In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2658
JOSE G ONZALEZ, M ARIBEL G ONZALEZ,
A NTONIO F RANCO , M ARIA G ONZALEZ,
L UIS F RANCO , and JULIO G ONZALEZ,
Plaintiffs-Appellants,
v.
C ITY OF E LGIN, M IGUEL P ANTOJA,
S HAUN S CHROEDER, T ODD P AVORIS,
H EATHER R OBINSON, D OUG N EFF,
D ANIEL M C G INLEY, and JAMES K ELLY,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 5321—Samuel Der-Yeghiayan, Judge.
A RGUED JANUARY 21, 2009—D ECIDED A UGUST 20, 2009
Before P OSNER, F LAUM, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Jose Gonzalez, Maribel Gonzalez,
Antonio Franco, Maria Gonzalez, Luis Franco, and Julio
Gonzalez filed this action under 42 U.S.C. § 1983 against
2 No. 08-2658
the City of Elgin and numerous Elgin police officers. The
plaintiffs allege that the defendants violated their
Fourth Amendment rights by unlawfully arresting and
detaining them, using excessive force against them to
effectuate the arrest, and failing to intervene to prevent
the excessive use of force. The complaint also alleges
three claims based on Illinois law: one for malicious
prosecution, one against the City of Elgin based on state-
law concepts of respondeat superior, and one for indemni-
fication. The district court granted the defendants’ motion
for summary judgment, and the plaintiffs appeal to this
court.
I
A
The facts of this case are highly contested; a person
comparing the plaintiffs’ version with that of the defen-
dants would be forgiven for thinking that each was recall-
ing an entirely different event. The standard of review
governing summary judgment, however, resolves at least
one question: we must accept all facts and reasonable
inferences in the light most favorable to the non-moving
party—here, the plaintiffs. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520
F.3d 678, 685 (7th Cir. 2008); cf. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 149-51 (2000) (address-
ing standard for motions under F ED. R. C IV. P. 50 and
noting that the substantive approach mirrors that for
Rule 56). We do not judge the credibility of the wit-
nesses, evaluate the weight of the evidence, or determine
No. 08-2658 3
the truth of the matter. The only question is whether
there is a genuine issue of fact. Anderson, 477 U.S. at 249-50.
We present the facts with this standard in mind, noting
where relevant the divergence between the plaintiffs’
and the defendants’ versions of events.
In the wee hours of October 1-2, 2005, plaintiffs were
gathered at the home of Antonio and Luis’s parents in
Elgin, Illinois. (We refer to the plaintiffs by their first
names in the remainder of this opinion, since only two
surnames are shared by the six plaintiffs.) The plaintiffs
(with the exception of Luis) were former high school
classmates now in their late twenties and early thirties.
Earlier that night, they had attended a wedding and
had decided to visit with each other after the wedding
ended. While Jose, Julio, and Antonio drank alcoholic
beverages at the wedding (the plaintiffs’ evidence
shows that Jose drank several light beers, Julio drank a
couple of beers, and Antonio drank about three beers), they
did not drink at all after the wedding ended. Neither
Maribel, Maria, nor Luis drank anything alcoholic either
at the wedding or at the subsequent gathering.
At around 4:30 a.m., as the plaintiffs were getting ready
to leave the gathering, Rodolfo Aranda came running
into the house. Earlier, Aranda had been at Luis and
Antonio’s parents’ house with the plaintiffs, but then
he, his wife, and his brother left to eat at La Rosa, a
nearby restaurant. Aranda told the group that his wife
and brother were being beaten up outside the restaurant
and that he needed help. The group followed Aranda to
the restaurant on foot, but by the time they arrived, the
4 No. 08-2658
attack on Aranda’s wife and brother was over and the
attackers had left. The defendants apparently were
alerted to the scene by Officers Pantoja and Schroeder,
who were busy with a traffic stop near the restaurant and
observed the plaintiffs moving toward the restaurant.
What occurred then differs for each plaintiff, and from
this point it is sensible to proceed one person at a time.
Furthermore, because police cameras captured at least
some of the events of the evening in question, we also
take advantage of our direct observation of the scene.
1. Jose Gonzalez
At his deposition, Jose testified that once the group
reached La Rosa, they found Aranda’s wife and brother
on the ground in the restaurant’s parking lot. Jose went
over to the brother to see whether he was all right. After
that, a group of about five people, including Antonio, Jose,
Luis, and the restaurant owner, stood talking outside the
restaurant. Officer Pantoja approached the group and
spoke with Antonio and the owner of the restaurant, and
then snapped, “Oh you know, just everybody get the
fuck out of here. Everybody gotta go.” Jose asked Officer
Pantoja why, because he thought that the plaintiffs had
done nothing wrong. Officer Pantoja responded, “I did
say for you guys to leave, to get the fuck out of here.” At
that point, Jose noticed more police cars arriving at the
restaurant, and so he grabbed Luis’s arm and said,
“Let’s walk away.”
Jose and Luis then walked out of the restaurant parking
lot onto the sidewalk and around the newly arrived police
No. 08-2658 5
vehicles; they were heading east on Villa Street toward
Luis’s parents’ house. At that point, Officer Pantoja
screamed out for another officer to arrest Jose and Luis.
