Manuel R. MORFIN, Plaintiff-Appellant, v. CITY OF EAST CHICAGO, Robert A. Pastrick, in his official capacity as Mayor of the City of East Chicago, Frank Alcala, individually and in his official capacity as East Chicago Police Chief, et al., Defendants-Appellees.
No. 02-3113.
United States Court of Appeals, Seventh Circuit.
Argued April 15, 2003. Decided Nov. 18, 2003.
349 F.3d 989
Anthony DeBonis, Jr. (Argued), Smith & DeBonis, Highland, IN, Frank R. Callahan, East Chicago, IN, Michael W. Bosch (Argued), Bamber, Bosch & Banasiak, Hammond, IN, James A. Greco, Sr. (Argued), Greco, Bishop & Kuechenberg, Merrillville, IN, for Defendants-Appellees.
Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge.
Manuel R. Morfin brought this action pursuant to
BACKGROUND
A. Facts
1. Undisputed facts
The facts of this case concern events leading up to the Democratic primary for the mayoral race in the City of East Chicago, Indiana, on May 4, 1999. In that election, Stephen Stiglich was challenging the incumbent mayor, Robert Pastrick. At that time, Mr. Morfin was a mechanic and head custodian for the Lake County Election Board (“Election Board“). He had been appointed to that position by Stiglich. Mr. Morfin also was a supporter of the Stiglich campaign.
On the evening of May 3, 1999, Mr. Morfin and another Election Board mechanic, Roy Shaffer, were eating dinner at a fast-food restaurant when Mr. Morfin received a call from Chris Lincoln, another Election Board employee. Lincoln reported that there had been a problem with the voting machines at one of the polling locations. Mr. Morfin and Shaffer drove to that location, a barbershop, to determine if there were problems with the machines. When they arrived at the barbershop, Mr. Morfin and Shaffer were stopped by Officer Andrew Kovats.1 The parties dispute the events that followed.
2. Events according to Mr. Morfin
As Mr. Morfin and Shaffer entered the barbershop, Officer Kovats addressed them and said, “I‘m taking fingerprints. Don‘t touch the machines.” Morfin Dep. at 29. Mr. Morfin then introduced himself as a mechanic for the Election Board and stated: “I‘m not going to touch them, I just want to check the seals to see if they‘re not broken.” Id. at 34. As Mr. Morfin was introducing himself, a second officer, who Mr. Morfin later identified as Officer Louis Arcuri, arrived on the scene.
Officer Kovats acquiesced in Mr. Morfin‘s request. After checking the machines, Mr. Morfin then informed Officer Kovats that he was going to plug the machines in “to see if the window of the voting machine sa[id] ‘check ballot.‘” Id. at 35.2 Officer Kovats did not attempt to stop Mr. Morfin in any way.
At about the same time as Mr. Morfin was plugging in the voting machines, Kevin Pastrick, who everyone present knew both as Mayor Pastrick‘s son and as being involved in his father‘s re-election bid, appeared at the threshold of the barbershop. See Morfin Dep. at 38. Kevin Pastrick was talking on his cellular telephone and informed the party to whom he was speaking that “Rick is in here.” Id. at 39. Kevin Pastrick then told Officer Kovats to “[r]emove Rick, get him out of there.” Id. at 40.3 Mr. Morfin, however, did not leave, which prompted Kevin Pastrick to tell the party he was speaking to: “Tell Justin Rick won‘t leave.” Id.4
After this last instruction from Kevin Pastrick, Officers Kovats and Arcuri grabbed Mr. Morfin, twisted his arm, shoved him against the wall and took him to the floor. Id. at 59-60. To this point, Mr. Morfin had not resisted any police action and informed the officers, “I‘m going peacefully, you don‘t have to put handcuffs on me.” Id. It was only after the officers took Mr. Morfin to the floor that Mr. Morfin crossed his arms on his chest to prevent the officers from handcuffing him. Id. at 105.
