Liberty Lobby. Inc., 477 U.S. 242, 247 (1986). Summary judgment is appropriate, however,
when the non-moving party fails to make a showing sufficient to establish the existence of an
element essential to the party’s case, and on which that party will bear the burden of proof at

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); See also Courtney v. Biosound, 42

F.3d 414, 418 (7" Cir. 1994).
IL. Federal Malicious Prosecution Claim

As to Count V, Defendants note that a federal action for malicious prosecution will not
lie so long as there is a state law tort for malicious prosecution available to the plaintiff.

Newsome v. McCabe, 256 F.3d 747, 751 (7" Circuit, 2001). “Relabeling a claim as ‘malicious

prosecution’ would not extend the statute of limitations and if a plaintiff can establish a violation
there is nothing but confusion to be gained by calling the legal theory ‘malicious prosecution’.”
Id. at 751. Axelrod’s claim that there is an exception for a viable federal claim akin to malicious
prosecution depending on the facts and circumstances of the case is correct. Id. However,
Axelrod’s comparison of the Newsome facts (where police withheld exculpatory evidence from
prosecutors) to this case is completely untenable. Id. Defendants are correct in asserting that
Newsome states that a narrow constitutional claim for violation of due process under limited
circumstances may be preserved, but that Axelrod did not allege such a claim in his Complaint
and that there is an Illinois tort of malicious prosecution available to him. Therefore,
Defendants’ Motion for Summary Judgment is granted as to Count V.

WH. Federal Unlawful Seizure and State Malicious Prosecution Claims

Summary Judgment must be denied for Count I because there are genuine issues

regarding the material facts. The Fourth Amendment says that the “right of the people to be



officer’s actions were reasonable, Mercado is not entitled to qualified immunity.

CONCLUSION
For the reasons set forth above, Mercado and Flores’s Motion for Summary Judgment is

granted in part and denied in part.

ENTER:

George M. Marovich
U ates District Judge

DATED: | 2cof
/



Mercado that he charge Axelrod with fleeing and alluding. (Pl.’s 56.1 Stmt § 17.) When
Axelrod was released he was given no paperwork until he asked the sergeant to make
photocopies of the ticket so he would know what the charges were. Axelrod’s ticket was for: (1)
driving 85 mph in a 45 mph zone; 625 fl Comp. Stat. 5/11-601.5, (2) not wearing his seatbelt,
625 Il. Comp. Stat. 5/12-603.1; (3) failure to keep in lanes, 625 Il. Comp. Stat. 5/9-12-050 B; and
(4) alluding and fleeing the police, 625 Il. Comp. Stat. $/11-204.1. (P1.’s 56.1 Stit { 30.)
Driving 40 miles over the speed limit is a Class A misdemeanor and is punishable by up to one
year in the county jail and a $1000.00 fine. (P1.’s 56.1 Stmt § 32.) Axelrod alleges that the ticket
issued by Mercado checked the box for 20-30 mph over the speed limit. Axelrod also contends
that Mercado changed the 75 mph box to 85 mph by writing over the 7 to make it an 8. Axelrod
alleges that the 8 written over the 7 is different from all other 8s on the ticket. (PI.’s 56.1 Stmt {
33.) Mercado claims that he wrote 85 and did not change any numbers. Mercado also testified
at trial and at his deposition that he checked the box marked “20-30 mph over limit” by accident.
(Pl.’s 56.1 Stmt. { 34.) On May 31, 2001, a jury found Axelrod not guilty of all charges against
him. (Df.’s 56.1 Stmt 6.)
DISCUSSION

1. Standard for Motion for Summary Judgment

Summary judgment should be granted when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56 (c). When making such a determination, the court must construe the

evidence and make all reasonable inferences in favor of the non-moving party. See Anderson v.



secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violates.” U.S. Const., Amdt. 4. The “central requirement” of the Fourth

Amendment is one of reasonableness. Texas v. Brown, 460 U.S. 730, 739 (1983).

“[N]onetheless... there are exceptions to the warrant requirement. When faced with special law
enforcement needs diminished expectations of privacy, minimal intrusions, or the like, the court
has found that certain general, or individual, circumstances may render a warrantless search or
seizure reasonable.” Pennsylvania v, Labron, 518 U.S. 938, 940-41 (1996). The primary
controversial material fact is whether Mercado used radar to determine Axelrod’s speed. In
Mercado’s deposition, Mercado stated that he did not use radar to gauge Axelrod’s speed. (Def.
Dep. p. 2, In. 22). However in Axelrod’s deposition, he stated that when he was handcuffed and
put in the police car, Mercado showed him the radar gun that read 75 miles per hour. (Pl. Dep.
p.165, In. 21-24). The next material fact over which the parties disagree is whether the ticket was
changed by Mercado to indicate that Axelrod was driving 85 miles per hour instead of 75 miles
per hour, like Axelrod alleged. (PI. fact par. 33). Mercado stated in his deposition that he
originally wrote on the ticket that Axelrod was traveling 85 miles per hour. (Df. Dep p.108 In 6).
Because the question of whether Mercado had probable cause to pull over or arrest Axelrod
depends on the resolution of these factual disputes, summary judgment for Count I is denied.

