IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TIAWANDA MOORE, )

)

Plaintiff, )

)

 v. ) 12 C 238

)

CITY OF CHICAGO, Chicago Police ) Judge John Z. Lee

Officers JASON WILSON, RICHARD )

PLOTKE, and LUIS ALEJO, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Tiawanda Moore has sued the City of Chicago and Chicago Police Officers

Jason Wilson, Luis Alejo, and Richard Plotke pursuant to 42 U.S.C. § 1983 for violating her

constitutional rights under the First and Fourth Amendments to the U.S. Constitution, as well as

under Illinois law for malicious prosecution. The City of Chicago, Alejo, and Plotke

(“Defendants”) have moved for summary judgment. For the reasons provided herein, the Court

denies Defendants’ motion.

Facts

The following facts are undisputed unless otherwise noted. On July 6, 2010, Officer

Wilson and his partner responded to a police call regarding a domestic disturbance at the

residence of Moore and her boyfriend. Defs.’ LR 56.1(a)(3) Stmt. ¶¶ 9-10. For reasons that are

unclear, after arriving at the scene, Officer Wilson entered Moore’s bedroom and found her

alone. Id. ¶ 12; Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 2. Officer Wilson touched Moore’s chest and

buttocks with both hands. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 2. After Moore quickly took Officer

Wilson’s hands off of her, Officer Wilson wrote down his phone number on a piece of paper, set
the paper on Moore’s bed, and told Moore not to tell anyone that he gave her his number. Id. ¶

3.

Moore called 311 to report her allegations against Officer Wilson. Defs.’ LR 56.1(a)(3)

Stmt. ¶ 14. Moore’s call prompted the initiation of a complaint log file, which was then assigned

to the Chicago Police Department’s Internal Affairs Division, id. ¶ 15, which investigates

complaints of misconduct alleged against Chicago police officers. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶

4. The complaint log file was assigned to Sergeant Plotke, who then asked Officer Alejo to

assist him with the investigation. Defs.’ LR 56.1(a)(3) Stmt. ¶¶ 15, 22.

On August 18, 2010, Moore met with Sergeant Plotke and Officer Alejo to discuss her

complaint. Defs.’ LR 56.1(a)(3) Stmt. ¶¶ 23-25. Moore explained the details of what had

happened, including how Wilson had touched her body, as well as where and how the incident

took place. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 7; see Defs.’ Ex. C, Alejo Dep. at 36:18

(characterizing Moore’s complaint against Wilson as one of “sexual abuse”). Plotke and Alejo

explained that Moore had two choices. She could sign a sworn affidavit, which would mean that

the investigation into Wilson’s conduct would go forward, or sign a letter of declination, which

would mean that any investigation would not go forward. Defs.’ LR 56.1(a)(3) Stmt. ¶ 32. She

showed them the piece of paper that Wilson had given her on which was written the name “Jay”

and Wilson’s phone number. Id. ¶ 34. Plotke and Alejo then asked her if she wanted to proceed

with the complaint, and she stated that she did. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 8.

At this point, Plotke and Alejo told Moore that if she tried to take the case to court, she

probably would not win. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 9. Plotke also told her that they already

had spoken to Wilson and his sergeant, and Alejo stated that they could almost guarantee that

what Wilson did to her would never happen again. Id. ¶ 10. Plotke told Moore that “if it does

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happen again, we will already have the first complaint on file, but you can sign off on this piece

of paper stating that you no longer want to proceed with the charges. You want to do that?” Id.

¶ 11. Alejo added, “We don’t feel like you should proceed with charges due to the fact that we

already talked to the sergeant and the officer.” Id. ¶ 13.

Moore repeated her desire to proceed with the charges. Id. ¶ 14. She asked them whether

there was a sergeant or supervisor in the building to whom she could speak. Id. ¶ 15. Plotke

responded that he was the sergeant and no one else would take her case. Id. ¶ 16.

Plotke and Alejo then left the room, and Moore began to fill out the sworn affidavit. Id.