During the time that Mr. Morfin was in the barbershop, Officer Kovats called the East Chicago Police Department (“ECPD“) seeking guidance on what Mr. Morfin‘s authority was and how he should be treated. Officer Kovats first spoke with Frank Alcala, chief of the ECPD. According to Chief Alcala, the telephone call was interrupted because Mr. Morfin was attempting to take control of the voting machines.5 Chief Alcala then turned the call over to Thomas Ryan, the ECPD legal advisor. Ryan, however, was unsure of the legal authority of Mr. Morfin and simply told Officer Kovats to do his job as a police officer. After Ryan spoke with Officer Kovats, Chief Alcala also told Officer Kovats to do his job. Officer Kovats then informed Chief Alcala that he was going to arrest Mr. Morfin for interfering with the scene.
Mr. Morfin was transported to the ECPD that evening by Officer Clarence Anderson. Mr. Morfin then spent several hours in a cell at the police department and was released on his own recognizance. The arrest report indicated that Mr. Morfin was arrested for resisting law enforcement, in violation of
The defendants relate a very different version of events. According to the defendants, Officer Kovats was dusting the crime scene for fingerprints when Mr. Morfin arrived. Mr. Morfin announced that he worked for the Election Board and showed identification. See Kovats Dep. (8/14/01) at 28. He assured Officer Kovats that he would not touch anything, but just wanted to check the seals on the machines; Officer Kovats agreed. Shortly after this discussion, Officers Arcuri and Anderson arrived on the scene. See id. at 19.
At that point, Mr. Morfin informed Officer Kovats that he (Mr. Morfin) was taking over the crime scene. See id. at 31. Officer Kovats asked Mr. Morfin on what authority he could take such an action; without responding directly, Mr. Morfin told Officer Kovats that he would be taking the machines. See id. At that point, Officer Kovats interrupted and instructed Mr. Morfin to wait a minute while he made a phone call. Officer Kovats then called the ECPD and spoke with Ryan. While Officer Kovats was on the phone, Mr. Morfin started to remove the machines; Officer Kovats instructed him to stop. Mr. Morfin did not do so, and Officer Kovats told Mr. Morfin “to stop touching the machines.” Id. at 44. Mr. Morfin responded: “F—you. This crime scene belongs to me now and I‘m taking the machines.” Id. At that point, Officer Kovats instructed Mr. Morfin to “[g]et out of my crime scene” and told Mr. Morfin that this was his last warning. Id. Mr. Morfin flat-out refused to leave at which point he placed Mr. Morfin under arrest. Mr. Morfin, instead of cooperating with the officers, refused the officers’ instruction to place his hands behind his back. See id. He also crossed his arms at his chest so as to prevent the officers7 from effecting the arrest. He then told the officers that they did not know who they were “messing with,” and that he was “protected by important people.” Id. at 45.
After he was handcuffed, Mr. Morfin calmed down and was transported to jail by Officer Anderson. According to the defendants, although Kevin Pastrick may have arrived at the barbershop at some time, he did not enter the barbershop, he did not give any orders, and the officers did not follow any instructions given by Kevin Pastrick.
B. District Court Proceedings
Mr. Morfin filed a complaint in district court against the City of East Chicago, Mayor Pastrick, Chief Alcala, Officer Kovats, Officer Arcuri, Officer Anderson and Kevin Pastrick. Specifically, Mr. Morfin set forth his version of the events of the evening of May 3, 1999, and claimed that “[t]he challenged actions of the defendants and their agents were taken against Mr. Morfin because of his support of Stiglich, Mayor Pastrick‘s opponent in the 1999 democratic primary election.” R.1 at ¶ 13. Furthermore, continued Mr. Morfin, the alleged actions were in violation of “the first, fourth and fourteenth amendments to the U.S. Constitution, which the plaintiff seeks to enforce pursuant to
The district court then held that
[a]n officer has the right to enforce a lawful order, such as securing a potential crime scene, and in turn if an individual through force refuses to obey such an order an arrest is entirely proper.... Furthermore, under clear Indiana precedent, a law enforcement officer has probable cause to arrest an individual who struggles and resists an officer while engaging in his official duties.
R.114 at 17-18 (citing Potts v. City of Lafayette, 121 F.3d 1106, 1113 (7th Cir. 1997); Wellman v. State, 703 N.E.2d 1061 (Ind.Ct.App.1998)).
