In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-2533

WILLIAM K. HAWKINS,

Plaintiff-Appellant,

v.

RODNEY S. MITCHELL AND JAMES M. BOWERSOCK,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Central District of Illinois, Urbana Division.

No. 2:10-CV-2111 — Michael P. McCuskey, District Judge, and

David G. Bernthal, Magistrate Judge.

____________________

ARGUED DECEMBER 2, 2013 — DECIDED JUNE 23, 2014

____________________

Before BAUER and FLAUM, Circuit Judges, and VAN 

BOKKELEN, District Judge.*

VAN BOKKELEN, District Judge. We review summaryjudgment and trial rulings on several causes of action

 

* Of the Northern District of Indiana, sitting by designation.
No. 13-2533 2

against police who did not claim immunity under federal or 

state law.1 The central legal doctrines are the exigency 

exception to the Fourth Amendment warrant requirement, 

probable cause, and the First Amendment right to consult an 

attorney

I. Facts

Two police officers—Rodney Mitchell and, about two 

minutes later, James Bowersock—responded to a 9-1-1 call 

by Sarah Bumgarner.2 It was late on a Saturday night in May 

2008. Bumgarner had called from outside William Hawkins’s 

house on a residential street in Champaign, Illinois, 

reporting what the dispatcher classified as a domestic 

incident. On the way to the scene, Mitchell and Bowersock 

learned that Bumgarner and Hawkins had been drinking 

and got into a heated argument. Hawkins was alleged to 

have a history of abusiveness, but tonight’s argument was 

“verbal only.” The dispatcher summarized the situation: 

“Hawkins has locked [Bumgarner] out and her keys are in 

the residence. [Bumgarner] just wants her keys so she can 

leave.”

Upon arriving, Mitchell discovered Bumgarner outside

and shouting to Hawkins about her keys. Clothing was 

scattered across the yard.Mitchell remembers Hawkins 

“screaming” back to her from the porch: “I don’t have your

fucking keys!” Hawkins then stepped inside his house and 

 

1 District Judge McCuskey made the summary-judgment rulings; the 

trial rulings are Magistrate Judge Bernthal’s.

2 Bumgarner’s name later changed to Gerth.
No. 13-2533 3

slammed the door. In irreconcilable contrast, Hawkins’s 

account is that he was in bed asleep when Mitchell arrived.

It is undisputed that Bumgarner verbally confirmed with 

Mitchell that she was not injured; he observed no injury to 

her. She said she was “sorry” for calling 9-1-1, but needed 

her keys so she could leave. Bumgarner told Mitchell that 

Hawkins had her keys and that he “gets violent sometimes.”

On the other hand, Bumgarner also told Mitchell directly 

what she had already reported on the 9-1-1 call—her fight 

with Hawkins had been “verbal only.” Bumgarner made no 

allegation that Hawkins was violent or threatening on that 

night.

Mitchell went to Hawkins’s door and knocked. Hawkins 

opened, and, according to Mitchell, yelled “I don’t need to 

talk to you!”; then attempted to close the door.But Mitchell 

stuck his foot in the path of the door, which prevented

Hawkins from closing it. Mitchell entered the home.

Hawkins made clear that he wanted Mitchell gone, but 

Mitchell persisted in questioning Hawkins. Hawkins then 

called an attorney, with whose assistanceHawkins 

confirmed from Mitchell that he did not have a warrant.

Mitchell nevertheless stayed in the house and told Hawkins

he just wanted to talk to him. Again following the attorney’s

advice, and still on the phone, Hawkins asked Mitchell 

whether he was under arrest. Mitchell said Hawkins was not 

under arrest and reiterated that he just wanted to talk to 

Hawkins. The attorne advised Hawkins that Hawkins had 

no duty to speak to the officer, that the officer had no right to

be in his house, and that Hawkins could just tell the officer

to “get the fuck out of the house.”
No. 13-2533 4

That’s what Hawkins did, several times over the course 

of the encounter. For his part, Mitchell was comfortable with 

Hawkins on the phone because the conversation was 

allowing time for Bowersock to reach the scene.

When Bowersock did arrive, Mitchell motioned him 

inside the house. Hawkins remained on the phone and 

continued yelling for Mitchell to get out. (Whether Hawkins 

was immediately aware of Bowersock’s presence is unclear.)

Mitchell remembers Bowersock then telling Hawkins that 

the officers were investigating a 9-1-1 domestic call and that

Hawkins had to get off the phone and speak to Mitchell.

Hawkins did not obey, and instead, in Mitchell’s words, 

continued to give the officers “some kind of commands.” “At 

that point,” Mitchell explained, “Officer Bowersock told 

[Hawkins] to get off the phone and speak with this officer, or

[he would] be arrested.” Hawkins did not comply, at which 

point Bowersock told him he was under arrest. At the same 

time, according to Mitchell, Bowersock grabbed Hawkins’s 

left wrist and Mitchell grabbed Hawkins’s right wrist.

Hawkins then allegedly “stopped and started twisting to 

resist arrest.” The three ended up struggling to the floor. 

Mitchell says Hawkins continued “trying to pull his hands 

inward, which is common for someone in that position to try 

to keep from being arrested.” Hawkins continued to protest 

what he claimed was a violation of his rights, and resisted 

the officers as they escorted him out of his house and into a 

police car.

