became argumentative during the handcuffing process. The law is clear that “a person is not
authorized to use force to resist an arrest which he knows is being made by a peace officer, even
if he believes that the arrest is unlawful and the arrest is in fact unlawful.” 720 ILCS 5/12-7;
Humphrey v. Staszak, 148 F.3d 719, 725 (7" Cir. 1998). Even assuming arguendo, that the
arrest was unlawful, Plaintiff can not use any force to resist arrest. Bradley testified that Plaintiff
continued talking on the phone and Bradley placed a handcuff on Plaintiff s left wrist. (Exhibit A
at p. 304). Plaintiff then pulled her left arm away from Bradley and twisted Bradley’s arm.
(Exhibit A at p. 304). At that point, other officers, including Parker assisted Bradley in placing
Plaintiff under arrest. (Exhibit A at p. 305). Parker testified that he saw Bradley pull her arm
back and say “ouch,” and it was only at that point that he had physical contact with Plaintiff, to
assist Bradley. Additionally, it was stipulated by the parties that if Blazej were recalled to
testify, that he would testify that when the female officer told her to put the phone away, “I want
to arrest, the officer says. And she didn’t do it. When she tried to catch her in other hand, she
move her suddenly to the back.” (Exhibit A at p. 999). Plaintiff even admits that after Bradley
had gotten one of Plaintiffs arms cuffed, and was trying to cuff the other arm, Plaintiff “might
have moved some, but I, you know, that’s it. I wasn’t doing anything but trying to keep them
from hurting me.” (Exhibit A at p. 181). Furthermore, Plaintiff was loud and argumentative with
the officers, and was “shocked” and asked them, “Why are you doing this to me? I haven’t done
anything. You haven’t even talked to me.” (Exhibit A at p. 118). Even in the light most
favorable to Plaintiff, the evidence is clear that probable cause existed to arrest Plaintiff for

resisting arrest.


/s/ Avi T. Kamionski

Avi T. Kamionski

Andrew M. Hale & Associates
53 W. Jackson Blvd.

Suite 1757

Chicago, IL 60604
312-341-9646

/s/ Julia S. Bruce

Julia S. Bruce

Assistant Corporation Counsel
30 North La Salle Street

Suite 1400

Chicago, Illinois 60602

(312) 744-0451

Attorney Number: 06273493


resisted arrest, and therefore, independent probable cause existed at that time to arrest Plaintiff.
“Probable cause to believe that a person has committed any crime will preclude a false arrest
claim, even if the person was arrested on additional or different charges for which there was no
probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). In fact, in a recent Supreme
Court decision, the Court held that “when an officer has probable cause to believe a person
committed even a minor crime in his presence...the arrest is constitutionally reasonable.
Virginia v. Moore, Slip Op. 06-1082, p. 8, (Decided April 23, 2008); see also Devenpeck v.

Alford, 543 U.S. 146, 152 (2004); and see Atwater v. City of Lago Vista, 532 U.S. 318, 354

(2001). In other words, an officer need only believe that a /aw has been broken in their presence
in order to satisfy the probable cause requirement under the Fourth Amendment. See Virginia at
p. 10.

Bradley testified that when she approached Plaintiff to place her under arrest, Plaintiff
began moving away from Bradley back towards her house. (Exhibit A at p. 263). Furthermore,
Bradley testified that Plaintiff was on the phone at the time Threet ordered that she be arrested,
and numerous requests were made by police to Plaintiff to put her cell phone down. Bradley
again told Plaintiff she was under arrest and to put her hands behind her back. (Exhibit A at p.
303). Plaintiff refused to put the phone down. Even Plaintiff admits that Bradley “could” have
told her to put the cell phone down, and admits that it is a “possibility” that she did not put the
cell phone down. (Exhibit A at p. 121). Plaintiff knew she was under arrest and Plaintiff
disobeyed an order by police. This evidence alone is enough to show that Plaintiff committed a
crime, albeit a minor one, in Defendants presence and therefore, probable cause existed for her
arrest.

