                                  In the

     United States Court of Appeals
                   For the Seventh Circuit
                       ____________________
No. 13-2533

WILLIAM K. HAWKINS,
                                                     Plaintiff-Appellant,

                                    v.

RODNEY S. MITCHELL AND JAMES M. BOWERSOCK,
                                          Defendants-Appellees.
                       ____________________

          Appeal from the United States District Court for the
              Central District of Illinois, Urbana Division.
     No. 2:10-CV-2111 — Michael P. McCuskey, District Judge, and
                 David G. Bernthal, Magistrate Judge.
                       ____________________

      ARGUED DECEMBER 2, 2013 — DECIDED JUNE 23, 2014
                 ____________________

  Before BAUER and FLAUM, Circuit Judges, and VAN
BOKKELEN, District Judge. *
   VAN BOKKELEN, District Judge. We review summary-
judgment and trial rulings on several causes of action

* Of the Northern District of Indiana, sitting by designation.
No. 13-2533                                                   2

against police who did not claim immunity under federal or
state law. 1 The central legal doctrines are the exigency
exception to the Fourth Amendment warrant requirement,
probable cause, and the First Amendment right to consult an
attorney
                              I. Facts
    Two police oﬃcers—Rodney Mitchell and, about two
minutes later, James Bowersock—responded to a 9-1-1 call
by Sarah Bumgarner. 2 It was late on a Saturday night in May
2008. Bumgarner had called from outside William Hawkins’s
house on a residential street in Champaign, Illinois,
reporting what the dispatcher classiﬁed as a domestic
incident. On the way to the scene, Mitchell and Bowersock
learned that Bumgarner and Hawkins had been drinking
and got into a heated argument. Hawkins was alleged to
have a history of abusiveness, but tonight’s argument was
“verbal only.” The dispatcher summarized the situation:
“Hawkins has locked [Bumgarner] out and her keys are in
the residence. [Bumgarner] just wants her keys so she can
leave.”
   Upon arriving, Mitchell discovered Bumgarner outside
and shouting to Hawkins about her keys. Clothing was
scattered across the yard. Mitchell remembers Hawkins
“screaming” back to her from the porch: “I don’t have your
fucking keys!” Hawkins then stepped inside his house and



1 District Judge McCuskey made the summary-judgment rulings; the
trial rulings are Magistrate Judge Bernthal’s.
2 Bumgarner’s name later changed to Gerth.
No. 13-2533                                                3

slammed the door. In irreconcilable contrast, Hawkins’s
account is that he was in bed asleep when Mitchell arrived.
    It is undisputed that Bumgarner verbally conﬁrmed with
Mitchell that she was not injured; he observed no injury to
her. She said she was “sorry” for calling 9-1-1, but needed
her keys so she could leave. Bumgarner told Mitchell that
Hawkins had her keys and that he “gets violent sometimes.”
On the other hand, Bumgarner also told Mitchell directly
what she had already reported on the 9-1-1 call—her ﬁght
with Hawkins had been “verbal only.” Bumgarner made no
allegation that Hawkins was violent or threatening on that
night.
    Mitchell went to Hawkins’s door and knocked. Hawkins
opened, and, according to Mitchell, yelled “I don’t need to
talk to you!”; then attempted to close the door.But Mitchell
stuck his foot in the path of the door, which prevented
Hawkins from closing it. Mitchell entered the home.
    Hawkins made clear that he wanted Mitchell gone, but
Mitchell persisted in questioning Hawkins. Hawkins then
called an attorney, with whose assistance Hawkins
conﬁrmed from Mitchell that he did not have a warrant.
Mitchell nevertheless stayed in the house and told Hawkins
he just wanted to talk to him. Again following the attorney’s
advice, and still on the phone, Hawkins asked Mitchell
whether he was under arrest. Mitchell said Hawkins was not
under arrest and reiterated that he just wanted to talk to
Hawkins. The attorne advised Hawkins that Hawkins had
no duty to speak to the oﬃcer, that the oﬃcer had no right to
be in his house, and that Hawkins could just tell the oﬃcer
to “get the fuck out of the house.”
No. 13-2533                                                4

    That’s what Hawkins did, several times over the course
of the encounter. For his part, Mitchell was comfortable with
Hawkins on the phone because the conversation was
allowing time for Bowersock to reach the scene.
    When Bowersock did arrive, Mitchell motioned him
inside the house. Hawkins remained on the phone and
continued yelling for Mitchell to get out. (Whether Hawkins
was immediately aware of Bowersock’s presence is unclear.)
    Mitchell remembers Bowersock then telling Hawkins that
the oﬃcers were investigating a 9-1-1 domestic call and that
Hawkins had to get oﬀ the phone and speak to Mitchell.
Hawkins did not obey, and instead, in Mitchell’s words,
continued to give the oﬃcers “some kind of commands.” “At
that point,” Mitchell explained, “Oﬃcer Bowersock told
[Hawkins] to get oﬀ the phone and speak with this oﬃcer, or
[he would] be arrested.” Hawkins did not comply, at which
point Bowersock told him he was under arrest. At the same
time, according to Mitchell, Bowersock grabbed Hawkins’s
left wrist and Mitchell grabbed Hawkins’s right wrist.
Hawkins then allegedly “stopped and started twisting to
resist arrest.” The three ended up struggling to the ﬂoor.
Mitchell says Hawkins continued “trying to pull his hands
inward, which is common for someone in that position to try
to keep from being arrested.” Hawkins continued to protest
what he claimed was a violation of his rights, and resisted
the oﬃcers as they escorted him out of his house and into a
police car.
   Bowersock’s recollection of those events is substantially
the same as Mitchell’s. When asked what Hawkins said after
Bowersock told him he was under arrest, Bowersock
recalled:
No. 13-2533                                                 5