Summary judgment must also be denied for the Count IV State Malicious Prosecution
claim. In order to sustain a claim for malicious prosecution based on a prior criminal
prosecution, a plaintiff must show: (1) the commencement or continuance of an original criminal
or civil judicial proceeding by the defendants; (2) a termination of proceeding in favor of the

plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and



Ln, Mine 0.7 Far (0687)

United States District Court, Northern District of Illinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge George M. Marovich than Assigned Judge
CASE NUMBER 02 C 2619 DATE 8/9/2004
CASE Axelrod vs. Officer A. Mercado, et al.
TITLE
[In the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]
DOCKET ENTRY:
qd) im Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
@) a Answer brief to motion due. . Reply to answer brief due.
(4) o Ruling/Hearing on setfor at.
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) QO Pretrial conference{held/continued 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/continued to at
(9) im) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CIFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) O FRCP41(a)(2).
ao ff {Other docket entry] ENTER MEMORANDUM OPINION AND ORDER. Defendants’ motion
for summary judgment is granted in part and denied in part. Status hearing set for 08/25/04 at 11:00am.
dai) oa [For further detail see order (on reverse side offattached to) the original minute order.]
No notices required, advised in open court,
No notices required. _ Number
umber of notices
Notices mailed by judge’s staff.
\ ves AUG 1 6 2004
Notified counsel by telephone. date docket
oa | Docketing to mail notices.
Mail AO 450 form, shad honly inias
Copy to judge/magistrate judge.
courtroom. date mailed notice,
JD deputy’s
initials ts
Dateltinie
central Clerk’s Office mailing deputy initials



(5) damages resulting to the plaintiff. Zwick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996).
Although, the parties disagree on what type of damages are stated in the elements of malicious

prosecution set out by Zwick, the dispute is premature. Since the absence of probable cause is

again an element of the cause of action, summary judgment must be denied based on the
existence of the issues of materials discussed above. Thus, summary judgment is denied as to
Count IV.
IV. Qualified Immunity

Defendants’ claim of qualified immunity against all of Axelrod’s claims is an issue of law
to be decided by the court, “The issue of qualified immunity is a question of law for the court to
decide.” Alvarado v. Picur, 859 F.2d 448, 450 (7" Cir. 1988). “Once a defendant has pleaded
qualified immunity, the plaintiff has the burden to demonstrate the existence of a clearly
constitutionally established right.” Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1174
(7" Cir. 1997). If the officer makes a reasonable mistake as to what the law requires, he is
entitled to qualified immunity. Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001). Furthermore, the
inquiry into qualified immunity should use the objective standard to look at an officer’s
reasonableness in the situation he confronted. Id. “Qualified immunity shields law enforcement
officers from §1983 liability if either the federal law (they are) asserted to have breached was not
clearly established at the time of the alleged violation or there exists no dispute of material fact
which would prevent a finding that the officer’s actions, with respect to following such clearly
established law, were objectively reasonable.” Tangwall v. Stuckey, 135 F.4d 510, 515 (7" Cir.
1998). Here, because there exists a disputed material fact-whether Mercado used his radar gun

which indicated that Axelrod’s speed was 75 mph- that if decided could prevent a finding that the



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
SCOTT R. AXELROD, )
) Pry
Plaintiff, ) AN\Y) We
) No. 02 C2619 5 9
v. ) nN)
) Judge George M. Marovich
)
OFFICER A. MERCADO, star #16885 +)
and OFFICER FLORES, star #10894, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Scott R. Axelrod (“Axelrod”) filed a Complaint against Officer A. Mercado
(“Mercado”) and Officer Flores (“Flores”) (“collectively Defendants”) alleging unlawful seizure
pursuant to federal law (Count J); false arrest pursuant to state law (Count II); false imprisonment
pursuant to state law (Count III); malicious prosecution pursuant to state law (Count IV); and
malicious prosecution pursuant to federal law (Count V). Axelrod voluntarily dismissed Counts
Tl and III. Mercado and Flores now seek summary judgment on Counts I, IV, and V. For the
reasons set forth below, Defendants’ Motion for Summary Judgment is granted in part and
denied in part.

BACKGROUND

On April 19, 2000, Axelrod was traveling back from a business trip in Michigan on the
Chicago Skyway. There was no one else on the road and he claims that his cruise control was set
at 75 mph. (P1.’s Dep. at 131-32.) While nearing the toll plaza, Axelrod passed a Chicago

police vehicle which pulled out and proceeded with lights and no siren behind Axelrod. When

Lo-



the police car pulled behind him, Axelrod claims that he tapped his breaks to deactivate the
cruise control. (Pl.’s Dep. at 143.) Mercado, the officer following Axelrod, flashed his spotlight
on Axelrod’s car and Axelrod took it as an indication to move over. These events all occurred
within a matter of seconds. After Axelrod pulled over and came to a stop, Mercado approached
Axelrod’s vehicle and asked for his drivers license and proof of insurance. Axelrod asked
Mercado if the speed limit was 55 mph and Mercado responded that because it was a
construction zone, it was reduced to 45 mph. After Axelrod gave Mercado his licensee and
insurance, he asked Mercado if he could only write the ticket for 20 over because he believed 30
over the speed limit might jeopardize his employment. Mercado used abrasive language in.
response to Axelrod’s request. Axelrod then inquired about the use of profanity and asked for
Mercado’s supervisor’s name and star number. In response, Mercado told Axelrod if he said
one more word, he would be placed under arrest. Axelrod then asked what he would be arrested
for and Mercado ordered him out of the car and placed him under arrest. Mercado said that
Axelrod was being arrested for disorderly conduct. Axelrod was then placed in Mercado’s
vehicle and he claims that Mercado showed him the radar that read 75 mph. (PI.’s 56.1 Stmt ]
20.)

When they arrived at the police station, Axelrod was handcuffed to the bench while
Mercado prepared paperwork. Flores arrived in the room and had a conversation with Mercado
in the hallway outside the room where Axelrod remained. Flores told Mercado that under a new
Jaw, a person could be charged with a misdemeanor if they were speeding in excess of 40 miles
or more over the speed limit. Flores stated that the new Illinois Statute, 625 Il Comp. Stat. 5/11-

601.5, had gone into effect in January 2000. (PI1.’s 56.1 Stmt 26.) Then, Flores suggested to