In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3556

DYTANIEL MCBRIDE and

ENGLEWOOD TP CORPORATION, INC.,

Plaintiffs-Appellants,

v.

BRIAN E. GRICE and CITY OF PEORIA, ILLINOIS,

Defendants-Appellees.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 06 C 1188—John A. Gorman, Magistrate Judge.

ARGUED JULY 7, 2009—DECIDED AUGUST 11, 2009

Before POSNER, KANNE, and SYKES, Circuit Judges.

PER CURIAM. Dytaniel McBride sued police officer

Brian Grice and the City of Peoria, Illinois, under 42 U.S.C.

§ 1983 and state law, for events stemming from an allegedly unlawful arrest. A magistrate judge, proceeding

with the parties’ consent, granted summary judgment for

the defendants. The judge concluded that the undisputed
2 No. 08-3556

evidence established that Grice had probable cause to

arrest McBride for battery. McBride appeals, and we

affirm the judgment.

I. Background

McBride’s solely owned corporation operates a

clothing store, Tha Place, located in Peoria. On October 9,

2004, McBride had a disagreement with an employee,

Lushonda Guyton, who responded by calling him a

shyster and telling customers not to spend their money

in his store. McBride activated the store’s alarm to

summon the police, and then he took it upon himself to

physically remove Guyton from the store. After a scuffle,

McBride successfully ejected Guyton from the store, and

she headed home. On the way home, Guyton changed

her mind, called the police herself, and returned to the

store to meet the police in the parking lot. Officer Grice

responded to the alarm and arrested both McBride and

Guyton after interviewing each and watching part of a

security video.

The State’s Attorney dismissed the charges against

McBride a year later, and McBride then initiated this

lawsuit claiming that Officer Grice violated his Fourth

and Fifth Amendment rights (as well as state law) by

arresting him and filing a complaint without probable

cause. McBride also named the City of Peoria in his statelaw claims under a theory of respondeat superior. In his
No. 08-3556 3

McBride named his corporation as a co-plaintiff, but 1

the business has no claims of its own and is irrelevant to

this appeal.

complaint, McBride asserted that it became necessary 1

to remove Guyton from his store because she was

throwing clothes onto the floor, turning over clothes

racks, and breaking clothes hangers while shouting

profanities at him. By his account, he removed her without harming her by placing both arms around her,

lifting her up, and escorting her out. McBride alleged that

he explained these circumstances to Grice and showed

him a surveillance video corroborating his version of

events, but, according to McBride, the officer “intentionally

and falsely stated in his police report that the video

images of the encounter between McBride and Guyton

were unclear,” leading to his allegedly unlawful arrest

and prosecution.

The defendants answered the complaint and, after

discovery, moved for summary judgment. They argued

that all of McBride’s claims are foreclosed because

Officer Grice had probable cause to arrest him for battery. Grice related in a deposition that when he first

arrived at the store he spoke to McBride, who acknowledged that an argument between himself and Guyton

had escalated into a physical altercation. McBride

showed Grice a scratch on his arm that he attributed to

Guyton. Grice recalled that he next went to the parking

lot to interview Guyton, who told him that McBride had

hit her on the left side of her head with a closed fist and
4 No. 08-3556

had dragged her out of the store. Grice recounted that

Guyton’s left eye had some minor swelling and that there

was a small scratch on her forehead. At that point, Grice

explained, he went back into the store where McBride

showed him the video recording from one of the store’s

security cameras.

That video, which is part of the evidence at summary

judgment, does not show McBride striking Guyton, but

the combatants were not always in range of the camera.

Grice testified at his deposition that in watching the

video he saw Guyton come into view as she fell onto

the floor at the bottom of the screen and that, as she was

falling, McBride was stepping towards her from off-screen

into the camera’s view. According to the defendants,

Guyton can be seen in the video getting up from the floor

and then touching her forehead and looking into a mirror. They argued that a reasonable officer could have

concluded that McBride had struck Guyton and caused

her to fall, and that she was checking the mirror to see

if she had been injured. Grice then noted that the two

were out of range of the camera again, but a little later

he saw clothes racks falling over as McBride was

dragging Guyton out of the store. Grice added that the

act of dragging Guyton against her will could also be

characterized as insulting conduct constituting a battery.