    He did make a response. I believe it was something
    to the eﬀect that he wasn’t – or he hadn’t done
    anything wrong, that this was his house and
    basically for us to get out of his house. He then
    tensed up and started to pull away, at which time
    we attempted to maintain control of him. Forward
    momentum had started and all three of us had gone
    to the ﬂoor.
   At 11:46 p.m., about ﬁve minutes after Mitchell arrived
and about three minutes after Bowersock arrived, they
reported Hawkins in their custody. The state ﬁled charges
against Hawkins, but later dropped them.
                   II. Procedural History
    Hawkins sued the oﬃcers for the arrest and the allegedly
excessive force they used in making it. He claims he needed
surgery to remove a cyst from above his left eye where he
was injured by the oﬃcers, as well as psychiatric counseling
for the traumatic encounter. The case proceeded in the
district court to the ﬁling of cross-motions for summary
judgment with six counts of an amended complaint pending.
    Count I was for “Illegal Seizure,” alleging that the
oﬃcers “illegally seized and eﬀected a custodial arrest of the
plaintiﬀ without probable cause for such arrest and without
a judicial warrant.” Count II was for excessive force. Count
III claimed “Arrest in Retaliation for Speech,” on the theory
that Mitchell and Bowersock arrested Hawkins in retaliation
for exercising a First Amendment right to speak to an
attorney and asserting his Fourth Amendment right to
privacy in his home. In Count IV, Hawkins sued for battery
under Illinois common law. Count V was for “Wilful and
No. 13-2533                                                    6

Wanton       Misconduct.”     Count  VI,     titled   “False
Imprisonment/Locomotion,” was based on the allegations
that the Defendants, “through a show of force and their law-
given authority,” prevented Hawkins from telephoning with
his attorney and forced him “to leave hi own home under
threat of force and bodily injury.”
     Though Hawkins’s amended complaint invokes the
Illinois Constitution in Counts I, II, and III, and the Illinois
Civil Rights Act of 2006 in Counts III, V, and VI, he has not
relied on those laws in this Court. The only sources of rights
that Hawkins persists in claiming were violated are as
follows for the remaining counts, with the trial-court
disposition in the right column:
                                                   Summary
                                Fourth
I. Illegal Seizure                               judgment for
                              Amendment
                                                  defendants
                                Fourth              Defense
II. Excessive Force
                              Amendment          verdict at trial
                                                   Summary
III. Arrest in
                           First Amendment       judgment for
Retaliation for Speech
                                                  defendants
                            Illinois common         Defense
IV. Batter
                                   law           verdict at trial
V. Wilful and Wanton        Illinois common         Defense
Misconduct                         law           verdict at trial
                                                   Summary
VI. False Imprisonment      Illinois common
                                                 judgment for
/ Locomotion                       law
                                                  defendants
No. 13-2533                                                    7

    The district court paired Counts I and VI under the
heading “False Arrest Claims” in its summary-judgment
order and addressed them as one. See Hawkins v. Mitchell,
909 F. Supp. 2d 1011, 1020–24 (C.D. Ill. 2012). Relying in part
on Hawkins’s failure to object to the magistrate judge’s
ruling in dismissing a claim for trespass that “Defendants
could lawfully enter Plaintiﬀ’s home to help Plaintiﬀ’s
girlfriend, who asked for assistance to collect her
belongings,” the court concluded the oﬃcers’ entry into
Hawkins’s home did not violate his constitutional rights. Id.
at 1022. The district court stated further, “when Defendants
entered the home, they attempted to get information from
Plaintiﬀ about the situation and Plaintiﬀ refused to provide
any information.” Id. at 1023. In the view of the district court,
that gave the oﬃcers “probable cause to arrest Plaintiﬀ for
either theft of Sarah’s keys or disorderly conduct.” Id. The
district court quoted Padula v. Leimbach, 656 F.3d 595, 601
(7th Cir. 2011): “‘Probable cause is an absolute defense to a
wrongful arrest claim asserted under [42 U.S.C.] § 1983
against police oﬃcers.’” Hawkins, 909 F. Supp. 2d at 1022.
Summary judgment was thus granted against Hawkins on
Counts I and VI.
   The district court further rejected Hawkins’s contention
that he had a First Amendment right to consult his attorney
during the encounter and therefore threw out Count III, as
well. Id. at 1024.
    The summary-judgment order addressed Count V, for
wilful and wanton misconduct, by recognizing that no such
stand-alone cause of action exists under Illinois law. Counts
IV and V were read “together to allege common law battery
claims which avoid the application of the Illinois Tort
No. 13-2533                                               8

