Schmidt v. City of Lockport, Ill.

Page 938

67 F.Supp.2d 938

Angela SCHMIDT, Plaintiff, v. CITY OF LOCKPORT, ILLINOIS, Shanna Preikschat, Officer Wrona, and Anthony Konidaris, Defendants.

No. 98 C 5038.

United States District Court, N.D. Illinois, Eastern Division.

October 14, 1999.

Kenneth N. Flaxman, Kenneth N. Flaxman, P.C., Chicago, IL, for plaintiff.

William W. Kurnik, Michelle Jeanette Hirsch, Kurnik, Cipolla, Stephenson & Barasha, Arlington Heights, IL, for City of Lockport, Illinois, defendant.

Eric L. Samore, Joseph Patrick Kniery, Morfia J. Komotos, O'Hagan, Smith & Amundsen, L.L.C., Chicago, IL, for Anthony Konidaris, defendant.

MEMORANDUM OPINION AND ORDER

GETTLEMAN, District Judge.

Plaintiff Angela Schmidt has filed a six-count complaint against defendants City of Lockport, Illinois ("Lockport"), Officer Donald Wrona ("Wrona"), Officer Shanna Preikschat ("Preikschat"), and Anthony Konidaris ("Konidaris"), owner of Anthony's Pancake House in Lockport. Plaintiff alleges that: (1) Lockport's municipal arrest policy is unconstitutional (Count II); (2) defendant Preikschat strip-searched plaintiff in violation of her Fourth Amendment rights (Count I); and (3) defendant Wrona arrested plaintiff without probable cause (Count III). Plaintiff also brings supplemental state law claims against defendant Konidaris, alleging: (1) that he was negligent in preparing a salad (Count IV); (2) false arrest (Count V); and (3) malicious prosecution (Count VI). Defendants move for summary judgment on Counts I, II, IV, V, and VI. For the following reasons, defendants' motions are granted in part and denied in part.

FACTS¹

On May 27, 1997, plaintiff was eating lunch at Anthony's Pancake House when she bit down suddenly on a foreign object, chipping her tooth. Plaintiff told the waitress about the situation and went to the restroom to investigate the damage to her tooth. When she returned to the table, the waitress informed her that she had taken the salad back to the kitchen, that it had been inspected for the alleged foreign object, and that no such object had been found. Plaintiff and Konidaris, the owner of the Pancake House, got into a verbal altercation, during which plaintiff swore at Konidaris and stormed out of the restaurant. Both plaintiff and Konidaris called the police. Plaintiff attempted to re-enter the restaurant, but was denied re-entry.

Soon thereafter, City of Lockport Police Officers Wrona and Kruizenga arrived on the scene. The officers spoke to several witnesses, and Konidaris told Wrona that he wanted to sign a criminal complaint against plaintiff because she had been "yelling and screaming" and had threatened his wife. Wrona told Konidaris that yelling and screaming in a restaurant constituted disorderly conduct. Wrona placed plaintiff under arrest for disorderly conduct in violation of City of Lockport ordinance § 130.03, and told Konidaris that he would be notified of plaintiff's court date.

Once at the station, Wrona informed plaintiff that she would have to be searched. At first plaintiff refused to undergo a search, but she reluctantly agreed to be searched after Wrona told her that he would charge her with a state crime if she continued to resist. Wrona asked Officer Preikschat to conduct the search, and Preikschat took plaintiff into an adjacent room.

Preikschat asked plaintiff to lean forward against some lockers, unrolled the collar and sleeves of plaintiff's sweater, and inspected her hair. Plaintiff states in her deposition that Preikschat then proceeded to place her hands under plaintiff's sweater and to feel over plaintiff's breasts (which were unsupported by a bra) with the palms of her hands. According to plaintiff, Preikschat next put her hands inside the elastic waistband of plaintiff's pants, and used both hands to feel along plaintiffs buttocks and genital area, and along her legs. It is unclear from plaintiff's deposition testimony whether she claims that the search occurred inside or outside her pants, although plaintiff testifies that Preikschat did not place her hands in plaintiff's underwear and did not ask plaintiff to remove her pants.

Defendants state that for the purposes of this motion, they accept plaintiff's version of the search as true. Preikschat testified in her deposition, however, that she has never placed her hands inside an arrestee's clothing while conducting a search, that her hands remained outside plaintiff's sweater at all times, and that she did not search plaintiff's vaginal area.