¶¶ 17, 23. Because Moore felt that Plotke and Alejo were attempting to convince her to drop her

complaint against Wilson, she activated a recording application on her Blackberry cell phone so

that she could record the rest of the interview. Id. ¶ 23; Defs.’ LR 56.1(a)(3) Stmt. ¶ 40; Pl.’s

Dep. at 257:18-21.

The parties dispute the sequence of the events that followed. According to Defendants,

Plotke and Alejo re-entered the interview room, and Alejo observed a microphone symbol with

wave bars on the screen of Moore’s Blackberry phone. Alejo believed that a voice recording

application had been activated, id. ¶¶ 42, 47, and he then told Plotke that he needed to speak

with Plotke outside of the interview room. Id. ¶ 48. After exiting the room, Alejo explained to

Plotke what he had observed. Id. ¶ 49. 

According to Moore, after she engaged the recording function on her phone, the officers

reentered the room. At this point, she asked to leave and walked toward the door, but before she

could leave the room, Plotke told her, “no, sit down. . . . [You are] not going anywhere.” Pl.’s

LR 56.1(b)(3)(C) Stmt. ¶¶ 19-21; see Defs.’ Resp. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶¶ 19-21; Pl.’s

Dep. at 260:20-24; Trial Tr. 150-51. Thus, by Moore’s account, Plotke impeded her exit from

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the interview before he had an opportunity to learn that Moore had been recording the

conversation. As we shall see, this dispute is critical.

At one point, Alejo asked Moore whether she was recording the interview. Id. ¶ 50. 

Moore denied that she was. Id. ¶ 51.

1

 Alejo told her that it was illegal to record a conversation

without the consent of all parties involved. Id. ¶ 52. Alejo then apparently left the room, leaving

Plotke alone with Moore. See Pl.’s Dep. at 263:24-264:19.

Plotke asked Moore to give him the phone, which she did. Id. at 261:4-9; Pl.’s LR

56.1(b)(3)(C) Stmt. ¶ 33. According to Moore, she then told Plotke that she did not know that

recording the interview was illegal, and Plotke responded that, even if she was ignorant of the

law, she could still go to jail. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 51; Pl.’s Dep. at 261:17-24, 263:3-

18. Moore again stated she did not know that recording the interview was illegal, and when she

asked Plotke, “Am I going to jail?” he replied, “Yes, you are going to jail.” Pl.’s Dep. at 263:19-

23. Plotke left Moore alone in the interview room, taking the phone with him. Id. at 263:24-

264:19. 

 A woman then entered the room and sat with Moore. Id. at 265:4-17. Moore told her

that she wanted somebody else to investigate her complaint against Wilson because she felt that

Plotke and Alejo were trying to talk her out of pursuing her complaint. Id. The woman asked

Moore for the password to her Blackberry phone, and Moore gave the woman her password so

that the woman could access her phone. Id. at 265:18-23. 

Plotke and Alejo later returned to the room and officially placed Moore under arrest for

two counts of felony eavesdropping, and her Miranda rights were explained to her. Defs.’ LR

1 Although Moore disputes that she denied recording the interview, the portion of the record that she cites

is unsupportive. See Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 51; Pl.’s Ex. B, Moore Dep. at 256:2-257-24. Thus,

she has not created a dispute regarding her denial.

4

 
56.1(a)(3) Stmt. ¶ 54. A search warrant was executed that day at 8:15 p.m., and a recording of

Moore, Plotke, and Alejo’s conversation was subsequently recovered from the phone. Id. ¶¶ 65-

66. 

After Moore’s arrest, Plotke made a formal request to reassign the investigation of

Moore’s complaint regarding Officer Wilson to other officers. Defs.’ LR 56.1(a)(3) Stmt. ¶ 63. 

The investigation was reassigned to new investigators and went forward. Id. ¶ 65.

As for Moore, she asserts that she spent two weeks in Cook County Jail. Pl.’s LR

56.1(b)(3)(C) Stmt. ¶ 33. On August 23, 2011, a jury found Moore not guilty of the two counts

of felony eavesdropping. Id. ¶ 39.

Discussion

Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate for

cases in which “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). The moving party has the burden of

establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986).