Immunity Act.” Id. at 1025. On appeal, Hawkins has adopted
this view, referring to Counts IV and V collectively as
“wilful and wanton battery.” (Appellant’s Br. 36.
    Hawkins proceeded to trial on his wilful-and-wanton-
battery and excessiv-force claims (Counts II, IV, and V).
There, the magistrate judge instructed the jury that “[t]he
lawfulness of Defendants’ entry into Plaintiﬀ’s home or his
arrest [was] not at issue.” Nonetheless, defense counsel
emphasized in closing argument that his clients had the
right to be in Hawkins’s home. The argument focused on
circumstances that tended to suggest that arresting Hawkins
was lawful. All the jurors needed to ﬁnd, defense counsel
argued, was that “[t]he oﬃcers did their job. Bill Hawkins …
mistakenly told them that they had to leave his home.” The
jury decided in favor of the oﬃcers on both claims.
    Hawkins now asks us to reverse the summary-judgment
order and jury verdicts against him, grant summary
judgment in his favor on Counts I through VI, and remand
for a trial on damages.
No. 13-2533                                                                9



                            III. Discussion 3
         A. Standard of Review for Counts I, III, and VI
   Summary judgment is appropriate if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law,” Fed. R. Civ. P. 56(a), but only
then. E.g., Brooks v. City of Aurora, 653 F.3d 478, 483 (7th Cir.
2011). The review of a grant of summary judgment is de novo,
with all reasonable inferences of fact drawn against
summary judgment. Id.
                       B. Count I: Illegal Seizure
    We differ from the district court in that we find it
necessary to analyze Count I separately from Count VI,
which was for false imprisonment. It is true that Count I
includes the theory that the arrest was illegal because the
officers lacked probable cause. In this respect, the law on


3 When, as here, police officers are sued under 42 U.S.C. § 1983 for
allegedly violating constitutional rights, qualified immunity often proves
to be the decisive rule of law. Cf. Pearson v. Callahan, 555 U.S. 223, 236
(2009) (allowing courts to dispose of claims against public officials for
violating constitutional rights without considering whether a right was
violated, by determining that it was in any event not “clearly
established”). This opinion does not address qualified immunity in
substance, however, because Mitchell and Bowersock did not discuss it
on appeal. And, while “[w]e can ‘affirm on any ground supported in the
record, so long as that ground was adequately addressed in the district
court and the nonmoving party had an opportunity to contest the
issue,’” Thayer v. Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012) (quoting
Peretz v. Sims, 662 F.3d 478, 480 (7th Cir. 2011)), the officers’ briefing in
the district court did not ensure the fulfillment of those criteria with
respect to qualified immunity.
No. 13-2533                                                             10

Count I is very similar to the law on Count VI. 4 But three
features of Count I, considered together, lead us to construe
it to encompass the additional theory that the officers
violated the Fourth Amendment, regardless of probable
cause, by arresting Hawkins in his home without a warrant.
First, the amended complaint refers to Count I as a claim for
“illegal seizure,” rather than false arrest. Second, Count I
incorporates the preceding paragraphs of the amended
complaint, which allege that the arrest occurred in a private
residence. And third, Count I avers that the arrest was
warrantless. 5 Count VI does not involve this theory of
liability.
    The officers’ defense to Count I on appeal is that Mitchell
could force his way inside the home in the name of
preventing a serious injury or “questioning [Hawkins] about
the situation.” Having thus lawfully entered the home, the
officers contend, they could arrest Hawkins upon probable
cause to arrest for any offense. According to this view, and
contrary to Hawkins’s position, the lack of a warrant and in-
home location did not mean the offense for which the
officers had probable cause to arrest had to be more serious.


4 Very similar, but not necessarily identical in the abstract. For a
constitutional claim asserted under 42 U.S.C. § 1983, such as Count I, the
doctrine of qualified immunity generally would be in play, unless the
public-official defendants waive or forfeit the defense. In contrast, for a
claim grounded in Illinois law, such as Count VI, Illinois’s Local
Governmental and Governmental Employees Tort Immunity Act would
typically be under consideration instead.
5 The amended complaint does not support the interpretation of Count I
that Hawkins implied in his appellate briefs, which is that Count I was a
claim for merely entering his home unconstitutionally.
No. 13-2533                                                      11

Hawkins’s      arguments       likewise      depend      on     the
constitutionality of the initial entry of his home.
   Construing the magistrate judge’s unchallenged ruling
that “Defendants could lawfully enter Plaintiff’s home” as
limited to the trespass count that is not before us, we believe
we may address the merits of Count I, including the
lawfulness of the officers’ home entry, and do so here.
    “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated … .” U.S. Const. amend.
IV. “[P]hysical entry of the home is the chief evil” that this
constitutional guarantee targets. United States v. United States
District Court for the E. Dist. of Mich., S. Div., 407 U.S. 297, 313
(1972). “At the very core stands the right of a man to retreat
into his own home and there be free from unreasonable
governmental intrusion.” Silverman v. United States, 365 U.S.
505, 511 (1961). So it is “a ‘basic principle of Fourth
Amendment law’ that searches and seizures inside a home
without a warrant are presumptively unreasonable.” Payton
v. New York, 445 U.S. 573, 586 (1980) (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 477 (1971)). The Amendment
“prohibits the police from making a warrantless and
nonconsensual entry into a suspect’s home in order to make
a routine … arrest,” even for a felony, and even with
probable cause. Id. at 576 (emphasis added).
   What about circumstances that are not routine?
“[B]ecause the ultimate touchstone of the Fourth
Amendment is ‘reasonableness,’ the warrant requirement is
subject to certain exceptions,” Brigham City v. Stuart, 547 U.S.
398, 403 (2006), which are few, “‘specifically established,’”
and “‘well-delineated’” to accommodate those extraordinary
No. 13-2533                                                    12

