Morfin, Manuel R. v. City of East Chicago , 349 F.3d 989 ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3113
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.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 00 C 404—Allen Sharp, Judge.
____________
ARGUED APRIL 15, 2003—DECIDED NOVEMBER 18, 2003
____________
Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,
Circuit Judges.
RIPPLE, Circuit Judge. Manuel R. Morfin brought this
action pursuant to 42 U.S.C. § 1983 and Indiana state law for
alleged constitutional violations and other torts resulting
from his arrest and detention in May 1999. The defendants
moved for summary judgment on all of Mr. Morfin’s claims,
2 No. 02-3113
and the district court granted the defendants’ motion. Mr.
Morfin appealed. We now affirm in part and reverse and
remand in part.
I
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. The parties dispute the events that
followed.
No. 02-3113 3
2. Events according to Mr. Morfin
As Mr. Morfin and Shaffer entered the barbershop, Officer
1
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.” ’ ”
2
Id. at 35. 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.
1
Officer Kovats had arrived at the barbershop to conduct an
investigation concerning alleged tampering with the voting
machines by Curtis French; French had been arrested earlier that
evening. Prior to Mr. Morfin’s arrival, Officer Kovats had secured
the crime scene by removing all non-necessary parties, had taken
photographs and had begun dusting for fingerprints.
2
Mr. Morfin could do so without physically touching the ma-
chines because the machine cords were connected to extension
cords. See Morfin Dep. at 50.
4 No. 02-3113
Kevin Pastrick then told Officer Kovats to “[r]emove Rick,
3
get him out of there.” Id. at 40. Mr. Morfin, however, did
not leave, which prompted Kevin Pastrick to tell the party
4
he was speaking to: “ ‘Tell Justin Rick won’t leave.’ ” Id.Mr. Morfin then attempted to tell Officer Kovats that there
was nothing wrong with the machines. Kevin Pastrick,
however, told Officer Kovats that Mr. Morfin was interfer-
ing with the investigation of machine tampering. Mr. Morfin
attempted to explain to Kevin Pastrick that he was not
interfering with the investigation, but was assisting by
checking the machines. Mr. Morfin then invited Kevin
Pastrick to come and look at the machine to verify what he
(Mr. Morfin) had been reporting. Kevin Pastrick did not
move, but told Officer Kovats “ ‘Rick is interfering with the
investigation, with evidence, have him arrested.’ ” Id. at 57.
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
3
At this point, Shaffer left the barbershop.
4
Mr. Morfin believed that Kevin Pastrick was referring to Justin
Murphy, a local attorney who supported Mayor Pastrick’s re-
election campaign.
No. 02-3113 5
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 ma-
5
chines. 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 Ind. Code § 35-44-3-3(a)(1), and disorderly
6
conduct, in violation of Ind. Code § 35-45-1-3(2). Formal
charges never were filed against Mr. Morfin either by the
Lake County Prosecutor or a special prosecutor.
5
Chief Alcala testified:
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 ma-
chines, to try to cover it up.
Alcala Dep. at 83-84.
6
Some time after Mr. Morfin was arrested and transported to the
ECPD, Chief Alcala became aware that Mr. Morfin had been
arrested and was being held on the premises.
6 No. 02-3113
3. Events according to defendants
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 any-
thing, 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 ma-
chines. 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 in-
structed 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
No. 02-3113 7
7
officers 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 bar-
bershop, 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 42 U.S.C. §
1983, Art. 1, §§ 9, 11, 12 and 15 of the Indiana constitution,
and Indiana tort law.” Id. at ¶ 15.
The defendants moved for summary judgment on all
claims, and the district court rendered judgment in the de-
fendants’ favor. The district court believed that its first task
was “to determine whether probable cause existed for the
7
Officer Kovats identifies Officer Davis, as opposed to Officer
Arcuri, as assisting in the arrest. Officer Davis is not a party to
this action.
8 No. 02-3113
charges or a closely related charge which formed the basis
for Morfin’s arrest.” R.114 at 14. Looking to the first charge
of resisting law enforcement, which the district court ac-
knowledged required a showing of forcible resistance, the
district court found that Mr. Morfin “persisted in attempting
to control the scene and began to touch the machines after
being instructed not to do so. . . . He ignored Officer Kovats
[sic] repeated instructions to leave the scene, which led the
officers to make the determination to arrest him.” Id. at 17.