Jose turned and responded by asking, “Arrest who?” An
officer then grabbed him around the neck from behind
before other officers ran at him. The officers punched
and kicked him for a few minutes before pushing him to
the ground and kicking him some more. The officers
then pepper-sprayed Jose, and they finally handcuffed
him. The officers left Jose in this state on the ground on
his knees for approximately five minutes, during which
time Jose’s wife, Maribel, spoke to him, asking him
whether he was okay and telling him to stop cursing
because it would “make it worse.” Jose’s testimony was
corroborated by a number of the defendants’ depositions.
Jose was charged with mob action and resisting a peace
officer; the prosecutor later dismissed the mob action
charge and reduced the resisting charge to misdemeanor
disorderly conduct.
The defendants offer a markedly different account of
this scene—one that a jury might believe, but not one
that we can accept for purposes of summary judgment
review. We outline it here (just as we do for the other
plaintiffs below) simply to show the wide gap between
the two sides’ stories. The defendants assert that once
Officer Pantoja asked the plaintiffs to leave the restaurant
parking area, Jose began yelling, arguing, and swearing
at Officer Pantoja. Officer Pantoja recalled that Jose
was agitated, smelled of alcohol, had clenched fists, and
poked him in the chest. Officer Pantoja said that he
(Pantoja) then displayed his pepper-spray but did not use
6 No. 08-2658
it. Instead, he told Jose that he was going to be put
under arrest for refusing to leave the restaurant. The
defendants then asserted that Officer Pantoja informed
the newly arrived Officer Pavoris that Jose was to be
arrested, and Officer Pantoja, along with Officer
Schroeder, began to place a struggling Jose under arrest.
By this account, Officer Neff soon arrived on the scene
and ran to assist Officers Pantoja and Schroeder in Jose’s
arrest. The defendants stated that Jose then accidentally
fell over a low rise fence, and only when he continued
to struggle did officers pepper-spray him in order to
place him in handcuffs.
Both parties believe that the video from squad car 857
(“Video 857”) supports their version of events. That video
starts at 4:55:42 a.m. on October 2, 2005. (All times re-
corded on the cameras were in the morning; we therefore
omit the designation “a.m.” from this point onward.)
Initially, it shows the squad car parked at the side of a
road. The car begins to move at 4:56:30, and reaches
speeds of up to 79 miles per hour before coming to a stop
at 4:58:00 by the side of a road. Once the squad car
comes to a stop, it shows a group of people calmly
walking down the street, showing no apparent agitation.
While the quality of the video is not particularly clear, it
appears to show, at approximately 4:58:15, a man in a
white shirt, presumably Jose (though this is just an infer-
ence we are drawing) being tackled by a police officer.
The video then shows that a number of police officers
converge on Jose, punching and kicking him while he
remains bent over in a defensive position. Jose then falls
No. 08-2658 7
to the ground and when he gets up, hands held in what
seems to be a “surrender position,” an officer tackles
him to the ground and grabs him by the neck, pushing
on him. The officer remains straddled over Jose, holding
onto him until 4:59:54, when the officer seems to hand-
cuff him and then leave him alone on the ground. Jose
remains alone on the ground while police officers
calmly walk around the restaurant parking lot until
approximately 5:02:15, when a number of officers gather
around him. Jose is picked up by an officer at 5:02:37 and
is walked to the police van positioned directly in front
of squad car 857.
2. Maribel Gonzalez
Maribel testified that when the plaintiffs reached the
restaurant, she observed a group of customers outside the
doors, along with Aranda’s wife and the owner of the
restaurant. Maribel estimated that there were no more
than ten people in the group. Maribel walked over to the
group to console Aranda’s wife, and it was at that point
that Officer Pantoja asked the group to disperse and leave
the premises. Maribel then left the scene with three
others and started walking away from the restaurant
down Villa Street. As they left, Officer Pantoja and
another officer followed them, repeatedly telling them,
“Get the f’ing out of here,” and using other foul lan-
guage. At that point a number of squad cars pulled up near
where they were walking, and all of a sudden an officer
grabbed Jose around the neck from behind. A number of
officers converged on him, punching and kicking him,
8 No. 08-2658
while Maribel, along with others, asked the officers to stop
and questioned why they were hitting Jose.
During Jose’s beating, Maribel told the officers, “I think
you guys have the wrong people,” thinking that the
officers thought her group was responsible for beating
Aranda’s wife and brother. When the officers picked Jose
up off the ground, Maribel followed them saying, “You
guys, we didn’t do anything,” and asking, “Why are you
guys arresting us?” When the officer took Jose to the
back of the police van, she asked the officer where he was
taking Jose. In response, another officer, later identified
as Officer McGinley, turned and punched her in the
stomach with his flashlight. According to Maribel, Officer
McGinley never said a word to her before hitting her
with his flashlight. It was only after he hit her that he
spoke to her, calling her a “fucking bitch” as he pulled her
away from the police van by her hair and pushed her
down, face first, onto the hood of a police car. Maribel
was then arrested and taken to the police station with
Jose where Officer McGinley charged her with mob
action and obstructing a police officer. Officer McGinley
later admitted that the complaints were never sworn
in accordance with police department policy, and that
he never actually saw Maribel fighting.