situations where “the needs of law enforcement [are] so
compelling that warrantless search is objectively
reasonable.” Mincey v. Arizona, 437 U.S. 385, 390, 394 (1978)
(quoting Katz v. United States, 389 U.S. 347, 357 (1967) and
citing McDonald v. United States, 335 U.S. 451, 456 (1948)).
This entails the doctrine of exigent circumstances, which
“exist when there is a compelling need for official action and
no time to secure a warrant, such as when an officer must
enter premises to render emergency assistance to an injured
occupant or to protect an occupant from imminent injury.”
United States v. Venters, 539 F.3d 801, 807 (7th Cir. 2008)
(quotation marks and citations omitted). The “need ‘to
prevent the imminent destruction of evidence’” is another
recognized exigency, Kentucky v. King, 131 S.Ct. 1849, 1856
(2011) (quoting Stuart, 547 U.S. at 403), albeit one that
depends on the gravity of the crime under investigation.
Welsh v. Wisconsin, 466 U.S. 740, 753 (1984); see also Sutterfield
v. City of Milwaukee, No. 12-2272, — F.3d —, 2014 WL
1853080, at *12 (7th Cir. May 9, 2014) (identifying other
exigencies).
   Analysis of the reasonableness of police officers’ exigency
determination is entirely objective; it considers only what
they reasonably should have known at the time of their
warrantless home entry. Venters, 539 F.3d at 807.
   As the above discussion suggests, warrantless in-home
arrests are especially suspect “when the underlying offense
for which there is probable cause to arrest is relatively
minor.” Welsh, 466 U.S. at 750. In such an instance, the
“presumption of unreasonableness is difficult to rebut”; ”the
government usually should be allowed to make such arrests
only with a warrant issued upon probable cause by a neutral
No. 13-2533                                                  13

and detached magistrate.” Id. (footnote omitted). This Court
has read Welsh, 466 U.S. at 752–54, to hold “that, at a
minimum, exigent circumstances do not exist when the
underlying offense is minor, typically a misdemeanor.”
Reardon v. Wroan, 811 F.2d 1025, 1028 (7th Cir. 1987) (per
curiam).
    A Fourth Amendment “seizure” of a person occurs
“whenever a police officer ‘by means of physical force or
show of authority … in some way restrain[s] the liberty of a
citizen.’” Acevedo v. Canterbury, 457 F.3d 721, 725 (7th Cir.
2006) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)).
Where, as here, the seizure involves the use of physical
force, a seizure occurs whenever “an officer restrains the
freedom of a person to walk away,” Tennessee v. Garner, 471
U.S. 1, 7 (1985), such as by the “laying on of hands or [other]
application of physical force to restrain movement, even …
unsuccessful[ly],” California v. Hodari D., 499 U.S. 621, 626
(1991). (Of course, seizure of a person without physical
contact is also possible—the officer must make a “show of
authority” that a reasonable person would understand to
mean that she is not “free to leave,” and she must submit to
that show of authority. See id. at 626–27.)
    We return to the two purposes Mitchell and Bowersock
have offered as substitutes for a warrant: the need to prevent
imminent serious injury, see, e.g., Stuart, 547 U.S. at 404
(recognizing this as an exigency), and “the purpose of
questioning [Hawkins] about the situation.” (See Appellees’
Br. 13–17.) Exigency case law makes clear that the latter,
which amounts to ordinary investigation of possible crime,
does not qualify. See, e.g., Venters, 539 F.3d at 807 (situation
must present a “compelling need for official action [with no]
No. 13-2533                                               14

time to secure a warrant”). And the facts, even as given by
the officers, simply do not support the conclusion that the
challenged arrest (or home entry) was necessary to prevent
imminent serious injury.
    Mitchell and Bowersock arrived at a disorderly scene, to
be sure, having been told that Hawkins had some history of
abusing Bumgarner and that he “gets violent sometimes.”
One could see that a couple was in a drunken spat, and
clothing was strewn around the front yard. But the officers
were also advised that no physical attack had occurred that
night. Bumgarner told them she wasn’t hurt, which Mitchell
visually confirmed was true. Bumgarner even went as far as
to say “she was sorry for calling” 9-1-1. Rather than express
a need for protection from an immediate threat to her safety,
Bumgarner said: “Mr. Hawkins has my keys and I just want
them back so I can leave.” She was outside; Hawkins was
inside; and there was no basis to believe that anyone but the
police had a weapon.
    This is not to say that Mitchell was unreasonable to
knock on the door to investigate Hawkins from a publicly
accessible area. On the contrary, attempting to initiate a
consensual conversation was commendable. And police are
allowed to act upon exigencies of their own making, so long
as their conduct in creating the exigency was “reasonable”
under the Fourth Amendment. Kentucky v. King, 131 S. Ct. at
1858.
    Mitchell’s nonconsensual and warrantless home entry,
however, was unreasonable. Assume that Hawkins roared
into the night that he didn’t have Bumgarner’s keys. Assume
that he threw her clothes into the yard, deliberately locked
her out of his house, “screamed” in terror upon discovering
No. 13-2533                                                 15