As well, the district court explained that
a struggle ensued in light of Mr. Morfin’s refusal to
comply with the order of both Officer Davis and Officer
Kovats to leave the barbershop (Davis p. 39). Rather
than comply, Morfin refused to leave the scene and
allow the criminal investigation continue. Morfin does
not dispute that he was ordered not to touch the ma-
chines in light of the ongoing criminal investigation
begun by Officer Kovats. Furthermore, Morfin does not
dispute the testimony of both Officer Kovats and Officer
Davis that the struggle did not begin until after their
order to leave the building was ignored by him (Davis
p. 40).
8
Id. The district court then held that
8
At this point in its opinion, the district court noted the follow-
ing:
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 Defen-
dants’ “Statement of Material Facts” that a struggle ensued
because Morfin did not want to leave the building after being
(continued...)
No. 02-3113 9
[a]n officer has the right to enforce a lawful order, such as
securing a potential crime scene, and in turn if an individ-
ual 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 Fourth Amend-
9
ment violation.
8
(...continued)
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 admissi-
ble 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.
9
The district court found alternatively that the officers were
entitled to qualified immunity.
10 No. 02-3113
Turning to the other defendants in the case, the district
court first determined that Officer Anderson played no role
in the arrest of Mr. Morfin and therefore could not be liable
for any wrongdoing at the time of arrest. At the very least,
the court concluded, Officer Anderson had qualified im-
munity because he merely was dispatched to the barbershop
and proceeded to transport Mr. Morfin to the ECPD.
With respect to the alleged involvement of Kevin Pastrick,
the district court engaged in a slightly more detailed
analysis. Relying on Tarkanian v. NCAA, 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 § 1983 liability. According to the
district court, although Kevin Pastrick’s statements to the
police
were unfortunate, inappropriate and probably only
fueled the adamancy of Morfin to attempt to exert his
control over the voting machines, there is no evidence
in this record that they had any impact on the officers’
decision to make the arrest. The officers were under no
obligation to follow the recommendations made by
Pastrick. Indeed the record reflects that his recommen-
dations played no role in the decision to make the
arrest.
R.114 at 22 (citing Kovats’ deposition).
The court then addressed the liability of Chief Alcala.
Although the court acknowledged that, under certain cir-
cumstances, a state actor’s failure to intervene renders him
liable under § 1983, this was not such a case. First, the court
found that there could be no liability against Chief Alcala
because there was probable cause for the arrest. “Further,”
continued the district court,
No. 02-3113 11
even if there had been a constitutional violation, Chief
Alcala’s personal involvement in the matter consisted of
merely turning the phone over to Tom Ryan the ECPD’s
legal advisor and later telling Officer Kovats’ [sic] his
job. Thus, Morfin’s claim based on Chief Alcala’s
alleged failure to intervene in his arrest is without merit.
Id. at 25.
Finally, the court addressed Mr. Morfin’s excessive force
and First Amendment claims. The court found that, given
the totality of the circumstances, specifically Mr. Morfin’s
continued refusal to leave the premises, the struggle that
preceded his arrest and the fact that Mr. Morfin suffered no
injury, the force was not excessive. Additionally, the district
court found that the officers were entitled to qualified
immunity because “based upon the factual record these
ECPD officers did not violate any clearly established rule
prohibiting such conduct.” Id. at 29. Finally, the district
court found that, because there was probable cause for the
arrest, Mr. Morfin’s First Amendment claim (that his arrest
was motivated by his support of candidate Stiglich) must
10
fail.
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.,
10
The district court also found no liability on the part of the City
of East Chicago because the claims were not based upon any al-
legedly unconstitutional policy or practice of the city.
12 No. 02-3113
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 inferences in favor of that par-
ty.’ ” Conley v. Vill. of Bedford Park, 215 F.3d 703, 708 (7th Cir.
2000) (quoting Bellaver v. Quanex Corp., 200 F.3d 485, 491-92
(7th Cir. 2000)). However, the burden is on the non-moving
party to come forward with specific facts in the record that
demonstrate there is a genuine issue for trial. See Moore v.
J.B. Hunt Trans., Inc., 221 F.3d 944, 950 (7th Cir. 2000).
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
Fourth Amendment false arrest claim. Specifically, Mr.