In response to the defendants’ motion for summary

judgment, McBride argued that Illinois law, 720 ILL.

COMP. STAT. 5/7-3, gave him the right to escort a disruptive person out of his store and that a different video

from a second camera clearly shows the entire incident.
No. 08-3556 5

He stated in his deposition that Officer Grice refused to

watch the second video, which, according to McBride,

would have demonstrated to the officer that he had

acted lawfully. McBride also pointed to Guyton’s deposition in which she said that she fell because she resisted McBride’s effort to push her towards the door.

According to McBride, the altercation ended after he

“came up behind Guyton, wrapped his arms around her

so she could not resist, picked her up, and walked her

to the door” or, in other words, he “gave Guyton a

bear hug, lifted her up lightly, and walked her 15 feet to

the door.” McBride faulted Grice’s investigation, arguing

that the officer closed his eyes to facts that would have

shown there was no probable cause to arrest him.

In reply, the defendants asserted that nothing would

have changed if Officer Grice had watched the second

video, which McBride introduced as an exhibit. According

to the defendants, both videos contradict McBride’s

version of events. The defendants also contended that

the videos actually show McBride engaging in unreasonable conduct that exceeds the bounds permitted by

Illinois law.

In granting summary judgment for the defendants, the

magistrate judge observed that the image quality of the

two videos is too poor to establish the accuracy of either

version of events. But the remaining undisputed evidence,

according to the judge, shows that Officer Grice developed

probable cause to arrest McBride for battery. And once

Grice had probable cause, the judge added, the officer

had no duty to watch a second video or otherwise

continue investigating.
6 No. 08-3556

II. Analysis

On appeal Smith vigorously argues that Officer Grice,

not himself, bore the burden of persuasion on the issue

of probable cause, and he faults the magistrate judge

for not holding Grice to his purported burden. According to McBride, it was up to Grice to submit evidence

establishing the existence of probable cause, whereas,

McBride insists, the magistrate judge thought it was

his burden to show the absence of probable cause. In

support, McBride cites to Jacobs v. City of Chicago, 215 F.3d

758, 770-71 (7th Cir. 2000), in which we held that, on the

facts alleged in the complaint in that case, the policeofficer defendants could not rely on qualified immunity

as a ground for dismissal on a motion under Federal

Rule of Civil Procedure 12(b)(6). The plaintiffs had

alleged that the officers searched their apartment without

a valid warrant, and their complaint included no factual

allegations suggesting the existence of exigent circumstances or another exception to the warrant requirement.

Id. at 768, 770. In concluding that the complaint was

sufficient to state a claim under § 1983, the Jacobs panel

observed that, in this context, “the burden is on the

Defendant Officers to show that they had probable

cause.” Id. at 770.

McBride offers no reason why Jacobs would apply to

his case, and he is altogether silent about other decisions that reject his position. In this circuit the allocation

of the burden of persuasion in a § 1983 case claiming a

Fourth Amendment violation is clear: a plaintiff claiming

that he was arrested without probable cause carries the
No. 08-3556 7

burden of establishing the absence of probable cause. See

Woods v. City of Chi., 234 F.3d 979, 996 (7th Cir. 2000)

(“[I]n order to survive summary judgment, [the plaintiff]

needed to raise a genuine issue regarding whether the

officers had probable cause to arrest him.”); Simmons v.