a police officer at his door, and then attempted to close the
door on the officer. There’s still no evidence that he
threatened to harm anyone physically. “[S]ociety would
recognize a person’s right to choose to close his door on and
exclude people he does not want within his home.” United
States v. Berkowitz, 927 F.2d 1376, 1387 (7th Cir. 1991). It is
“one of the most … important components of a person’s
privacy expectation in his home.” Id. So there was no
exigency before Mitchell’s nonconsensual entry.
    Nor did one arise from that moment until the arrest.
Throughout the in-home encounter, Hawkins objected to the
officers’ presence repeatedly and vociferously, it’s true, but
he never threatened them. Drunk as the officers allege him
to have been, he summoned the wherewithal to call an
attorney for advice and then follow that advice assertively
but without physical aggression.
    Although Mitchell’s position inside the house initially
gave Bowersock a reasonable basis to act as though he had
consent or exigency, we find that by the time of the arrest,
Bowersock, too, should have known there was neither. The
lack of weapons, threats, or physical aggression from
Hawkins left time for Bowersock to ask Mitchell why they
were inside and to recognize the absence of any possible
justification for staying. Knowing that warrantless home
entry is presumptively unreasonable, see Payton, 445 U.S. at
586, Bowersock should have taken advantage of that
opportunity. Instead, he responded to Hawkins’s
nonthreatening disobedience by telling him that if he didn’t
No. 13-2533                                                               16

get off the phone and speak to the officers, he would be
arrested. 6
    Hawkins did not submit to Bowersock’s command,
insofar as he stayed on the phone, but he also remained
nonthreatening. Each officer nevertheless proceeded to grab
one of Hawkins’s wrists, which restricted his movement
significantly, effecting an arrest. See Hodari D., 499 U.S. at
626. Because the officers lacked a warrant or consent to
enter, and have not posited a valid justifying exigency, the
in-home arrest was unconstitutional as a matter of law. See
Payton, 445 U.S. at 585–90 (prohibiting warrantless in-home
arrests under non-exigent circumstances). 7
                  C. Count VI: False Imprisonment
   In reference to Count VI, the officers have argued only
that they had probable cause to arrest Hawkins for theft of
Bumgarner’s keys or disorderly conduct. 8 “Probable cause is


6 It is significant to this discussion that Bowersock has not sought
qualified immunity.
7 On appeal, the officers have not argued that Hawkins’s disobedience of
their commands inside the home or his alleged resistance after the wrist
grab could change the result for Count I.
Having found the officers liable for Count I as a matter of law on the
theory that they arrested him in violation of the Fourth Amendment
prohibition of non-exigent warrantless in-home arrests, we need not also
consider Count I as a false-arrest claim.
8 The officers relied on Illinois’s Local Governmental and Governmental
Employees Tort Immunity Act in the district court only with respect to
the issue of “excessive use of force,” see Appellees’ Mot. Summ. J., C.D.
Ill. CM-ECF, case no. 2:10-CV-2111, doc. 36, at 11–14, and not at all in this
Court.
No. 13-2533                                                     17

an absolute bar to a claim of false imprisonment.” Poris v.
Lake Holiday Prop. Owners Ass’n, 983 N.E.2d 993, 1007 (Ill.
2013).
    The standard for probable cause, in turn, is “fluid” and
sensitive to “the assessment of probabilities in particular
factual contexts.” Illinois v. Gates, 462 U.S. 213, 232 (1983).
Therefore, it isn’t “readily, or even usefully, reduced to a
neat set of legal rules.” Id. Nevertheless, we may explain by
way of definition that probable cause is “‘a reasonable
ground for belief of guilt’” that is “particularized with
respect to the person to be searched or seized.” Maryland v.
Pringle, 540 U.S. 366, 371 (2003) (quoting Brinegar v. United
States, 338 U.S. 160, 175 (1949) and citing Ybarra v. Illinois, 444
U.S. 85, 91 (1979)).
    “The existence of probable cause … depends, in the first
instance, on the elements of the predicate criminal offense(s)
as defined by state law.” Abbott v. Sangamon County, 705 F.3d
706, 715 (7th Cir. 2013) (citing Michigan v. DeFillippo, 443 U.S.
31, 36 (1979)). It does not, however, “require the same type
of specific evidence of each element of the offense as would
be needed to support a conviction.” Adams v. Williams, 407
U.S. 143, 149 (1972); see also Spiegel v. Cortese, 196 F.3d 717,
724 n.1 (7th Cir. 1999) (explaining that officers need not
“establish probable cause as to each and every element of a
crime before they are entitled to make an arrest”).
   The officers’ brief argues probable cause as follows:
    Since Mitchell and Bowersock were justified in
    entering the home to get information about the
    situation, the facts known to them at the time,
    coupled with Hawkins’s conduct, provided
No. 13-2533                                                   18

    probable cause to effectuate an arrest for either theft
    of Sarah’s keys or disorderly conduct… . The trial
    court relied upon ample undisputed facts to
    determine probable cause existed to arrest Hawkins
    for disorderly conduct … . More specifically, the
    information known to Mitchell was that Sarah
    requested assistance in getting her car keys from
    Hawkins, and Sarah reported Hawkins had been
    abusive in the past. This information provided
    Mitchell with probable cause to believe Sarah
    needed assistance in retrieving her keys from
    plaintiff.
(Appellees’ Br. 19.)
    We think probable cause “to believe Sarah needed
assistance in retrieving her keys” isn’t the point. Instead,
Count VI turns on probable cause to arrest Hawkins, either for
stealing the keys or disorderly conduct.
   The claim of probable cause to arrest for theft fails.
    A person commits theft when he or she knowingly:
       (1) Obtains or exerts unauthorized control over
           property of the owner; or
       (2) Obtains by deception control over property
           of the owner; or
       (3) Obtains by threat control over property of
           the owner; …

