that Defendants’ LR 56.1 Statement requires denial of its summary judgment motion because, as
discussed below, this Court concludes that Defendants’ motion for summary judgment should be
denied on the merits.

IL PROBABLE CAUSE

Both Defendants’ motion for summary judgment and Plaintiffs cross-motion for
summary judgment center on whether Clay and Bailey had probable cause to arrest Gaines on
May 18 and June 11 respectively.’

A police officer may make a warrantless arrest based upon probable cause only “if the
information available to the officer at the time of the arrest indicates that the arrestee has
committed a crime.” BeVier v. Hucal, 806 F.2d 123, 126 (7" Cir. 1986); see also Woods v. City
of Chicago, 234 F.3d 979, 996 (7 Cir. 2000) (“Probable causc has been defined asfacts and
circumstances sufficient to warrant a prudent man in believing that the [suspect] had committed
or was committing an offense.) (quotations omitted). Further, the officer may not make an arrest
based upon information from a witness unless the information “establishes the elements of a
crime.” Pasiewicz v.Lake County Forest Preserve District, 270 F.3d 520, 524 (7" Cir. 2001).

When determining whether a police officer had probable cause to arrest, the Court asks
whethcr the officer “had probable cause to believe that the predicate offense, as the state has

defined it, has been committed.” Williams y. Jaglowski, 269 F.3d 778, 782 (7" Cir. 2001). Here,

' Defendants suggest that qualified immunity offers a separate, independent basis for summary
judgment. The Seventh Circuit has held, however, that in cases like these the issue of probable
cause and the defense of qualified immunity are coextensive. See Kelly v. Myler, 149 F.3d 641,
648 (7" Cir. 1998); Northen v. City of Chicago, 126 F.3d 1024, 1027 (7" Cir, 1997). See also
Saffold v. City of Calumet Park, 47 F.Supp.2nd 927, 932 (N.D. Ill. 1999) (the issue of probable
cause and the defense of qualified immunity “merge and the only issue for the court to resolve is
whether defendants had probable cause to carry out the disputed arrest”).

4


the officer lacks probable cause to arrest for assault. See Soldal v. County of Cook, 923 F.2d
1241, 1250 (7" Cir, 1991), rev'd on other grounds, Soldal v. County of Cook, 506 U.S. 56, 60
(1992),

Gaines argues that there was no probable cause to arrest her for assault because the only
evidence available to the police officers was her alleged statements as relayed by Wordlaw.
Specifically, she claims that the only basis for arresting her for assault would be her supposed.
statements that ‘‘she was going to get” Wordlaw. Further, Plaintiff emphasizes that Wordlaw
admitted to the arresting officers (hat Gaines never threatened her with a weapon. (See 22-1,
Pl.’s LR. 56.1(b)(3)(B) Statement, fff 6, 14.) Thus, Gaines contends that because the arresting
officers had evidence of mere words, not accompanied by “any overt action or condition which
would cause a reasonable person to fear that a battery was imminent, the officer[s] lack[ed]
probable cause to arrest for assault.” Soldal, 923 F.2d at 1250.

Contrary to Plaintiff's suggestion, however, the evidence available to the arresting
officers was not limited simply to mere words. Indeed, Wordlaw informed both officers that
Gaines had approached Wordlaw at her home to deliver the threatening message. (See R. 22-1,
P].’s LR. 56.1(a)(3) Resp., Yj 8 19.) Moreover, Wordlaw told the officers that Gaines had
approached her despite an Order of Protection obviously intended to limit contact between them.
The existence of this Order of Protection would have suggested to the officers that the sisters had
a history of trouble and that Gaines might have represented a threat to Wordlaw. In light of this
evidence, a jury might conclude that the officers reasonably believed that Gaines was threatening

Wordlaw and that the officers therefore had probable cause to arrest her for assault,



explained that it had been obtained by Gaines against Wordlaw. (id. §{{ 10-13.) Nonetheless,
Clay apparently believed that the Order of Protection applied to Gaines and he went next door to
arrest her for violating the Order. (Jd. | 14.)

On June 11, 2002, Gaines again visited her brother at his residence. Officer Stanton
Bailey responded to a complaint at that location concerning a violation of the Order of
Protection. (See R. 22-1, P1.’s LR. 56.1(a)(3) Resp., 1] 17-18.) When Bailey arrived, Wordlaw
claimed that Gaines had said that she was going to get Wordlaw. (7d. 19.) Wordlaw showed
Bailey the incident report relating to the May 17 arrest and (old him that Gaines had obtained the
Order of Protection against Wordlaw. (See 22-1, Pl.’s LR. 56.1(b)(3)(B) Statement, § 19.)
Nonetheless, Bailey apparently believed that the Order of Protection applied to Gaines, and he
arrested Gaines for violating the Order and assault. (See R. 22-1, Pl.’s LR. 56.1 (a)(3) Resp.,
421.)

