Opinion
Case No. 99-4280-JPG.
February 27, 2002.
ORDER
This matter comes before the Court on Defendant Scott Wright's motion for summary judgment (Doc. No. 46) and Defendant's briefs in support of that motion (Doc. Nos. 47, 56). Plaintiff has responded. (Doc. No. 50). The Court has excused the parties from the motion packet requirement of Local Rule 7.1(g). Therefore, the record does not contain a joint statement of undisputed facts. Rather, the parties have separately filed "statements of material fact." (Doc. Nos. 48, 51).
For the reasons discussed below, this Court will grant, in part, Defendant's motion for summary judgment.
I. STANDARD
Summary judgment is appropriate where "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath, 211 F.3d at 396.
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, and this Court has no obligation to scour "the record to unearth material factual disputes." Carter v. American Oil Co., 139 F.3d 1158, 1163 (7th Cir. 1998).
II. BACKGROUND
Plaintiff filed this Section 1983 action, alleging that Defendant violated his Fourth Amendment rights by arresting him without a warrant or probable cause. Plaintiff claims that the same arrest was a violation of his First Amendment right to free speech. Specifically, he claims that the arrest was made in retaliation for his high profile environmentalist activities. Regarding Plaintiff's Fourth Amendment claim, Defendant argues that this Court should grant him summary judgment, because (1) Plaintiff was not "seized" (arrested) for the purposes of Fourth Amendment analysis, (2) if Plaintiff was arrested, the arrest was supported by probable cause, and (3) even if the arrest was not supported by probable cause, Defendant is shielded by qualified immunity. Defendant's motion for summary judgment does not address, or even acknowledge the existence of, Plaintiff's First Amendment claim.
The Court is puzzled by Defendant's characterization of Glisson's Complaint as a "single count complaint." See Defendant's Memorandum in Support, p. 1. The Complaint clearly sets out a "second claim for relief," alleging that the arrest was made "to intimidate and harass plaintiff in retaliation for plaintiff's high profile activities of free speech and expressive conduct . . . ." Plaintiff's Complaint, Second Claim for Relief, ¶ 27.
A. Undisputed Material Facts.
Plaintiff either concedes the following facts, does not deny them or denies them but fails to cite to any contrary evidence in the record.
Joseph Glisson is a resident of Creal Springs, Illinois. Defendant Ronald Scott Wright was employed as an Illinois Conservation Police Officer by the Illinois Department of Natural Resources in November and December 1997. Jeffrey L. Jordan was employed as a Deputy Sheriff for the Johnson County Sheriff's Department in November and December 1997. Lee Simmons is Joe Glisson's neighbor. Greg Simmons is Lee Simmons' son.
In 1997, there were two deer hunting seasons in Illinois, one in November and one in December. Plaintiff's Statement of Material Facts, p. 7, ¶ 20. Hunting hours were from one-half hour before sunrise to sunset. 520 ILCS 5/2.25; 17 Ill.Admin. Code 650.10.
On November 22, 1997 (end of the first deer season), Officer Wright received a complaint from Greg Simmons about loud music coming from the Glisson property. Wright Deposition, p. 35-36; Wright Field Report. During the time period between the November and December deer seasons, Officer Wright staked out an area near the Glisson residence and, during that time period, was not able to detect any music coming from the Glisson residence. Wright Deposition, p. 60, 63.
On the morning of December 7, 1997 (beginning of the second deer season), Officer Wright went to the area of Glisson's property and heard no music from Glisson's property. Wright Field Report. Later that same day, Deputy Jordan contacted Officer Wright and informed Officer Wright that he was near the Glisson residence and that he could hear music coming from the Glisson residence. Jordan Deposition, p. 10; Wright Deposition, p. 20-21; Wright Field Report. Deputy Jordan asked Officer Wright to observe the situation. Wright Deposition, p. 20-21.
After speaking with Deputy Jordan, Officer Wright proceeded to a position near the Glisson residence-the same location where Deputy Jordan had reportedly heard the music. Wright Deposition, p. 61. From that position, Officer Wright could hear music coming from the Glisson residence. Wright Deposition, p. 61.
Thereafter, Officer Wright contacted Lee Simmons. Wright Deposition, p. 63. Simmons told Officer Wright that the music had been playing that day, that someone had been hunting in his field and that he wished to file a complaint against Glisson. Wright Deposition, pp. 21, 63-64; Wright Field Report; see also Lee Simmons Deposition, p. 33-34 (Simmons testifying that he remembered making complaints about Glisson's music in 1997 and remembered a conversation with Officer Wright but not indicating whether he remembered the particular day of any conversation with Wright.)