Morfin maintains that the arresting officers did not have
probable cause to arrest him either for the offense of re-
sisting law enforcement or for the offense of disorderly
conduct as those offenses are defined under Indiana law. See
Ind. Code §§ 35-44-3-3(a)(1), 35-45-1-3(2).
“It is well settled that the actual existence of probable
cause to arrest precludes a § 1983 suit for false arrest.” Juriss
v. McGowan, 957 F.2d 345, 349 n.1 (7th Cir. 1992) (citing
Schertz v. Waupaca County, 875 F.2d 578, 582 (7th Cir. 1989));
see also Fernandez v. Perez, 937 F.2d 368, 370 (7th Cir. 1991)
(stating that probable cause to arrest “serves as an absolute
bar to the plaintiff’s claim for false arrest/imprisonment”).
Simply stated, “a person arrested with probable cause
cannot cry false arrest . . . . [a]nd without a predicate
constitutional violation, one cannot make out a prima facie
No. 02-3113 13
case under § 1983.” Juriss, 957 F.2d at 349 n.1 (internal ci-
tations omitted). Consequently, if there was probable cause
to arrest Mr. Morfin, it serves as a bar to his § 1983 false
arrest claim. We turn, therefore, to the legal bases for Mr.
Morfin’s arrest.
The defendants first maintain that there was probable
cause to arrest Mr. Morfin on the charge of “resisting law
enforcement” pursuant to Ind. Code § 35-44-3-3(a)(1). “Re-
sisting law enforcement” occurs when a person “knowingly
or intentionally” “(1) forcibly resists, obstructs, or interferes
with a law enforcement officer or a person assisting the
officers while the officer is lawfully engaged in the exe-
cution of his duties as an officer.” Ind. Code § 35-44-3-
3(a)(1). It is clear that under Indiana law the resistance must
involve force, which occurs “when strong, powerful, violent
means are used to evade a law enforcement official’s
rightful exercise of his or her duties.” Spangler v. State, 607
N.E.2d 720, 723 (Ind. 1993). A verbal refusal is not suffi-
cient—some physical sign of resistance is necessary before
the statute is violated. Compare Spangler, 607 N.E.2d at 724-
25 (“A review of the record fails to disclose the presence of
evidence from which a reasonable trier of fact could con-
clude with the required level of certainty that Spangler
acted forcibly, as forcibly is defined above. There was no
strength, power, or violence directed towards the law en-
forcement official. There was no movement or threatening
gesture made in the direction of the official. Spangler re-
peatedly and firmly refused to accept service of process,
then walked away.” (emphasis added)), with Potts v. City of
Lafayette, 121 F.3d 1106, 1113 (7th Cir. 1997) (“Potts’ step
toward the entrance of the rally, in response to the officers’
lawful orders to stay out of the rally if he did not relinquish
his tape recorder, constitutes ‘force’ as that term is under-
stood in the context of interfering with officers’ duties.”).
14 No. 02-3113
In the present case, whether Mr. Morfin forcibly resisted
Officer Kovats’ orders or forcibly interfered with the inves-
tigation are matters of dispute among the parties. Taking
the facts in the light most favorable to Mr. Morfin, as we
must at the summary judgment stage, Mr. Morfin did not
refuse any orders, much less do so with force. See Morfin
11
Dep. at 121, 125. It is only if one accepts the defendants’
11
As set forth above, with respect to the issue of physical re-
sistance, the district court noted that
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 Defen-
dants’ “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 submit-
ted 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
(continued...)
No. 02-3113 15
11
(...continued)
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 in-
voking 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 barber-
shop 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). Further-
more, 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
(continued...)
16 No. 02-3113
version of events that Mr. Morfin was defiant (and physi-
cally so) in response to an officer’s order to leave the prem-
ises. Consequently, a genuine issue of material fact exists
regarding whether Mr. Morfin forcibly resisted Officer
Kovats’ orders and, therefore, whether the officers had
probable cause to arrest Mr. Morfin for interfering with law
enforcement.
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.” Ind. Code § 35-45-1-3(1) &
(2). The arrest report indicates that Mr. Morfin was arrested
12
for violating subsection (2) of the statute. With respect to
11
(...continued)
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 ap-
plication of Local Rule 56.1(b), but look to the parties’ submis-
sions 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.