The defendants offered little evidence about Maribel’s
role in the incident. In essence, they testified that she
was arguing with Officer Schroeder and trying to
obstruct Officer McGinley’s motions. Again, both
parties claim that Video 857 supports their version of
events. With respect to the arrest of Maribel, Video
No. 08-2658 9
857 shows officers leading Jose to the back of the police
van, followed closely by Maribel, who is visibly dis-
tressed. Maribel appears to be questioning the officers
repeatedly, but it is not possible to see whether the
officers replied, and the video has no sound track. At no
point does Maribel touch either of those officers. As
Maribel is standing next to the two officers who are
putting Jose in the van, Officer McGinley walks over to
Maribel and positions his body between her and the
other officers. Officer McGinley appears first to press
the end of his flashlight lightly against Maribel to keep
her at arm’s length. Then, moments later, he jabs her
violently in the stomach with the flashlight and shoves
her with great force out of the street and up onto the
curb; this occurs at 5:03:57. Maribel is then led out of
view of Video 857.
Notably, Officer McGinley was fired as a result of this
incident. In his police incident report, Officer McGinley
failed to disclose any use of force against Maribel. Sergeant
James Barnes of the Elgin Police Department Internal
Affairs testified that McGinley lied about not touching
Maribel. At his termination hearing, McGinley persisted
with his story that he did not touch Maribel, but wit-
nesses agreed that Video 857 clearly showed that he did
push Maribel. McGinley’s discharge was upheld by an
arbitrator.
3. Luis Franco, Jr.
Luis testified that, when the group reached the restau-
rant, he walked over to some customers, including Aran-
10 No. 08-2658
da’s wife, who were standing outside. As Luis was
talking to Aranda’s wife, Officer Pantoja was aggres-
sively telling everyone to leave. Luis and Jose left the
restaurant parking lot together; while they were walking,
Luis heard an officer call out for Jose to be arrested. The
officers then converged on Jose and began beating him;
Luis was yelling at the officers to stop. At that point Luis’s
wife, who is not a party to this suit, told him to leave
immediately; Luis and his wife then crossed the street
and began walking down the footpath away from the
restaurant. They stopped only when they heard an
officer yell out for Luis to be arrested. Luis told his wife
to keep walking. The next thing he knew, he was
knocked to the ground by an officer, later identified as
Officer Neff. Officer Neff asked a nearby civilian to
guard Luis; Luis was not handcuffed immediately.
After a while, two or three officers came over to Luis
and handcuffed him. One of the officers then picked up
a police hat that was lying on the ground near Luis,
called him a “fucking thief,” and threw the hat in his
face. Luis recalled that he was then picked up from
behind and slammed into the hood of a car before
being put into the back of a police car. Luis was later
charged with one count of mob action on the basis of
Officer Pantoja’s signed complaint. Officer Pantoja, how-
ever, later admitted that he did not see Luis engage in
any illegal conduct, and the charge was dismissed.
The defendants’ account of Luis’s arrest is thin on
detail. They said that Officer Neff saw Luis leaving the
restaurant. Neff ran after him because Neff earlier had
No. 08-2658 11
observed Luis in a crowd that was pushing and shoving
officers to prevent the arrest of Jose. Officer Neff “caught
up to Luis,” observed a police hat in his hand, asked
him why he had the cap, and told him to get on the
ground. Officer Neff then left Luis and returned to
the restaurant. Other officers later handcuffed Luis
and placed him in a squad car.
Again, squad car videos shed some light on what actu-
ally occurred. The video from squad car 862 (“Video
862”) shows a man and a woman (apparently Luis and his
wife) walking across Ramona Avenue away from La Rosa.
Luis and his wife are both wearing white tops and are
walking down a footpath on Villa Street away from the
scene of Jose’s arrest; they first appear on the video at
4:59:30. Approximately 20 seconds later, an officer (pre-
sumably Officer Neff), is visible in Videos 862 and 857
jogging across Ramona Avenue toward the retreating
couple. At 4:59:53, Video 862 shows Luis turn to face
Officer Neff while his wife continues to walk away.
Moments later Officer Neff reaches Luis. At 5:00:01,
both videos show Officer Neff standing in front of Luis
pointing toward the ground. Officer Neff shoves Luis
forcefully to the ground, where he remains for some time.
An arriving police truck pulls up, blocking much of the
view from squad cars 862 and 857 at 5:00:41. Less than
a minute later, however, both videos show Officer Neff
jogging back across the street to the restaurant parking lot.
Video 857 shows him standing there talking to people
for about one minute. In the meantime, Video 862 depicts
yet another police car pulling up on Villa Street near
12 No. 08-2658
the spot where Luis had been shoved to the ground.
At 5:01:30 the police car shines its search light in the
direction of Luis and an officer exits the vehicle. Shortly
thereafter, Officer Neff is seen jogging across Ramona
Avenue for a second time. At 5:02:41, Luis is led to the
adjacent police car. Following a 30-second period where
Luis and the officers are next to the car but it is difficult
to see what is going on, Luis is put into the back seat of
the vehicle. Seconds later, three officers can be seen
crossing back over the street toward La Rosa.
