Davenport v. Giliberto

566 F. App'x 525
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 19, 2014
DocketNo. 13-3435
StatusPublished
Cited by3 cases

This text of 566 F. App'x 525 (Davenport v. Giliberto) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davenport v. Giliberto, 566 F. App'x 525 (7th Cir. 2014).

Opinion

ORDER

Louise Davenport sued the City of Chicago, a police sergeant, and two police officers under 42 U.S.C. § 1983 for arresting her without probable cause and seizing [527]*527and. losing her property without due process. She also included a claim under state law. The district court granted the defendants’ motion for summary judgment on each claim. Because the police had probable cause to arrest her, did not deny her due process, and are not liable under state law, we affirm.

We recount the facts in the light most favorable to Davenport. See Tradesman Intern’l, Inc. v. Black, 724 F.3d 1004, 1009 (7th Cir.2013). In this suit, Davenport describes two encounters that she had with the police. The first encounter occurred in a construction zone. The City had given a construction company a permit — valid for six months beginning July 2,2010 — to exclude the public from its work on Wacker Drive from Harrison Street to Van Burén Street. After construction began, the company noticed homeless people trespassing on the site, sleeping there overnight, and refusing to leave when asked. The construction company complained to the City about the ongoing trespasses, so the police began to patrol the construction site regularly.

Sergeant Matthew Giliberto and Officers Jeannette O’Brien and Anthony Siriscevich found Davenport within the construction zone while they patrolled the Wacker Drive area on August 12, 2010, at around 1 A.M. O’Brien arrested Davenport for criminal trespassing and explained to her that she was unlawfully inside a construction zone, the boundary of which was designated by nearby orange cones on the street. Davenport acknowledges that the area she occupied was under construction during the daytime. But she contends that at the time of her arrest no construction was underway, no signs prohibited entry, and she was not inside any fenced-in area.

Davenport had two bags with her at the time of her arrest: a black nylon bag and a shopping bag. Because O’Brien could not verify that the shopping bag belonged to Davenport, O’Brien left it on the median, where it was later destroyed. O’Brien took Davenport and her nylon bag to the police station. At the station, Davenport removed some other personal items, worth about $200, that she was wearing. O’Brien told Davenport that she would put the personal items in the black nylon bag, but when Davenport retrieved the bag upon her release the next day, she discovered that the items were lost.

Davenport’s second encounter occurred six weeks later. While patrolling an area near the Chicago River, O’Brien and another officer, Sergeant Giliberto, saw Davenport mid-day and asked to speak to her. Frightened, Davenport gathered her belongings and moved away. When O’Brien caught up with her, the officer told her that she was on private property that was being used the next day for an event featuring Mayor Daley, and that she would be arrested if she slept there that night. O’Brien recommended that Davenport sleep instead at the nearby Mission that night.

In this lawsuit, Davenport brings three claims: (1) under the Fourth Amendment, for the unlawful arrest in August; (2) under due process and state-law conversion, for lost property in connection with that arrest; and (3) under state law, for the intentional infliction of emotional distress six weeks later. She also seeks an injunction against farther police encounters. The district court granted the defendants’ motion for summary judgment on all claims. First, the court found that Davenport’s unlawful-arrest claim failed under the Fourth Amendment because probable cause supported the arrest: A reasonable officer could have concluded that Davenport was trespassing on a construction site given the late hour, the location of the construction work, complaints from the [528]*528company about trespassers, and the location of barricades and cones nearby. In any case, the court added, the officers would be entitled to qualified immunity. The court next concluded that Davenport did not have a due-process claim for the lost property because Illinois provides an adequate post-deprivation remedy. A conversion claim under state law for the property was barred, too, because Davenport sued over a year after the injury on August 12, 2010, beyond the statute of limitations, see 745 ILCS § 10/8-101. Lastly, the court ruled that her second encounter with police may have been unpleasant, but it was not extreme and outrageous enough to be tortious. With no underlying substantive claims, the court also denied in-junctive relief.

On appeal Davenport raises four challenges. First she contests the district court’s grant of summary judgment against her on her claim of unlawful arrest. She contends that no probable cause justified her arrest because she had no notice that she was not permitted in the construction area, and the police had no reason to believe that she was on notice.

Police have probable cause to arrest a person when the circumstances known to them reasonably support a belief that a person has, is, or is about to commit a crime. Matthews v. City of E. St. Louis, 675 F.3d 703, 706 (7th Cir.2012); Harney v. City of Chicago, 702 F.3d 916, 922 (7th Cir.2012). This determination is based on an objective assessment drawn from facts known at the time of arrest. See Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 679 (7th Cir.2007). In Illinois, a person commits a criminal trespass if she knowingly enters on the land without lawful authority, 720 ILCS § 5/21-3(a)(l), or after receiving notice that entry is forbidden, enters the land anyway, 720 ILCS § 5/21-3(a)(2).

Here the circumstances surrounding Davenport’s arrest gave the police reason to conclude that Davenport was probably trespassing. See Harney, 702 F.3d at 922-23. The police knew that the place where they found Davenport was a construction site from which the public was excluded, that the construction company wanted the exclusion enforced, that orange cones designated the work area, and that the police had been regularly patrolling the location at night to publicize its restricted access. When they observed Davenport within the coned-in area of the site at 1 A.M., they therefore had reason to believe that she knew she should not be there. See United States v. Kincaid, 212 F.3d 1025, 1029 (7th Cir.2000). Davenport replies that she did not see any signs that restricted access. But this is an assertion of actual innocence, which is immaterial to a probable-cause determination. Evidence for probable cause does not have to be enough to support a conviction for criminal trespass; a reasonable probability, known to the police, as is the case here, is sufficient. See Matthews, 675 F.3d at 706. Thus, Davenport’s Fourth Amendment claim for false arrest fails. See Fleming v. Livingston County, Ill., 674 F.3d 874, 878 (7th Cir.2012); Holmes, 511 F.3d at 679-80.

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Bluebook (online)
566 F. App'x 525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davenport-v-giliberto-ca7-2014.