Plotke and Alejo argue that summary judgment should be entered in their favor because

no reasonable jury could find that they lacked probable cause to seize and arrest Moore for

eavesdropping. In the alternative, Plotke and Alejo contend that, even if they had lacked

probable cause, they should be afforded qualified immunity because the undisputed facts

demonstrate that they had “arguable probable cause” for the arrest. 

For her part, Moore argues that she has created an issue of fact for trial as to the existence

of probable cause. She also asserts that this issue of fact precludes the Court from granting

Plotke and Alejo qualified immunity on summary judgment. In short, Moore contends that her

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actions fell within an exception to the Illinois eavesdropping statute (as discussed further below)

because she had reason to suspect that Plotke and Alejo were committing the crimes of official

misconduct, obstruction of justice, and unlawful restraint. Because the officers were aware that

Moore’s activities qualified for this exemption – or so Moore’s argument goes – both probable

cause and arguable probably cause were lacking. 

Police officers have “probable cause to arrest an individual when the facts and

circumstances within their knowledge and of which they [have] reasonably trustworthy

information are sufficient to warrant a prudent [person] in believing that the [suspect] had

committed or was committing an offense.” Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th

Cir. 1994) (quotation omitted). “In deciding this question of law as part of a motion for

summary judgment, however, we must give the non-moving party the benefit of conflicts in the

evidence about what the officers actually knew at the time.” Williams v. City of Chi., 733 F.3d

749, 756 (7th Cir. 2013). 

Apropos to this motion, “probable cause is lacking if an officer has knowledge of matters

tending to establish that the arrestee is entitled . . . [to] a statutory exemption . . . .” Haywood v.

City of Chi., No. 01 C 3872, 2002 WL 31545883, at *2 (N.D. Ill. Nov. 15, 2002); see Estate of

Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999) (holding that officers lacked probable

cause at the time of arrests because they had full knowledge of facts and circumstances that

established that plaintiffs were justified in carrying concealed weapons during their work); see

also Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004) (“A police

officer may not ignore conclusively established evidence of the existence of an affirmative

defense, Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999), but the officer has

no duty to investigate the validity of any defense.”). “[A] plaintiff claiming that he was arrested

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without probable cause carries the burden of establishing the absence of probable cause.” 

McBride v. Grice, 576 F.3d 703, 706 (7th Cir. 2009). 

Furthermore, the qualified immunity doctrine protects government officials “from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). “In this context, qualified immunity provides shelter for officers who

have arguable probable cause to arrest—i.e., those officers that reasonably but mistakenly

believe they have probable cause.” Gutierrez v. Kermon, 722 F.3d 1003, 1008 (7th Cir. 2013)

(quotation omitted; emphasis added). Although qualified immunity is an affirmative defense to a

§ 1983 action, the plaintiff bears the burden of proving that a defendant is not entitled to

qualified immunity. Eversole v. Steele, 59 F.3d 710, 717 (7th Cir. 1995).

“The existence of probable cause or arguable probable cause depends, in the first

instance, on the elements of the predicate criminal offense(s) as defined by state law.” Abbott v.

Sangamon Cnty., 705 F.3d 706, 715 (7th Cir. 2013). This then leads us to a discussion of the

Illinois eavesdropping statute.

In Illinois, a person commits eavesdropping when she: “[k]nowingly and intentionally

uses an eavesdropping device for the purpose of hearing or recording all or any part of any

conversation or intercepts, retains, or transcribes electronic communication unless [s]he does so .

. . with the consent of all of the parties to such conversation or electronic communication.” 720

Ill. Comp. Stat. 5/14-2(a)(1)(A).

2

 However, exempt from criminal liability is the “[r]ecording of

2 After Moore’s prosecution, the eavesdropping statute was declared unconstitutional. See People v.

Clark, __ N.E. 3d ___, 2014 WL 1097190, at *6 (Ill. Mar. 20, 2014) (holding 720 Ill. Comp. Stat. 5/14-

2(a)(1)(A) is unconstitutional); People v. Melongo, __ N.E. 3d ___, No. 114852, 2014 WL 1096905, at *5

(Ill. Mar. 20, 2014) (declaring 720 Ill. Comp. Stat. 5/14-2(a)(1), (3) unconstitutional on its face and as

applied); see also Am. Civil Liberties Union v. Alvarez, 679 F.3d 583, 608 (7th Cir. 2012) (reversing

