Michael B. Smith v. Douglas Lamz and the Village of Algonquin

When Michael B. Smith arrived
at the offices of the Algonquin Dental Associates to collect
donations for police unions and other organizations,
he was arrested for the crime of impersonating a police
officer, a felony under Illinois law. The charges
were subsequently dropped, and Smith sued the Village
of Algonquin and the arresting officer, Douglas Lamz,
under 42 U.S.C. § 1983 and applicable state law alleging
malicious prosecution. Lamz and the Village moved for
summary judgment and the district court granted the
defendant's motion. Smith appeals. Because the uncontested facts establish that Smith's arrest was supported
by probable cause, we affirm.

Before we relate the operative facts, we resolve
Smith's procedural challenge. He argues that the district
court abused its discretion in deeming admitted for purposes
of summary judgment all the facts set forth in the
defendants' statement of material facts. We have considered
Smith's numerous attacks on this decision, and find
them all unavailing.

Under Local Rule 56.1, the defendants, as movants
for summary judgment, were required to submit in support
of their summary-judgment motion a statement of
material facts, comprised of short numbered paragraphs
with citations to admissible evidence,1 which they did.
In his response materials, Smith was required to respond
particularly to each numbered paragraph and, in
the case of disagreement, provide citations to supporting
evidentiary material. Moreover, should there have been
any additional facts, not set forth in the movant's papers,
which required denial of the defendant's motion, Smith was required to submit his own concise statement,
supported by citations to the record.2 Smith admittedly
did not follow this mandatory procedure. He chose
instead - for the court's convenience - to discuss in his
brief only the "two or three dispositive issues" of the
case, ignoring the remainder of the defendants' statement
(see Smith App. Br. at 19-20). In doing so, he failed
in his obligation to respond with particularity to the
statement of material facts submitted by the defendants.
Additionally, Smith sought to support his factual
disagreements by affixing to his brief assorted material,
totaling over one hundred pages. But with his concern for the court's convenience apparently waning, Smith did
not provide the court with appropriate citations to any
of it (nor did he ensure that he attached only admissible
evidence). Here, he has failed in his obligation to
support controverted or additional facts with citations to
admissible evidence.

Local Rule 56.1's enforcement provision provides that
when a responding party's statement fails to controvert
the facts as set forth in the moving party's statement in
the manner dictated by the rule, those facts shall be
deemed admitted for purposes of the motion. N.D. ILL.
L.R. 56.1(b). We have consistently held that a failure
to respond by the nonmovant as mandated by the
local rules results in an admission. See, e.g., Michas v.
Health Cost Controls of Ill., Inc., 209 F.3d 687, 689 (7th Cir.
2000).

A district court is not required to "wade through
improper denials and legal argument in search of a genuinely
disputed fact." Bordelon v. Chicago Sch. Reform Bd.
of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). And a
mere disagreement with the movant's asserted facts is
inadequate if made without reference to specific supporting
material. Edward E. Gillen Co. v. City of Lake Forest,
3 F.3d 192, 196 (7th Cir. 1993). In short, "[j]udges are
not like pigs, hunting for truffles buried in briefs."
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991). Smith's summary-judgment materials were woefully
deficient in either responding adequately to the
defendants' statement or in setting forth additional facts
with appropriate citations to the record. As such, Smith's
purportedly good intentions aside, the district court did
not abuse its discretion in deeming admitted and only
considering the defendants' statement of material facts.

Turning now to those facts, we learn the following: On the
morning of January 23, 1998, Detective Lamz of the Algonquin Police Department received a telephone call
from Karen S. Jurasek, an employee of the Algonquin
Dental Associates, informing Lamz that she had just
received a telephone call from a man identifying himself
as being "from the Algonquin Police Department,"
who was interested in selling her advertising space in a
soon-to-be-published magazine. Jurasek said she agreed
to make a $150 donation, and the caller was to come to
the office later that day to collect. She told Lamz, however,
that her employer had decided not to contribute
after all and that she needed to cancel the office's
donation.

In response to Jurasek's comments, Lamz told her
that Algonquin police officers do not solicit money from
residents or businesses and that no Algonquin police
officers should be collecting money in the name of the
police department. Lamz directed Jurasek to stall the
man should he come to collect the check and to contact
the police immediately upon the caller's arrival.

The caller was, of course, Smith, who showed up at
the dental office later that day to collect. Jurasek did as
she was told, stalling Smith until the police could arrive.
Lamz came himself and questioned Smith, Jurasek, and
another dental employee, Victoria Carlson. Both Jurasek
and Carlson told Lamz that Smith had declared on the
phone and at the front window of the dentist's office
that he was "from the Algonquin Police Department."

As it turns out, Smith was actually employed by a
company called Triad Promotions, Inc., which had been
retained by the Metropolitan Alliance of Police Unions to
solicit donations on its behalf. Smith explained this to
Lamz, insisted that Jurasek and Carlson must have
misunderstood him, and denied identifying himself as
an Algonquin police officer.

Jurasek and Carlson, however, reiterated they were
"absolutely certain" that Smith had told them he was "from the Algonquin Police Department," and they both
wrote and signed contemporaneous statements to that
effect. In a conversation with Lamz, McHenry County
Assistant State's Attorney Mary Lennon approved charging
Smith with false impersonation of a police officer
and theft by deception. As a result, Lamz arrested Smith.