Officer Wright then proceeded to Glisson's property, parked his car at the end of Glisson's driveway and walked up the driveway and towards the source of the music. Wright Deposition, p. 64. As Officer Wright walked up Glisson's driveway, Glisson came out of his house to meet Officer Wright. Wright Deposition, p. 64; Glisson Deposition, p. 82. Officer Wright and Glisson then walked to Glisson's sauna behind Glisson's residence, where the stereo was playing. Wright Deposition, p. 65; Glisson Deposition, pp. 84-85. The sauna is located approximately fifty to sixty yards from Glisson's house. Glisson Deposition, p. 67.
At some point, Glisson stated that he was cold, and Officer Wright suggested that Glisson go get his coat and then come back out. Wright Deposition, p. 65. Glisson went inside, got his coat and returned. Wright Deposition, p. 65-66; Glisson Deposition, p. 95.
In the meantime, Deputy Jordan arrived on the scene. Wright Deposition, p. 66. Upon further examination of the stereo, Deputy Jordan and Officer Wright found that the stereo was attached to a timer. Jordan Deposition, p. 37. The timer was set to turn the stereo on at 5:30 A.M. and to turn the stereo off at 5:00 P.M. Jordan Deposition, p. 62; Glisson Deposition, p. 86-87. The speakers were facing away from Glisson's residence. Jordan Deposition, p. 60. Glisson told Deputy Jordan that he used the stereo to alert hunters to the presence of his residence. Jordan Deposition, p. 37.
Next, Officer Wright and Deputy Jordan requested or ordered that Glisson accompany them back to their vehicles which were parked at the end of Glisson's driveway. Jordan Deposition, p. 51; Wright Field Report; Glisson Deposition, pp. 49-50. Wright, Jordan and Glisson walked to the officers' vehicles. Jordan Deposition, p. 41. At that point, Jordan issued Glisson a citation for breach of the peace. Jordan Deposition, p. 41. Officer Wright issued Glisson a citation charging him with hunter interference, a violation of Chapter 720 ILCS 125/2. Jordan Deposition, p. 41. Officer Wright also collected Glisson's stereo as evidence. The government subsequently dropped the criminal charges against Glisson. Plaintiff's Complaint, p. 7, ¶ 17. Glisson's stereo was returned to him approximately one-year after it was seized. Glisson Deposition, p. 89.
Glisson testified that Officer Wright "ordered" him to go to the vehicles, but Glisson does not remember the exact words that Officer Wright used. Glisson Deposition, pp. 49-50. Deputy Jordan and Officer Wright remember requesting that Glisson accompany them. For reasons discussed below, whether Officer Wright ordered or requested Glisson to go to the vehicles is immaterial to this Court's decision.
At no time in the encounter of December 7, 1997, did Glisson ask Officer Wright or Deputy Jordan to leave his property. Jordan Deposition, p. 66. Glisson never requested that the encounter be terminated and never asked that he be allowed to return to his house. Jordan Deposition, p. 66. At no time did Officer Wright or Deputy Jordan use physical force or the threat of physical force against Glisson. Jordan Deposition, p. 66.
Defendant relies on the facts listed above in his motion for summary judgment. While Plaintiff denies that some of the facts listed above are undisputed, see Plaintiff's Statement of Material Facts, p. 1, he has not pointed to any evidence in the record (not even in his own testimony) that is inconsistent with these facts.
More importantly, Plaintiff either concedes or fails to deny most of the facts listed above. For example, Plaintiff concedes that Lee Simmons made a complaint about the music. See Plaintiff's Statement of Material Facts. p. 2, ¶ 2. Plaintiff concedes that, on December 7, Deputy Jordan reported to Officer Wright that he had heard music coming from Glisson's residence. See Plaintiff's Statement of Material Facts, p. 4, ¶ 17. Plaintiff does not deny that Officer Wright, from a position near Glisson's property, was able to hear music coming from the Glisson property on the afternoon of December 7. Plaintiff merely indicates that, according to Officer Wright's field report, Officer Wright was unable to hear music coming from the Glisson residence on the morning of December 7. See Plaintiff's Response, p. 3. Finally, Plaintiff does not deny that his stereo was attached to a timer during deer hunting season so that it played music during daylight hours.