After the search, plaintiff was released on bond. The state's case against plaintiff went to trial on November 13, 1997. After Konidaris and a number of other witnesses testified, the trial judge acquitted plaintiff of disorderly conduct, concluding that there was no evidence that plaintiff had been disturbing someone in the general public, and that the dispute was merely an argument between owner and patron.

DISCUSSION

1. Illegal Seizure (Count II)

In Count II, plaintiff alleges that she was subject to an illegal seizure in violation of § 1983. According to plaintiff, Lockport's arrest policy violates the Fourth Amendment because it allowed Wrona to effect a warrantless arrest for a misdemeanor even though he was not present when the alleged offense occurred. The challenged municipal policy resembles Illinois's law, which states, "A peace officer may arrest a person when ... [h]e has a warrant commanding that such person be arrested; or ... [h]e has reasonable grounds to believe that the person is committing or has committed an offense." 725 ILCS 5/107-2(1)(c).

Plaintiff notes that the Supreme Court has stated that, "[in] determining whether a particular government action violates [the Fourth Amendment], we inquire first whether the action was regarded as an unlawful search or seizure under the common law when the amendment was framed." Wyoming v. Houghton, ___ U.S. ___, ___, 119 S.Ct. 1297, 1300, 143 L.Ed.2d 408 (1999). The common law when the amendment was framed forbade warrantless arrests for misdemeanors not occurring in the presence of an officer. See John Bad Elk v. United States, 177 U.S. 529, 534, 20 S.Ct. 729, 44 L.Ed. 874 (1900) ("[A]n officer, at common law, was not authorized to make an arrest without a warrant, for a mere misdemeanor not committed in his presence."); see also United States v. Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) ("The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest.").

Defendants contend that plaintiffs claim is foreclosed by Ricci v. Arlington Heights, 116 F.3d 288 (7th Cir.1997). In Ricci, however, the Seventh Circuit found that "[t]he arrest in the instant case comports with the common law rule" because "Ricci committed the offense in the officers' presence." Id. at 291. Moreover, the plaintiff in Ricci based his argument on the reasonableness clause of the Fourth Amendment, whereas plaintiff in the instant case bases her argument on the warrant clause, a clause the Ricci court explicitly declined to address. See id. at 291-92. Because the Seventh Circuit's opinion in Ricci is not controlling, the court examines the relevant caselaw.

The Supreme Court has never held that an officer is constitutionally required to obtain a warrant to effect an arrest for a misdemeanor that occurred outside his presence. See Street v. Surdyka, 492 F.2d 368, 371 (4th Cir.1974) ("[I]t might be argued that the fourth amendment incorporates the common law's restrictions on warrantless arrests for misdemeanors. But the Supreme Court has never given constitutional force to this element of the common law rule").² In fact, Justice White stated in his dissenting opinion in Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984): "The requirement that a misdemeanor must have occurred in the officer's presence to justify a warrantless arrest is not grounded in the Fourth Amendment, and we have never held that a warrant is constitutionally required to arrest for nonfelony offenses occurring out of the officer's presence." Id. at 756, 104 S.Ct. 2091 (citing sources). Justice White noted that many states had increased the common law authority to arrest without a warrant. Id.³

The Seventh Circuit has never decided whether Illinois's statute, which does not adhere to the common law rule, violates the Fourth Amendment. The Seventh Circuit discussed this issue in Gramenos v. Jewel Companies, Inc., 797 F.2d 432 (7th Cir.1986), but found that the plaintiff had committed the alleged misdemeanor in the presence of the officer, and therefore concluded: "We are not authorized to decide in this case whether the statute abrogating the common law rule — without putting equivalent guarantees of reasonable conduct in its place — comports with the fourth amendment." Id. at 441.

Other circuit courts have discussed this issue, however. The Fourth, Fifth, Sixth, and Ninth Circuits have concluded that the rule that an officer may not make a warrantless arrest unless the misdemeanor offense occurred in his presence is a common law rule only and is not incorporated by the Constitution. See United States v. Smith, 73 F.3d 1414, 1416 (6th Cir.1996) ("However, this requirement that a misdemeanor must have occurred in the officer's presence to justify a warrantless arrest is not mandated by the Fourth Amendment; it is merely a rule of the common law."); Fields v. City of South Houston, 922 F.2d 1183, 1189 (5th Cir.1991) ("The United States Constitution does not require a warrant for misdemeanors not occurring in the presence of the arresting officer.") (citing Street, 492 F.2d at 371-72); Barry v. Fowler, 902 F.2d 770, 772 (9th Cir.1990) ("The requirement that a misdemeanor must have occurred in the officer's...