Judge Manning Finds That Questions Regarding Police Officer’s Credibility Are So Substantial That It Cannot Accept Any of His Testimony Of What He Knew And When.
Norris v. Ferro 2009 WL 1033557 N.D.Ill.,2009.(April 17, 2009)According the decision:Plaintiff John Norris drove his friends, Rodney Walls and Charles Hinch, to two different 24-hour supermarkets (Jewel and Cub Foods) in the early morning hours of August 27, 2005. Walls parted company with Norris and Hinch at the Jewel, but Hinch returned to Norris’ vehicle with a variety of purloined sirloins (a total of four strip steaks, three top sirloin steaks, and one tenderloin steak). Witnesses called police, and Francis Ferro, a City of Joliet police officer, arrested Norris for retail theft. Following his arrest, Norris sued Ferro pursuant to 42 U.S.C. § 1983, contending that Ferro violated his Fourth Amendment rights by unlawfully arresting him and maliciously prosecuted him and intentionally inflicted emotional distress in violation of Illinois law.Norris contends that Officer Ferro’s post-arrest police reports and grand jury testimony are inconsistent with the uncontroverted evidence regarding Norris’s involvement with the meat heist from the Jewel. In his initial report, Ferro stated merely that he had been informed that Hinch and Norris had stolen meat. In the first supplemental report, however, Ferro stated that witnesses told him that both Norris and Hinch went into the Jewel. It is undisputed that Norris drove what turned out to be the getaway car, as opposed to personally pilfering meat.Ferro argues that, based on a theory of accountability, he had probable cause to arrest Norris based on the witnesses’ statements that the person who set off the theft sensors by running out of the Jewel carrying what appeared to be packages under his clothing jumped into Norris’s car, their description of the getaway car, the fact that Ferro pulled Norris’s car over and saw packages of meat on the passenger seat floor of the car in plain view, and the inability of Norris and Hinch to produce a receipt.The problem with Ferro’s position is that at the summary judgment stage, the court cannot assess witnesses’ credibility. If the court could act as a fact-finder and accept the facts supporting Ferro’s theory of accountability, it would conclude that he had probable cause to arrest Norris. However, the record contains multiple conflicting versions of the meat-stealing incident, as recounted by Ferro himself. Ferro started off with the story that he wants the court to accept today, but then changed that story in critical ways, and even went so far as to falsely testify before a grand jury that Norris had entered the Jewel.”A court’s role [on summary judgment] is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable [material] fact.” Keri v. Board of Trustees of Purdue University, 458 F.3d 620, 628 (7th Cir.2006). Thus, “if the credibility of the movant’s witnesses is challenged by the opposing party and specific bases for possible impeachment are shown, summary judgment should be denied and the case allowed to proceed to trial, inasmuch as this situation presents the type of dispute over a genuine issue of material fact that should be left to the trier of fact.” 10A Wright, Miller & Kane, FEDERAL PRACTICE & PROCEDURE, Civil 3d § 2726 at 446 (1998); see also Askew v. City of Chicago, 440 F.3d 894, 896-97 (7th Cir.2006) (holding that “the sort of inconsistencies and glitches that characterize real investigations do not disentitle police to rely on eyewitness statements” but noting that “[i]f these subjects [as to which the plaintiff claimed inconsistencies existed] were material, then there would be work for the jury to do”).Accordingly, based on the present record, the court cannot find as a matter of law that Ferro had probable cause. He is, therefore, not entitled to summary judgment on Norris’s § 1983 claim.The Court also denied summary judgment on defendant’s malicious prosecution and IIED claims.The information you obtain in these case law updates is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.