Bowersock’s recollection of those events is substantially 

the same as Mitchell’s. When asked what Hawkins said after 

Bowersock told him he was under arrest, Bowersock 

recalled:
No. 13-2533 5

He did make a response. I believe it was something 

to the effect that he wasn’t – or he hadn’t done 

anything wrong, that this was his house and 

basically for us to get out of his house. He then 

tensed up and started to pull away, at which time 

we attempted to maintain control of him. Forward

momentum had started and all three of us had gone 

to the floor.

At 11:46 p.m., about five minutes after Mitchell arrived 

and about three minutes after Bowersock arrived, they 

reported Hawkins in their custody. The state filed charges 

against Hawkins, but later dropped them.

II. Procedural History

Hawkins sued the officers for the arrest and the allegedly 

excessive force they used in making it. He claims he needed 

surgery to remove a cyst from above his left eye where he 

was injured by the officers, as well as psychiatric counseling 

for the traumatic encounter. The case proceeded in the 

district court to the filing of cross-motions for summary 

judgment with six counts of an amended complaint pending.

Count I was for “Illegal Seizure,” alleging that the 

officers “illegally seized and effected a custodial arrest of the

plaintiff without probable cause for such arrest and without 

a judicial warrant.” Count II was for excessive force. Count 

III claimed “Arrest in Retaliation for Speech,” on the theory 

that Mitchell and Bowersock arrested Hawkins in retaliation 

for exercising a First Amendment right to speak to an 

attorney and asserting his Fourth Amendment right t

privacy in his home. In Count IV, Hawkins sued for battery

under Illinois common law. Count V was for “Wilful and 
No. 13-2533 6

Wanton Misconduct.” Count VI, titled “False 

Imprisonment/Locomotion,” was based on the allegations 

that the Defendants, “through a show of force and their lawgiven authority,” prevented Hawkins from telephoning with 

his attorney and forced him “to leave hi own home under 

threat of force and bodily injury.”

Though Hawkins’s amended complaint invokes the 

Illinois Constitution in Counts I, II, and III, and the Illinois 

Civil Rights Act of 2006 in Counts III, V, and VI, he has not 

relied on those laws in this Court. The only sources of rights 

that Hawkins persists in claiming were violated are as 

follows for the remaining counts, with the trial-court 

disposition in the right column:

I. Illegal Seizure Fourth 

Amendment

Summary 

judgment for 

defendants

II. Excessive Force Fourth 

Amendment

Defense 

verdict at trial

III. Arrest in 

Retaliation for Speech First Amendment

Summary 

judgment for 

defendants

IV. Batter

Illinois common 

law

Defense 

verdict at trial

V. Wilful and Wanton 

Misconduct

Illinois common 

law

Defense 

verdict at trial

VI. False Imprisonment

/ Locomotion

Illinois common 

law

Summary 

judgment for 

defendants
No. 13-2533 7

The district court paired Counts I and VI under the 

heading “False Arrest Claims” in its summary-judgment 

order and addressed them as one. See Hawkins v. Mitchell, 

909 F. Supp. 2d 1011, 1020–24 (C.D. Ill. 2012). Relying in part 

on Hawkins’s failure to object to the magistrate judge’s 

ruling in dismissing a claim for trespass that “Defendants 

could lawfully enter Plaintiff’s home to help Plaintiff’s 

girlfriend, who asked for assistance to collect her 

belongings,” the court concluded the officers’ entry into

Hawkins’s home did not violate his constitutional rights. Id.

at 1022. The district court stated further, “when Defendants 

entered the home, they attempted to get information from

Plaintiff about the situation and Plaintiff refused to provide

any information.” Id. at 1023. In the view of the district court, 

that gave the officers “probable cause to arrest Plaintiff for

either theft of Sarah’s keys or disorderly conduct.” Id. The 

district court quoted Padula v. Leimbach, 656 F.3d 595, 601 

(7th Cir. 2011): “‘Probable cause is an absolute defense to a 

wrongful arrest claim asserted under [42 U.S.C.] § 1983 

against police officers.’” Hawkins, 909 F. Supp. 2d at 1022. 

Summary judgment was thus granted against Hawkins on 

Counts I and VI.

The district court further rejected Hawkins’s contention

that he had a First Amendment right to consult his attorne

during the encounter and therefore threw out Count III, as 

well. Id. at 1024.

The summary-judgment order addressed Count V, for 

wilful and wanton misconduct, by recognizing that no such 

stand-alone cause of action exists under Illinois law. Counts 

IV and V were read “together to allege common law battery

claims which avoid the application of the Illinois Tort 
No. 13-2533 8

Immunity Act.” Id. at 1025. On appeal, Hawkins has adopted 

this view, referring to Counts IV and V collectively as 

“wilful and wanton battery.” (Appellant’s Br. 36.

Hawkins proceeded to trial on his wilful-and-wantonbattery and excessiv-force claims (Counts II, IV, and V). 

There, the magistrate judge instructed the jury that “[t]he 

lawfulness of Defendants’ entry into Plaintiff’s home or his 

arrest [was] not at issue.” Nonetheless, defense counsel 

emphasized in closing argument that his clients had the 

right to be in Hawkins’s home. The argument focused on 

circumstances that tended to suggest that arresting Hawkins 

was lawful. All the jurors needed to find, defense counsel 

argued, was that “[t]he officers did their job. Bill Hawkins ...

mistakenly told them that they had to leave his home.” The 

jury decided in favor of the officers on both claims.