B. Evidence in the Record Cited by Plaintiff in Opposition to the Motion
Rather than denying the facts upon which Defendant's motion relies, Plaintiff directs this Court's attention to certain other facts. Plaintiff directs this Court's attention to certain facts related to the credibility of Lee Simmons. For example, Plaintiff points out that, unlike Simmons, Glisson's closest neighbor had not complained about noise. Plaintiff's Statement of Material Facts, p. 2 citing Jordan Deposition, p. 43. Glisson also notes that the person who Simmons claimed was hunting on his property denies that he was hunting on Simmons' property on December 7. Plaintiff's Statement of Material Facts, p. 3 citing Wright Deposition, pp. 22-23.
Plaintiff also directs this Court's attention to certain facts related to the adequacy of Officer Wright's investigation. For example, Officer Wright did not use a decibel meter to measure the level of the noise emanating from Glisson's property. Plaintiff's Statement of Material Facts, p. 5 citing Wright's Deposition, p. 61. Officer Wright did not conduct an investigation, apart from Simmons' complaint, to ascertain whether someone was actually hunting in the area. Plaintiff's Statement of Material Facts, p. 3 citing Wright's Deposition, p. 20.
Plaintiff notes certain facts or disputed facts related to the actual effect of his stereo deer hunting. For example, a barrier of dense conifer trees separated Glisson's house from the area where Lee Simmons said people were hunting. Plaintiff's Statement of Material Facts, p. 4 citing Wright Deposition, pp. 58-59. According to Glisson's own testimony, deer were not frightened by the music and drank from his nearby pond even when the music was playing. Glisson Deposition, p. 94. According to Glisson, the stereo's speakers were not pointed toward the area where Lee Simmons said people were hunting. Glisson Deposition, p. 130.
Finally, Plaintiff directs the Court to certain parts of his own deposition testimony regarding his motive for playing the stereo. Plaintiff's Statement of Material Facts, pp. 5-6. Glisson testified that he is not opposed to hunting and that he hunts. Glisson Deposition, p. 25. Glisson testified that he was afraid that he or his wife would be accidentally shot and that he played the stereo to alert hunters to the presence of his home. Glisson Deposition, p. 59. Glisson testified that his residence is difficult to see through the woods. Glisson Deposition, p. 56. Glisson testified that during previous hunting seasons he had found a bedroom window shot out and dead deer and squirrels in his front yard. Glisson Deposition, p. 55.
III. DISCUSSION
Plaintiff's complaint makes three claims in two counts. In Count I, Plaintiff claims that he was arrested and that the arrest violated his Fourth and Fourteenth Amendment rights. In Count I, Plaintiff also claims that his stereo was seized in violation of his Fourth and Fourteenth Amendment rights. In Count II, Plaintiff claims that Officer Wright was motivated by a desire to suppress Plaintiff's free speech, and that, therefore, Plaintiff's First Amendment rights were violated.
A. COUNT I: FOURTH AND FOURTEENTH AMENDMENTS-SEIZURE OF PERSON
Plaintiff's Fourth and Fourteenth Amendment claims concerning his arrest can be analyzed simultaneously. In McKinney v. George, 726 F.2d 1183, 1187 (7th Cir. 1984), the Court stated:
If . . . an arrest is upheld when reviewed under the detailed rules that the courts have developed for determining the lawfulness of an arrest under the Fourth Amendment, the arrested person will not succeed in challenging the lawfulness of the arrest by arguing that he should have gotten a hearing before he was arrested, or otherwise by recasting his challenge in the language of due process rather than search and seizure.
1. Triggering of Fourth Amendment Protections
The first question logically presented by a Fourth Amendment claim is whether a seizure (or a search in a search case) has taken place, triggering the Fourth Amendment protections. It is clear that the term "seizure" in the Fourth Amendment applies to situations that "do not eventuate in a trip to the station house and prosecution for crime-`arrest' in traditional terminology." Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868 (1968). On the other hand, not every police / citizen encounter triggers Fourth Amendment protections. Rather, a seizure triggers the Fourth Amendment's protections only when government actors have restrained the liberty of a citizen by means of physical force or show of authority. Terry v. Ohio, 392 U.S. at 19, n. 16; United States v. Bradely, 196 F.3d 762, 767 (7th Cir. 1999).