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a conversation made by . . . a person, who is a party to the conversation, under reasonable

suspicion that another party to the conversation is committing . . . a criminal offense . . . , and

there is reason to believe that evidence of the criminal offense may be obtained by the

recording.” Id. 5/14-3(i). “[T]he exemption requires (1) a subjective suspicion that criminal

activity is afoot, and (2) that the suspicion be objectively reasonable.” Carroll v. Lynch, 698

F.3d 561, 566 (7th Cir. 2012). According to Moore, her actions fell within this exemption

because she had reason to believe that Plotke and Alejo were committing or attempting to

commit official misconduct, obstruction of justice, and criminal unlawful restraint in violation of

Illinois law. 

A public officer commits the criminal offense of official misconduct when he “knowingly

performs an act which he knows he is forbidden by law to perform.” 720 Ill. Comp. Stat. 5/33-3. 

A person commits the criminal offense of obstructing justice “when, with intent to prevent the

apprehension or obstruct the prosecution or defense of any person, he . . . knowingly . . . induces

a witness having knowledge material to the subject at issue to . . . conceal . . . herself.” Id. 5/31-

4. Finally, a person commits the criminal offense of “unlawful restraint when he or she

knowingly without legal authority detains another.” Id. 5/10-3. 

Plotke and Alejo assert that because Alejo observed a microphone symbol with wave bars

on Moore’s Blackberry phone, they had both arguable probable cause and probable cause to

seize and arrest Moore. The law has been clearly established since Carroll v. United States, 267

U.S. 132, 162 (1925), however, that probable cause determinations involve an examination of all

denial of preliminary injunction and holding that ACLU had strong likelihood of success on the merits

regarding its First Amendment challenge of 720 Ill. Comp. Stat. 5/14-2(a)(1)). “Police are charged to

enforce laws until and unless they are declared unconstitutional.” Michigan v. DeFillippo, 443 U.S. 31, 36

(1979). 

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of the facts and circumstances within the officers’ knowledge at the time of the arrest or seizure. 

When the Court views the facts in their totality and construes all disputed facts in Moore’s favor

(as it must at this stage), it concludes that summary judgment is not appropriate. 

First, under Moore’s version of the events, Plotke seized her before he had an opportunity

to discover that their conversation was being recorded. Moore testified that she began recording

when Sergeant Plotke and Officer Alejo were out of the interview room. The officers then

reentered the room, at which point Moore immediately asked to leave and was detained by

Plotke when she approached the door. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 19. Based upon these

facts, a reasonable jury could find that Moore was illegal seized before the officers were aware

that she was recording the conversation. See Brendlin v. California, 551 U.S. 249, (2007)

(“[T]he test for telling when a seizure occurs is whether, in light of all the surrounding

circumstances, a reasonable person would have believed he was not free to leave.”). Of course,

Defendants dispute this and contend that Moore was seized only after they had discovered that

she was recording the conversation. See Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 23; Defs.’ LR 56.1(a)(3)

Stmt. ¶¶ 40, 42, 47-49; Pl.’s Dep. at 257:18-21. But this is for the jury to decide.

Second, even assuming that Moore’s seizure and arrest did not take place until after the

officers learned of the recording, summary judgment still would not be appropriate here because

a reasonable jury could find that the officers knew that Moore’s actions were exempt from the

Illinois eavesdropping statute. When Plotke and Alejo seized and/or arrested Moore, they knew

that she had filed a complaint with the Chicago Police Department due to Wilson’s actions and

had reason to believe that Moore’s account was truthful. Indeed, Moore had even showed them

the note that Wilson had left with her. Defs.’ LR 56.1(a)(3) Stmt. ¶ 34. Plotke stated to Moore

that they had spoken to Wilson and his sergeant about the incident. Alejo told Moore that they

9
could almost guarantee that such behavior would never happen again. Pl.’s LR 56.1(b)(3)(C)

Stmt. ¶ 10. And, again according to Moore, Alejo told her, “We don’t feel like you should

proceed with charges due to the fact that we already talked to the sergeant and the officer.” Id. ¶

13. Additionally, both officer informed her that “if this goes to court or if you go to court, you

won’t win your case.” Id. ¶ 9. What is more, Alejo told her that if she pursued her case, officers

might have to go to her workplace to ask her questions during the investigation. Id. ¶ 25. 