4. Antonio Franco
Antonio testified that when he arrived at La Rosa he
walked up to the small group of people who were
standing with Aranda’s wife and began to speak with
the owner. When Antonio saw that Jose was being
punched, hit, and kicked by a number of police officers,
he quickly walked over and told the officers that Jose
and the others had done nothing wrong. After he made
that comment, one of the officers turned and punched
him in the face. Antonio is unsure whether the officer
used a fist or an object. The punch knocked him to the
ground, at which point the officer fell on top of him
and grabbed at his clothes to pull him back up. At the
same time another officer was pulling at him from
behind and dragging him on the ground. Yet another
officer pepper-sprayed Antonio as he was being dragged
along the ground. Once he was pulled upright, the
officers continued to punch him; he was also pepper-
sprayed a second time.
No. 08-2658 13
Antonio recalls hearing his father’s voice asking the
police to stop, as well as the police swearing and cursing
at him. Antonio was then handcuffed and pushed to his
knees; at that point, as he remembers, he was again
beaten in the face and head while handcuffed. A more
senior officer soon arrived on the scene and ordered
that Antonio be taken to the hospital. Antonio was
never told that he was under arrest. He was charged
with resisting a police officer, mob action, and battery;
the state later dropped all charges.
According to the defendants, Antonio ran to the scene
of Jose’s “arrest” and “made repeated physical contact”
with the police officers while they attempted to arrest Jose.
The defendants claim that Officer Pavoris attempted to
place Antonio under arrest, that Officer Pavoris advised
Antonio that he was under arrest, and that Antonio
resisted Officer Pavoris’s effort to handcuff him and
place him under arrest, backing away, generally being
defiant, and asking, “Why?” and “How come?” The
defendants claim that Officer Schroeder then gave
Antonio several “controlled strikes to achieve com-
pliance in handcuffing” him, after which Antonio “fell
down face forward to the ground” and was pepper-
sprayed and handcuffed by Officer Pavoris. When
Sergeant Kelly arrived, the defendants say, he ordered
that Antonio be taken to the hospital.
Most of these events were captured on Video 857. It
begins when a man, later identified as Antonio, jogs
toward the melee surrounding Jose and into the view of
camera 857, at 4:58:28. Video 857 then shows Antonio
14 No. 08-2658
getting into the middle of the fight and a police officer
punching his head and falling to the ground on top of
him, seemingly continuing to punch him. Officers then
continue to kick and punch Antonio until he is face
down on the ground. Antonio is pulled out of the view
of camera 857 at 4:58:42.
5. Julio Gonzalez
Julio testified that when he arrived at La Rosa he
walked straight over to talk to the restaurant owner,
who was standing with customers near the entrance. After
Julio had been talking with the owner for a short time,
Officer Pantoja walked over and told the group that
they needed to move. Julio testified that he understood
Officer Pantoja to be asking them to move aside, rather
than off the premises, and so he and the owner moved
a little away from where they were originally standing
and continued their conversation. A number of officers
then arrived en masse, and one officer ran over to Julio
and pepper-sprayed him, without warning, in the face.
Julio claims that he heard the restaurant owner tell the
police, “You guys got the wrong guys,” and ask,
“[W]hy are you spraying him?” The owner then helped
Julio inside the restaurant to wash the spray off.
When Julio went back outside, he saw officers
assaulting Antonio and walked over, with his hands in
his pockets, and told the police, “[Y]ou guys got the
wrong guys.” One of the officers pushed him away with
an object, either a baton or flashlight, and so he turned
and walked away, over to where the restaurant owner
No. 08-2658 15
was standing. At that point, without warning, an officer
grabbed Julio’s hands and held them behind his back
and pepper-sprayed him in the face. Julio was then
handcuffed and his feet were swept out from under him
so that he fell to the ground. Julio then asked an officer
why this was happening, at which point he was told to
“shut up” and pepper-sprayed for a third time. Julio
ended up in the back of the police van. Julio was never
told that he was under arrest, and he never tried to resist
the officers. Julio was charged with mob action and
resisting a peace officer; like the others, these charges
were later dismissed.
The defendants again tell a different story. They say
that Officer Pavoris administered pepper spray to Julio
because Julio ran at Officer Pavoris while he attempted to
place Antonio under arrest and because Julio questioned
the officers arresting Antonio. Julio was pepper-sprayed
a second time, according to the defendants, because he
attempted to obstruct Officer Robinson’s arrest of Maria
by “repeatedly . . . approach[ing] the area where Officer
Robinson was attempting to handcuff Maria, despite
instructions from Officer Neff to keep back.” The defen-
dants assert that at no point was Julio “struck” by any
police officer.
Neither party points to any video evidence of Julio’s
arrest. From the parties’ versions of events, however, one
might infer that Julio appears briefly on Video 857; at
4:58:36 we see a man walk towards the officers who
are beating Antonio. This man is forcefully pushed back
by an officer, and then disappears from view.
16 No. 08-2658
6. Maria Gonzalez
Maria is the final plaintiff. She testified that once she
arrived at La Rosa she, along with Antonio and Julio,
walked up to the restaurant owner, who was standing
near the door of the restaurant. She could hear other
customers telling the police to go after the people who
beat up Aranda’s wife, and she heard the police respond
by saying, “[G]et the fuck out of here.” Maria then
heard some noise and turned to see Jose being beaten up
by police officers. She walked over to the officers and,
without warning, she was pepper-sprayed. Maria then
slumped against the fence for a short time before she
noticed that Antonio, her husband, was being beaten
by the police. Maria walked up to the police and pleaded
with them to stop, saying, “We didn’t do anything. Leave
him alone.” The police responded by pepper-spraying
Maria again and then handcuffing her. Immediately after
she was cuffed, a male officer threw Maria face-first into
a nearby flowerpot. While in the flowerpot, she was hit
in the head and arms until a female officer pulled her
out by her hair; once out, she was again hit in the head.