                             ***
          and
No. 13-2533                                                              19

            (A) Intends    to      deprive   the  owner
                permanently of the use or benefit of the
                property; or
            (B) Knowingly uses, conceals or abandons
                the property in such manner as to
                deprive the owner permanently of such
                use or benefit; or
            (C) Uses, conceals, or abandons the property
                knowing such use, concealment or
                abandonment probably will deprive the
                owner of such use or benefit.
720 Ill. Comp. Stat. 5/16-1(a).
    The facts known at the time do little to suggest that
Hawkins had intention or knowledge of depriving
Bumgarner of her keys, even if we assume for the sake of
argument that he had control over them. Without any
accusation of theft, an intoxicated 9-1-1 caller’s mere request
for assistance in retrieving her keys from someone else’s
house, coupled with an allegation of unrelated past abuse by
that someone, does not amount to probable cause to arrest
for stealing the keys. 9
   Next, we consider the disorderly-conduct theory. “A
person commits disorderly conduct when he or she
knowingly … [d]oes any act in such unreasonable manner as


9 The district court relied on only these facts, plus Hawkins’s
unwillingness to answer the police’s questions, in supporting its finding
of probable cause to arrest for theft. See Hawkins, 909 F. Supp. 2d at 1023.
The problem with holding Hawkins’s unwillingness to answer the
officers’ questions against him, however, is that the officers had no right
to be in his home in the first place.
No. 13-2533                                                 20

to alarm or disturb another and to provoke a breach of the
peace.” 720 Ill. Comp. Stat. 5/26-1(a)(1). A “breach of the
peace” is “‘a public offense done by violence, or one causing
or likely to cause an immediate disturbance of public
order.’” Sroga v. Weiglen, 649 F.3d 604, 607 (7th Cir. 2011)
(quoting Restatement (Second) of Torts § 116 (1965)).
    On the facts as given by the officers, they had probable
cause to arrest Hawkins for disorderly conduct. To an officer
in Mitchell’s position, it would have reasonably appeared
that Hawkins had been involved in the bustle that scattered
the clothes over the yard. Mitchell also testifies that Hawkins
shouted toward Bumgarner, who was outside, “I don’t have
your fucking keys!” At the time and within that vicinity,
neighbors were likely trying to sleep. If Mitchell’s account is
true, then Hawkins behaved “in such unreasonable manner
as to alarm or disturb” Bumgarner or his neighbors, and the
commotion was a “disturbance of public order.”
    But Hawkins denies the yelling. He testifies that he was
in bed asleep when Mitchell knocked on his door. And as for
Hawkins and Bumgarner’s earlier argument with each other,
we do not think shouting within a private home qualifies
without more as “likely to cause an immediate disturbance
of public order.” See id. Thus, on Hawkins’s version of the
facts, the officers lacked probable cause to arrest him for
disorderly conduct. This dispute forecloses summary
judgment on Count VI. See, e.g., Payne v. Pauley, 337 F.3d 767,
770 (7th Cir. 2003) (“[S]ummary judgment cannot be used to
resolve swearing contests between litigants.”).
No. 13-2533                                                              21



           D. Count III: Arrest in Retaliation for Speech
    Hawkins has also alleged that Mitchell and Bowersock
arrested him “without probable cause and without a judicial
warrant, solely in retaliation for his actions of calling an
attorney and for his assertion of his Fourth Amendment
right to privacy of his home, in violation of the United States
Constitution, First Amendment.” (Am. Compl. para. 22.)
   Summary-judgment decisions on such claims involve a
burden-shifting framework. In the prima facie case, the
plaintiff must show that (1) he engaged in activity protected
by the First Amendment; (2) he suffered a deprivation likely
to deter such activity; and (3) the First Amendment activity
was at least a motivating factor in the decision to impose the
deprivation. Thayer v. Chiczewski, 705 F.3d 237, 251 (7th Cir.
2012) (citing Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir.
2012) and Greene v. Doruff, 660 F.3d 975, 977–78 (7th Cir.
2011)). 10
   The district court granted summary judgment on the
ground that Hawkins had no constitutional right to consult
with an attorney under the circumstances. The opinion
explains that “the right to contact counsel would severely
hamper the ability of police officers to enforce the law.”
Hawkins, 909 F. Supp. 2d at 1024. This was the officers’


