announced that they were there to repossess his 2000 Mercedes CLK
430 automobile, parked in Strong’s open garage. Strong told the
Repossessors to get off his property. When one of the Repossessors
responded by trying to grab Strong’s car key, Strong pushed him.
Shortly thereafter, the police arrived and both Strong and the
Repossessors told the officers their sides of the story. The
Repossessors reported to the police that Strong threatened them
with a gun. According to Shimkus, Strong claimed to be a police
officer during the confrontation. At that time, the police placed
Strong under arrest, searched him, and escorted him to the police
station. The police gave his car key to the Repossessors.

At the police station, the Repossessors all filed aggravated
assault charges against Strong. The police officers then asked
Strong for his consent to search his home. When Strong refused,
the police officers obtained a search warrant and proceeded to
search his residence. Upon consent from the Repossessors, the
police also searched the Mercedes formerly belonging to Strong.

Strong claims that the police seized and did not return some
items seized from his house, such as his three computers. The
police contend that they have returned everything they took during
the search, except for Strong’s guns and ammunition because his
Illinois FOID card was revoked. Some of Strong’s neighbors report
that the police left the doors to Strong’s house open, and that

various people ran in and out of his house with Strong’s property.



is an inquiry engaged in “at the time of or immediately prior to
repossession.” Accordingly, it is not relevant whether the
repossession in fact caused a breach of peace, but rather whether
the Repossessors’ conduct was of a type likely to breach the peace.
In examining the issue, Koontz determined that repossessors are not
trespassers under 720 ILCS 5/21-3 because they enjoy “enjoyed a
limited privilege to enter Koontz's property for the sole and
exclusive purpose of effecting the repossession.” Id. at 1175.
Repossessors only transform into trespassers when they breach the
peace by overcoming obstacles such as “gates, barricades, doors,
enclosures, buildings, or chains” to effectuate the repossession.
Id.

Here, the Repossessors attempted to repossess a car parked
inside an open garage. Accordingly, they were not trespassers and
Strong had no self-defense right (if indeed he ever had a self-
defense argument in the first place) to brandish a weapon at them.
Therefore, the Repossessors’ statements to the police certainly
amounted to probable cause. It does not matter whether the
Repossessors told the police the truth, as the probable cause
standard permits police officers to make reasonable mistakes.
Mounts, 248 F.3d at 715. This includes an allowance that probable
cause may develop simply from unconfirmed hearsay. People v.
Denham, 241. N.E.2d 415, 418 (Ill. 1968). Consequently, the

Repossessors’ statements to the police provided the police with the


Airlines, 875 F.2d 613, 620 (7th Cir. 1989). It “must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
Iv. DISCUSSION
A. Counts I and II

Under the Fourth Amendment, polices officers may conduct
warrantless arrests and searches only upon a finding of probable
cause. United States v. Funches, 327 F.3d 582, 586 (7th Cir.
2003). Probable cause “does not require evidence sufficient to
support a conviction, nor even evidence demonstrating that it is
more likely than not that the suspect committed a crime.” United
States v. Carrillo, 269 F.3d 761, 766 (7th Cir. 2001) (internal
quotation omitted). Rather, probable cause demands only that
“given the facts and circumstances within their knowledge at the
time of arrest, the agents reasonably believed that the suspect had

committed or was committing a crime.” Id. In other words, “so
long as the totality of the circumstances, viewed in a common sense
manner, reveals a probability or substantial chance of criminal
activity on the suspect's part, probable cause exists.” United
States v. Mounts, 248 F.3d 712, 715 (7th Cir. 2001). Even if, ex

post facto, probable cause is found not to have existed, “the

probable cause standard permits reasonable mistakes by arresting



Strong was never convicted of any charge in relation to the

incidents of January 14, 2001.
III. STANDARD OF REVIEW

Summary judgment is appropriate if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fep. R. Civ. P. 56(c). A fact

“

is “material” if it could affect the outcome of the suit under the
governing law; a dispute is “genuine” where the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477:°U.S. 242, 248 (1986).

The burden is initially upon the movant to demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In assessing the moving party’s
claim, the court must view all the evidence and any reasonable
inferences that may be drawn from that evidence in the light most
favorable to the nonmoving party. Miller v. Am. Family Mut. Ins.
Co., 203 F.3d 997, 1003 (7th Cir. 2000). Once the moving party has
met its burden, the nonmoving party “may not rest upon the mere
allegations” contained in its pleading, but rather “must set forth
specific facts showing that there is a genuine issue for trial.”

Feo. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914

F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa German



argument concerns only his alleged use of a gun, Strong does not
even really contest probable cause on these grounds. Therefore,
the Defendants clearly effectuated a lawful arrest based on
probable cause for those charges. Additionally, since Defendants
had probable cause on the charge of impersonating a peace officer,
they also clearly had probable cause to conduct a warrantless
search of Strong (and probable cause to obtain a warrant to search
Strong’s home) to see if Strong had peace officer identification
or, conversely, to see if he had fraudulent identification.