Pryor, 26 F.3d 650, 654 (7th Cir. 1993) (“In order to

prevail in an unlawful arrest action, the plaintiff must

show lack of probable cause.”); see also Parsons v. City

of Pontiac, 533 F.3d 492, 500 (6th Cir. 2008) (“In order for

a wrongful arrest claim to succeed under § 1983, a

plaintiff must prove that the police lacked probable

cause.”), cert. denied, 129 S. Ct. 2432 (2009); Beck v. City of

Upland, 527 F.3d 853, 864 (9th Cir. 2008) (“Ordinarily . . .

the plaintiff bears the burden of proving the absence of

probable cause . . . in a Fourth Amendment false arrest

case. Proving lack of probable cause is usually essential

to demonstrating that the plaintiff’s Fourth Amendment rights were violated.”); Vance v. Wisel, 110 F.3d 1269,

1278-79 (7th Cir. 1997) (holding that plaintiff in § 1983

suit bears burden of proving that his oral and written

consents to search car were involuntary, even though

police officers would bear burden in criminal case).

Similarly, McBride is also incorrect in arguing that

Officer Grice bore the burden of establishing the

existence of probable cause on the state-law claims. The

case he cites, McKendree v. Christy, 172 N.E.2d 380, 381-82

(Ill. App. 1961), was interpreting an Illinois statute authorizing police officers to make warrantless arrests for

crimes committed outside their presence only if “a criminal offense has in fact been committed” and the arresting

officer “has reasonable ground for believing that the
8 No. 08-3556

person to be arrested has committed it.” ILL. REV. STAT.,

ch. 38, ¶ 657 (1963) (repealed 1964). The current statute

omits the language limiting warrantless arrests for unobserved crimes to situations where a crime “has in fact

been committed,” and instead requires only that the

arresting officer have probable cause to believe that the

person taken into custody has committed an offense. See

725 ILL. COMP. STAT. 5/107-2; Ross v. Mauro Chevrolet, 861

N.E.2d 313, 317 (Ill. App. 2006) (“[A] plaintiff has to

show that she was unreasonably restrained without

probable cause.”); People v. Tyler, 471 N.E.2d 968, 974 (Ill.

App. 1984) (“ ‘Reasonable grounds’ and ‘probable cause’

are synonymous for purposes of arrest.”). Now under

Illinois law a plaintiff claiming an illegal arrest bears the

burden of establishing the absence of probable cause.

See Ross, 861 N.E.2d at 317 (“To establish . . . a claim of

false arrest . . . , a plaintiff must show that she was . . .

arrested by the defendants, and that the defendants

acted without having reasonable grounds to believe that

an offense was committed by the plaintiff.” (internal

quotation marks and citation omitted)).

As for the merits of the defendants’ motion for summary judgment, McBride offers no reason for us to doubt

that the undisputed facts known to Officer Grice supported the officer’s assessment of probable cause;

Guyton, after all, had told Grice that McBride had punched

her in the head, and she confirmed in her deposition

that she told Grice that McBride had hit her. McBride

insists, however, that further investigation would have

led Grice to realize that probable cause was actually
No. 08-3556 9

lacking because he was justified in evicting an unruly

trespasser. See 720 ILL. COMP. STAT. 5/7-3. McBride contends that the magistrate judge incorrectly concluded

that Grice was not obligated to consider defenses before

making an arrest, and asserts that affirmative defenses

are part of the facts and circumstances that an officer

must consider. In addition, he submits that the judge

erred by concluding that Grice did not have to interview

the customers at the store or view all available videos

of the incident before making an arrest.

Once again McBride simply fails to acknowledge

settled law. Probable cause is an absolute bar to a § 1983

claim for false arrest. Montano v. City of Chi., 535 F.3d

558, 568 (7th Cir. 2008); Reynolds v. Jamison, 488 F.3d 756,

765 (7th Cir. 2007); Case v. Eslinger, 555 F.3d 1317, 1326-27

(11th Cir. 2009). A police officer has probable cause to

arrest if a reasonable person would believe, based on the

facts and circumstances known at the time, that a crime

had been committed. Beck v. Ohio, 379 U.S. 89, 91 (1964);

Woods, 234 F.3d at 995-96. Normally, an officer may base

a determination of probable cause on information from

the putative victim if the officer reasonably believes that

the victim is telling the truth. Beauchamp v. City of

Noblesville, 320 F.3d 733, 743 (7th Cir. 2003); Gramenos v.