12
The arrest report states: “On the above date and time Investiga-
tor Kovats was attempting to arrest the above listed subject for
(continued...)
No. 02-3113 17
this subsection, Indiana courts have held that “the volume
of [the arrestee’s] speech is critical in determining whether
it was unreasonable . . . .” Johnson v. State, 719 N.E.2d 445,
448 (Ind. Ct. App. 1999). “[I]n order to support a conviction
for disorderly conduct, ‘[t]he State must prove that a
defendant produced decibels of sound that were too loud for
the circumstances.’ ” Id. (quoting Whittington v. State, 669
N.E.2d 1363, 1367 (Ind. 1996)).
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 order to conclude that Mr. Morfin raised his
voice and was belligerent. However, such a credibility
determination at the summary-judgment stage constitutes
error. See Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)
(“On summary judgment a court may not make credibility
determinations, weigh the evidence, or decide which
inferences to draw from the facts; these are jobs for a
factfinder.”); Black v. Lane, 824 F.2d 561, 562 (7th Cir. 1987)
(“Credibility normally cannot be determined by summary
judgment.”).
12
(...continued)
interfering with law enforcement. The subject became loud and
boisterous and told the officer to “F--- off” several times the
subject was asked to quit [sic] down several times because he was
drawing a crowd to the crime scene.” R.70, Ex.14 (Arrest No.
99A1100).
18 No. 02-3113
Finally, the defendants argue that the officers had prob-
able cause to arrest Mr. Morfin for obstruction of justice,
pursuant to Ind. Code § 35-44-3-4. A person commits ob-
struction of justice under Indiana law if that person “alters,
damages, or removes any record, document, or thing, with
intent to prevent it from being produced or used as evi-
dence in any official proceeding or investigation.” Ind. Code
§ 35-44-3-4(a)(3). According to the defendants, the arresting
officers had probable cause to believe that Mr. Morfin had
violated this provision because he expressed a desire to take
over the investigation, told Officer Kovats that he was
taking the voting machines and repeatedly refused to leave
when asked to do so.
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 ob-
struction 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 the district court
properly entered summary judgment, we must interpret the
facts in the light most favorable to the non-moving party,
here Mr. Morfin. Therefore, accepting the facts as forwarded
by Mr. Morfin, there was no probable cause to believe that
he engaged in an obstruction of justice.
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 proba-
ble cause. Therefore, the district court erred in granting
No. 02-3113 19
summary judgment to Officers Kovats and Arcuri on Mr.
13
Morfin’s Fourth Amendment claim.
13
The defendants argue that, because they have raised the de-
fense of qualified immunity, this court not only must consider
whether there was actual probable cause to arrest, but also must
determine whether a reasonable officer could have mistakenly
believed that probable cause existed. Humphrey v. Staszak, 148
F.3d 719, 725 (7th Cir. 1998). If there was “ ‘arguable probable
cause’ to arrest Morfin,” continue the defendants, “then they are
entitled to qualified immunity.” Appellees’ Br. at 23. The critical
inquiry, the defendants emphasize, is whether the facts apparent
to the arresting officer at the time of the arrest would have caused
a reasonable officer to believe there was probable cause.
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 interfer-
ence. 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.
(continued...)
20 No. 02-3113
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 Fourth Amendment claim on the ground that
Officer Anderson was not personally involved in the arrest.
In his submissions to this court, however, Mr. Morfin barely
mentions Officer Anderson and has failed to argue how
Officer Anderson’s involvement implicates him in the
alleged constitutional violation. Therefore, we could affirm
the district court’s judgment in favor of Officer Anderson
simply on the basis that Mr. Morfin has waived any argu-
ment with respect to Officer Anderson’s liability. See, e.g.,
Sere v. Bd. of Trustees of the Univ. of Illinois, 852 F.2d 285, 287
(7th Cir. 1988) (noting that the court has “consistently and
evenhandedly” applied the waiver doctrine when an ap-
pellant fails to present issues, supported by appropriate
judicial authority, in his opening brief). However, even a
cursory review of the record reveals that Officer Anderson’s
only involvement with Mr. Morfin was to transport him
from the barbershop to the ECPD for booking. Officer
Anderson was Mr. Morfin’s temporary custodian and noth-
ing else. This action, without more, does not suffice to hold
Officer Anderson liable for the alleged constitutional vio-
lations against Mr. Morfin. See Maltby v. Winston, 36 F.3d
548, 559 (7th Cir. 1994) (holding that sheriff who transported
and otherwise acted as custodian of arrestee could not be
liable for alleged constitutional violation of arrest without
13
(...continued)
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.