That being said, and this time despite Strong’s objection, the
police also possessed probable cause to arrest Strong and conduct
a search based upon the assault allegation. Strong contends that,
assuming he brandished a gun at the Repossessors, he had a legal
right to do so in defense of his real and personal property. This
is because, according to Strong, the Repossessors constituted
“trespassers” once he ordered them to leave, under 720 ILCS 5/21-3.
In doing so, Strong clearly misstates Illinois law. Under Illinois
law, Repossessors have a limited right to take possession of their
collateral provided that they do not incite a “breach of the
peace.” 810 ILCS 5/9-503. By “breach of peace,” the Statute
“connotes conduct which incites or is likely to incite immediate
public turbulence, or which leads to or is likely to lead to an
immediate loss of public order and tranquility.” Chrysler Credit

Corp. v. Koontz, 661 N.E. 2d 1171, 1173 (Ill. App. Ct. 1996). This



S Kfaite Grd Form (0697)

Os United States District Court, Northern District of Illinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Harry D. Leinenweber than Assigned Judge
CASE NUMBER 03 C 292 DATE 3/24/2004
CASE Edward Strong vs. Edwin Torres, et al
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
Q) Oo Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due .
(4) oO Ruling/Hearing on set for at
(5) im Status hearing[held/continued to] [set for/re-set for] on set for at .
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at
I@ a} Trial[set for/re-set for] on at
3 -O [Bench/Jury trial] [Hearing] held/continued to at
(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) CiLocal Rule 41.1 CIFRCP41(a)(1) CIFRCP41(a)(2).
ao) [Other docket entry] _ENTER MEMORANDUM OPINION AND ORDER: Defendants’ Motion
for Summary Judgment is GRANTED.
(11) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

a | Docketing to mail notices.

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Copy to judge/magistrate judge. Meda
courtroom Bl MP Oe kcukeay
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absence of Strong possessing a valid FOID card, no legal ability to
return them.

Count III’s second claim demands redress for the loss of
Strong’s personal property unconnected to any criminal
investigation, such as three computers. Strong presents two
alternative theories to explain how he “was deprived” of this
property. First, Strong claims that the police officers used the
search of his home as an opportunity to appropriate his property
for their personal use. Second, Strong speculates that the police
left his house’s door open after completing their search,
facilitating a massive robbery. Under either theory, Strong has a
cognizable legal claim. He does not, however, possess a legitimate
federal claim. In Parratt v. Taylor, 451 U.S. 527, 542 (1981), the
United States Supreme Court recognized “an important difference
between a challenge to an established state procedure as lacking in
due process and a property damage claim arising out of the
misconduct of state officers.” (Internal citation omitted).
Specifically, the Court held, “the existence of an adequate state
remedy to redress property damage inflicted by state officers
avoids the conclusion that there has been any constitutional
deprivation of property without due process of law” under the
Fourteenth Amendment or § 1983. Id. Here, Strong’s first theory
alleges that the police acted as thieves - constituting a state law

claim for conversion. Strong’s second theory amounts to a claim



requisite probable cause to arrest Strong for assault, and to
acquire a search warrant to search Strong’s house for a gun (in
addition to searching it for peace officer identification). For
the same reasons, the police also had probable cause to seize
Strong’s guns and ammunition found in his home.

The Court hereby grants summary judgment as to Count I and
Count II.

B. Count IIr

Strong’s Count III states that “as a result of the further
tortious acts of some or all of the defendants and others,
including the seizure of following the search warrant, plaintiff
was deprived of his property and use of his property, without due
process of law, in violation of guarantees of the Fourth and
Fourteenth Amendments to the Constitution of the United States and
42 U.S.C. § 1983.” Note that Strong uses the passive voice,
stating that he “was deprived of his property,” without
specifically stating who deprived him of his property.

After examining the factual record, in particular Strong's
deposition testimony, it appears that Count III constructively
encompasses two separate claims. The first Count III claim is a
demand that the police return the weapons and ammunition they
seized during the search of Strong’s residence. With respect to
this claim, the Court grants summary judgment. As stated above,

the police had probable cause to make the seizures and, in the

- 10-



“”

authorities based on the information then and there available.
Id.

Here, Defendants argue that the Repossessors’ witness
statements provided them with the requisite probable cause to
arrest and search Strong. Although Defendants’ brief does not

>

specify further what specific statements provided this probable
cause, presumably Defendants refer to the Repossessors’ statements
that Strong brandished a gun on them (creating probable cause that
an assault took place), pushed one of them (creating probable cause
that a battery took place) and claimed to be a police officer
(creating probable cause that Strong wrongfully impersonated a
peace officer).

In response, Strong does not deny that the Repossessors gave
police those statements (indeed, since Strong did not reply to
Defendants’ Local Rule 56.1 Statements, the Court must accept as
true for purposes of this motion that Repossessors in fact made
those statements). Rather, Strong merely contends that probable
cause for his arrest and search did not exist because Illinois law
permitted him to display a firearm in defense of his real and
personal property.