Maria was then taken to the police station where she
repeatedly was called a “stupid bitch,” a “Mexican bitch,”
a “Mexican whore,” and “all the names you can imag-
ine.” Maria was charged with mob action, battery, and
resisting an officer; all charges were later dismissed.
As with each of the five other plaintiffs, the defendants’
version of events differs significantly from Maria’s. The
defendants contend that Maria was initially pepper-
sprayed because she kicked Officer Pavoris from behind
No. 08-2658 17
as he attempted to handcuff Antonio. They say that as
the officers were attempting to restrain her, Officer Robin-
son and Maria fell into a flower box. Because Maria
was “tensing up and flailing and kicking her feet,” Officer
Pavoris, the defendants say, was “required to administer
pepper spray to her eyes.” Eventually, Maria was placed
in the back of a police car and transported to the
police station.
No video depicts the events surrounding Maria’s actual
arrest, but a woman who may be Maria appears
briefly, starting at 4:58:31, in Video 857. The woman
enters the right-hand side of the video just after Antonio
runs toward the group of police officers beating Jose.
As she works her way into the brawl, it appears that
she may have lightly pushed a couple of the officers. At
4:58:38, she is pepper-sprayed in the face and is
seen leaning against a fence, holding her head in
pain for over a minute. The woman exits Video 857 at
4:59:49 and is not seen again.
We note that in addition to Videos 857 and 862, the
record also contains videos from squad cars 818 and 890.
These videos do not depict any of the events outside
La Rosa. Tellingly, however, throughout the relevant time
they show police officers leisurely walking around the
vicinity of the restaurant, exhibiting a palpable lack of
urgency.
B
In the district court, the defendants moved for sum-
mary judgment on all counts, and, on June 24, 2008,
18 No. 08-2658
the district court granted their motion. The court ruled
that the plaintiffs had failed to present sufficient evidence
that the events happened as they described them. With
respect to the Fourth Amendment claim based on
unlawful arrest, the district court wrote that the
defendants were “faced with [a] chaotic scene in front of
the Restaurant involving two groups, a fight, and then
a refusal by the parties to leave,” and that all plaintiffs
“approached” the officers. The district court criticized
the plaintiffs for failing “to cite to sufficient evidence
that would indicate that the crowd was not agitated . . . .
[and] that none of the people in the crowd smelled of
alcohol.” The court also said that the plaintiffs had not
“provided any lawful justification . . . to come in such
close proximity to officers attempting to arrest another
individual.” Therefore, the district court concluded, the
defendants had probable cause to arrest the plaintiffs.
Turning to the plaintiffs’ claim that the police violated
the Fourth Amendment by using excessive force in con-
nection with the arrest, the district court ruled that there
was insufficient evidence showing that the defendants
did so. Not only, the court said, was there probable cause
to arrest the plaintiffs, but the “undisputed facts clearly
show that [the defendants] used appropriate amounts
of force in light of the totality of the circumstances in-
cluding the split second decisions that [the defendants]
had to make in dealing with the agitated crowd that
they were faced with at the scene.” The court added
that because there was insufficient evidence that the
defendants used excessive force, there was also no basis
for the plaintiffs’ Fourth Amendment failure-to-intervene
claim.
No. 08-2658 19
The district court similarly dismissed the plaintiffs’ state-
law malicious prosecution claim and their claim against
the City, in which they sought to impute to the City the
tort liability of the police officers under a state-law theory
of respondeat superior. (The Supreme Court has ruled out
this kind of vicarious liability under 42 U.S.C. § 1983. See
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (citing Monell
v. New York City Dept. of Social Servs., 436 U.S. 658, 691
(1978)).) The district court held that “there is also insuffi-
cient evidence to show that [the defendants] had malice
against [the plaintiffs] as to any of the charges brought
against [the plaintiffs] . . . .” The court noted that in any
event the defendants were “entitled to qualified im-
munity for their conduct” because they “could have
reasonably believed that their conduct was within the
bounds of the law.” The district court also dismissed
the plaintiffs’ equal protection claim and denied their
motion to strike.
The plaintiffs do not pursue the equal protection theory
on appeal, nor have they said anything about a state-
law indemnification claim that the court dismissed
under Rule 12(b)(6). In addition, the plaintiffs have with-
drawn their appeal of the district court’s grant of sum-
mary judgment on Jose’s false arrest claim, and so that
issue is no longer before us.
II
A. Unlawful Arrest Claim
In order to prevail on a claim of an arrest in violation
of the Fourth Amendment, the plaintiffs must show that
20 No. 08-2658
they were arrested without probable cause; probable
cause is an absolute defense to such a claim. Williams v.
Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007). A police officer
has probable cause to arrest a person if, at the time of
the arrest, the “facts and circumstances within the
officer’s knowledge . . . are sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in
the circumstances shown, that the suspect has com-
mitted, is committing, or is about to commit an offense.”