ANALYSIS

L DEFENDANTS?’ LR 56.1 STATEMENT

As an initial matter, Plaintiff argues that Defendants’ motion for summary judgment
should be denied because it was not accompanicd by a statement of material facts supporting
summary judgment as required under LR 56.1(a)(3). Defendants subsequently tried to cure this
defect by filing a “supplement” to their motion for summary judgment, summarizing those facts
that they contend support summary judgment. At this stage then, both Plaintiff and this Court
have the benefit of understanding the purported evidentiary basis for Defendants’ contention that

summary judgment is appropriate. Regardless, this Court nced not address Plaintiff's suggestion



both officers arrested Gaines for allegedly violating the Order of Protection, and Bailey arrested
her for alleged assault as well.

First, there is a genuine issue of material fact whether the officers had probable cause to
arrest Gaines for violation of the Order of Protection. {t is undisputed that the Order of
Protection did not apply to Gaines and that she was, therefore, incapable of violating it. Officers
Clay and Bailey have testified, however, that they believed that (he Order of Protection did in fact
apply to Gaines and that Gaines had visited Wordlaw in violation of that Order. (See R. 22-1,
PL’s LR. 56.1(a)(3) Resp., $9 14, 21.)

Defendants contend that probable cause requires simply a reasonable basis for making an
arrest of initiating a prosecution and that an arrest is not unlawful simply because the information
that the officer relied upon later proves to be false. See, e.g., Kelley v. Myler, 149 F.3d 641, 647
(7" Cir, 1998) (“[P]robable cause does not depend on the witness turning out to have been right;
it’s what the police know, not whether they know the truth that matters.”); see also Hughes v.
Meyer, 880 F.2d 967, 969 (7" Cir. 1989); Gramenas v. Jewel Cos., 797 F.2d 432, 439 (7" Cir.
1986). Here, Clay and Bailey suggest that they believed that the Order of Protection applied to
Gaines and that there was, therefore, probable cause to arrest Gaines.

The reasonableness of the Officers’ understanding of the Order of Protection, however, is
in dispute. Worldlaw told both officers that the Order applied to her. (See R. 22-1, Pl.’s LR.
56.1(a)(3) Resp., 1 12, 19.) Clay had access to the Order of Protection itself, but testified that
he merely “glanced at” the Order before confronting Gaines. (See 22-1, P}.’s LR. 56.1(b)(3)(B)
Statement, 7.) Bailey had access to the report concerning the May 17 arrest. (/d. J 19.)

Further, Gaines explained to both officers that the Order did not apply to her. (/d. ff] 11, 21.)



CONCLUSION

The Defendants’ motion for summary judgment (R. 17-1) and the Plaintiff's cross-motion

for summary judgment (R. 22-1) are both denied.

Dated: January 10, 2003

AMY J. ST.
US. District Court Judge



i Minute Oh det Pore (96477)

United States District Court, Northern District of Minois

Name of Assigned Judge , q Sitting Judge if Other
or Magistrate Judge Amy J. St. Eve than Assigned Judge
CASE NUMBER 01 C 6668 DATE 1/10/2003
CASE Estell Gaines vs. City of Harvey, et al
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plainttf, defendant, 3rd party plaintifY, and (b) slate briedly the nauie
of the motion heing presented.)

MOTION:

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above. | “|
(2) QO Brief in support of motiondue

(3) 0 Answer brief to motion due____. Reply to answer briefduc____

(4) oO Ruling/Hearingon set for at

(5) Oo Status hearing{held/continucd to] [set for/re-set for}on_ ___eset for 9 at

(6) oO Pretrial) conference[held/continucd to] |set for/re-set for}on_ set for at
(7) oO Trial[set for/re-set for]on. at.

(8) oO [Bench/Jury trial] |Hearing] held/continugd to at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agrecment/pursuant to)

COFRCP4(m) CLocalRule 41.1 CFRCP4I(a(1) CLERCPSI(a)(2).

ao {Other docket entry] Enter Memorandum Opinion and Order. Defendants’ motion for summary
judgment (R.17-1) and the Plaintiff's cross-motion for summary judgment (R.22-1) are both denied.

al) [Por further detail see order attached to the original minute order.)

No notices required, udvised in open court.

No notices required. usher of pies

Notices matled by judue's staff WAN 13 2003

Notified counsel by telephone.

ayy docketed

wv | Docketing to mui! notices.

wv | Mail AO 450 form.

Copy to judge/magistrate judge.

