Terry stop was justified when police observed defendants standing
on a street corner, looking around nervously, and apparently
passing items by hand). Thus, the Terry stop was lawful.

Once Mr. Hassel dropped the bag of what appeared to be
Marijuana, reasonable suspicion ripened into probable cause. Police
officers “have probable cause to make a warrantless arrest when
they have trustworthy information sufficient to warrant a prudent
person in believing that the suspect had committed” an offense.
United States v. Rucker, 138 F.3d 697, 700 (7th Cir. 1998). Taking
the totality of the circumstances into account, when Mr. Hassel
dropped the marijuana, it was reasonable for Officers Stacker and
Johnson to believe that they had just witnessed a drug transaction
between Mr. Hassel and Mr. McDade. Therefore, they had probable
cause to arrest the two men, and summary judgment in their favor is
granted on Counts I and Il.

Assault and battery. In counts III and IV, Mr. McDade alleges
that the defendants assaulted and battered him when they arrested
him, As there is no right of action under § 1983 for simple torts
such as assault and battery, such allegations may be interpreted as
allegations that the defendants used excessive force in

apprehending Mr. McDade. Lanigan v. Village of East Hazel Crest

ified

110 F.3d 467, 471 (7th Cir, 1997). Police officers enjoy quali
immunity from suit as long as their conduct does not violate

‘clearly established statutory or constitutional rights of which a


Mr. McDade cannot support that claim. The tort of malicious
prosecution requires a showing that (1) the plaintiff was subject
to judicial proceedings; (2) for which there was no probable cause;
(3) the defendant instituted or continued the proceedings
maliciously; (4) the proceedings were terminated in the plaintiff’s
favor; and (5) there was an injury. Cervantes v. Jones, 188 F.3d
805, 809 (7th Cir. 1999). The first, fourth, and fifth elements are
not in dispute, but as discussed above, the defendants did have
probable cause to arrest and institute proceedings against Mr.
McDade. Furthermore, Mr. McDade provides no evidence that the
defendants committed any of the disputed acts maliciously. Thus,
summary judgment is proper on Count VI.

Defendants’ motion for summary judgment is GRANTED.

ENTER ORDER:

Elaine E, Bucklo
United States District Judge

Dated: May ad 1 2003



get down on the ground. The lawfulness of such an initial
investigatory stop is governed by Terry v. Ohio, 392 U.S. 1 (1968)
and its progeny, which establish that a brief stop and superficial
search does not require probable cause, but merely a reasonable,
articulable suspicion of wrongdoing. Id. at 21. An anonymous tip,
corroborated by an officer’s observations of the suspect’s
behavior, may justify a Terry stop. Alabama v. White, 496 U.S. 325,
330 (1990). A court should consider the question in light of the
“totality of the circumstances.” Id.

Here, the police received a tip that drugs were being sold in
front of 11817 S. Perry. Arriving at that address, officers
observed a number of individuals standing outside for an extended
period on a freezing December evening. See United States v.
Mancillas, 183 F.3d 682, 697 (7th Cir. 1999) (noting that
defendants’ choice to sit in a car in a parking lot on a snowy
night justifiably aroused the suspicion of police officers who were
investigating an anonymous tip). Both officers knew that the
neighborhood was troubled by gang activity and drug sales. See
United States v, Jackson, 300 P.3d 740, 746 (7th Cir. 2002)
(holding that police may take into account whether a location is a
“high crime area”). Finally, the officers saw Mr. Hassell walk by
Mr. McDade with a bag in his hand and believed they observed an
exchange between the two. See United States v. Mendoza, 157 F,.

Supp. 2d 935, 940 (N.D. Ill. 2001) (Norgle, J.) (holding that a



reasonable person would have known,” Harlow v, Fitzgerald, 457 U.S.
800, 818 (1982).3 The question of whether a public official is
entitled to qualified immunity is an objective one. Id. at 472. The
plaintiff bears the burden of showing that a government official’s
use of force violated a clearly established constitutional right.
Id, at 476. This may be achieved either “(1) by showing a clearly
analogous case that established a right to be free from the type of
force” used against the plaintiff or (2) by showing that the force
used was “so plainly excessive that, as an objective matter, [the
official] would have been on notice that he was violating the
Fourth Amendment.” Id,

Mr. McDade has not met the requirements of either of these
alternatives. In his deposition, he stated that when he accused the
police of trying to plant drugs on him, Officer Stacker told him to
shut up and pushed him against a railing. The push was apparently
not violent enough to cause even a mild injury to Mr. McDade.
According to Mr. McDade, that was all Officer Stacker did, and
Officer Johnson did not touch him at any point. In his response to
the defendants’ motion to dismiss Counts III and IV, Mr. McDade has
not pointed to any cases at all, and certainly not to any that are
“clearly analogous” to this one and establish a right to be free

from this type of roughness during arrest. Nor can a non~injurious

tQualified immunity is an affirmative defense that must be
pleaded, Lanigan, 110 F.3d at 471; the defendants did so in their
answer,


© stinutg Onder Som {0607}

United States District Court, Northern District of Hlinois

of Assigned Judge Plaine Li. Buc Sitting J cr
se Magra dude Elaine L. Bucklo “Thar Asie Judge
CASE NUMBER 01. C9300 DATE 5/29/2003
CASE McDade vs. City of Chicago, et al.
TITLE

[ln the following box (x) indicate the party filing the motion. e.4., plaintiff, defendant, 3rd party plaintiff, and (b) slate briefly dhe nature
of the motion being presented.]

