional facts
with appropriate citations to the record. As such, Smith’s
purportedly good intentions aside, the district court did
not abuse its discretion in deeming admitted and only
considering the defendants’ statement of material facts.
Turning now to those facts, we learn the following: On the
morning of January 23, 1998, Detective Lamz of the
No. 02-2130 5
Algonquin Police Department received a telephone call
from Karen S. Jurasek, an employee of the Algonquin
Dental Associates, informing Lamz that she had just
received a telephone call from a man identifying him-
self as being “from the Algonquin Police Department,”
who was interested in selling her advertising space in a
soon-to-be-published magazine. Jurasek said she agreed
to make a $150 donation, and the caller was to come to
the office later that day to collect. She told Lamz, how-
ever, that her employer had decided not to contrib-
ute after all and that she needed to cancel the office’s
donation.
In response to Jurasek’s comments, Lamz told her
that Algonquin police officers do not solicit money from
residents or businesses and that no Algonquin police
officers should be collecting money in the name of the
police department. Lamz directed Jurasek to stall the
man should he come to collect the check and to contact
the police immediately upon the caller’s arrival.
The caller was, of course, Smith, who showed up at
the dental office later that day to collect. Jurasek did as
she was told, stalling Smith until the police could arrive.
Lamz came himself and questioned Smith, Jurasek, and
another dental employee, Victoria Carlson. Both Jurasek
and Carlson told Lamz that Smith had declared on the
phone and at the front window of the dentist’s office
that he was “from the Algonquin Police Department.”
As it turns out, Smith was actually employed by a
company called Triad Promotions, Inc., which had been
retained by the Metropolitan Alliance of Police Unions to
solicit donations on its behalf. Smith explained this to
Lamz, insisted that Jurasek and Carlson must have
misunderstood him, and denied identifying himself as
an Algonquin police officer.
Jurasek and Carlson, however, reiterated they were
“absolutely certain” that Smith had told them he was
6 No. 02-2130
“from the Algonquin Police Department,” and they both
wrote and signed contemporaneous statements to that
effect. In a conversation with Lamz, McHenry County
Assistant State’s Attorney Mary Lennon approved charg-
ing Smith with false impersonation of a police officer
and theft by deception. As a result, Lamz arrested Smith.
Of Smith’s remaining challenges, which attack the dis-
trict court’s decision on the merits, the only one warrant-
ing discussion is whether the district court erred in
finding that Lamz had probable cause to arrest Smith
and was therefore entitled to qualified immunity. We
begin by noting that Smith may not maintain an action
under § 1983 for malicious prosecution. Newsome v.
McCabe, 256 F.3d 747, 750-51 (7th Cir. 2001) (interpreting
the effective holding of Albright v. Oliver, 510 U.S. 266(1994), in accordance with its narrowest ground of deci-
sion, to be that the opportunity for state-law remedies
for wrongful-prosecution claims precludes any constitu-
tional theory of the tort). Rather, the district court
was correct in treating Smith’s claim as one for unlaw-
ful arrest in violation of his Fourth Amendment rights.
Id. Under the doctrine of qualified immunity, probable
cause to arrest will defeat an unlawful-arrest claim. See
Jenkins v. Keating, 147 F.3d 577, 585 (7th Cir. 1998)
(officer has probable cause, and is therefore entitled to
qualified immunity, for arresting alleged culprit so long
as reasonably credible witness or victim informs the po-
lice that the suspect has committed a crime, even if
the arrestee is later found to be innocent).