Qepeqone .
courtroom 06 Ped ay (ky date mailed wotice
mf deputy's
initials : =f
Dateitime revived td
central Clerk's Othive sailing deputy initials



Given this information available to Clay and Bailcy, a jury might conclude that the officers’
apparent belief that Gaines had violated the Order of Protection was unreasonable. Thus,
viewing all the evidence in the light most favorable to Gaines, as this Court must do, there is a
genuine issue of material fact whether the officers had probable cause to arrest her for violating
the Order of Protection.

Second, there is a genuinc issue of material fact whether the officers had probable causc
to arrest Gaines for assault on either May 17 or June 11.7 Under Illinois law, an individual
commits assault when he or she “engages in conduct which places another in reasonable
apprehension of receiving a battery.” 720 ILCS$ 5/12-1. Significantly, Minois courts interpreting
the assault statute have held that “words alone are not usually enough to constitute assault. Some
action or condition must accompany those words before there is a violation of the statute.”
People v. Floyd, 278 Wl.App.3d 568, 570-71, 663 N.E.2d 74, 76 (IIL App. Ct. 1996). See also
Woods, 234 F.3d at 996 (although mere “verbal assault is no crime under [llinois law,” wielding
a lead pipe while moving toward another and threatening to kill is “the paradigm case of assault
as defined by the Illinois Criminal Code.”). Thus, where the totality of the information available
to a police officer is that an individual has merely uttered words, not accompanied by any overt

action or condition which would cause a reasonable person to fear that a battery was imminent,

2 Although Clay did not actually arrest Gaines for assault on May 17, both parties have argued
the question whether he had probable cause to do so, Thus, Plaintiff does not suggest that the
fact that Clay did not arrest Gaines for assault precludes the argument that, regardless whether
there was probable cause to arrest Gaines for violation of the Order of Protection, the decision to
arrest was justified because Clay had probable cause to arrest her for assault.

6


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

ESTELL GAINES, )
)
Plaintiff, )
)
vy. ) No. 01 C 6668
) DOCKETEN
CITY OF HARVEY, POLICE OFFICER —) IAN 13 7002
DAVID CLAY, POLICE OFFICER ) JAN EF 2002
STANON BAILEY, and ROSE )
WORDLAW, )
)
Defendants, )

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, Judge

Defendants City of Harvey, David Clay and Stanton Bailey have moved for summary
judgment. Plaintiff Estell Gaines has cross-moved for summary judgment on Counts I, Tl, [V and
V of her Amended Complaint. For the reasons set forth below, both motions for summary
judgment are denied,

LEGAL STANDARD

Summary judgment is proper when “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.” Fed. R. Civ. P. 56(c). A genuine issuc of triable fact exists only if “the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Pugh v. City of
Altica, 259 F.3d 619, 625 (7" Cir. 2001) (quoting Anderson v, Liberty Lobby, Inc., 477 U.S, 242,

248, 106 §.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).

I


The party secking summary judgment has the burden of establishing the lack of any
genuine issuc of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). The party that bears the burden of proof on a particular issuc,
however, may not rest on its pleadings but must affirmatively demonstrate that there is a genuine
issue of material fact. Jd. at 324, 106 S.Ct. at 2553. The Court “considers the evidentiary record
in the light most favorable to the non- moving party, and draws all reasonable inferences in his
favor.” Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7" Cir. 2002). The Court accepts
nonmovants’ version of any disputed facts but only if it is supported by relevant, admissible
evidence, Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7 Cir. 1996).

BACKGROUND

Plaintiff Estell Gaines and Defendant Rosc Wordlaw are sisters. (See R. 22-1, Pl.’s LR.
56.1(a)(3) Resp., | 6.) On April 1, 2001, Wordlaw allegedly battered and pointed a handgun at
Gaines, threatening to kill her. (See R. 12-1, Am. Compl., { 8.) Wordlaw was arrested and
charged with domestic battery and aggravated assault. (/d.) On April 3, 2001, the Circuit Court
of Cook County entered a Plenary Order of Protection, directing Wordlaw to stay away from
Gaines, hor family and her home during the pendency of the criminal proceedings against
Wordlaw. (Id. | 9.)

On May 18, 2001, Gaines visiled her brother, who lives next door to the Defendant
Wordlaw. Shortly after Gaines arrived at her brother’s residence, Wordlaw apparently contacted
the police to report a violation of the Order of Protection. (See R. 22-1, Pl.’s LR. 56.1(a)(3)

Resp., {] 5, 7.) Wordlaw told responding officer David Clay that Gaines had said that “she was

going to get” Wordlaw. (/d. 18.) Wordlaw showed Clay a copy of the Order of Protection and