No. 02-3113 21
probable cause). We therefore affirm summary judgment in
favor of Officer Anderson.
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 es-
tablish a constitutional violation and has the ability to pre-
vent 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 vio-
lations 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 super-
visor 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 sub-
ordinates’ 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 know-
ingly or with deliberate, reckless indifference.” Jones v.
City of Chi., 856 F.2d 985, 992-93 (7th Cir. 1988) (citations
omitted).
22 No. 02-3113
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 § 1983. However, we do not believe
that the record, even when read in the light most favorable
to Mr. Morfin, can support a conclusion that Chief Alcala
had knowledge that an unlawful arrest (or any other
constitutional violation) was imminent.
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 at-
tempting 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 to Ryan, Officer Kovats told him that Mr.
Morfin wanted access to the machines, and, in the middle of
the telephone conversation, “Mr. Morfin went for the
machines and tried to take them.” Ryan Dep. at 35. Accord-
ing to the evidence in the record, therefore, the only source
of information for both Chief Alcala and Ryan concerning
what was occurring in the barbershop on May 3, 1999, was
Officer Kovats. Mr. Morfin does not point to any evidence
No. 02-3113 23
in the record that establishes that Chief Alcala’s knowledge
of the events involving Mr. Morfin was broader than that
reported to him by Officer Kovats. Similarly, Mr. Morfin
fails to come forward with any evidence that Chief Alcala
had a reason to question what Officer Kovats reported to
him over the telephone. The record reflects that the only
information known to Chief Alcala prior to the arrest was
that Mr. Morfin was interfering with the crime scene and
ignoring the direct orders of police officers. Based on this
information, Chief Alcala reasonably could have concluded
that there was probable cause to arrest Mr. Morfin and that
there was no reason to put Officer Kovats to further inquiry
or to prevent him from arresting Mr. Morfin.
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
14
in favor of Chief Alcala.
14
Mr. Morfin also faults Chief Alcala for failing to hasten his
release once he discovered Mr. Morfin had been detained. How-
ever, again, there is no evidence in the record to suggest that
Chief Alcala was aware of facts that would lead a reasonable
officer in his position to conclude that Mr. Morfin’s arrest was
unlawful. Additionally, as noted above, the fact that Chief Alcala
was Mr. Morfin’s ultimate custodian during his short detention
on the evening of May 3, 1999, is insufficient involvement to hold
Chief Alcala liable for the arrest.
(continued...)
24 No. 02-3113
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 § 1983 when they act jointly with state officials in
denying the rights of other citizens. Mr. Morfin believes that
a genuine issue of material fact exists as to whether Kevin
Pastrick acted jointly with Officer Kovats in the allegedly
unlawful arrest.
The defendants concede “that a private individual could
be held liable under Section 1983 upon a showing that the
private individual and state actor(s) acted in concert or
jointly in depriving a person of civil rights.” Appellees’ Br.
at 44. However, the defendants maintain that there is no
evidence in the record to suggest that any comment made
by Kevin Pastrick influenced the officers to arrest Mr.
Morfin. Furthermore, because the decision to arrest “oc-
curred after Morfin’s refusal to follow commands through
the various officers’ requests not to touch the voting ma-
chines,” “any alleged statements attributed to Pastrick were
not decisive.” Id. at 46. We respectfully disagree.
14
(...continued)
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.
No. 02-3113 25
“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 depriva-
tion 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 to-
gether with or has obtained significant aid from state offi-
cials, or because his conduct is otherwise chargeable to the
State.” Lugar, 457 U.S. at 937. This is necessarily a fact-
bound 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 per-
mission of Officer Kovats. There was no concern with re-
spect to Mr. Morfin’s actions until Kevin Pastrick arrived on
26 No. 02-3113
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 state-
ments 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.
No. 02-3113 27
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 em-
ployee had a “meeting of the minds” and thus reached an
understanding that petitioner should be refused service.
Id. at 158.
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 Fourth
Amendment claim.
