In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4069

ALBERT WOODS,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, OFFICER MAKOWSKI,
Chicago Police Officer #16971, OFFICER
ALANIS, Chicago Police Officer #5001,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 98 C 7092--Charles R. Norgle, Sr., Judge.


Argued September 13, 2000--Decided DECEMBER 8, 2000




  Before Flaum, Chief Judge, and Bauer, and
Kanne, Circuit Judges.


  BAUER, Circuit Judge. Plaintiff-
Appellant Albert Woods appeals from the
order of the United States District Court
for the Northern District of Illinois,
Eastern Division, granting summary
judgment to defendants-appellees
Makowski, Alanis, and the City of
Chicago. For the reasons set forth below,
we affirm.

BACKGROUND


  Albert Woods was arrested at his place
of employment for misdemeanor assault.
After the charges against him were
dropped, Woods filed an action under 42
U.S.C. sec. 1983 against the City of
Chicago and Chicago police officers
Makowski and Alanis, asserting violations
of his Fourth Amendment rights. In his
complaint, Woods contended that the
officers acted unreasonably in arresting
him without a warrant for misdemeanor
assault one day after Gabriel Flores (the
putative assault victim) signed a
criminal complaint against him. He also
asserted that the officers acted in
accordance with a policy of the City of
Chicago authorizing its police officers
to make a full custodial arrest for a
misdemeanor that did not involve a breach
of the peace and that had not been
committed in the officers’ presence. The
officers moved to dismiss Woods’
complaint against them under Fed. R. Civ.
P. 12(b)(6), arguing that Flores’ report
of the assault to the police (which Woods
had referenced in his complaint) gave
them probable cause to arrest Woods, and
that arrests supported by probable cause
are reasonable under the Fourth Amendment
subject to a "rare exception" not
applicable in Woods’ case. The City moved
to dismiss on similar grounds, arguing
that even if Woods could show that the
City had a municipal "policy" authorizing
warrantless arrests for misdemeanors not
involving a breach of the peace and not
committed in an officer’s presence, such
a policy would not be unconstitutional as
applied to Woods’ arrest, which was
authorized by state law and based on
probable cause.


  Woods filed a memorandum opposing the
City’s motion to dismiss, arguing that
his complaint did not demonstrate that
the officers had probable cause to arrest
him. According to Woods, the complaint
merely asserted that a citizen had walked
into a Chicago police station on July 21,
1997 and stated that on July 18, 1997 he
had been "verbally assaulted" by Woods.
Woods noted that the complaint did not
allege that this information was
communicated to the arresting officers.
Furthermore, he contended that even if
the arresting officers had been aware of
the citizen’s complaint, it did not
provide them with probable cause to
arrest because "verbal assault" is not an
offense under Illinois law.


  The City and the individual defendants
jointly filed a reply. Attached to the
reply were various exhibits, including a
copy of Flores’ verified misdemeanor
complaint and a copy of the arresting
officer’s report of Woods’ arrest. The
verified misdemeanor complaint (signed
under oath by Flores) charged Woods with
aggravated assault, and stated that "on
or about 18 July ’97. . . [Woods] while
using a deadly weapon, length of a lead
pipe, did without lawful authority
produce weapon and came at victim yelling
I’m going to kill you, which placed
Gabriel Flores in reasonable apprehension
of receiving a battery." The arrest
report essentially repeated this account
of the incident, stating that,

[t]he above subject arrested for
[a]ggravated assault. On 18 July 97
victim went to truck leasing company
where offender is employed to gas up a
leased truck. At that time offender got
into a verbal arguement [sic] with victim
and produced a lead pipe and told victim
I’m going to kill you. When offender
started to approach victim, victim got
into his truck and fled the scene. R/O’s
interviewed victim who signed complainats
[sic], R/O’s went to offender’s place of
employment, placed subject under arrest
and advised subject of his rights which
he stated he understood.

The arrest report was signed under the
statement "I do solemnly, sincerely, and
truly declare and affirm that the facts
stated herein are accurate to the best of
my knowledge."


