On November 26, 2019, the Seventh Circuit Court of Appeals decided Barnes v. City of Centralia et al.[i], in which the court examined whether an officer was liable when he reported threats he received to the police, as would any private citizen.  The relevant facts of Barnes, taken directly from the case, are as follows:

A gang named the “Rude Boyz” is well known in the City of Centralia in downstate Illinois. Two of its members threatened a twelve-year-old boy who witnessed a gang-related shooting in a park. The threats were investigated by Peebles, who over the years has arrested many of the Rude Boyz and became the “go-to guy” in the Centralia police department for intelligence on the gang. Peebles and Centralia Police Sergeant Jamie James found and arrested the two gang members on open warrants for weapons and other charges.

As the officers took the two into custody, Barnes drove by the scene. According to Peebles, Barnes parked her car across the street and yelled “bald motherf*****” and “thirsty.”1 In a witness statement given later that day, Peebles identified Barnes as yelling the epithets at him. In later deposition testimony, Peebles admitted he could not identify exactly who was yelling. He concluded the insults were directed at him because he was the only bald individual there.

James was present at the arrests and did not recall specifically what Barnes yelled. He believed Barnes was angry and that she tried to intimidate Peebles into not arresting the two gang members. Barnes later denied yelling at the arrest scene and said she was speaking with a relative in another vehicle.

Law enforcement knew that Barnes had connections with the gang. Barnes and Peebles were familiar with each other through police contacts with several of Barnes’s family members. Officers understood that the Rude Boyz used Barnes’s home as a safehouse. Video of the park shooting shows Barnes’s daughter retrieving the suspect’s bicycle. Before the arrests, Barnes complained about Peebles to city authorities. According to Barnes, she did not know if, at the time of the arrests, any of her family members were involved in gang activity. She also said she did not know the two Rude Boyz whom Peebles and James arrested.

The evening of the arrests, Barnes posted on Facebook: “This thirsty b**** Mike out here on the same on [sic] bulls***.” After someone responded to her post, Barnes posted a second time: “But this b**** don’t believe that what goes around come[s] around and when you got kids of your own.”

A secretary at the Centralia police department saw the posts and texted Peebles who was at home. Peebles felt, based on earlier attempts by the gang at intimidation, that these were credible threats against him and his family, so he called Assistant State’s Attorney Melissa Doran. The prosecutor told Peebles she could not tell him what to do but that he could file a report like a private citizen if he desired. Peebles then called Sergeant James about the Facebook posts and the conversation with Doran. He told James he felt Barnes had threatened his family.

Sergeant James dispatched another officer to Peebles’s house to take a written voluntary statement. Peebles said Barnes was at the scene of the arrest of known gang members and yelled “bald head motherf*****” at him. Peebles also relayed the content of Barnes’s Facebook posts, his belief that his “kids and family” were threatened, and his desire “to make sure nothing happens to [his] family.”   James also texted the assistant state’s attorney:

Sgt. James: Hey Melissa, its [J.] [J]ames. I talked with [Peebles] and just wanted to clarify before we acted. You want us to arrest her after 9 but no offense report just a vague pc [probable cause] sheet?

Prosecutor Doran: Pretty much. That will give me a chance to talk to Matt about it before he decided right away what to do with the case[.] However, as I told [Peebles], I can’t tell you guys that you should or should not arrest anyone. That discretion lies solely with you. As the statute re: intimidation of a public official is written this is a debatable case since it isn’t clear to me whether this was a specific unique threat of harm vs a generalized threat of harm (as the statute reads). As always however, what may not be able to be proven beyond a reasonable doubt still may have probable cause since it is a much lower burden.

Based on Barnes’s association with the Rude Boyz and the content of her posts, James concluded Barnes had credibly threatened Peebles and his family. James testified that he believed the Rude Boyz had “put out a hit” on Peebles, and he also witnessed Barnes’s behavior at the arrests. Given this, James decided to arrest Barnes for intimidation. He concluded this decision was within his sole discretion. After the arrest, the Marion County State’s Attorney charged Barnes with intimidation and aggravated intimidation. See 720 ILCS 5/12-6; 720 ILCS 5/12-6.2. Three months later the state stopped pursuing those charges and Barnes’s prosecution ended.”[ii]

Barnes subsequently sued Officer Peebles and the City of Centralia for an unlawful seizure and malicious prosecution under the Fourth Amendment and malicious prosecution under state law.  The district court granted summary judgment to all defendants in this case.  Barnes appealed the grant of summary judgment to the Seventh Circuit Court of Appeals.