Hawkins now asks us to reverse the summary-judgment 

order and jury verdicts against him, grant summary 

judgment in his favor on Counts I through VI, and remand 

for a trial on damages.
No. 13-2533 9

III. Discussion3

A. Standard of Review for Counts I, III, and VI

Summary judgment is appropriate if “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), but only 

then. E.g., Brooks v. City of Aurora, 653 F.3d 478, 483 (7th Cir. 

2011). The review of a grant of summary judgment is de novo, 

with all reasonable inferences of fact drawn against 

summary judgment. Id.

B. Count I: Illegal Seizure

We differ from the district court in that we find it 

necessary to analyze Count I separately from Count VI, 

which was for false imprisonment. It is true that Count I 

includes the theory that the arrest was illegal because the 

officers lacked probable cause. In this respect, the law on 

 

3 When, as here, police officers are sued under 42 U.S.C. § 1983 for 

allegedly violating constitutional rights, qualified immunity often proves 

to be the decisive rule of law. Cf. Pearson v. Callahan, 555 U.S. 223, 236

(2009) (allowing courts to dispose of claims against public officials for 

violating constitutional rights without considering whether a right was 

violated, by determining that it was in any event not “clearly 

established”). This opinion does not address qualified immunity in 

substance, however, because Mitchell and Bowersock did not discuss it 

on appeal. And, while “[w]e can ‘affirm on any ground supported in the 

record, so long as that ground was adequately addressed in the district 

court and the nonmoving party had an opportunity to contest the 

issue,’” Thayer v. Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012) (quoting 

Peretz v. Sims, 662 F.3d 478, 480 (7th Cir. 2011)), the officers’ briefing in 

the district court did not ensure the fulfillment of those criteria with 

respect to qualified immunity.
No. 13-2533 10

Count I is very similar to the law on Count VI.4 But three 

features of Count I, considered together, lead us to construe

it to encompass the additional theory that the officers 

violated the Fourth Amendment, regardless of probable 

cause, by arresting Hawkins in his home without a warrant. 

First, the amended complaint refers to Count I as a claim for 

“illegal seizure,” rather than false arrest. Second, Count I 

incorporates the preceding paragraphs of the amended 

complaint, which allege that the arrest occurred in a private 

residence. And third, Count I avers that the arrest was 

warrantless.5 Count VI does not involve this theory of 

liability.

The officers’ defense to Count I on appeal is that Mitchell 

could force his way inside the home in the name of 

preventing a serious injury or “questioning [Hawkins] about 

the situation.” Having thus lawfully entered the home, the

officers contend, they could arrest Hawkins upon probable 

cause to arrest for any offense. According to this view, and 

contrary to Hawkins’s position, the lack of a warrant and inhome location did not mean the offense for which the

officers had probable cause to arrest had to be more serious.

 

4 Very similar, but not necessarily identical in the abstract. For a 

constitutional claim asserted under 42 U.S.C. § 1983, such as Count I, the 

doctrine of qualified immunity generally would be in play, unless the 

public-official defendants waive or forfeit the defense. In contrast, for a 

claim grounded in Illinois law, such as Count VI, Illinois’s Local 

Governmental and Governmental Employees Tort Immunity Act would 

typically be under consideration instead.

5 The amended complaint does not support the interpretation of Count I 

that Hawkins implied in his appellate briefs, which is that Count I was a 

claim for merely entering his home unconstitutionally.
No. 13-2533 11

Hawkins’s arguments likewise depend on the 

constitutionality of the initial entry of his home.

Construing the magistrate judge’s unchallenged ruling 

that “Defendants could lawfully enter Plaintiff’s home” as 

limited to the trespass count that is not before us, we believe 

we may address the merits of Count I, including the 

lawfulness of the officers’ home entry, and do so here.

“The right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable searches 

and seizures, shall not be violated ... .” U.S. Const. amend. 

IV. “[P]hysical entry of the home is the chief evil” that this 

constitutional guarantee targets. United States v. United States 

District Court for the E. Dist. of Mich., S. Div., 407 U.S. 297, 313 

(1972). “At the very core stands the right of a man to retreat 

into his own home and there be free from unreasonable 

governmental intrusion.” Silverman v. United States, 365 U.S. 

505, 511 (1961). So it is “a ‘basic principle of Fourth 

Amendment law’ that searches and seizures inside a home 

without a warrant are presumptively unreasonable.” Payton 

v. New York, 445 U.S. 573, 586 (1980) (quoting Coolidge v. New 

Hampshire, 403 U.S. 443, 477 (1971)). The Amendment 

“prohibits the police from making a warrantless and 

nonconsensual entry into a suspect’s home in order to make 

a routine ... arrest,” even for a felony, and even with 

probable cause. Id. at 576 (emphasis added).

What about circumstances that are not routine?

“[B]ecause the ultimate touchstone of the Fourth 

Amendment is ‘reasonableness,’ the warrant requirement is 

subject to certain exceptions,” Brigham City v. Stuart, 547 U.S. 