Even a superficial review of the Fourth Amendment cases following Terry v. Ohio reveals that it is often difficult to determine whether an arrest, a Terry stop or something else has occurred. See, e.g., U.S. v. Chaidez, 919 F.2d 1193, 1197 (7th Cir. 1990) (describing "a continuum in which the necessary degree of confidence [necessary to justify the encounter] increases with the degree of intrusion.")
In this case, although Plaintiff was not taken to the police station or physically restrai in any way, Plaintiff argues that he was "seized" for Fourth Amendment purposes. Plaintiff relies on his own deposition testimony (which this Court accepts as true) that Officer Wright ordered him to accompany Officer Wright and Deputy Jordan to the police vehicles. Plaintiff essentially argues that a reasonable person would not have felt free to walk away or otherwise break off the encounter upon being given such an order. Defendant argues that Glisson could have gone inside his house and ended the encounter at any time. Defendant relies on the fact that Glisson, in fact, did go into his house to get a coat and then came back outside. Neither party considers whether a "seizure" less intrusive than a traditional arrest occurred, triggering some relatively lower amount of Fourth Amendment protection.
In any event, it is clear that in most situations probable cause justifies not only a traditional arrest but also anything less intrusive than a traditional arrest. Chaidez, 919 F.2d at 1197. In this case, the encounter between Officer Wright and Glisson was, at most, an arrest. Therefore, so long as probable cause existed to support an arrest, this Court need not attempt the difficult task of categorizing the encounter. For reasons discussed below, this Court has concluded based on the undisputed facts of the case that probable cause existed to justify an arrest.
2. Probable Cause Determination
Police generally do not need to obtain a warrant before arresting a person. United States v. Watson, 423 U.S. 411 (1976). Rather, absent certain extraordinary circumstances, an arrest may be based on probable cause alone. Id. This is true regardless of the severity of the offense involved. Woods v. City of Chicago, 234 F.3d 979, 993 (7th Cir. 2000) citing Whren v. United States, 517 U.S. 806, 817-18, 116 S.Ct. 1769 (1996). The Seventh Circuit recently discussed the definition of probable cause, stating:
The only potentially relevant exception to this general rule is that police must have a warrant to effect a non-emergency arrest of an individual in his own home. Payton v. New York, 455 U.S. 573 (1980). In United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406 (1976), the Supreme Court held that an individual voluntarily standing in the threshold of her home (i.e., in the middle of an open doorway) was in a public place for the purposes of the Fourth Amendment, and that only probable cause was required to make an arrest. In this case, Glisson voluntarily went well beyond his doorway. Therefore, the Payton rule is inapplicable.
Probable cause has been defined as facts and circumstances sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense. The rule of probable cause is a practical, nontechnical conception that affords the best compromise between the interests of individual liberty and effective law enforcement. Contrary to what its name might seem to suggest, probable cause demands even less than probability; it requires more than bare suspicion but need not be based on evidence sufficient to support a conviction, nor even a showing that the officer's belief is more likely true than false.
Woods, 234 F.3d at 996 (internal citations and quotations omitted).
The existence of probable cause is a mixed question of law and fact. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657 (1996); Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir.1998). If facts sufficient to create probable cause are undisputed, probable cause is a question of law. Potts v. City of Lafayette, 121 F.3d 1106, 1112 (7th Cir.1997). "The existence of probable cause turns on information known to the officers at the moment the arrest is made, not on subsequently received information." Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 2000).
Therefore, in this case, the specific issue is whether, at the time of the alleged "arrest there were sufficient facts, which are now undisputed, to create probable cause to believe that Glisson was engaged in the crime of hunter interference. Illinois' hunter interference statute provides, in part, as follows:
Any person violates this Section when he or she intentionally or knowingly engages in any of the following acts:
(1) Drives or disturbs wild animals for the purpose of disrupting the lawful taking of wild animals. . . .
(3) Uses natural or artificial visual, aural, olfactory, gustatory, or physical stimuli to affect animal behavior in order to hinder or prevent the lawful taking of a wild animal. . . .
Any interested parties may engage in protests or other free speech activities adjacent to or on the perimeter of the location where the lawful taking of wild animals is taking place, provided that none of the provisions of this Section are being violated.720 ILCS 125/2.
In this case, Officer Wright issued Glisson a citation for hunter interference on the basis of three things: (1) Simmons' complaint, (2) Deputy Jordan's report that he had personally heard music emanating from Glisson's property, and (3) his own observations-gathered both as he approached Glisson's property and once on Glisson's property.