Finally, Moore repeatedly requested that new investigators be assigned to the case, but Plotke

told her that there was no one else available. Id. ¶¶ 16, 34. 

Given these facts, a reasonable jury could find that Plotke and Alejo: (1) knew of

Moore’s allegations against Wilson, (2) knew that Wilson’s conduct was criminal in nature, (3)

knew that Wilson had already admitted that the incident had occurred, and (4) knew that there

was a piece of paper with Wilson’s name and phone number on it that supported Moore’s

complaint of misconduct. A reasonable jury could also find that, despite this knowledge, the

officers took a substantial step toward thwarting a criminal investigation into Moore’s conduct

by telling Moore that (1) she should not proceed with the charges, (2) if she went to court, she

would not win her case, and (3) officers might visit her at workplace to question her if she

pursued any charges against Wilson. Based on these facts and circumstances, a reasonable jury

also could find that at the time of her seizure and/or arrest, the officers knew that Moore was

recording their conversation because she suspected that they were attempting improperly to

convince her to drop her complaint against Wilson and sign the letter of declination. In other

words, a rational jury could conclude that reasonable officers in Plotke and Alejo’s position

would have known that Moore’s recording did not violate the Illinois eavesdropping statute

because she had grounds to believe that they were attempting to obstruct justice and commit

10
similar offenses. Accordingly, for the reasons stated, genuine issues of material facts exist as to

whether Plotke and Alejo had probable cause or arguable probable cause to seize and arrest

Moore for eavesdropping. Therefore, Defendants’ motion for summary judgment as to Moore’s

Fourth Amendment claim and state law malicious prosecution claim is denied. 

But this does not conclude matters. Defendants also argue in their motion that summary

judgment is appropriate as to Plaintiff’s First Amendment retaliatory arrest claim. To establish a

prima facie case of a First Amendment retaliatory arrest, a plaintiff must show that: (1) she

“engaged in activity protected by the First Amendment”; (2) she “suffered a deprivation that

would likely deter First Amendment activity”; and (3) “the First Amendment activity was at least

a motivating factor in the police officer’s decision.” Thayer v. Chiczewski, 705 F.3d 237, 251

(7th Cir. 2012). If a plaintiff can make out a prima facie case, “the burden shifts to the

defendant to show that the harm would have occurred anyway.” Greene v. Doruff, 660 F.3d 975,

977 (7th Cir. 2011). If the defendant meets its burden of production, then “the burden shifts back

to the plaintiff to demonstrate that the proffered reason was pretextual and that the real reason

was retaliatory animus.” Thayer, 705 F.3d at 252. “At the summary judgment stage, this means

a plaintiff must produce evidence upon which a rational finder of fact could infer that the

defendant’s proffered reason is a lie.” Zellner v. Herrick, 639 F.3d 371, 379 (7th Cir. 2011).

In support of this theory, Defendants merely reassert their argument that Plokte and Alejo

had probable cause to arrest Moore and, alternatively, that they are entitled to qualified immunity

because they had arguable probable cause. As discussed above, genuine issues of material fact

exists as to these two predicate facts. Furthermore, although the right to be free from retaliatory

arrest, even where it is supported by probable cause, was not clearly established at the time of

Moore’s arrest, see Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012); Thayer,705 F.3d 253

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(“The case law is unsettled on whether probable cause is a complete bar to First Amendment

retaliatory arrest claims.”), whether the arrest itself was supported by probable cause or even

arguable probable cause are issues that are disputed in the record. Accordingly, the Court also

denies Defendants’ motion for summary judgment as to Moore’s First Amendment retaliatory

arrest claim.

Conclusion

For the reasons stated above, Alejo, Plotke, and the City of Chicago’s motion for

summary judgment is denied [doc. no. 79].

SO ORDERED ENTER: 4/28/14

_________________________

JOHN Z. LEE

 U.S. District Judge

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