398, 403 (2006), which are few, “‘specifically established,’”

and “‘well-delineated’” to accommodate those extraordinary 
No. 13-2533 12

situations where “the needs of law enforcement [are] so 

compelling that warrantless search is objectively 

reasonable.” Mincey v. Arizona, 437 U.S. 385, 390, 394 (1978)

(quoting Katz v. United States, 389 U.S. 347, 357 (1967) and

citing McDonald v. United States, 335 U.S. 451, 456 (1948)). 

This entails the doctrine of exigent circumstances, which 

“exist when there is a compelling need for official action and 

no time to secure a warrant, such as when an officer must 

enter premises to render emergency assistance to an injured 

occupant or to protect an occupant from imminent injury.” 

United States v. Venters, 539 F.3d 801, 807 (7th Cir. 2008) 

(quotation marks and citations omitted). The “need ‘to 

prevent the imminent destruction of evidence’” is another 

recognized exigency, Kentucky v. King, 131 S.Ct. 1849, 1856 

(2011) (quoting Stuart, 547 U.S. at 403), albeit one that 

depends on the gravity of the crime under investigation. 

Welsh v. Wisconsin, 466 U.S. 740, 753 (1984); see also Sutterfield 

v. City of Milwaukee, No. 12-2272, — F.3d —, 2014 WL 

1853080, at *12 (7th Cir. May 9, 2014) (identifying other 

exigencies).

Analysis of the reasonableness of police officers’ exigency 

determination is entirely objective; it considers only what 

they reasonably should have known at the time of their

warrantless home entry. Venters, 539 F.3d at 807.

As the above discussion suggests, warrantless in-home 

arrests are especially suspect “when the underlying offense 

for which there is probable cause to arrest is relatively 

minor.” Welsh, 466 U.S. at 750. In such an instance, the 

“presumption of unreasonableness is difficult to rebut”; ”the 

government usually should be allowed to make such arrests 

only with a warrant issued upon probable cause by a neutral 
No. 13-2533 13

and detached magistrate.” Id. (footnote omitted). This Court 

has read Welsh, 466 U.S. at 752–54, to hold “that, at a 

minimum, exigent circumstances do not exist when the 

underlying offense is minor, typically a misdemeanor.” 

Reardon v. Wroan, 811 F.2d 1025, 1028 (7th Cir. 1987) (per 

curiam).

A Fourth Amendment “seizure” of a person occurs 

“whenever a police officer ‘by means of physical force or 

show of authority ... in some way restrain[s] the liberty of a 

citizen.’” Acevedo v. Canterbury, 457 F.3d 721, 725 (7th Cir. 

2006) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). 

Where, as here, the seizure involves the use of physical 

force, a seizure occurs whenever “an officer restrains the 

freedom of a person to walk away,” Tennessee v. Garner, 471 

U.S. 1, 7 (1985), such as by the “laying on of hands or [other] 

application of physical force to restrain movement, even ...

unsuccessful[ly],” California v. Hodari D., 499 U.S. 621, 626 

(1991). (Of course, seizure of a person without physical 

contact is also possible—the officer must make a “show of 

authority” that a reasonable person would understand to 

mean that she is not “free to leave,” and she must submit to 

that show of authority. See id. at 626–27.)

We return to the two purposes Mitchell and Bowersock 

have offered as substitutes for a warrant: the need to prevent 

imminent serious injury, see, e.g., Stuart, 547 U.S. at 404 

(recognizing this as an exigency), and “the purpose of 

questioning [Hawkins] about the situation.” (See Appellees’ 

Br. 13–17.) Exigency case law makes clear that the latter, 

which amounts to ordinary investigation of possible crime, 

does not qualify. See, e.g., Venters, 539 F.3d at 807 (situation 

must present a “compelling need for official action [with no] 
No. 13-2533 14

time to secure a warrant”). And the facts, even as given by 

the officers, simply do not support the conclusion that the 

challenged arrest (or home entry) was necessary to prevent 

imminent serious injury.

Mitchell and Bowersock arrived at a disorderly scene, to 

be sure, having been told that Hawkins had some history of 

abusing Bumgarner and that he “gets violent sometimes.”

One could see that a couple was in a drunken spat, and 

clothing was strewn around the front yard. But the officers 

were also advised that no physical attack had occurred that 

night. Bumgarner told them she wasn’t hurt, which Mitchell 

visually confirmed was true. Bumgarner even went as far as 

to say “she was sorry for calling” 9-1-1. Rather than express 

a need for protection from an immediate threat to her safety, 

Bumgarner said: “Mr. Hawkins has my keys and I just want 

them back so I can leave.” She was outside; Hawkins was 

inside; and there was no basis to believe that anyone but the 

police had a weapon.

This is not to say that Mitchell was unreasonable to 

knock on the door to investigate Hawkins from a publicly 

accessible area. On the contrary, attempting to initiate a 

consensual conversation was commendable. And police are 

allowed to act upon exigencies of their own making, so long 

as their conduct in creating the exigency was “reasonable” 

under the Fourth Amendment. Kentucky v. King, 131 S. Ct. at

1858.