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). In ascertaining
whether an officer had probable cause, the court is to
view the circumstances from the perspective of a reason-
able person in the position of the officer. Chelios, 520
F.3d at 686. The jury must determine the existence of
probable cause “ ‘if there is room for a difference of
opinion concerning the facts or the reasonable inferences
to be drawn from them.’ ” Sornberger v. City of Knoxville,
Ill., 434 F.3d 1006, 1013-14 (7th Cir. 2006) (quoting
Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir.
1993)). Only if the underlying facts claimed to support
probable cause are not in dispute may the court decide
whether probable cause exists. Maxwell, 998 F.3d at 434.
1. The Plaintiffs’ Arrests for Mob Action
All plaintiffs were arrested for mob action. The critical
question is whether the defendant officers had a rea-
sonable belief that the plaintiffs, acting together, used
either force or violence, thereby disturbing the public
peace, or, alternatively, that the defendant officers could
reasonably have believed that the plaintiffs were assem-
No. 08-2658 21
bled to do an unlawful act. See 720 ILCS 5/25-1(a)(1)
(defining mob action as “[t]he use of force or violence
disturbing the public peace by 2 or more persons acting
together and without authority of law”); 720 ILCS 5/25-
1(a)(2) (defining mob action as “[t]he assembly of 2 or
more persons to do an unlawful act”). If the plaintiffs
were not using force or violence and were not
assembling to do an unlawful act, the officers did not
have probable cause to arrest them for mob action. (Before
the district court, the plaintiffs also argued that 720 ILCS
5/25-1(a)(2) is unconstitutional, relying on Landry v.
Daley, 280 F. Supp. 938, 955 (N.D. Ill. 1968), rev’d on other
grounds sub nom. Boyle v. Landry, 401 U.S. 77 (1971). They
have abandoned this argument on appeal, and so we do
not consider it further.)
Both the district court’s decision and the defendants’
argument supporting probable cause are premised on
the factual assumption that, when police first arrived at
La Rosa, the scene was chaotic and mob-like. But this
proposition was disputed through first-hand accounts
of those who were present, as we have recounted in
detail above. In their depositions, the plaintiffs reported
that when they arrived at La Rosa, the alleged assailants
of Aranda’s wife and brother had already left. By the
time the police arrived, the plaintiffs were calmly
chatting with the restaurant owner and tending to the
two injured parties. The videos from the police vehicles
support this account. The only point at which “chaos”
is apparent on the videos is when the officers surround
the plaintiffs and appear to beat them. Indeed, one is
struck by the officers’ apparent lack of urgency on at
22 No. 08-2658
least one of the videos, which shows them resting
against cars, wandering around the scene, and pausing
to talk and laugh with one another.
In the face of the plaintiffs’ evidence (taken in the
light most favorable to them), the district court’s con-
clusion that “it is undisputed that Officers Pantoja and
Schroder [sic] arrived at a chaotic scene involving a
fight between two groups of people with others running
to intervene in the fray” is unsupportable. The evidence
on which the district court relied—the officers’ testimony
that the crowd appeared “intoxicated and agitated,”
that the crowd did not immediately disperse when in-
structed to do so, and that at least some of the plaintiffs
were visibly intoxicated—was all contested. Because
there are disputes of material fact with respect to the
elements of mob action, the district court erred in
ruling that the defendants had probable cause as a
matter of law to arrest the plaintiffs for that offense.
2. The Plaintiffs’ Arrests for Resisting or Obstructing a
Peace Officer
Antonio, Julio, Maria, and Maribel were arrested for
resisting or obstructing a peace officer. 720 ILCS 5/31-1(a)
(“A person who knowingly resists or obstructs the per-
formance by one known to the person to be a peace
officer . . . of any authorized act within his official capacity
commits a Class A misdemeanor.”). In order to support
the district court’s ruling on this point, there must be no
dispute that the facts showed that these plaintiffs know-
ingly resisted or obstructed the officers’ work.
No. 08-2658 23
Once again, in light of our detailed recitation of the
facts above, we can be relatively brief. The district court’s
finding of probable cause for the resisting and
obstructing arrests of Antonio, Julio, Maria, and Maribel
was flawed. The court thought that probable cause
existed because each of these plaintiffs approached the
defendant officers while those officers were attempting
to arrest another of the plaintiffs. But, without more
evidence, there is nothing wrong in itself with ap-
proaching a police officer. The plaintiffs do not dispute
that they approached the officers, but they say that
they were just asking the officers what was going on.
Later, they questioned why they were being arrested. As
we noted in Payne v. Pauley, “It is well settled under
Illinois law . . . that the resistance must be physical; mere
argument will not suffice.” 337 F.3d 767, 776 (7th Cir.
2003). “In fact,” we continued, “the First Amendment
protects even profanity-laden speech directed at police
officers.” Id.; see also People v. Long, 738 N.E.2d 216, 222
(Ill. App. Ct. 1st Dist. 2000) (“Merely arguing with a police
officer—even using abusive language—does not con-
stitute resisting a peace officer.”); People v. Flannigan, 267
N.E.2d 739, 741-42 (Ill. App. Ct. 5th Dist. 1971) (disrespect
for the law, antagonism, or belligerence is insufficient
to constitute resisting or obstructing a peace officer).