Jewel Cos., 797 F.2d 432, 439 (7th Cir. 1986); Peng v. Mei Chin

Penghu, 335 F.3d 970, 978-79 (9th Cir. 2003); Ahlers v.

Schebil, 188 F.3d 365, 370-71 (6th Cir. 1999). An officer

should pursue reasonable avenues of investigation and

may not close his eyes to facts that would clarify the

situation, but once an officer has established probable

cause, he may end his investigation. Hodgkins ex rel.
10 No. 08-3556

Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004);

BeVier v. Hucal, 806 F.2d 123, 127-28 (7th Cir. 1986); Ramirez

v. City of Buena Park, 560 F.3d 1012, 1023-24 (9th Cir. 2009);

Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007), cert.

denied, 129 S. Ct. 35 (2008). In Illinois, a person commits

a battery if he intentionally or knowingly without legal

justification (1) causes bodily harm to another or (2) makes

physical contact of an insulting or provoking nature.

720 ILL. COMP. STAT. 5/12-3. The existence of a legal justification for a battery is not an element of the offense, but

rather is an affirmative defense. People v. Meor, No. 106122,

2009 WL 1578527, at *3 (Ill. June 4, 2009); Simmons, 26

F.3d at 654 (citing Illinois law). Although Officer Grice

“may not ignore conclusively established evidence of the

existence of an affirmative defense,” the Fourth Amendment imposes no duty to investigate whether a defense

is valid. Hodgkins, 355 F.3d at 1061; Humphrey v. Staszak,

148 F.3d 719, 724 (7th Cir. 1998); Fridley v. Horrighs,

291 F.3d 867, 874 (6th Cir. 2002).

Here, Guyton told Officer Grice that McBride had hit her

in the head, and Grice saw that her eye was slightly

swollen and that she had a small scratch on her forehead.

These facts certainly establish reason to believe that

McBride had intentionally made physical contact with

Guyton and caused her bodily harm or made provoking

contact. See Simmons, 26 F.3d at 654 (noting that victim’s

testimony may establish probable cause). At summary

judgment McBride submitted no evidence suggesting

that Grice had reason to doubt Guyton’s statements,

and Grice had more than Guyton’s statements to go on: he

saw Guyton’s injuries and watched the two of them
No. 08-3556 11

physically struggling on the video. And therefore,

because Grice had probable cause to believe that McBride

had committed a battery, he had no obligation to continue his investigation.

But even if Officer Grice had watched the second video,

we cannot see how that exercise would have changed

his view of events. Although the second video shows

more of the struggle leading up to Guyton’s fall, it

does not depict how the struggle began or who did

what. Even in conjunction with the first video, there are

gaps in which McBride and Guyton are out of sight, and

so the absence of footage of him striking her does not

conclusively establish that the blow to Guyton’s head

did not happen exactly as she described to Grice. The

unwatched video does not show Guyton tossing around

clothes as McBride accused her of doing, nor does it

show McBride picking up Guyton in a bear hug and

“gently” carrying her outside. The video does, however,

show the two of them arguing and physically struggling. At one point McBride does have his arms around

Guyton, but she wriggles out of his grasp. She finally

leaves when he takes hold of her arm and pulls her to

the door (knocking over clothes racks in the process).

Even if McBride had the right to evict Guyton, the videos

do not conclusively establish the that amount of force

he used was reasonable, and therefore Grice was not

obligated to consider the defense. See Gramenos, 797 F.2d

at 439 (“There is no constitutional or statutory requirement that before an arrest can be made the police must

conduct a trial.” (citation omitted)).
12 No. 08-3556

III. Conclusion

For the above reasons, we agree with the magistrate

judge that McBride failed to establish the existence of a

genuine issue of material fact concerning whether Officer

Grice had probable cause to arrest him for battery. The

magistrate judge properly granted summary judgment

in favor of the defendants, and accordingly, the judgment is AFFIRMED.

8-11-09