Mitchell’s nonconsensual and warrantless home entry, 

however, was unreasonable. Assume that Hawkins roared 

into the night that he didn’t have Bumgarner’s keys. Assume 

that he threw her clothes into the yard, deliberately locked 

her out of his house, “screamed” in terror upon discovering 
No. 13-2533 15

a police officer at his door, and then attempted to close the 

door on the officer. There’s still no evidence that he 

threatened to harm anyone physically. “[S]ociety would 

recognize a person’s right to choose to close his door on and 

exclude people he does not want within his home.” United 

States v. Berkowitz, 927 F.2d 1376, 1387 (7th Cir. 1991). It is 

“one of the most ... important components of a person’s 

privacy expectation in his home.” Id. So there was no 

exigency before Mitchell’s nonconsensual entry.

Nor did one arise from that moment until the arrest. 

Throughout the in-home encounter, Hawkins objected to the 

officers’ presence repeatedly and vociferously, it’s true, but 

he never threatened them. Drunk as the officers allege him 

to have been, he summoned the wherewithal to call an 

attorney for advice and then follow that advice assertively 

but without physical aggression.

Although Mitchell’s position inside the house initially 

gave Bowersock a reasonable basis to act as though he had 

consent or exigency, we find that by the time of the arrest,

Bowersock, too, should have known there was neither. The 

lack of weapons, threats, or physical aggression from 

Hawkins left time for Bowersock to ask Mitchell why they 

were inside and to recognize the absence of any possible 

justification for staying. Knowing that warrantless home 

entry is presumptively unreasonable, see Payton, 445 U.S. at 

586, Bowersock should have taken advantage of that 

opportunity. Instead, he responded to Hawkins’s 

nonthreatening disobedience by telling him that if he didn’t 
No. 13-2533 16

get off the phone and speak to the officers, he would be 

arrested.6

Hawkins did not submit to Bowersock’s command, 

insofar as he stayed on the phone, but he also remained 

nonthreatening. Each officer nevertheless proceeded to grab

one of Hawkins’s wrists, which restricted his movement 

significantly, effecting an arrest. See Hodari D., 499 U.S. at 

626. Because the officers lacked a warrant or consent to 

enter, and have not posited a valid justifying exigency, the 

in-home arrest was unconstitutional as a matter of law. See

Payton, 445 U.S. at 585–90 (prohibiting warrantless in-home 

arrests under non-exigent circumstances).7

C. Count VI: False Imprisonment

In reference to Count VI, the officers have argued only 

that they had probable cause to arrest Hawkins for theft of 

Bumgarner’s keys or disorderly conduct.8 “Probable cause is 

 

6 It is significant to this discussion that Bowersock has not sought 

qualified immunity.

7 On appeal, the officers have not argued that Hawkins’s disobedience of 

their commands inside the home or his alleged resistance after the wrist 

grab could change the result for Count I.

Having found the officers liable for Count I as a matter of law on the 

theory that they arrested him in violation of the Fourth Amendment 

prohibition of non-exigent warrantless in-home arrests, we need not also

consider Count I as a false-arrest claim.

8 The officers relied on Illinois’s Local Governmental and Governmental 

Employees Tort Immunity Act in the district court only with respect to 

the issue of “excessive use of force,” see Appellees’ Mot. Summ. J., C.D. 

Ill. CM-ECF, case no. 2:10-CV-2111, doc. 36, at 11–14, and not at all in this 

Court.
No. 13-2533 17

an absolute bar to a claim of false imprisonment.” Poris v. 

Lake Holiday Prop. Owners Ass’n, 983 N.E.2d 993, 1007 (Ill. 

2013).

The standard for probable cause, in turn, is “fluid” and 

sensitive to “the assessment of probabilities in particular 

factual contexts.” Illinois v. Gates, 462 U.S. 213, 232 (1983). 

Therefore, it isn’t “readily, or even usefully, reduced to a 

neat set of legal rules.” Id. Nevertheless, we may explain by 

way of definition that probable cause is “‘a reasonable 

ground for belief of guilt’” that is “particularized with 

respect to the person to be searched or seized.” Maryland v. 

Pringle, 540 U.S. 366, 371 (2003) (quoting Brinegar v. United 

States, 338 U.S. 160, 175 (1949) and citing Ybarra v. Illinois, 444 

U.S. 85, 91 (1979)).

“The existence of probable cause ... depends, in the first 

instance, on the elements of the predicate criminal offense(s) 

as defined by state law.” Abbott v. Sangamon County, 705 F.3d 

706, 715 (7th Cir. 2013) (citing Michigan v. DeFillippo, 443 U.S. 

31, 36 (1979)). It does not, however, “require the same type 

of specific evidence of each element of the offense as would 

be needed to support a conviction.” Adams v. Williams, 407 

U.S. 143, 149 (1972); see also Spiegel v. Cortese, 196 F.3d 717, 

724 n.1 (7th Cir. 1999) (explaining that officers need not 

“establish probable cause as to each and every element of a 

crime before they are entitled to make an arrest”).

The officers’ brief argues probable cause as follows:

Since Mitchell and Bowersock were justified in 

entering the home to get information about the 

situation, the facts known to them at the time, 

coupled with Hawkins’s conduct, provided 
No. 13-2533 18

probable cause to effectuate an arrest for either theft 

of Sarah’s keys or disorderly conduct... . The trial 

court relied upon ample undisputed facts to 

determine probable cause existed to arrest Hawkins 

for disorderly conduct ... . More specifically, the 

information known to Mitchell was that Sarah 

requested assistance in getting her car keys from 

Hawkins, and Sarah reported Hawkins had been 

abusive in the past. This information provided 

Mitchell with probable cause to believe Sarah 

needed assistance in retrieving her keys from 

plaintiff.