Construing the facts and inferences in the light most
favorable to the plaintiffs, the facts here are also dis-
puted. The plaintiffs’ evidence, if believed by a trier of fact,
shows that the plaintiffs neither tried to run, nor did
anything more than insulate themselves from the officers’
actions. On this version of events there was no opportunity
24 No. 08-2658
for the plaintiffs to resist arrest or to impede any of the
defendant officers’ duties. It was therefore error to grant
summary judgment for the defendant officers on the
assumption that the undisputed facts demonstrated
probable cause for the arrests of Antonio, Julio, Maria, and
Maribel for resisting or obstructing a peace officer.
3. The Plaintiffs’ Arrests for Battery
Two plaintiffs, Antonio and Maria, were arrested
for battery. Under 720 ILCS 5/12-3(a), it is a battery if
a person “intentionally or knowingly without legal justifi-
cation and by any means, (1) causes bodily harm to
an individual or (2) makes physical contact of an
insulting or provoking nature with an individual.” Antonio
testified that he did not touch any of the defendant
officers. Instead, he simply spoke to them. Similarly,
Maria testified that she did not touch any officers. All
she did was ask them to stop beating Antonio, her hus-
band. These accounts are enough to create a genuine
issue of material fact; they are flatly inconsistent with
the defendant officers’ story. The parties sharply dispute
not only whether Maria and Antonio intentionally or
knowingly touched any of defendant officers, but also
whether they touched any of the defendant officers at all.
B. Excessive Force Claim
A claim that a police officer has used excessive force
in the course of an arrest, investigatory stop, or other
“seizure” of a citizen is addressed to the reasonableness
No. 08-2658 25
of the seizure, under the standards established by the
Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395
(1989); Abdullahi v. City of Madison, 423 F.3d 763, 768
(7th Cir. 2005). An officer’s use of force is unreasonable
from a constitutional point of view only if, “judging
from the totality of circumstances at the time of the
arrest, the officer used greater force than was reasonably
necessary to make the arrest.” Lester v. City of Chicago, 830
F.2d 706, 713 (7th Cir. 1987).
The reasonableness inquiry involves a “careful
balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham,
490 U.S. at 396 (internal quotation marks omitted).
We must give “careful attention to the facts and circum-
stances of each particular case, including the severity of
the crime at issue, whether the suspect poses an im-
mediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to
evade arrest by flight.” Id. We also bear in mind that
“police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is
necessary in a particular situation.” Id. at 396-97. A
factual inquiry into an excessive force claim “nearly
always requires a jury to sift through disputed factual
contentions, and to draw inferences therefrom . . . .”
Abdullahi, 423 F.3d at 773 (internal quotation marks omit-
ted).
Once again, the district court did not view the facts
that pertain to this issue in the light most favorable to
26 No. 08-2658
the plaintiffs. Our account shows that a jury could rea-
sonably find that the force used by the defendant officers
in arresting each of the six plaintiffs was unreasonable.
The plaintiffs never posed a threat to the officers, they
complied with the requests that were directed to them,
and some were never even informed that they were
under arrest. At most, one or more may have become
verbally belligerent or inadvertently made physical
contact at some point. None of the plaintiffs resisted
arrest. Tellingly, the videos show that even while the
plaintiffs were being beaten, they were not fighting back
in the way that the defendants describe. A jury could
certainly find that the plaintiffs’ conduct in no way war-
ranted the response of the officers that the plaintiffs
reported and that the video shows.
The district court thought that the undisputed facts
depicted a chaotic scene to which the defendant officers
were entitled to respond. It also may have placed some
weight on the plaintiffs’ failure to show that they had
suffered any sustained injuries as a result of the arrests.
If so, that too would have been a mistake. Whether the
scene was chaotic or mob-like is sharply disputed, both
through the plaintiffs’ testimony and the video footage
showing the officers moving slowly—almost lethargi-
cally—throughout the relevant period. Furthermore,
although evidence of injury can throw some light on
the question whether the officers used excessive force,
there is no requirement that plaintiffs show any particular
degree of injury. Chelios, 520 F.3d at 690. In any event, all
of the plaintiffs testified that they were injured, with
some plaintiffs (Antonio, for example) testifying that
they were seriously injured.
No. 08-2658 27
Taking the facts in the light most favorable to the plain-
tiffs, a jury could find that the defendant officers used
excessive force in the course of the plaintiffs’ arrest. This
requires us to address the plaintiffs’ related claim that
the officers standing by were also culpable for failing
to intervene in the beatings. The district court threw
these claims out based on its rejection of the predicate
claim of excessive force. In our view, the facts taken
in favor of the plaintiffs are also capable of supporting
a claim for failure to intervene. That theory will there-
fore be open once again on remand.
C. Qualified Immunity
Last, we address the officers’ assertion that they are
entitled to qualified immunity, even if they cannot
prevail outright on the merits. Qualified immunity shields
public officials from liability when they act in a manner
that they reasonably believe to be lawful. Anderson v.
Creighton, 483 U.S. 635, 638-39 (1987). The doctrine
allows “ample room for mistaken judgments by pro-
tecting all but the plainly incompetent or those who
knowingly violate the law.” Hunter v. Bryant, 502 U.S.