On appeal, the court first noted that a law enforcement officer must be acting “under the color of law” in order to be liable for constitutional violation.  The court stated

A law enforcement officer can be liable under § 1983 if the officer deprives the plaintiff of a federally guaranteed right while acting “under color of state law.” Wilson v. Price, 624 F.3d 389, 392 (7th Cir. 2010). “Action is taken under color of state law ‘when it involves a misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” Id. (quoting Honaker v. Smith, 256 F.3d 477, 484-85 (7th Cir. 2001)). Not every action by a state official or employee occurs under color of state law. Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir. 1989). “A state officer’s conduct does not constitute acting under color of state law unless it is ‘related in some way to the performance of the duties of the state office.'” Wilson, 624 F.3d at 392 (quoting Honaker, 262 F.3d at 485). “Section 1983 does not cover disputes between private citizens, even if one happens to be an officer.” Plaats v. Barthelemy, 641 F. App’x 624, 627 (7th Cir. 2016).[iii]

In Peebles’ case, he encountered Barnes while on-duty making an arrest of her acquaintances, when she yelled at him.  Later Peebles saw that Barnes had posted comments on FaceBook that he understood to be a threat to him and his family.  He then made a police report regarding the threats made by Barnes while he was off-duty.  An officer was dispatched to his residence, took his statement and wrote a report.  The case was assigned to Sergeant James for investigation.  He investigated the case, spoke to a prosecutor, and then obtained charges against Barnes.  Peebles did not know what charges were obtained against Barnes and prosecutor did not contact Peebles during the prosecution.  Based upon these facts, the court of appeals stated that there was no evidence presented that supported Barnes’ allegation that Peebles was acting under the color of law when he reported the threats to the police department.  The court stated

Law enforcement officers, like all other citizens, may invoke the state’s protection without rendering themselves liable under § 1983. See Mauntel v. Briscoe, 1995 WL 319646, at *1 (N.D. Ill. 1995) (citing Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975)) (holding police officer was not acting under color of state law when he called the station to report assault and the department knew he was a police officer).[iv]

Because there is no evidence that Peebles was acting under the color of law when he reported the threats to the police department, Barnes cannot prove he violated her rights under the Fourth Amendment for unlawful seizure or malicious prosecution, therefore summary judgment was affirmed for these claims.

Barnes also sued the City of Centralia for the alleged Fourth Amendment violation.  The court noted

Because a municipality cannot be held liable under § 1983 on a theory of respondeat superior, Monell, 436 U.S. at 694, a plaintiff must identify a municipal “custom, policy or practice that effectively caused or condoned the alleged constitutional violations.” Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir. 2012).[v]

Her original claim was that the city should be liable because it failed to discipline officers who unlawfully seize others and cover up unlawful seizures.  However, she failed to present evidence to support this claim.  On appeal, Barnes changed her claim to one that alleged the city failed to train and supervise its officers.  A plaintiff is not allowed to raise new claims on appeal, however, the court also noted that she provided no evidence to support this claim.  As such, the court of appeals affirmed the grant of summary judgment for the city.

Barnes’ final claim was based on malicious prosecution under Illinois state law.  The court stated

To prevail on such a claim, a plaintiff must demonstrate: (1) the commencement or continuance by the defendant of an original judicial proceeding against the plaintiff; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) malice; and (5) damages. Grundhoefer v. Sorin, 20 N.E.3d 775, 780 (Ill. App. Ct. 2014). Illinois courts have long recognized that suits for malicious prosecution are not favored because persons acting in good faith should not be deterred from reporting crimes by the fear of unfounded suits. See, e.g., Beaman v. Freesmeyer, 131 N.E.3d 488, ¶ 24 (Ill. 2019); Joiner v. Benton Comm. Bank, 411 N.E.2d 229, 231 (Ill. 1980).[vi]

The court of appeals noted that the district court held that this claim failed because there was probable cause for Barnes’ arrest, therefore she failed to meet the third element of the claim.  The court of appeals also noted, without deciding on the probable cause element, that Barnes failed to show “malice” required in the fourth element and failed to show the prosecution was terminated in favor of the plaintiff, the second element.

Regarding malice, the court stated

[T]o show malice, Barnes must prove the prosecution was initiated for a reason other than to bring Barnes to justice. Holland v. City of Chicago, 643 F.3d 248, 255 (7th Cir. 2011).[vii]

Other than the assertion that Peebles acted with malice, the court noted that Barnes presented no evidence to support that assertion.  Without evidence, the claim cannot survive summary judgment.

The court also discussed the second element, whether the prosecution was terminated in favor of Barnes.  Barnes argued that the prosecution was terminated in her favor because the criminal charges were dismissed.  However, the court stated

[D]ismissal is not the requirement; rather, Barnes must show termination of the proceeding in her favor “for reasons that indicate [her] innocence.” Filimoniuk v. Nilles, 2019 WL 2510355, at *5 (Ill. App. Ct. June 14, 2019) (citing Ferguson v. City of Chicago, 820 N.E.2d 455, 461 (Ill. 2004)); see also Joiner, 411 N.E.2d at 232 (“It is clear that the settled law bars a malicious prosecution action predicated upon criminal proceedings which were terminated in a manner not indicative of the innocence of the accused.”).[viii]

While the prosecutor in Barnes’ criminal case entered the nolle prosequi order, the court stated that they cannot presume that the charges were dismissed because the plaintiff was innocent.  Further, Barnes presented no evidence regarding the reason that the prosecutor dismissed the charges.

Because Barnes failed to provide evidence to satisfy the elements of malicious prosecution discussed above, the court of appeals affirmed the grant of summary judgment on this claim.



[i] No. 19-1377 (7th Cir. Decided November 26, 2019)

[ii] Id. at 2-5

[iii] Id. at 6-7 (emphasis added)

[iv] Id. at 8 (emphasis added)

[v] Id. at 9 (emphasis added)

[vi] Id. at 10 (emphasis added)

[vii] Id. at 11 (emphasis added)

[viii] Id. at 12 (emphasis added)

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