(Appellees’ Br. 19.)

We think probable cause “to believe Sarah needed 

assistance in retrieving her keys” isn’t the point. Instead, 

Count VI turns on probable cause to arrest Hawkins, either for 

stealing the keys or disorderly conduct.

The claim of probable cause to arrest for theft fails.

A person commits theft when he or she knowingly:

(1) Obtains or exerts unauthorized control over 

property of the owner; or

(2) Obtains by deception control over property 

of the owner; or

(3) Obtains by threat control over property of 

the owner; ...

* * *

and
No. 13-2533 19

(A)Intends to deprive the owner 

permanently of the use or benefit of the 

property; or

(B) Knowingly uses, conceals or abandons 

the property in such manner as to 

deprive the owner permanently of such 

use or benefit; or

(C)Uses, conceals, or abandons the property 

knowing such use, concealment or 

abandonment probably will deprive the 

owner of such use or benefit.

720 Ill. Comp. Stat. 5/16-1(a).

The facts known at the time do little to suggest that 

Hawkins had intention or knowledge of depriving 

Bumgarner of her keys, even if we assume for the sake of 

argument that he had control over them. Without any

accusation of theft, an intoxicated 9-1-1 caller’s mere request 

for assistance in retrieving her keys from someone else’s 

house, coupled with an allegation of unrelated past abuse by 

that someone, does not amount to probable cause to arrest 

for stealing the keys.9

Next, we consider the disorderly-conduct theory. “A 

person commits disorderly conduct when he or she 

knowingly ... [d]oes any act in such unreasonable manner as 

 

9 The district court relied on only these facts, plus Hawkins’s 

unwillingness to answer the police’s questions, in supporting its finding 

of probable cause to arrest for theft. See Hawkins, 909 F. Supp. 2d at 1023.

The problem with holding Hawkins’s unwillingness to answer the 

officers’ questions against him, however, is that the officers had no right 

to be in his home in the first place.
No. 13-2533 20

to alarm or disturb another and to provoke a breach of the 

peace.” 720 Ill. Comp. Stat. 5/26-1(a)(1). A “breach of the 

peace” is “‘a public offense done by violence, or one causing 

or likely to cause an immediate disturbance of public 

order.’” Sroga v. Weiglen, 649 F.3d 604, 607 (7th Cir. 2011) 

(quoting Restatement (Second) of Torts § 116 (1965)).

On the facts as given by the officers, they had probable 

cause to arrest Hawkins for disorderly conduct. To an officer 

in Mitchell’s position, it would have reasonably appeared

that Hawkins had been involved in the bustle that scattered 

the clothes over the yard. Mitchell also testifies that Hawkins 

shouted toward Bumgarner, who was outside, “I don’t have 

your fucking keys!” At the time and within that vicinity, 

neighbors were likely trying to sleep. If Mitchell’s account is 

true, then Hawkins behaved “in such unreasonable manner 

as to alarm or disturb” Bumgarner or his neighbors, and the 

commotion was a “disturbance of public order.”

But Hawkins denies the yelling. He testifies that he was 

in bed asleep when Mitchell knocked on his door. And as for 

Hawkins and Bumgarner’s earlier argument with each other, 

we do not think shouting within a private home qualifies

without more as “likely to cause an immediate disturbance 

of public order.” See id. Thus, on Hawkins’s version of the 

facts, the officers lacked probable cause to arrest him for 

disorderly conduct. This dispute forecloses summary 

judgment on Count VI. See, e.g., Payne v. Pauley, 337 F.3d 767, 

770 (7th Cir. 2003) (“[S]ummary judgment cannot be used to 

resolve swearing contests between litigants.”).
No. 13-2533 21

D. Count III: Arrest in Retaliation for Speech

Hawkins has also alleged that Mitchell and Bowersock

arrested him “without probable cause and without a judicial 

warrant, solely in retaliation for his actions of calling an 

attorney and for his assertion of his Fourth Amendment 

right to privacy of his home, in violation of the United States 

Constitution, First Amendment.” (Am. Compl. para. 22.)

Summary-judgment decisions on such claims involve a 

burden-shifting framework. In the prima facie case, the 

plaintiff must show that (1) he engaged in activity protected 

by the First Amendment; (2) he suffered a deprivation likely 

to deter such activity; and (3) the First Amendment activity 

was at least a motivating factor in the decision to impose the 

deprivation. Thayer v. Chiczewski, 705 F.3d 237, 251 (7th Cir. 

2012) (citing Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 

2012) and Greene v. Doruff, 660 F.3d 975, 977–78 (7th Cir.

2011)).10

The district court granted summary judgment on the 

ground that Hawkins had no constitutional right to consult 

with an attorney under the circumstances. The opinion

explains that “the right to contact counsel would severely 

hamper the ability of police officers to enforce the law.”

Hawkins, 909 F. Supp. 2d at 1024. This was the officers’ 

 10 If the plaintiff makes the prima facie showing, “‘the burden shifts to the 

defendant to show that the harm would have occurred anyway.’” Thayer, 

705 F.3d at 251–52 (quoting Doruff, 660 F.3d at 977). And if the defendant 

does this, “the burden shifts back to the plaintiff to demonstrate that the 

proffered reason was pretextual and that the real reason was retaliatory 

animus.” Id. at 252.
No. 13-2533 22

argument below, and they have added nothing to it on 

appeal.11

The argument is contrary to precedent. “The right to ...

consult an attorney is protected by the First Amendment’s 

guarantee of freedom of speech, association and petition... . 