MOTION;

DOCKET ENTRY:

(1) Q Filed motion of | use listing im “Motion” box above. |

(2) Oo Brief in support of motion due

(3) oO Answet brief to motion due___- Reply to answer brie! due

(A) a Ruling/Hearing on set for at__

(5) o Status hearing[held/continued to] [set for/re-set for]on_ set for | at,

(6) Oo Pretrial conference[held/continued to] [set forfre-set for]on___ set for att

(7) oO Trialfset for/re-set for}on at.

(8) 5 [Bench/Jury trial] [Hearing] held/continued to | at_

(9) 0 This case is dismissed [with/without] prejudice and without costs[by/agreemenvpursuant to}
Orrcraim) OLocal Rule 41.1 OrRepsi(ay(i) Cl) FRCP4I1(a)(2).

(0) | [Other docket entry] Enter Memorandum Opinion and Order granting defendants Stacker and

Johnson's motion for summary judgment, Judgment is therefore entcred in favor of defendants and against
plaintiff. Any pending motion in this case is terminated as moot,

(11) [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document

Naitiber:

3

No notices required.

munber of notices

MAY 30 2003

o | Notices mailed ny judge's stalF,

Notified counsel by telephone.
Dueketing to mail notices,

vw Mail AO 450 form.

Copy to judge/megisteate judge,

972003

Jase mailed novieg
courtroom,

MPI depaty’s

" My
initials

Date‘time received in
+ -contral Clerk's Ottice ang depany iit



shove be considered “so plainly excessive” that Officer Stacker
should have been on notice that his behavior violated the Fourth
Amendment, Therefore, the defendants have qualified immunity as to
the charges of excessive force, and summary judgment is granted on
Counts III and IV.

Intentional infliction of emotional distress, In Count V, Mr.
McDade alleges that the defendants intentionally inflicted
emotional distress, The first element of such a claim is that the
defendant’s conduct must be truly extreme and outrageous, beyond
all possible bounds of decency. Dufour-Dowell v. Cogger, 969 F.
Supp. 1107, 1123 (N,D. Il). 1997) (Hart, J.). Our analysis may stop
there, as Mr, McDade cannot satisfy this first element. In
situations involving arrests, “to qualify as extreme and
outrageous, the force used must be very extreme or cause very
severe physical injury. Whether an arrest was totally lacking in
justification will also be considered.” Id. The arrest of Mr.
McDade was lawful and justified, and involved only mild force that
did not physically injure him at all. Therefore, summary judgment
is appropriate on Count V.

Malicious prosecution. In Count VI, Mr. McDade alleges that
the defendants maliciously prosecuted him. The defendants argue
that this claim is time-barred, as it was added to the first
amended complaint more than a year after the cause of action

accrued. I need not address that question, as it is evident that


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

GREMAR MCDADE,
Plaintiff,
v. No. 01 C 9300

CITY OF CHICAGO, et al.,

May .
0 0G;

Defendants.

MEMORANDUM OPINION AND ORDER

On the evening of December 10, 2000, defendant Chicago police
officers Gregory Stacker and Victor K, Johnson investigated a
civilian report that drug sales were being conducted in front of a
house located at 11817 S. Perry Avenue in Chicago. From their
vantage point across the street, the officers observed a group of
individuals standing on the street outside the house. Plaintiff
Gremar McDade approached and chatted with two members of the group.
He then turned and walked away, passing another man, Corey Hassell.
Officers Stacker and Johnson believed that they observed Mr, McDade
and Mr. Hassell exchange a bag. Officer Stacker stopped Mr. McDade
and Mr. Hassell and told them to get down on the ground, In doing
so, Mr. Hassell dropped a bag of marijuana in front of the police.
Officer Stacker arrested Mr. McDade, and in the process shoved him
against a porch railing.

Mr. McDade was brought to the Sth District police station and

charged with felony possession of cannabis and misdemeanor

MERE ey



possession with intent to manufacture or distribute cannabis. After
nine months in jail, Mr. McDade was found not guilty of the charges
against him. He then filed this suit. After dismissal of some
claims and defendants, the remaining claims are those brought
against the officers under 42 U.S.C. § 1983 for constitutional
violations (false imprisonment, assault, and battery) and under
state law for intentional infliction of emotional distress and
malicious prosecution. The defendants move for summary judgment in
their favor. Because the plaintiff has failed to demonstrate that
the case presents a genuine issue of material fact, Warsco v
Preferred Technical Group, 258 F.3d 557, 563 (7th Cir. 2001), I
grant the motion.

Wrongful arrest and imprisonment. Count I alleges that the
defendants violated Mr, MeDade’s rights under the Fourth and
Fourteenth Amendments when they “embarrassed, humiliated, and
arrested” him without probable cause. Count II makes a similar
claim based on false imprisonment. The existence of probable cause
to arrest bars such claims. Schertz v. Waupaca County, 875 F.2d
578, 584 (7th Cir. 1989). The undisputed facts show that the
defendants had probable cause to arrest Mr. McDade, and his claims
under § 1983 for wrongful arrest and imprisonment cannot stand.

As Mr. Hassel did not drop the bag of marijuana until the
officers had already begun an investigatory stop, a threshold
inquiry is whether the officers violated the law when they

approached the suspects with their guns drawn and ordered them to