The determination of probable cause is normally a
mixed question of law and fact, Ornelas v. United States,
517 U.S. 690, 696 (1996), but when “what happened”
questions are not at issue, the ultimate resolution of
whether probable cause existed is a question of law, which
we review de novo. Cervantes v. Jones, 188 F.3d 805,
811 (7th Cir. 1999). In order to determine whether prob-
No. 02-2130 7
able cause existed for an arrest, we ask whether, at the
time of the arrest, the facts and circumstances within
the officer’s knowledge were sufficient for the officer to
form a reasonable belief to suspect criminal activity. Qian
v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999). The officer
need only demonstrate “a probability or substantial
chance of criminal activity, not an actual showing of
such activity.” United States v. Gilbert, 45 F.3d 1163, 1166
(7th Cir. 1995) (quotations omitted). And when a po-
lice officer receives information sufficient to raise a sub-
stantial chance of criminal activity from a person
whose truthfulness he has no reason to doubt, that infor-
mation is sufficient to establish probable cause. Jenkins,
147 F.3d at 585.
Unquestionably, the facts as known to Lamz at the
time of the arrest establish that he had probable cause
to suspect Smith of criminal activity. Under Illinois
law, false personation of a peace officer occurs when “a
person . . . knowingly and falsely represents himself to
be a peace officer of any jurisdiction.” 720 ILL. COMP.
STAT. 5/32-5.1 (2003). Jurasek and Carlson informed
Lamz, both orally and in writing, that the plaintiff told
them he was “from the Algonquin Police Department.”
Arguing semantics, Smith asserts that since Lamz knew
he did not utter the words, “I am an Algonquin police
officer,” he did not commit the offense. But the arrest-
ing officer Lamz is not charged with the duty of judge
and jury at the moment of arrest, deciding whether
the statement “I am from the Algonquin Police Depart-
ment,” is ultimately sufficient to establish guilt of the
crime of impersonating an officer. See Gilbert, 45 F.3d
at 1166. Instead, the appropriate question is whether
an officer in Lamz’s position would reasonably believe
on the basis of that statement that there was “a probabil-
ity or substantial chance of criminal activity.” Id. (quota-
tions omitted). On the facts before us, that Lamz could
8 No. 02-2130
have reasonably so believed is supported not only by
Smith’s chosen words themselves, but also by the fact
that those words conveyed the impression upon the lis-
tener that he was an Algonquin police officer. Jurasek
had thought as much when speaking with Smith on the
phone: afterwards, she called the Algonquin Police De-
partment to cancel the donation. We thus conclude that
Lamz possessed probable cause on the basis of these
statements to arrest Smith for the crime of impersonat-
ing a police officer.
Smith had argued to the district court that Lamz’s
testimony regarding what Jurasek and Carlson told him
was not credible. In other words, Smith argues that
Jurasek and Carlson never told Lamz that Smith had
represented to them that he was “from the Algonquin
Police Department.” Because Smith did not controvert
this fact appropriately in his summary-judgment sub-
missions, Smith has provided no evidence to support
his allegation. But even if we could look past this pro-
cedural bar and examine the “evidence” he attempts to
introduce on this point, we would find that it would
not raise an issue of fact regarding whether Lamz had
probable cause to arrest. Smith only argues that
Jurasek and Carlson later recanted their original state-
ments in an unsworn interview with Smith’s private
investigator. Such evidence, even if properly asserted
within Smith’s brief, would still be inadmissible hear-
say.3 But more importantly, both Jurasek and Carlson
3
Conversely, Jurasek’s and Carlson’s original oral and written
statements are not hearsay. They were not introduced to prove
the truth of the matter asserted—that is, that Smith in fact
told Jurasek and Carlson he was “from the Algonquin Police
Department”—but rather to show the effect on the hearer of
Jurasek’s and Carlson’s statements, Lamz—that is, that upon
(continued...)
No. 02-2130 9
wrote and signed their own statements implicating
Smith at the time of his arrest. Armed with this contempo-
raneous documentation written by the witnesses them-
selves, the importance of Lamz’s credibility is dimin-
ished. On the basis of both Jurasek’s and Carlson’s con-
temporaneous written statements, we find that Lamz
had probable cause to suspect that Smith had committed
the offense of impersonating an officer. The district
court correctly found that he was entitled to qualified
immunity on this charge.
For the foregoing reasons, the decision of the dis-
trict court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
3
(...continued)
hearing Jurasek’s and Carlson’s statements, Lamz believed
that Smith had told them he was “from the Algonquin Police
Department.” See FED. R. EVID. 801(c). Smith’s statement to
Jurasek and Carlson falls within the party-admission exemp-
tion to the rule. FED. R. EVID. 801(d)(2)(A).
USCA-02-C-0072—3-5-03