[T]he state cannot impede an individual’s ability to consult 

with counsel on legal matters.” Denius v. Dunlap, 209 F.3d 

944, 953–54 (7th Cir. 2000) (citing Bates v. State Bar of Ariz., 

433 U.S. 350, 376 n.32 (1977) and DeLoach v. Bevers, 922 F.2d 

618, 620 (10th Cir. 1990)).

We also disagree with the officers’ possible suggestion

that Hawkins’s phone call criminally obstructed them in 

performing their duties. See Appellees’ Br. 21–22 (“The 

actions of Hawkins to avoid questioning by using the phone 

 

11 Aware of Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (finding 

qualified immunity, on the basis of probable cause, from a claim for 

arrest in retaliation for First Amendment activity), we note that probable 

cause is open to factual dispute for the reasons given in discussing 

Hawkins’s false-imprisonment claim. But qualified immunity is not 

available to the officers as a defense, here or on remand. None of the 

reasons given by the Thayer Court for granting qualified immunity from 

a claim for arrest in retaliation for First Amendment activity 

notwithstanding the defendant-officers‘ failure to argue it on appeal is 

present. See Thayer, 705 F.3d at 252–53; supra note 3. That is, Mitchell and 

Bowersock neglected to raise qualified immunity from any cause of 

action, not only here but also in the district court. And the parties have 

made no “underlying arguments on appeal addressing ... whether 

probable cause bars First Amendment retaliatory arrest claims.” Thayer, 

705 F.3d at 252. Thus, we cannot say, as the Thayer Court could, that the 

defendants made the plaintiff aware of qualified immunity as an issue so 

that he had an opportunity to respond. Cf. id. Finally, because Mitchell 

and Bowersock left qualified immunity out of their answer to the 

amended complaint, there is no reason to let them assert it upon remand.
No. 13-2533 23

to have a conversation and repeatedly yelling at the officers 

certainly obstructed with a police investigation.”); 720 Ill. 

Comp. Stat. 5/31-1(a) (defining resisting or obstructing a 

peace officer as a misdemeanor); 720 Ill. Comp. Stat. 5/7-7 

(prohibiting the use of force to resist an arrest made by a 

known peace officer “even if ... the arrest in fact is 

unlawful”). For such obstruction, “an act of physical 

resistance” is required. People v. Stoudt, 555 N.E.2d 825, 827 

(Ill. App. Ct. 1990) (citing People v. Pruitt, 520 N.E.2d 1113, 

1115 (Ill. App. Ct. 1988)). Neither arguing, nor refusing to 

answer police, see People v. Hilgenberg, 585 N.E.2d 180, 183 

(Ill. App. Ct. 1991) (“Mere refusal to answer a police officer, 

in the absence of a physical act, may be deemed tantamount 

to argument which is not a violation of the statute.” (citing 

People v. Weathington, 411 N.E.2d 862, 863 (Ill. 1980))), nor 

refraining from taking physical action ordered by police, 

Stoudt, 555 N.E.2d at 827, in itself meets the standard. While 

“evidence that [a] defendant repeatedly disobeyed [an] 

arresting officer’s order to exit [a] vehicle” has sufficed to 

sustain a conviction of obstructing a peace officer, People v. 

Synnott, 811 N.E.2d 236, 241 (Ill. App. Ct. 2004), citizens 

enjoy greater protection within their homes. See Hilgenberg, 

585 N.E.2d at 185 (considering Fourth Amendment 

implications for § 31-1(a)).

Hawkins committed no crime by calling a lawyer to help 

him bring an end to an obstinate and unlawful police 

presence in his home. His call was protected by the First 

Amendment, see Denius, 209 F.3d at 953–54, and arrest 

qualifies as a deprivation that is likely to deter First 

Amendment Activity. Yet we cannot further infer as a matter 

of law that the attorney phone call was a motivating factor in 
No. 13-2533 24

the decision to arrest him, so that question must be

submitted to a jury.

E. Counts II, IV, and V:

Excessive Force and Wilful and Wanton Battery

As noted above, there is no challenge regarding the 

district court’s submission of Counts II, IV, and V to the jury 

as two claims, one for excessive force and the other for wilful 

and wanton battery in violation of Illinois law. Counsel have 

made no distinction between the two claims in their 

arguments before this Court; we likewise treat them as one.

Hawkins claims reversible error in the district court’s

instruction to the jury that “[t]he lawfulness of Defendants’ 

entry into [his] home or his arrest [was] not at issue.” And he 

urges that the district court’s erroneous summary-judgment 

rulings prevented him from presenting to the jury his 

challenges to the police’s presence within his house and the 

making of his warrantless arrest there. Also, under 

Hawkins’s view, the summary-judgment order enabled the 

following improper arguments by defense counsel in 

closing:

When an officer is asking you questions, you don’t 

have the right to pick up a phone and call your 

attorney. You do not have that right.

And then [the attorney] gave ... some very bad 

advice... . The bad advice that you don’t have to talk 

to [the police officer], you don’t have to cooperate 

with him, and, in fact, you can tell him to get out of 

your house, it’s not true. It’s not accurate.