As noted above, for various reasons, Plaintiff argues that Simmons was not credible. Officer Wright, however, did not have an obligation to conduct a detailed investigation to assess the credibility of Simmons' report. Police officers do not have a duty to judge the credibility of a putative victim or witness in the course of their duties; such credibility determinations are for a jury at a criminal trial. Spiegel, 196 F.3d at 724-25.
Additionally, Officer Wright would have been justified in relying solely on the report of his fellow law enforcement officer, and Plaintiff does not deny that Officer Wright received such a report from Deputy Jordan. "An identification or a report from a single, credible victim or eyewitness can provide the basis for probable cause," Woods, 234 F.3d at 996, and police officers are not entitled to less protection from civil liability when they rely on a report from a fellow officer. Spiegel, 196 F.3d at 726.
Officer Wright's own observations also helped establish probable cause. From the same location where Deputy Jordan heard music emanating from Glisson's property, Officer Wright heard music. Plaintiff has never denied this, but, rather, points repeatedly to Officer Wright's field report that indicates that Officer Wright was unable to hear music from a different location earlier in the day.
Even assuming that Officer Wright never personally heard music emanating from Glisson's residence, Deputy Jordan's report provided Officer Wright probable cause to investigate further by entering Glisson's property. Once on the scene, Officer Wright's observations were sufficient to allow him to reasonably conclude that probable cause existed to justify an arrest. Officer Wright observed that Glisson's stereo was fifty to sixty yards away from his residence, that it was attached to a timer so that it only played during daylight hours (the time of day when hunting was permitted), and that the speakers were pointed away from Glisson's residence.
Plaintiff directs this Court's attention to facts that he believes establish that he did not, fact, disturb hunting. He contends that nobody was hunting in the area on December 7. He contends that deer were not afraid of the music. He contends that the stereo was not really loud enough to disturb hunters, that a barrier of conifer trees would have blocked the sound and that the speakers were not pointed in the direction of the area where hunters might have been. This Court, however, does not believe that Officer Wright was required to consider the effects of conifer trees on sound waves, the resistance of deer to the effects of Glisson's musical tastes or the trajectory of Glisson's speakers prior to making an arrest. Nor was Officer Wright required to scour the area within the range of Glisson's speakers to verify Simmons' report that somebody was hunting in the area. Police officers need not "conduct an incredibly detailed investigation at the probable cause stage." Gerald M. v. Conneely, 858 F.2d 378, 381 (7th Cir. 1988).
Plaintiff also contends that he was playing the stereo for the purpose of alerting hunters to the presence of his home. Officer Wright, however, was not obligated to examine Glisson's motives. Police officers are not required to engage in any mens rea determination during the course of their duties. See Hebron v. Touley, 18 F.3d 421, 423 (7th Cir. 1994) (holding that police are entitled to act on the basis of observable events and let courts resolve conflicts about mental states).
A jury might have found Plaintiff's arguments compelling at a criminal trial, where the issue would have been whether Glisson was guilty beyond a reasonable doubt of each element of the charged offense. Plaintiff makes an excellent case that he was not guilty of the crime of hunter interference. Officer Wright, however, was not required to be certain beyond a reasonable doubt before making an arrest.
As noted above, probable cause requires even less than a probability. The undisputed facts and circumstances of this case would have permitted a reasonable police officer to believe that Glisson was engaged in the crime of hunter interference.
It is not this Court's job to determine whether there is another reasonable, or more reasonable, interpretation of the facts and circumstances. Humphrey v. Staszak, 148 F.3d 722, 725 (7th Cir. 1998). The question is whether Officer Wright's conclusion was reasonable, and this Court believes that it was. Accordingly, this Court concludes that the arrest did not violate Glisson's Fourth Amendment rights.
3. Qualified Immunity
"Qualified immunity shields from liability government officials who are performing discretionary functions in the course of duty to the extent that their conduct `does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Spiegel, 196 F.3d at 723 quoting Eversole v. Steele, 59 F.3d 710, 717 (7th Cir. 1995).
Qualified immunity protects all "but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092 (1986). Therefore, law enforcement officers are immune from claims based on an arrest without probable cause unless "it is obvious that no reasonably competent officer" would have believed that there was probable cause. Id.