224, 229 (1991) (internal quotation marks omitted). Accord-
ingly, qualified immunity is an available defense for
“officers who make a reasonable error in determining
whether there is probable cause to arrest an individual.”
Chelios, 520 F.3d at 691.
The Supreme Court has identified two key inquiries
for qualified immunity assertions: (1) whether the facts,
taken in the light most favorable to the plaintiffs, show
28 No. 08-2658
that the defendants violated a constitutional right; and
(2) whether that constitutional right was clearly estab-
lished at the time of the alleged violation. Pearson v.
Callahan, 129 S. Ct. 808, 815-16 (2009); Saucier v. Katz, 533
U.S. 194, 201 (2001). Pearson held that the court may
decide these questions in whatever order is best suited
to the case at hand. 129 S. Ct. at 818. The first question
is one of law. The second requires a broader inquiry.
Since the purpose of qualified immunity is to pro-
tect public officials from guessing about constitutional
developments at their peril, the plaintiffs have the
burden of showing that the constitutional right was clearly
established. Purtell v. Mason, 527 F.3d 615, 621 (7th Cir.
2008). They can do so by showing that there is “a clearly
analogous case establishing a right to be free from the
specific conduct at issue” or that “the conduct is so egre-
gious that no reasonable person could have believed
that it would not violate clearly established rights.” Smith
v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001). When
the qualified immunity inquiry cannot be disentangled
from disputed facts, the issue cannot be resolved without
a trial. Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996).
We have already observed that the Fourth Amendment
is violated by a full-blown arrest that is not supported
by probable cause, and that this is what the plaintiffs
assert happened to them. We have also established that
this is what the facts show, taking them in the light most
favorable to the plaintiffs. This right has been clearly
established for a long time. We thus conclude that the
defendants are not entitled to qualified immunity on this
part of the case. See Chelios, 520 F.3d at 691 (finding that
No. 08-2658 29
defendant officer was on notice that he lacked probable
cause when the plaintiff had not made physical contact and
had not behaved in an obstructionist manner);
Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 762 (7th
Cir. 2006).
A seizure for purposes of the Fourth Amendment is
unreasonable if it is accomplished through the use of
excessive force. See, e.g., Los Angeles County, California
v. Rettele, 550 U.S. 609, 614 (2007) (“Unreasonable
actions include the use of excessive force or restraints
that cause unnecessary pain or are imposed for a pro-
longed and unnecessary period of time.”); Graham, 490
U.S. at 394. The plaintiffs have described such a seizure,
and so we move again to the second inquiry under
Pearson and Saucier: was this right clearly established at
the time these defendants acted? We ask that question
cognizant of the fact that we must assess the officers’
action in light of the particular circumstances facing
them. See Anderson, 483 U.S. at 639-40. But at this stage,
we must accept the plaintiffs’ account of those circum-
stances. In the situation the plaintiffs describe, it is clearly
established that officers may not, without provocation,
start beating, pepper-spraying, kicking, and otherwise
mistreating people standing around a restaurant parking
lot (even in the middle of the night). See Chelios, 520
F.3d at 692; Clash, 77 F.3d at 1048. The defendants are
thus not entitled to the form of qualified immunity that
protects them from suit. (Naturally, if the trier of fact
accepts the defendants’ account of the evening, they
may still prevail on the merits.)
30 No. 08-2658
D. Illinois State Law Claims
Finally, the plaintiffs argue that the district court errone-
ously dismissed their state-law malicious prosecution
claims and their state-law action against the City, seeking
to hold it vicariously liable under state law for the offi-
cers’ torts. Under Illinois law, the elements of a malicious
prosecution are (1) commencement of criminal proceedings
by the defendants; (2) termination of that matter in favor of
the plaintiffs; (3) the absence of probable cause for the
proceedings; (4) the presence of malice; and (5) resulting
damages. Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill.
1996). The record contains facts that, if accepted by a jury,
meet this definition. No one disputes that the first two
elements have been established: criminal proceedings were
commenced against all plaintiffs, and the proceedings,
with the exception of Jose’s misdemeanor charge, were
terminated in the plaintiffs’ favor. The defendants, how-
ever, assert that the prosecutor’s decision to terminate the
case through a nolle prosequi motion did not result from a
belief that the plaintiffs were innocent. Nothing in the
record, however, supports this assertion. At this stage, we
repeat, we must take the facts and inferences in the light
most favorable to the plaintiffs. Doing so, the only conclu-
sion we can reach is that the plaintiffs (other than Jose)
have demonstrated at the very least that there is an issue of
fact on this point. The same is true for the elements of
malice and damages. Finally, the district court’s
rejection of the plaintiffs’ claim against the City was
based on its assessment of the remainder of the com-
plaint: that is, since it found that the officers had com-
mitted no wrongs, there was nothing for which the
No. 08-2658 31
City might be vicariously liable. It follows from what
we have said that these state-law claims brought by
everyone except Jose against the City must also be rein-
stated on remand.
III
The theme of this opinion has been the standard for
granting summary judgment. This case happens to be
one in which the two sides have offered, and supported,
two radically different versions of the events. A trial is
necessary to resolve the case. We therefore R EVERSE the
judgment of the district court and R EMAND for further
proceedings consistent with this opinion. On remand,
Circuit Rule 36 shall apply.
8-20-09