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
28 No. 02-3113
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 Fourth
Amendment. See Graham v. Connor, 490 U.S. 386, 396 (1989).
Determining whether the force used to effect a particu-
lar seizure is “reasonable” under the Fourth Amend-
ment requires a careful balancing of “ ‘the nature and
quality of the intrusion on the individual’s Fourth
Amendment interests’ ” against the countervailing gov-
ernmental interests at stake. [Tennessee v. Garner, 471
U.S. 1, 8 (1985),] quoting United States v. Place, 462 U.S.
696, 703 (1983). . . . Because “[t]he test of reasonableness
under the Fourth Amendment is not capable of precise
definition or mechanical application,” Bell v. Wolfish, 441
U.S. 520, 559 (1979), however, its proper application
requires careful attention to the facts and circumstances
of each particular case, including the severity of the
crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade
arrest by flight.
Id. (citations and parallel citations omitted).
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 coopera-
No. 02-3113 29
tive. 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 ex-
cessive 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 oppo-
nent 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 First
Amendment retaliation, a plaintiff must demonstrate that
(1) his conduct was constitutionally protected; and (2) his
conduct was a ‘substantial factor’ or ‘motivating factor’ in
the defendant’s challenged actions.” Abrams v. Walker, 307
F.3d 650, 654 (7th Cir. 2002). The protected conduct “ ‘cannot
30 No. 02-3113
be proven to motivate retaliation[] if there is no evidence
that the defendants knew of the protected [activity].’ ”
Stagman v. Ryan, 176 F.3d 986, 1000-01 (7th Cir. 1999)
(quoting O’Connor v. Chicago Transit Auth., 985 F.2d 1362,
1369-70 (7th Cir. 1993)). No one contests that Mr. Morfin’s
actions in supporting Stiglich in the mayoral primary would
suffice as constitutionally protected behavior for purposes
of the first prong of the above test. The question is whether,
with respect to each defendant, the conduct was a substan-
tial or motivating factor in the defendants’ challenged
action.
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.
15
Morfin’s support of Stiglich. Consequently, without
knowledge that Mr. Morfin was supporting Stiglich, Mr.
Morfin’s support of Stiglich could not have motivated the
officers’ actions in the barbershop.
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 evi-
16
dence that calls this testimony into question.
15
Indeed, Officer Kovats testified that he did not even know who
Mr. Morfin was when he entered the barbershop. See Kovats Dep.
at 29.
16
Furthermore, even if Chief Alcala were aware of Mr. Morfin’s
support of Stiglich, we already have concluded that there is not
sufficient evidence in this record to support a conclusion that
(continued...)
No. 02-3113 31
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 prem-
ises. 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
16
(...continued)
Chief Alcala condoned, or failed to intervene to stop, the al-
legedly unlawful arrest of Mr. Morfin. Consequently, even if
Chief Alcala may have been motivated to take some action
against Mr. Morfin, there is not sufficient evidence in the record
to conclude that such action was taken.
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 al-
legedly unconstitutional actions taken by Kevin Pastrick or the
arresting officers.
32 No. 02-3113
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 judg-
ment in favor of Kevin Pastrick on Mr. Morfin’s First
Amendment claim.
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
Fourth Amendment false arrest claim and remand for
further proceedings; we affirm the judgment in favor of
Chief Alcala and Officer Anderson on this claim. We reverse
the judgment of the district court with respect to Officers
Kovats and Arcuri on Mr. Morfin’s excessive force claim
and remand that claim for further proceedings. We also
reverse the district court’s judgment in favor of Kevin
Pastrick on Mr. Morfin’s First Amendment claim and re-
mand that claim for further proceedings; we affirm the
district court’s judgment in favor of Officer Kovats, Officer
Arcuri and Chief Alcala with respect to Mr. Morfin’s First
Amendment claim. Finally, we affirm the judgment of the
district court with respect to all claims against the City of
17
East Chicago. With respect to those claims on which we
reversed the district court’s judgment, Circuit Rule 36 shall
apply. The parties shall bear their own costs in this court.
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART
17
“[B]ecause this decision reinstates . . . federal claims, on
remand the district court should entertain” those state law claims
over which it has supplemental jurisdiction. Armstrong v.
Squadrito, 152 F.3d 564, 582 (7th Cir. 1998).
No. 02-3113 33
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-18-03