  Woods moved to exclude these exhibits on
grounds that such evidentiary material
could not be considered during a motion
to dismiss. He argued that the court
could not consider the exhibits unless it
first converted the motion to dismiss
into a motion for summary judgment under
Fed. R. Civ. P. 12(b), and that such a
conversion would be inappropriate in this
case. Finally, he argued that unless the
court excluded these materials, it must
give Woods an opportunity to respond, and
that in order to do so Woods must be
allowed to depose the officers who signed
the arrest report "about the report and
about the circumstances of the signing of
the complaint" as well as "the citizen
upon whose alleged complaint plaintiff
was arrested." The court granted Woods’
motion to exclude the exhibits.
Subsequently, the court granted the
City’s motion to dismiss on the ground
that Woods had failed to state a
municipal policy, and it gave Woods leave
to file an amended complaint.
  Woods filed an amended complaint which
restated his earlier claim that Flores
claimed to have been "verbally assaulted"
by Woods, and which explicitly stated
that such a claim did not supply the
officers with probable cause to arrest
Woods. The amended complaint also
reasserted that the officers violated
Woods’ Fourth Amendment rights by
arresting him without a warrant for a
misdemeanor offense not commited in their
presence and not involving a breach of
the peace pursuant to a municipal policy
authorizing such arrests. Again, the
defendants moved to dismiss, arguing that
Flores’ complaint established probable
cause./1 Woods opposed the defendants’
motion, again contending that even if the
officers had been aware of Flores’
complaint (which his complaint did not
allege), that complaint did not provide
probable cause to arrest because "verbal
assault" is not an offense under Illinois
law, which defines assault as "conduct
which places another in reasonable
apprehension of receiving a battery." 720
ILCS 5/12-1.


  The court then converted the defendants’
motion to dismiss into a motion for
summary judgment, noting that the
defendants had attached "pertinent
evidentiary material" to their reply to
Woods’ memorandum in opposition to the
motion to dismiss Woods’ original
complaint. Addressing Woods’ claim that
Flores had complained merely of a "verbal
assault," the court quoted the arrest
report’s account of Flores’ complaint,
which stated that Woods had brandished a
lead pipe during the altercation and
which specifically referenced Illinois’
aggravated assault statute. The court
stated that "the misdemeanor complaint,
filed by Gabriel Flores, further
indicates that Woods committed an
aggravated assault with a deadly weapon
while threatening to kill Flores," and
that "this evidence indicates that
thearresting officers arrested Woods
based on information that Woods committed
an aggravated assault." In ordering Woods
to respond to the motion for summary
judgment, the court admonished him to
"pay particular attention" to Fed. R.
Civ. P. 11(b), and stated that: "Woods’
characterization of the altercation as a
’verbal assault’ is grossly misleading.
Further, his argument that ’nowhere in
the complaint does plaintiff allege that
any police officer had been informed that
plaintiff had engaged in conduct which
placed another in reasonable apprehension
of receiving a battery’ . . . ignores
facts and logic in a blatant attempt to
survive the motion [to] dismiss."


  In Woods’ response, he argued that the
arrest report and the misdemeanor
complaint could not be considered on a
motion for summary judgment because: (1)
the defendants had not laid any
foundation for their admission, (for
example, they did not show the date or
time of the alleged interview between
Flores and the arresting officers in the
arrest report); (2) they were
unauthenticated; and (3) the police
report did not fully and fairly set out
the facts. In support of the latter
argument, Woods attached a Chicago Police
Case Report to his response, which he
relied upon for its accuracy. The case
report stated that "R/O interviewed the
victim who related to R/O that . . .
offender . . . grabbed lead pipe--told
victim to get out of the truck and said
’If I get fired over this, I’m going to
kill you.’ Victim left thinking offender
overreacting. Today’s date 21 Dec. ’97
offender told two of victim’s co-workers
(Kenny and Mike) that he was going to
’get’ victim because victim filed report.
Victim given victim information sheet.
R/O advised warrant." Woods argued that
the case report demonstrated that the
police lacked probable cause to arrest
him because it showed that Flores waited
three days to report the incident and
told the police that he left thinking
Woods was "overreacting," and because
Flores’ account of the incident showed
only that Woods had "verbally assaulted"
Flores, not that he had placed Flores in
reasonable apprehension of receiving a
battery. Woods also noted that the police
had no documentation showing that they
investigated Flores’ complaint or made
any effort to corroborate it (e.g. by
speaking to Flores’ supervisor or to
either of the two coworkers who allegedly
heard Woods’ renewed threat to "get"
Flores.) Woods asked the district court
to vacate its order converting the motion
to dismiss into a motion for summary
judgment, and in the alternative, to
postpone ruling on the motion until Woods
had a chance to depose Flores and the
officers who signed and prepared the
arrest report.