Without even reaching Strong’s objection, it is clear that the
Repossessors’ statements unquestionably provided Defendants with
the necessary probable cause to suspect Strong of committing a

battery and impersonating a peace officer. Indeed, since Strong’s



factual support in the evidentiary materials. Statement 22 states
that “Certain items the police gave back to [Strong], but
everything that had to do with guns they did not return because his
FOID card was revoked.” Purportedly, this “uncontested fact” is
based on page 120 of the transcript of Strong’s deposition
testimony. Reading that statement in context makes clear that
Strong testified only that the police returned “everything”
(excluding firearm-related items) on a property list prepared by
the police. However, Strong also states on page 122 of his
deposition transcript that “From my conversation that I overheard
at the police station, I believe that the police officers took the
computers and whatever else they wanted to take.” Strong further
testifies, on page 121, that “one of my neighbors told me that they
Saw people running in and out of my house, that the police left the
doors wide open.” Therefore, the Court admits the literal text of
Statement 22 as neither side contests that the police returned
“certain items” to Strong. However, the Court does not read
Statement 22 to imply, as an uncontested fact, that the police
returned everything not firearm-related to Strong.
II. FACTUAL BACKGROUND

On the evening of January 14, 2001, Plaintiff Edward Strong
(“Strong”) noticed three men in a truck pull up and park in his
driveway. The men, Pete Shimkus (“Shimkus”), Todd Osinski

(“Osinski”), and Michael Gron (“Gron”) (together “Repossessors”


following reasons, Defendants’ motion for summary judgment is

GRANTED.

I. LOCAL RULE 56.1 RESPONSES

Local Rule 56.1 of the United States District Court for the
Northern District of Illinois (“Local Rule 56.1") establishes
procedures that both moving and opposing parties must follow in
filing and responding to a motion for summary judgment. Under
Local Rule 56.1, the moving party must submit a statement of
material facts with “references to the affidavits, parts of the
record, and other supporting materials relied upon.” Local
Rule 56.1(a) (3) (hereafter, “56.1 Statements”). In turn, the
opposing party must file “a response to each numbered paragraph in
the moving party’s statement,” and, in the case of disagreement,
provide specific references to supporting evidentiary material.
Local Rule 56.1(b) (3) (A). If the opposing party does not respond
and controvert the moving party’s statement of material facts,
those facts are deemed to be admitted for the purposes of the
motion. Local Rule 56.1(b) (3) (B); Smith v. Lamz, 321 F.3d 680, 683
(7th Cir. 2003).

Here, Strong did not respond to Defendants’ 56.1 Statements.
Therefore, for the most part, Defendants’ 56.1 Statements are
admitted as true for purposes of compiling this factual record and
this motion. However, Defendants’ Statement 22 is admitted - but

interpreted in a limited fashion, according to its underlying



IN THE UNITED STATES DISTRICT COURT F | L E D
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION MAR 24 2004
JUDGE HARRY D.
EDWARD STRONG ). LEINENWEB!
' US. DISTRICT COURT JUDGE
Plaintiff,
v. Case No. 03 C 292
EDWIN TORRES, Badge Number Hon. Harry D. Leinenweber

840, and GREGORY SMITH, Badge
Number 29, and CITY OF COUNTRY
CLUB HILLS,

DOCKETED

Defendants.
MAR 2 6 2004

MEMORANDUM OPINION AND ORDER

Plaintiff Edward Strong (“Strong”) brought suit against
Defendants City of Country Club Hills (“City”), Edwin Torres
(“Torres”) and Gregory Smith (“Smith”) asserting violations of his
privileges and immunities as guaranteed by the Fourth and
Fourteenth Amendments to the United States Constitution, 42 U.S.C.
§ 1983 and 28 U.S.C. § 1343. Count I alleges that police officers
Torres and Smith unlawfully detained Strong and maliciously charged
him with aggravated assault and battery. Count II claims that
Torres and Smith violated Strong’s right to freedom from
unreasonable searches and seizures. Count III alleges that,
through the tortious acts of Defendants and others, Strong “was
deprived” of his property without due process of law. Finally,
Count IV charges that Torres and Smith illegally searched Strong’s

automobile and illegally seized property from it. For the



for property deprivation based on negligence, recklessness, or
gross-indifference - another state-law action. Under either
theory, Strong has recourse within the Illinois State courts and,
therefore, no federal claim.
c. Count IV

Strong also protests the police’s search of “his” automobile
as violating his rights under § 1983, and the Fourth and Fourteenth
Amendments to the Constitution. For all the reasons stated above
concerning the presence of probable cause, Strong’s claim would
fail even if the Court even needed to reach that issue. In
reality, at the time the police commenced their search, the
Repossessors had taken possession of the car and specifically
granted their consent for the police to search it. Therefore, not
only did the police have the right to search the car due to
consent, but Strong has no standing to even contest the search as

it was no longer his car at the time of sear

Vv. CONCLUSION
For the reasons stated herein, the Defenddnts’ Motion for

Summary Judgment is GRANTED.

IT IS SO ORDERED.

Harry @. ‘4inenweber, Judge
if Y United States District Court
Date: Hl A Age
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