10If the plaintiff makes the prima facie showing, “‘the burden shifts to the
defendant to show that the harm would have occurred anyway.’” Thayer,
705 F.3d at 251–52 (quoting Doruff, 660 F.3d at 977). And if the defendant
does this, “the burden shifts back to the plaintiff to demonstrate that the
proffered reason was pretextual and that the real reason was retaliatory
animus.” Id. at 252.
No. 13-2533                                                              22

argument below, and they have added nothing to it on
appeal. 11
   The argument is contrary to precedent. “The right to …
consult an attorney is protected by the First Amendment’s
guarantee of freedom of speech, association and petition… .
[T]he state cannot impede an individual’s ability to consult
with counsel on legal matters.” Denius v. Dunlap, 209 F.3d
944, 953–54 (7th Cir. 2000) (citing Bates v. State Bar of Ariz.,
433 U.S. 350, 376 n.32 (1977) and DeLoach v. Bevers, 922 F.2d
618, 620 (10th Cir. 1990)).
    We also disagree with the officers’ possible suggestion
that Hawkins’s phone call criminally obstructed them in
performing their duties. See Appellees’ Br. 21–22 (“The
actions of Hawkins to avoid questioning by using the phone

11 Aware of Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (finding
qualified immunity, on the basis of probable cause, from a claim for
arrest in retaliation for First Amendment activity), we note that probable
cause is open to factual dispute for the reasons given in discussing
Hawkins’s false-imprisonment claim. But qualified immunity is not
available to the officers as a defense, here or on remand. None of the
reasons given by the Thayer Court for granting qualified immunity from
a claim for arrest in retaliation for First Amendment activity
notwithstanding the defendant-officers‘ failure to argue it on appeal is
present. See Thayer, 705 F.3d at 252–53; supra note 3. That is, Mitchell and
Bowersock neglected to raise qualified immunity from any cause of
action, not only here but also in the district court. And the parties have
made no “underlying arguments on appeal addressing … whether
probable cause bars First Amendment retaliatory arrest claims.” Thayer,
705 F.3d at 252. Thus, we cannot say, as the Thayer Court could, that the
defendants made the plaintiff aware of qualified immunity as an issue so
that he had an opportunity to respond. Cf. id. Finally, because Mitchell
and Bowersock left qualified immunity out of their answer to the
amended complaint, there is no reason to let them assert it upon remand.
No. 13-2533                                                 23

to have a conversation and repeatedly yelling at the officers
certainly obstructed with a police investigation.”); 720 Ill.
Comp. Stat. 5/31-1(a) (defining resisting or obstructing a
peace officer as a misdemeanor); 720 Ill. Comp. Stat. 5/7-7
(prohibiting the use of force to resist an arrest made by a
known peace officer “even if … the arrest in fact is
unlawful”). For such obstruction, “an act of physical
resistance” is required. People v. Stoudt, 555 N.E.2d 825, 827
(Ill. App. Ct. 1990) (citing People v. Pruitt, 520 N.E.2d 1113,
1115 (Ill. App. Ct. 1988)). Neither arguing, nor refusing to
answer police, see People v. Hilgenberg, 585 N.E.2d 180, 183
(Ill. App. Ct. 1991) (“Mere refusal to answer a police officer,
in the absence of a physical act, may be deemed tantamount
to argument which is not a violation of the statute.” (citing
People v. Weathington, 411 N.E.2d 862, 863 (Ill. 1980))), nor
refraining from taking physical action ordered by police,
Stoudt, 555 N.E.2d at 827, in itself meets the standard. While
“evidence that [a] defendant repeatedly disobeyed [an]
arresting officer’s order to exit [a] vehicle” has sufficed to
sustain a conviction of obstructing a peace officer, People v.
Synnott, 811 N.E.2d 236, 241 (Ill. App. Ct. 2004), citizens
enjoy greater protection within their homes. See Hilgenberg,
585 N.E.2d at 185 (considering Fourth Amendment
implications for § 31-1(a)).
    Hawkins committed no crime by calling a lawyer to help
him bring an end to an obstinate and unlawful police
presence in his home. His call was protected by the First
Amendment, see Denius, 209 F.3d at 953–54, and arrest
qualifies as a deprivation that is likely to deter First
Amendment Activity. Yet we cannot further infer as a matter
of law that the attorney phone call was a motivating factor in
No. 13-2533                                                  24

the decision to arrest him, so that question must be
submitted to a jury.
                  E. Counts II, IV, and V:
      Excessive Force and Wilful and Wanton Battery
    As noted above, there is no challenge regarding the
district court’s submission of Counts II, IV, and V to the jury
as two claims, one for excessive force and the other for wilful
and wanton battery in violation of Illinois law. Counsel have
made no distinction between the two claims in their
arguments before this Court; we likewise treat them as one.
    Hawkins claims reversible error in the district court’s
instruction to the jury that “[t]he lawfulness of Defendants’
entry into [his] home or his arrest [was] not at issue.” And he
urges that the district court’s erroneous summary-judgment
rulings prevented him from presenting to the jury his
challenges to the police’s presence within his house and the
making of his warrantless arrest there. Also, under
Hawkins’s view, the summary-judgment order enabled the
following improper arguments by defense counsel in
closing:
    When an officer is asking you questions, you don’t
    have the right to pick up a phone and call your
    attorney. You do not have that right.
    And then [the attorney] gave … some very bad
    advice… . The bad advice that you don’t have to talk
    to [the police officer], you don’t have to cooperate
    with him, and, in fact, you can tell him to get out of
    your house, it’s not true. It’s not accurate.
    A police officer has a right to talk to him at that
    point. A police officer has a right to be asking him
No. 13-2533                                                      25