In this case, assuming arguendo, that Officer Wright needed to conduct a more thorough investigation to establish probable cause, his failure to do so was neither plainly incompetent nor a knowing violation of the law. Therefore, even if Officer Wright erroneously concluded that probable cause existed to support Glisson's arrest, Officer Wright is shielded by qualified immunity.
B. COUNT I: FOURTH AND FOURTEENTH AMENDMENTS-SEIZURE OF PROPERTY
Having concluded that there was probable cause to believe that Glisson was engaged in the commission of the crime of hunter interference, this Court must also conclude that Officer Wright's seizure of Glisson's stereo was justified at the time of the seizure. For reasons discussed above, there was probable cause to believe that the stereo was the instrumentality and evidence of the charged crime.
According to Glisson, the stereo was returned to him approximately one-year after it was seized. Glisson Deposition, p. 89.
Even if probable cause did not exist to believe that the stereo was the instrumentality of a crime, Officer Wright's mistaken belief that probable cause existed was neither plainly incompetent nor was the seizure a knowing violation of the law. Therefore, Officer Wright is shielded by qualified immunity.
C. COUNT II: FIRST AMENDMENT
Finally, although Defendant's motion for summary judgment neglects to address Plaintiff's First Amendment claim, this Court will now briefly do so.
Plaintiff's complaint alleges that Officer Wright's actions were "part of an unwritten plan . . . to intimidate and harass plaintiff in retaliation for plaintiff's high profile activities of f speech and expressive conduct." Plaintiff's Complaint, Second Claim for Relief, ¶ 27.
At this point, Plaintiff has not directed this Court's attention to any specific evidence in support of this allegation. Thus, if the Defendant had requested summary judgment on this issue, this Court would now be compelled to grant it. However, because Defendant's motion for summary judgment does not address Plaintiff's First Amendment claim, Plaintiff was not required, in his response, to produce to this Court evidence in support of that claim. Therefore, this Court cannot dismiss Plaintiff's First Amendment claim for lack of evidence.
Plaintiff's First Amendment claim is arguably precluded because probable cause existed to justify Plaintiff's arrest. When probable cause exists to support an arrest Courts have generally refrained from inquiring into the underlying motives for the arrest. See Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir. 2001) (plaintiff alleged that his arrest was in retaliation for First Amendment activity and the Court stated that "because defendants had probable cause to arrest plaintiff, an inquiry into the underlying motive for the arrest need not be undertaken"); Schertz v. Waupaca Cty., 875 F.2d 578, 582 (7th Cir. 1989) ("Regardless of the defendants' motives toward the plaintiff, the existence of probable cause for arrest is an absolute bar to a Section 1983 claim for unlawful arrest, false imprisonment, or malicious prosecution.").
This Court, however, is unaware of any Seventh Circuit decision holding that the existence of probable cause precludes a First Amendment claim which alleges that an arrest was made for the purpose of suppressing or punishing protected speech. In the absence of such a clear directive from the Seventh Circuit, this Court will not dismiss Plaintiff's First Amendment claim sua sponte. Rather, this Court will grant Defendant leave to file another summary judgment motion addressing the First Amendment claim.
CONCLUSION
For the reasons stated above, this Court hereby GRANTS, in part, Defendant's motion for summary judgment (Doc. No. 46) as follows: Plaintiff's "First Claim for Relief" which asserts claims under the Fourth and Fourteenth Amendments is DISMISSED. The Clerk of the Court is DIRECTED to enter judgment accordingly at the close of the case.
Plaintiff's "Second Claim for Relief" which asserts a claim under the First Amendment remains.
It is hereby ORDERED that Defendant may, by no later than March 13, 2002, file a motion for summary judgment addressing Plaintiff's First Amendment claim. The parties are excused from the motion packet requirement of Local Rule 7.1 for the purposes of such a motion.
Plaintiff shall have ten (10) days after service of any such motion to file and serve a written response. A reply, if any, shall be filed and served within five (5) days of the filing of t response. This Court will entertain time extensions only upon a showing of extraordinary circumstances. No brief shall be submitted which is longer than ten (10) double-spaced typewritten pages.
This matter is STRICKEN from the court's calendar for March 7, 2002 and March 18, 2002. It is further ORDERED that this matter is reset for final pre-trial on May 2, 2002 at 9:30 a.m. with a jury trial setting of May 20, 2002 at 9:00 a.m.
IT IS SO ORDERED.