Skube v. Koester
120 F. Supp. 3d 825
C.D. Ill.2015Background
- On July 21, 2011 Deputy Travis Koester arrested Clifton Flagg and then began handling Skube’s companion’s vehicle and purse; Skube approached, stopped a few feet away, and vocally objected to the search.
- Video shows Koester ordered Skube to back up and to put her hands behind her back; she argued and asked how she was under arrest, made no physical resistance other than stepping back and raising her arms in a questioning gesture.
- After approximately 12 seconds of verbal objection, Koester deployed his taser in dart mode into Skube’s abdomen, ordered her to the ground, and deployed the taser a second time before taking her into custody.
- The court analyzed the video and legal precedent to decide whether those facts supplied probable cause to arrest Skube for resisting/obstructing a peace officer and whether the subsequent force was reasonable.
- The court had earlier warned the parties it was considering summary judgment for plaintiff on false arrest and excessive force claims and allowed additional briefing; after review it granted summary judgment for Skube on false arrest and on excessive force (individual-capacity claims), leaving official-capacity battery/assault and damages for trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a reasonable officer had probable cause to arrest Skube for resisting/obstructing after she approached, verbally objected, and did not immediately comply for ~12 seconds | Skube’s brief verbal objection and nonviolent conduct did not constitute physical resistance or obstruction and therefore did not supply probable cause | Koester argues Skube’s approach, refusal to follow orders, and failure to comply justified arrest for resisting/obstructing | Court: No probable cause—12 seconds of nonviolent verbal objection is legally insufficient to arrest under Illinois law as it stood in 2011 |
| Whether Koester is entitled to qualified immunity for the arrest | Skube: law was clearly established that brief verbal objection/argument is not obstruction | Koester: an officer could reasonably think Skube was obstructing/resisting, so qualified immunity applies | Court: Qualified immunity denied because no reasonable officer could have believed probable cause existed based on settled law then |
| Whether use of taser twice was reasonable force | Skube: because arrest was unlawful, any non-minimal force used to effect it violated the Fourth Amendment | Koester: force was used to effectuate arrest and control a noncompliant suspect | Court: Because arrest lacked probable cause, non-minimal force used to effectuate it was per se unreasonable; summary judgment for Skube on excessive force (individual capacity) |
| Scope of remaining proceedings | Skube seeks full relief on §1983 claims | Koester seeks to limit or send factual disputes to jury | Court: grants summary judgment on false arrest and individual-capacity excessive force; trial remains on official-capacity assault/battery and damages issues |
Key Cases Cited
- United States v. Sawyer, 224 F.3d 675 (7th Cir. 2000) (probable cause standard description)
- Gonzalez v. City of Elgin, 578 F.3d 526 (7th Cir. 2009) (approaching/questioning officers and verbal protest do not, by themselves, constitute resisting/obstructing)
- Brooks v. City of Aurora, 653 F.3d 478 (7th Cir. 2011) (brief physical rebuffing can make resisting a close question for qualified immunity)
- Herzog v. Village of Winnetka, 309 F.3d 1041 (7th Cir. 2002) (illegal arrest renders subsequent forcible touches actionable)
- Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003) (resistance must be physical; mere argument insufficient)
- Raby v. People, 240 N.E.2d 595 (Ill. 1968) (statute does not proscribe mere argument with police)
- Weathington v. People, 411 N.E.2d 862 (Ill. 1980) (short argument does not support obstruction conviction)
- Abbott v. Sangamon County, 705 F.3d 706 (7th Cir. 2013) (court may decide probable cause on summary judgment when facts undisputed)