    questions. A police officer has a right to demand
    that he provide answers to those questions.
    Well, he doesn’t have to answer the questions. But, if
    he doesn’t answer the questions, he is going to be
    placed under arrest. If he doesn’t cooperate, he is
    going to be placed under arrest.
                              ***
    What makes the difference is the officers came in.
    The officers did their job. Bill Hawkins …
    mistakenly told them that they had to leave his
    home. That’s all that matters here. That’s all you
    have to believe.
                              ***
    [D]on’t be confused. Officer Mitchell had every right
    to be inside that house.
(Trial Tr., June 13, 2013, 494:10–495:3, 499:7–12, 500:20–21.)
     We review de novo whether the challenged jury
instruction “fairly and accurately summarized the law.”
Clarett v. Roberts, 657 F.3d 664, 672 (7th Cir. 2011) (citing
United States v. Quintero, 618 F.3d 746, 753 (7th Cir. 2010)).
The trial court’s decision to give the particular instruction,
however, is reviewed for abuse of discretion, id. (citing
United States v. Tavarez, 626 F.3d 902, 904 (7th Cir. 2010)), and
we will reverse “only if the instructions in their entirety so
thoroughly misled the jury that they prejudiced” Hawkins.
Id. (citing Quintero, 618 F.3d at 753).
   “‘Improper remarks during a closing argument warrant
reversal of the judgment only if the remarks influenced the
jury in such a way that substantial prejudice resulted to the
No. 13-2533                                                  26

opposing party.’“ Smith v. Hunt, 707 F.3d 803, 812 (7th Cir.
2013) (quoting Gruca v. Alpha Therapeutic Corp., 51 F.3d 638,
644 (7th Cir. 1995)).
   The challenged instruction did fairly and accurately
summarize the law, in that it follows logically from this
Court’s statements that “[f]alse arrest and excessive force are
unrelated except in forming a sequence.” Lenard v. Argento,
808 F.2d 1242, 1246 (7th Cir. 1987), cited with approval by
Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 681 (7th Cir.
2007).
    Turning to consider defense counsel’s summation, we
acknowledge that the jury instruction approved here implies
that no arguments concerning the lawfulness of the entry or
the mere making of an arrest could be relevant to excessive
force or battery. So if the jurors reasoned like lawyers, then
they knew from the instruction to disregard the challenged
segments of the officers’ closing. But to presume jurors to
read and analyze as lawyers do would be naïve. Cf. Maus v.
Baker, 747 F.3d 926, 927–28 (7th Cir. 2014) (recognizing that
jury instructions do not always cure prejudice). At the end of
trial, an officer of the court argued to the jurors that the
alleged fact that Mitchell and Bowersock were “doing their
job” and Hawkins’s allegedly baseless demand that the
officers leave his house were “all that matter[ed].” These
propositions, the attorney offered, were “all [jurors] had to
believe” to find in the officers’ favor. Defense counsel further
argued to the jurors that they would have to be “confused”
to question Officer Mitchell’s right to be in Hawkins’s house.
   In truth, of course, the jurors would have been confused
even to be interested in whether Officer Mitchell had a right
No. 13-2533                                                       27

to be in the house, 12 but defense counsel’s arguments
overwhelmingly misled them and the court did not
intervene specifically with regard to those arguments. And
while most of the false impressions given by the defense
summation were consistent with the law of the case at the
time, that is precisely what made it futile for Hawkins to
object. Cf. Dresser Indus., Inc., Waukesha Engine Div. v. Gradall
Co., 965 F.2d 1442, 1450 (7th Cir. 1992) (appellant “certainly
had reason to believe that it would be pointless to press its
theory further, and was permitted to wait for a final decision
on all the issues in the case before appealing the
interlocutory summary judgment decision”). As a result,
defense counsel’s quoted arguments created substantial
prejudice to Hawkins. Retrial of the excessive-force and
wilful-and-wanton-battery claims is necessary to eliminate
it.
                         IV. Conclusion
     We REVERSE the grant of summary judgment on Counts I,
III, and VI, as well as the judgment on the jury’s verdict on
Counts II, IV, and V. As for Count I, Mitchell and Bowersock
are each liable to Hawkins as a matter of law for seizing him
in violation of the Fourth Amendment. We REMAND to the
district court for trial of both liability and damages with
respect to Counts II through VI, as well as damages for
Count I. For clarity, we note two additional points:
   As regards each officer’s liability on Count III, there is
only one genuine issue of material fact: whether Hawkins’s
phone call to the attorney was a motivating factor in

12 Only excessive force and wilful-and-wanton battery were before the
jury, after all.
No. 13-2533                                                  28

arresting Hawkins. Each officer for whom Hawkins’s phone
call to the attorney was a motivating factor in arresting
Hawkins is liable on Count III. Each officer for whom the
attorney phone call was not a motivating factor is not liable
on Count III.
   The liability of both officers on Count VI depends
entirely on whether probable cause to arrest Hawkins for
disorderly conduct existed. If it did, neither officer is liable
on Count VI; if it did not, both are liable on Count VI.