Of Smith's remaining challenges, which attack the district
court's decision on the merits, the only one warranting
discussion is whether the district court erred in
finding that Lamz had probable cause to arrest Smith
and was therefore entitled to qualified immunity. We
begin by noting that Smith may not maintain an action
under § 1983 for malicious prosecution. Newsome v.
McCabe, 256 F.3d 747, 750-51 (7th Cir. 2001) (interpreting
the effective holding of Albright v. Oliver, 510 U.S. 266
(1994), in accordance with its narrowest ground of decision,
to be that the opportunity for state-law remedies
for wrongful-prosecution claims precludes any constitutional
theory of the tort). Rather, the district court
was correct in treating Smith's claim as one for unlawful
arrest in violation of his Fourth Amendment rights.
Id. Under the doctrine of qualified immunity, probable
cause to arrest will defeat an unlawful-arrest claim. See
Jenkins v. Keating, 147 F.3d 577, 585 (7th Cir. 1998)
(officer has probable cause, and is therefore entitled to
qualified immunity, for arresting alleged culprit so long
as reasonably credible witness or victim informs the police
that the suspect has committed a crime, even if
the arrestee is later found to be innocent).

The determination of probable cause is normally a
mixed question of law and fact, Ornelas v. United States,
517 U.S. 690, 696 (1996), but when "what happened"
questions are not at issue, the ultimate resolution of
whether probable cause existed is a question of law, which
we review de novo. Cervantes v. Jones, 188 F.3d 805,
811 (7th Cir. 1999). In order to determine whether probable cause existed for an arrest, we ask whether, at the
time of the arrest, the facts and circumstances within
the officer's knowledge were sufficient for the officer to
form a reasonable belief to suspect criminal activity. Qian
v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999). The officer
need only demonstrate "a probability or substantial
chance of criminal activity, not an actual showing of
such activity." United States v. Gilbert, 45 F.3d 1163, 1166
(7th Cir. 1995) (quotations omitted). And when a police
officer receives information sufficient to raise a substantial
chance of criminal activity from a person
whose truthfulness he has no reason to doubt, that information
is sufficient to establish probable cause. Jenkins,
147 F.3d at 585.

Unquestionably, the facts as known to Lamz at the
time of the arrest establish that he had probable cause
to suspect Smith of criminal activity. Under Illinois
law, false personation of a peace officer occurs when "a
person . . . knowingly and falsely represents himself to
be a peace officer of any jurisdiction." 720 ILL. COMP.
STAT. 5/32-5.1 (2003). Jurasek and Carlson informed
Lamz, both orally and in writing, that the plaintiff told
them he was "from the Algonquin Police Department."
Arguing semantics, Smith asserts that since Lamz knew
he did not utter the words, "I am an Algonquin police
officer," he did not commit the offense. But the arresting
officer Lamz is not charged with the duty of judge
and jury at the moment of arrest, deciding whether
the statement "I am from the Algonquin Police Department,"
is ultimately sufficient to establish guilt of the
crime of impersonating an officer. See Gilbert, 45 F.3d
at 1166. Instead, the appropriate question is whether
an officer in Lamz's position would reasonably believe
on the basis of that statement that there was "a probability
or substantial chance of criminal activity." Id. (quotations
omitted). On the facts before us, that Lamz could have reasonably so believed is supported not only by
Smith's chosen words themselves, but also by the fact
that those words conveyed the impression upon the listener
that he was an Algonquin police officer. Jurasek
had thought as much when speaking with Smith on the
phone: afterwards, she called the Algonquin Police Department
to cancel the donation. We thus conclude that
Lamz possessed probable cause on the basis of these
statements to arrest Smith for the crime of impersonating
a police officer.

Smith had argued to the district court that Lamz's
testimony regarding what Jurasek and Carlson told him
was not credible. In other words, Smith argues that
Jurasek and Carlson never told Lamz that Smith had
represented to them that he was "from the Algonquin
Police Department." Because Smith did not controvert
this fact appropriately in his summary-judgment submissions,
Smith has provided no evidence to support
his allegation. But even if we could look past this procedural
bar and examine the "evidence" he attempts to
introduce on this point, we would find that it would
not raise an issue of fact regarding whether Lamz had
probable cause to arrest. Smith only argues that
Jurasek and Carlson later recanted their original statements
in an unsworn interview with Smith's private
investigator. Such evidence, even if properly asserted
within Smith's brief, would still be inadmissible hearsay.
3 But more importantly, both Jurasek and Carlson wrote and signed their own statements implicating
Smith at the time of his arrest. Armed with this contemporaneous
documentation written by the witnesses themselves,
the importance of Lamz's credibility is diminished.
On the basis of both Jurasek's and Carlson's contemporaneous
written statements, we find that Lamz
had probable cause to suspect that Smith had committed
the offense of impersonating an officer. The district
court correctly found that he was entitled to qualified
immunity on this charge.

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Click the case caption above for the full text of the Court's opinion.

For the foregoing reasons, the decision of the district
court is AFFIRMED.

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Reported by K. Morlan