The district court also found that there was probable cause to arrest Mr. Morfin for disorderly conduct because he engaged “in fighting or in tumultuous conduct.” Id. at 18. According to the district court, this was shown by Mr. Morfin‘s repeated refusals to stop touching the voting machines, his protestations that the evidence belonged to him, his use of vulgarity with the police, and the struggle that ensued. Consequently, the arresting officers, Officers Kovats and Arcuri, had not committed any
With respect to the alleged involvement of Kevin Pastrick, the district court engaged in a slightly more detailed analysis. Relying on NCAA v. Tarkanian, 488 U.S. 179 (1988), the district court determined that, given the totality of the circumstances, Kevin Pastrick could not be considered a state actor for purposes of
The court then addressed the liability of Chief Alcala. Although the court acknowledged that, under certain circumstances, a state actor‘s failure to intervene renders him liable under
Finally, the court addressed Mr. Morfin‘s excessive force and
Mr. Morfin timely appealed.
II
ANALYSIS
A. Standard of Review
We review de novo a district court‘s decision to grant summary judgment. See Remer v. Burlington Area Sch. Dist., 286 F.3d 1007, 1010 (7th Cir. 2002). “In evaluating the district court‘s decision, we ‘must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable in-
B. Fourth Amendment Claims
1. Probable cause
Mr. Morfin first submits that genuine issues of material fact precluded the district court from entering summary judgment on behalf of the defendants with respect to his
“It is well settled that the actual existence of probable cause to arrest precludes a
The defendants first maintain that there was probable cause to arrest Mr. Morfin on the charge of “resisting law enforcement” pursuant to
In the present case, whether Mr. Morfin forcibly resisted Officer Kovats’ orders or forcibly interfered with the investigation are matters of dispute among the
The defendants also believe that there was probable cause to arrest Mr. Morfin for disorderly conduct. Disorderly conduct occurs when an individual “recklessly, knowingly, or intentionally” “(1) engages in fighting or in tumultuous conduct” or “(2) makes unreasonable noise and continues to do so after being asked to stop.”
Again, however, whether there was probable cause to believe that Mr. Morfin had engaged in disorderly conduct involving unreasonable noise depends on which version of events one accepts. At least one of the officers at the scene stated in his deposition that Mr. Morfin never raised his voice, see Davis Dep. at 30, and Mr. Morfin testified that he never directed any threats or obscenities toward the officers at the scene. One has to accept the other officers’ account of the events in
Finally, the defendants argue that the officers had probable cause to arrest Mr. Morfin for obstruction of justice, pursuant to
If, indeed, a jury were to accept the defendants’ version of the facts, we would agree with the defendants that the officers had probable cause to arrest Mr. Morfin for obstruction of justice. However, Mr. Morfin disputes that he ever told the officers that he was going to take over the crime scene, that he was going to disassemble and take the voting machines, or that he would not leave the crime scene. As noted above, in determining whether
In sum, the parties dispute the events leading to the arrest of Mr. Morfin; one account would support a finding of probable cause and justify a resulting arrest, and the other would not. Consequently, a genuine issue of material fact exists concerning whether the arresting officers had probable cause. Therefore, the district court erred in granting summary judgment to Officers Kovats and Arcuri on Mr. Morfin‘s Fourth Amendment claim.13
2. Officer Anderson‘s involvement in the arrest
Mr. Morfin maintains that the district court also erred in granting summary judgment to Officer Anderson on Mr. Morfin‘s
3. Chief Alcala‘s alleged failure to intervene
Mr. Morfin next argues that the district court erred in granting summary judgment to Chief Alcala. According to Mr. Morfin, the law is clearly established that an officer has a duty to intervene to prevent a false arrest or the use of excessive force if the officer is informed of the facts that establish a constitutional violation and has the ability to prevent it. See Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000); Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Here, Mr. Morfin maintains that Chief Alcala was informed of the situation at the barbershop by Officer Kovats but, despite this knowledge, failed to take any action to prevent Officer Kovats from going forward with the allegedly unlawful arrest of Mr. Morfin.
Chief Alcala cannot be liable for any constitutional violations committed by his officers simply by virtue of his supervisory role. As we have explained on more than one occasion,
“[T]o be liable for the conduct of subordinates, a supervisor must be personally involved in that conduct.” [Lanigan v. Vill. of E. Hazel Crest, 110 F.3d 467, 471 (7th Cir. 1999)] (citations omitted). “[S]upervisors who are merely negligent in failing to detect and prevent subordinates’ misconduct are not liable.... The supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate, reckless indifference.” Jones v. City of Chi., 856 F.2d 985, 992-93 (7th Cir. 1988) (citations omitted).
Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001). The question therefore is whether, based on the facts in the record, Chief Alcala approved, condoned, or turned a blind eye to Officer Kovats’ allegedly unconstitutional actions.
If the record suggested that Chief Alcala had knowledge of facts that would cause him to believe that Officer Kovats was about to make an unconstitutional arrest but failed to use his authority to stop the violation, his failure would result in liability under
Only three individuals testified regarding Chief Alcala‘s telephone conversation with Officer Kovats: Officer Kovats, Chief Alcala and Ryan. Officer Kovats’ deposition does not contain any reference to a specific conversation with Chief Alcala; according to Officer Kovats, he spoke with one or two people at the ECPD before being transferred to Ryan, with whom he had his only substantive conversation. Chief Alcala testified that he was informed by Officer Kovats “[t]hat Rick was disregarding a police order and was attempting to interrupt a crime scene and smudge prints—if there were any fingerprints on the machines to try to cover it up.” Alcala Dep. at 84. Unsure about Mr. Morfin‘s authority, Chief Alcala turned the telephone over to Ryan. Finally, according
As noted above, the burden was on Mr. Morfin to come forward with specific facts in the record that demonstrated that there was a genuine issue of material fact for trial. There is no evidence in the record from which a jury could conclude that Chief Alcala was apprised of a different set of events at the barbershop, and “[s]peculation is insufficient to withstand summary judgment.” Ortiz v. John O. Butler Co., 94 F.3d 1121, 1127 (7th Cir. 1996). Consequently, we must affirm the district court‘s entry of summary judgment in favor of Chief Alcala.14
4. Kevin Pastrick‘s alleged participation in the arrest
Mr. Morfin also maintains that the district court erred in entering summary judgment on behalf of Kevin Pastrick. Mr. Morfin points to the Supreme Court‘s decisions in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), and Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), in support of the proposition that private individuals can be held liable under
The defendants concede “that a private individual could be held liable under
“Although the conduct of private parties lies beyond the Constitution‘s scope in most instances, governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints.” Edmonson, 500 U.S. at 620. A court must be guided by two considerations in determining whether to hold a private citizen liable for an alleged constitutional violation: 1) “whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority“; and 2) “whether the private party charged with the deprivation could be described in all fairness as a state actor.” Id. There is no question that Mr. Morfin‘s arrest resulted from the exercise of a privilege of a police officer, having its source in state authority. The only issue is whether Kevin Pastrick, in this scenario, can be considered a state actor.
A private citizen may be considered a state actor for any number of reasons, for instance, “because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.” Lugar, 457 U.S. at 937. This is necessarily a factbound inquiry, and, as the Supreme Court has observed, “[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961).
We cannot say as a matter of law that, on the record before us, Kevin Pastrick did not act jointly with Officer Kovats in the arrest of Mr. Morfin. According to Mr. Morfin and Shaffer, Mr. Morfin cooperated with the officers in the barbershop and only examined the machines with the permission of Officer Kovats. There was no concern with respect to Mr. Morfin‘s actions until Kevin Pastrick arrived on the scene. Then, after Kevin Pastrick‘s repeated orders for Officer Kovats to arrest Mr. Morfin, Officers Kovats and Arcuri arrested Mr. Morfin. The combination of these events could lead a jury to conclude that, without the influence of Kevin Pastrick, Officer Kovats would not have arrested Mr. Morfin.
The present situation is not unlike the procedural and factual situation addressed by the Supreme Court in Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). In that case, the Supreme Court held that genuine issues of material fact precluded summary judgment on the issue of whether the employees of the Kress store had acted in concert, or had conspired, with local police in arresting a Caucasian woman for attempting to eat with a group of African-American students. The Supreme Court noted that
in moving for summary judgment, Kress argued that “uncontested facts” established that no conspiracy existed between any Kress employee and the police. To support this assertion, Kress pointed first to the statements in the deposition of the store manager (Mr. Powell) that (a) he had not communicated with the police, and that (b) he had, by a prearranged tacit signal ordered the food counter supervisor to see that Miss Adickes was refused service only
because he was fearful of a riot .... Kress also relied on affidavits from Hattiesburg chief of police, and the two arresting officers, to the effect that store manager Powell had not requested that petitioner be arrested. Finally, Kress pointed to the statements in petitioner‘s own deposition that she had no knowledge of any communication between any Kress employee and any member of the Hattiesburg police, and was relying on circumstantial evidence to support her contention that there was an arrangement between Kress and the police.