Moreover, Plaintiff continued to resist arrest when she pulled away from Bradley and


I. Defendant Officers are entitled to Qualified Immunity on Plaintiff’s claim of false
arrest

Defendant Officers are entitled to qualified immunity on Plaintiff's claim of false arrest.
The law is well-established that there is a constitutional right to be free from arrest without
probable cause. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
However, an officer is entitled to qualified immunity if a reasonable officer in the same
circumstances and with the same knowledge as the officer in question, could have reasonably
believed probable cause existed in light of well-established law. Hunter v. Bryant, 502 U.S. 224,
227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991); see also Greene v. Reeves, 80 F.3d 1101, 1007
(6" Cir. 1996 (granting qualified immunity in favor of officers even where probable cause was a
close question).

As argued above, Threet made the decision to arrest Plaintiff. Bradley then approached
Plaintiff to place her in handcuffs. At some point, Parker also approached Plaintiff to place her
under arrest. It was reasonable at that time to believe that there was probable cause to arrest
Plaintiff for disorderly conduct. Threet testified that when he arrived on the scene the first time,
he spoke with Bradley, spoke with the construction workers, and assessed the situation. He
testified that he left after he determined the workers could continue working. He was called back
a short time later by Bradley and at that time, he again spoke with Bradley, spoke with Plaintiff's
parents and the construction workers and again allowed the workers to continue.

Defendant Officers were reasonable in their belief that probable cause existed to arrest
Plaintiff for resisting arrest. As argued more fully above, Plaintiff admits she refused to put her
cell phone down after ordered to do so by Bradley, that she moved away when Bradley tried to
handcuff her and that she. was arguing and yelling at the time officers were trying to place her

under arrest. Under Illinois law, resisting or obstructing a peace officer is defined as “a person


IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
DARLENE MOORE, )
Plaintiff, )
v. ) 02 C 5130

)

THE CITY OF CHICAGO, OFFICER ) JUDGE MORAN
BRADLEY, Star No. 17810, OFFICER )
PARKER, Star No. 17991, and UNKNOWN __ )
CHICAGO POLICE OFFICERS 9)
)
Defendants. )

DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW

Defendants, City of Chicago, Valena Bradley, and Jean Michael Parker, (referred to
herein collectively as “Defendants”) by their attorneys, move for judgment as a matter of law,
pursuant to Fed.R.Civ.P. 50, on Plaintiff's claim of false arrest, stating as follows:

Probable cause existed to arrest Plaintiff. The existence of probable cause to arrest
presents an absolute defense to a section 1983 claim based on the Fourth Amendment for false
arrest. Mustafa v. City of Chicago, 442 F.3d 544, 547 (7" Cir. 2006). “A law enforcement
officer has probable cause to make an arrest when “the facts and circumstances within [their]
knowledge and of which [they] have reasonably trustworthy information are sufficient to warrant
a prudent person in believing that the suspect had committed or was committing an offense.”
Jones v. Webb, 45 F.3d 178, 181 (7" Cir. 1995) quoting Beck v. Ohio, 379 U.S. 89, 91 (1964).
To establish a valid false arrest claim, Plaintiff must prove that Defendants did not have probable
cause to arrest her. Plaintiff has failed to do so here.

IL Sergeant Threet Caused The Fourth Amendment Seizure.
Defendant Officers cannot be liable for the false arrest because Threet was the one that

had plaintiff arrested. Here, it was Sergeant Threet who arrested Plaintiff. A seizure for


who knowingly resists or obstructs the performance by one known to the person to be a peace
officer...of any authorized act within his official capacity. 720 ILCS 5/31-1(a). The law is clear
that “a person is not authorized to use force to resist an arrest which he knows is being made by a
peace officer, even if he believes that the arrest is unlawful and the arrest is in fact unlawful.”
720 ILCS 5/12-7.

A reasonable officer under the same circumstances that Defendants faced, could have
believed that when Plaintiff refused to comply with their orders to put the cell phone down and
place her hands behind her back, there was probable cause to arrest Plaintiff. In essence, the law
is not clearly established that when officers are going to effectuate an arrest and a plaintiff
refused to put down a cell phone, that the plaintiff's refusal does not constitute resisting arrest.
Furthermore, the fact that Plaintiff also moved her hand away from Bradley while Bradley was
trying to place handcuffs on her, coupled with Plaintiff's refusal to follow orders, could
reasonably lead a police officer to believe a person had committed the offense of Resisting
Arrest

WHEREFORE, Defendant Officers request that this Court enter judgment in their favor

on the claim of false arrest.