A police officer has a right to talk to him at that 

point. A police officer has a right to be asking him 
No. 13-2533 25

questions. A police officer has a right to demand 

that he provide answers to those questions.

Well, he doesn’t have to answer the questions. But, if 

he doesn’t answer the questions, he is going to be 

placed under arrest. If he doesn’t cooperate, he is 

going to be placed under arrest.

* * *

What makes the difference is the officers came in. 

The officers did their job. Bill Hawkins ...

mistakenly told them that they had to leave his 

home. That’s all that matters here. That’s all you 

have to believe.

* * *

[D]on’t be confused. Officer Mitchell had every right 

to be inside that house.

(Trial Tr., June 13, 2013, 494:10–495:3, 499:7–12, 500:20–21.)

We review de novo whether the challenged jury 

instruction “fairly and accurately summarized the law.” 

Clarett v. Roberts, 657 F.3d 664, 672 (7th Cir. 2011) (citing 

United States v. Quintero, 618 F.3d 746, 753 (7th Cir. 2010)).

The trial court’s decision to give the particular instruction, 

however, is reviewed for abuse of discretion, id. (citing 

United States v. Tavarez, 626 F.3d 902, 904 (7th Cir. 2010)), and 

we will reverse “only if the instructions in their entirety so 

thoroughly misled the jury that they prejudiced” Hawkins. 

Id. (citing Quintero, 618 F.3d at 753).

“‘Improper remarks during a closing argument warrant 

reversal of the judgment only if the remarks influenced the 

jury in such a way that substantial prejudice resulted to the 
No. 13-2533 26

opposing party.’“ Smith v. Hunt, 707 F.3d 803, 812 (7th Cir. 

2013) (quoting Gruca v. Alpha Therapeutic Corp., 51 F.3d 638, 

644 (7th Cir. 1995)).

The challenged instruction did fairly and accurately 

summarize the law, in that it follows logically from this 

Court’s statements that “[f]alse arrest and excessive force are 

unrelated except in forming a sequence.” Lenard v. Argento, 

808 F.2d 1242, 1246 (7th Cir. 1987), cited with approval by

Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 681 (7th Cir. 

2007).

Turning to consider defense counsel’s summation, we 

acknowledge that the jury instruction approved here implies 

that no arguments concerning the lawfulness of the entry or 

the mere making of an arrest could be relevant to excessive 

force or battery. So if the jurors reasoned like lawyers, then 

they knew from the instruction to disregard the challenged 

segments of the officers’ closing. But to presume jurors to 

read and analyze as lawyers do would be naïve. Cf. Maus v. 

Baker, 747 F.3d 926, 927–28 (7th Cir. 2014) (recognizing that 

jury instructions do not always cure prejudice). At the end of 

trial, an officer of the court argued to the jurors that the 

alleged fact that Mitchell and Bowersock were “doing their 

job” and Hawkins’s allegedly baseless demand that the 

officers leave his house were “all that matter[ed].” These 

propositions, the attorney offered, were “all [jurors] had to 

believe” to find in the officers’ favor. Defense counsel further

argued to the jurors that they would have to be “confused” 

to question Officer Mitchell’s right to be in Hawkins’s house.

In truth, of course, the jurors would have been confused 

even to be interested in whether Officer Mitchell had a right 
No. 13-2533 27

to be in the house,12 but defense counsel’s arguments 

overwhelmingly misled them and the court did not

intervene specifically with regard to those arguments. And 

while most of the false impressions given by the defense 

summation were consistent with the law of the case at the 

time, that is precisely what made it futile for Hawkins to 

object. Cf. Dresser Indus., Inc., Waukesha Engine Div. v. Gradall 

Co., 965 F.2d 1442, 1450 (7th Cir. 1992) (appellant “certainly 

had reason to believe that it would be pointless to press its 

theory further, and was permitted to wait for a final decision 

on all the issues in the case before appealing the 

interlocutory summary judgment decision”). As a result, 

defense counsel’s quoted arguments created substantial 

prejudice to Hawkins. Retrial of the excessive-force and 

wilful-and-wanton-battery claims is necessary to eliminate 

it.

IV. Conclusion

We REVERSE the grant of summary judgment on Counts I, 

III, and VI, as well as the judgment on the jury’s verdict on 

Counts II, IV, and V. As for Count I, Mitchell and Bowersock 

are each liable to Hawkins as a matter of law for seizing him 

in violation of the Fourth Amendment. We REMAND to the 

district court for trial of both liability and damages with 

respect to Counts II through VI, as well as damages for 

Count I. For clarity, we note two additional points:

As regards each officer’s liability on Count III, there is 

only one genuine issue of material fact: whether Hawkins’s 

phone call to the attorney was a motivating factor in 

 

12 Only excessive force and wilful-and-wanton battery were before the 

jury, after all.
No. 13-2533 28

arresting Hawkins. Each officer for whom Hawkins’s phone 

call to the attorney was a motivating factor in arresting 

Hawkins is liable on Count III. Each officer for whom the 

attorney phone call was not a motivating factor is not liable 

on Count III.

The liability of both officers on Count VI depends 

entirely on whether probable cause to arrest Hawkins for 

disorderly conduct existed. If it did, neither officer is liable 

on Count VI; if it did not, both are liable on Count VI.