Id. at 154-56 (footnotes omitted). Although the plaintiff admitted that she had no knowledge of an agreement between any Kress employee and the police, she did bring forward evidence that the policeman who arrested her was present in the store at the time she was refused service. In the Court‘s view, the presence of this policeman in the store created a genuine issue of material fact with respect to whether an agreement had been reached between that officer and a Kress employee. The Court explained:
If a policeman were present, we think it would be open to a jury, in light of the sequence that followed, to infer from the circumstances that the policeman and a Kress employee had a “meeting of the minds” and thus reached an understanding that petitioner should be refused service.
Similarly, in this case, although there is no evidence of an overt agreement between Kevin Pastrick and Officer Kovats to arrest Mr. Morfin, Kevin Pastrick‘s presence at the scene, his urgent insistence concerning Mr. Morfin‘s arrest and the sequence of events leading to Mr. Morfin‘s arrest would allow a reasonable juror to conclude that Kevin Pastrick and Officer Kovats had reached a meeting of the minds that Mr. Morfin should be arrested or had acted jointly in doing so. Consequently, the district court erred in entering summary judgment for Kevin Pastrick on Mr. Morfin‘s
C. Excessive Force
Mr. Morfin next contends that the district court erred when it entered summary judgment for the defendants on his excessive force claim. According to Mr. Morfin, genuine issues of material fact exist concerning whether the arresting officers used excessive force in effecting his arrest. After a review of the record, we conclude that there are disputed material facts with respect to this issue as well.
Because Mr. Morfin‘s claim of excessive force arises in the context of an arrest, we evaluate the officers’ use of force according to the reasonableness standard of the
Determining whether the force used to effect a particular seizure is “reasonable” under the
The district court found that Mr. Morfin repeatedly refused to obey police orders and attempted to evade the officers’ attempt to place him under arrest. Consequently, the district court held, the force used by the officers was reasonable under the circumstances.
However, viewing the record in the light most favorable to Mr. Morfin, a jury could reach the opposite conclusion. According to both Mr. Morfin and Shaffer, Mr. Morfin did not pose a threat to the officers—he was docile and cooperative. Furthermore, Mr. Morfin did not resist arrest in any way prior to the officers’ use of excessive force. Mr. Morfin testified that Officers Kovats and Arcuri grabbed him, twisted his arm, shoved him toward the wall and took him to the floor. See Morfin Dep. at 59-60. To this point, Mr. Morfin had not resisted any police action and informed the officers, “I‘m going peacefully, you don‘t have to put handcuffs on me.” Id. It was only after the officers took Mr. Morfin to the floor that Mr. Morfin crossed his arms on his chest to prevent the officers from handcuffing him. Id. at 105. If a jury were to credit Mr. Morfin‘s version of events over that of the arresting officers, it could conclude that there was no reason for the officers to exert such force on Mr. Morfin. Therefore, the grant of summary judgment in favor of Officers Kovats and Arcuri on Mr. Morfin‘s excessive force claim must be reversed.
D. First Amendment
Finally, Mr. Morfin contends that the district court erred in granting summary judgment to the defendants on his First Amendment claim. Specifically, Mr. Morfin argues that he brought forth sufficient evidence to show that he was arrested because of his support for Mayor Pastrick‘s opponent in the mayoral primary.