Respectfully submitted,

/s/ Andrew M. Hale

Andrew M. Hale & Associates
53 West Jackson Blvd.

Suite 1757

Chicago, IL 60604
312-341-9646


purposes of the Fourth Amendment can occur when an officer “by means of physical force or
show of authority has in some way restrained the liberty of a citizen.” United States _v.
Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (internal quote omitted).
See Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“A
‘seizure’ triggering the Fourth Amendment's protections occurs only when government actors
have, by means of physical force or show of authority, ... in some way restrained the liberty of a
citizen.”) (internal quotation omitted). A person is “seized” under the Fourth Amendment “if, in
view of all of the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. Threet
testified that at some point he was called back to the scene by Defendant Bradley (“Bradley”).
At some point after Threet arrived, he made the decision to arrest Plaintiff and gave a verbal
order to arrest Plaintiff. (Trial Testimony attached as Exhibit A at p. 114-115, 302, 383). Once
Threet ordered Plaintiff arrested, Plaintiff was not free to leave.

Plaintiff herself confirms this point. Plaintiff testified that at the time she heard one of
the male police officers say “arrest her,” she was on the phone with 911 and “told them to please
send some help because they are getting ready to arrest me,” and knew they were about to arrest
her because she heard them. (Exhibit A at p. 115). Under those circumstances, it is clear that at
the time Threet said “arrest her” Plaintiff knew she was under arrest and knew she was not free
to leave, therefore, at that point in time, there was clearly a “seizure” under the Fourth
Amendment even before Bradley approached Plaintiff to physically place handcuffs on Plaintiff.

A. Bradley and Parker merely effectuated the arrest.

At the time Bradley approached Plaintiff to place handcuffs on her, Plaintiff was already

under arrest, and she was merely effectuating the arrest of Plaintiff. “Section 1983 creates a


cause of action based upon personal liability and predicated upon fault. An individual cannot be
held liable in a § 1983 action unless he caused or participated in an alleged constitutional
deprivation.” Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) (emphasis in original).
See also Martin v. Tyson, 845 F.2d 1451, 1455 (7th Cir. 1988); Eadees v. Thompson, 823 F.2d
1055, 1063 (7th Cir. 1987). See also Jenkins v. Keating, 147 F.3d 577, 583 (7th Cir. 1998).
Furthermore, “a plaintiff may bring a Section 1983 claim only against those individuals actually
responsible for the constitutional deprivation.” Delafont v. Beckelman, 264 F. Supp. 2d 650, 656
(N.D. Ill. 2003) (citations omitted). Bradley and Parker can not be liable for the Fourth
Amendment seizure of Plaintiff, because she was already “seized” when Threet said arrest her.
Here, the defendant officers were merely effectuating the arrest. They were acting similar to

transport officers. In Morfin v. City of East Chicago, the Seventh Circuit held that an officer

who was merely transporting an arrestee could not be held liable for committing an unlawful
arrest. 349 F.3d 989, 1000-01 (7" Cir. 2003) citing Maltby v. Winston, 36 F.3d 548, 559 (7th
Cir.1994)(“holding that sheriff who transported and otherwise acted as custodian of arrestee
could not be liable for alleged constitutional violation of arrest without probable cause”).

Defendants clearly did more than just transport plaintiff like the defendants in Mofin and Maltby,

the defendants actually physically restrained Plaintiff as she was resisting. However, in this
case, the jury decided that the force defendants’ used to put the handcuffs on Plaintiff was
reasonable under the Fourth Amendment. As such, after Threet arrested the plaintiff, the
defendant officers actions were limited to physically handcuffing her and transporting her to the
station — actions the jury found reasonable.

B. Probable Cause Existed To Arrest Plaintiff For Resisting Arrest.

At the moment that Bradley approached Plaintiff to place her under arrest, Plaintiff