There is no question that “[a]n act taken in retaliation for the exercise of a constitutionally protected right violates the Constitution.” DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). “In order to establish a prima facie case of
Turning first to the arresting officers, we do not believe that Mr. Morfin has met his burden of coming forward with evidence from which a jury could conclude that his support of Stiglich motivated the officers’ decision to arrest him (Mr. Morfin). Mr. Morfin does not point to any evidence in the record that Officer Kovats or Officer Arcuri knew of Mr. Morfin‘s support of Stiglich.15 Consequently, without knowledge that Mr. Morfin was sup-
We reach the same conclusion with respect to Chief Alcala. In his deposition, Chief Alcala testified that he did not know that Mr. Morfin was a supporter of Stiglich. See Alcala Dep. at 100. Mr. Morfin has not presented any evidence that calls this testimony into question.16
We reach a contrary conclusion, however, with respect to Kevin Pastrick. As noted above, there is evidence in the record that Kevin Pastrick was present at the barbershop when Mr. Morfin was arrested and played a central role in the officers’ decision to arrest him. There was additional testimony that, while Kevin Pastrick was in the barbershop, he was on the telephone with other individuals involved in his father‘s campaign. Indeed, Kevin Pastrick testified that one of the reasons that he was at the barbershop was to protect his father‘s interests. See Kevin Pastrick Dep. at 37. As well, there is evidence in the record that Kevin Pastrick wished to see those present at the barbershop, who were opposed to his father‘s re-election, removed from the premises. See Crawford Dep. at 59 (testifying that, after French was arrested, Kevin Pastrick reported to a party over his cellular phone that “we got French“). Finally, the record reflects that, after Mr. Morfin was arrested, Kevin Pastrick made several derogatory comments about Mr. Morfin. See Shaffer Dep. at 47 (“Kevin Pastrick said ... in his opinion that [Mr. Morfin] was a low life and a thief.“); id. at 55 (testifying that Kevin Pastrick told him that “Curtis French was there to tamper with the machines and that Rick Morfin was aware of the fact and that he was there to destroy evidence“). We believe that this is sufficient evidence from which a jury could conclude that Mr. Morfin‘s support of Stiglich motivated Kevin Pastrick‘s involvement in the arrest of Mr. Morfin. We therefore reverse summary judgment in favor of Kevin Pastrick on Mr. Morfin‘s
Conclusion
For the foregoing reasons, we reverse the judgment of the district court as to the liability of Officer Kovats, Officer Arcuri, and Kevin Pastrick with respect to Mr. Morfin‘s
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
KENNETH F. RIPPLE
UNITED STATES CIRCUIT JUDGE
Notes
Q: What was your understanding of what Morfin was doing during this conversation you were having with Kovats?
A: That Rick [Morfin] was disregarding a police order and was attempting to interrupt a crime scene and smudge the prints—if there were any fingerprints on the machines, to try to cover it up.
Alcala Dep. at 83-84.Morfin attempts to create an issue of fact in focusing on Officer Davis‘s statement that Morfin merely stood his ground and refused to leave. (See Memorandum Opposing D‘s Summary judgment at p. 17). However, Morfin does not dispute the claim by both Davis and Kovats in the Defendants’ “Statement of Material Facts” that a struggle ensued because Morfin did not want to leave the building after being told to do so. (Davis p. 39). Further, Morfin does not dispute that he had to be forcibly pushed out. (Davis p. 40). The local rules of procedure specifically provide that: the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the “Statement of Genuine Issues” filed in opposition to the motion.” [sic] N.D. Ind. L.R. 56.1(b).
R.114 at 17 n. 6.Morfin attempts to create an issue of fact in focusing on Officer Davis‘s statement that Morfin merely stood his ground and refused to leave. However Morfin does not dispute the claim by both Davis and Kovats in the Defendants’ “Statement of Material Facts” that a struggle ensued because Morfin did not want to leave the building after being told to do so.... The local rules of procedure provide that: the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the “Statement of Genuine Issues” filed in opposition to the motion.” [sic] N.D. Ind. L.R. 56.1(b).
R.114 at 17 n. 6 (internal citations omitted). Mr. Morfin argues that the district court‘s invocation of the local rule was in error. Specifically, Mr. Morfin states:
The court‘s reliance on N.D. Ind. L.R. 56.1(b) is misplaced because, as pointed out in the plaintiffs’ response, “Plaintiffs’ Statement of Genuine Issues,” French R-84, the defendants’ “statement does not comply with L.R. 56.1(a), because it requires a statement ‘as to which the moving party contends there is no genuine issue.‘” Instead, the defendants submitted a “statement of material facts,” that makes no attempt to show that facts are not in dispute, often presenting several versions. See French R-67, at 15-34 (part of Morfin‘s version is at 30-33). Also, Morfin does contest the defendants’ version in his statement of genuine issues, French R-84, at 18-20, and in his response to summary judgment. R-70, at 1-8.
Appellant‘s Br. at 14 n. 13. The defendants, in their brief, do not contest Mr. Morfin‘s claims that the district court erred in invoking Local Rule 56.1 or that their own statement of material facts failed to comply with the local rule.
Our independent review of the record confirms that Mr. Morfin is correct on both counts. First, the defendants’ statement of material facts sets forth the accounts of the events in the barbershop as recalled by Officers Kovats, Arcuri and Davis, as well as Mr. Morfin. See R.64 at 30-33. Consequently, even without the benefit of Mr. Morfin‘s statement of genuine issues, it is apparent that the parties have vastly different recollections of the events leading to Mr. Morfin‘s arrest. Furthermore, Mr. Morfin‘s statement of genuine issues, see R.114 (Statement of Genuine Issues) at 18-20, sets forth his version of events that stands in stark contrast to that forwarded by Officers Kovats, Arcuri and Davis.
We typically defer to a district court‘s decision to enforce a local rule. See, e.g., Borcky v. Maytag Corp., 248 F.3d 691, 697 (7th Cir. 2001). However, this is neither a case in which the non-moving party has failed to file a statement of genuine issues, see, e.g., Appley v. West, 929 F.2d 1176, 1179 (7th Cir. 1991), nor a case in which the non-moving party filed only a general statement of genuine issues without any factual support, see, e.g., Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994). Furthermore, Local Rule 56.1 for the Northern District of Indiana, unlike the equivalent rule for the Northern District of Illinois, does not require the non-moving party to respond in a paragraph-by-paragraph manner to the moving party‘s statement of material facts; Local Rule 56.1 requires only that “[a]ny party opposing the motion ... file ... a response that shall include in its text or appendix thereto a ‘Statement of Genuine Issues’ setting forth ... all material facts as to which it is contended there exists a genuine issue necessary to be litigated.” N.D. Ind. L.R. 56.1(a). Without the benefit either of explanation by the district court or of argument by the defendants in support of the district court‘s invocation of the local rule, we respectfully disagree with the district court that Mr. Morfin did not set forth the controverted facts or otherwise failed to comply with the requirements of the local rule. Therefore, we do not rely on the district court‘s application of Local Rule 56.1(b), but look to the parties’ submissions in support of and in opposition to the summary judgment motions to determine whether a genuine issue of material fact exists with respect to the matters before this court.
The problem with the application of the “arguable probable cause” concept to the present case is that it is not at all clear, at this stage in the litigation, what facts were within Officer Kovats’ knowledge at the time he arrested Mr. Morfin. If the facts are that Mr. Morfin defied a direct order from an officer to leave the premises, became belligerent, and interfered with the crime scene, then there is no question that Officer Kovats not only had arguable probable cause, but, indeed, had actual probable cause to arrest Mr. Morfin. However, Mr. Morfin contends that he never refused an order of an officer, that he was quiet and subdued, and that he did not interfere with the investigation at all; instead, his arrest was the result of Kevin Pastrick‘s interference. When, as here, the arrestee challenges the officer‘s description of the facts and presents a factual account where a reasonable officer would not be justified in making an arrest, then a material dispute of fact exists. Where there is a genuine issue of material fact surrounding the question of plaintiff‘s conduct, we cannot determine, as a matter of law, what predicate facts exist to decide whether or not the officer‘s conduct clearly violated established law. Arnott v. Mataya, 995 F.2d 121, 124 (8th Cir. 1993). Because the facts within Officer Kovats’ knowledge at the time of the arrest are a matter of dispute between the parties, summary judgment on the basis of “arguable probable cause” also is inappropriate.
We also note that Mr. Morfin‘s claim against the City of East Chicago rests on the involvement of Chief Alcala and his role as a policymaker for the City. Consequently, because we hold that there is insufficient evidence in the record to hold Chief Alcala liable for Mr. Morfin‘s allegedly unlawful arrest, we also uphold the district court‘s judgment in favor of the City with respect to this claim.
Additionally, because Mr. Morfin‘s only claim against the City of East Chicago is predicated on Chief Alcala‘s involvement, we do not believe that the City can be held liable for any of the allegedly unconstitutional actions taken by Kevin Pastrick or the arresting officers.