  In ruling on the summary judgment
motion, the district court found that it
could properly consider the police report
and the misdemeanor complaint. Responding
to Woods’ objection that the documents
were not authenticated, the court held
that the documents were "credible and
trustworthy" because they were sworn to
under oath by the officers and by Flores,
and because they were business records
kept by the police department.
Additionally, the court found that Woods
had admitted to the accuracy of the
complaint and the arrest report by
attaching and relying on the case report,
which corroborated the account given by
the complaint and the arrest report. The
court also noted that it was examining
the records "not for their truth, but for
what the officers knew when they arrested
Woods."


  Upon considering the exhibits, the court
concluded that they showed that the
officers had arrested Woods believing
that he had threatened to kill Flores
with a lead pipe, and that this alone
established probable cause. In response
to Woods’ discovery request, the court
noted that it had given Woods the
opportunity to show why it should not
accept the information in the complaint
and the arrest report as credible, and
that he had failed to do so (indeed, he
had even corroborated the documents by
submitting the case report). Moreover,
the court found that Woods had offered
absolutely no evidence that the documents
were "fraudulent, signed by mistake, or
even inaccurate," nor had he even denied
that he had threatened to kill Flores
while approaching him with a lead pipe.
Under the circumstances, the court found
that depositions would be a waste of
time, and it granted summary judgment for
the defendants without allowing Woods to
depose Flores or the officers who signed
the arrest report. This appeal followed.

DISCUSSION
I. Procedural Issues


  Woods argues that, in deciding the
converted motion for summary judgment,
the district court improperly considered
the verified misdemeanor complaint and
the arrest report. He also argues that
the district court abused its discretion
in ruling on the motion without allowing
him to depose Flores and the officers who
prepared and signed the arrest report.


  A district court may properly grant
summary judgment when "the record shows
that there is no genuine issue as to any
material fact and that the moving party
is entitled to judgment as a matter of
law." Whetstine v. Gates Rubber Co., 895
F.2d 388, 391-92 (7th Cir. 1990)
(citation omitted). The moving party has
the burden of establishing the lack of
such an issue. See id. at 392 (citing
Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986)).


  We review a district court’s grant of
summary judgment de novo, drawing all
reasonable inferences from the record in
the light most favorable to the
nonmovant.


  As a preliminary matter, we note that
the court did nothing improper in
converting the defendants’ motion to
dismiss into a motion for summary
judgment. Under Fed. R. Civ. P. 12(b), a
district court must make such a
conversion when matters outside of the
complaint are presented and not excluded
by the court. Here, the district court
initially granted Woods’ motion to strike
the defendants’ exhibits, and ruled on
the initial motion to dismiss without
considering the exhibits or anything
outside of the pleadings. Then, after
Woods filed an amended complaint and the
defendants moved again to dismiss, the
court reconsidered the previously
stricken exhibits and treated the
defendants’ new motion to dismiss as a
motion for summary judgment. Woods cites
no cases that suggest that a district
court may not consider previously
stricken exhibits in ruling on a
converted motion for summary judgment,
and we find that the district court acted
properly in doing so here.


  However, Woods argues that the district
court erred in considering the arrest
report and the misdemeanor complaint in
deciding the summary judgment motion
because the reports contained
inadmissible hearsay, and because the
documents were not "affidavits" under
Fed. R. Civ. P. 56(e) and 28 U.S.C. sec.
1746. He also argues that the district
court abused its discretion in ruling on
the summary judgment motion before giving
him leave to depose Flores and the
officers who signed and prepared the
arrest report. We address these arguments
in turn.



  A. Woods’ Hearsay Argument


  Woods argues that the arrest report and
the misdemeanor complaint contained
inadmissible hearsay, and therefore could
not properly be considered on a motion
for summary judgment. The district court
found that the information in these
documents was credible and trustworthy
under Fed. R. Evid. 803(6) because they
were sworn to under oath by the officers
and by Flores, and because they were
business records kept by the police
department. Woods concedes that portions
of police reports that contain
information prepared by the business are
admissible as business records. For
example, Woods suggests that a properly
authenticated police report would be
admissible to show the date and time of
the arrest and the date and time that the
arrestee was released on bond. However,
Woods notes that "the business records
exception does not embrace statements
contained within a business record that
were made by one who is not a part of the
business if the embraced statements are
offered for their truth." United States
v. Vigneau, 187 F.3d 70, 75 (1st Cir.
1999). In other words, Woods argues that
statements made by third parties in an
otherwise admissible business record
cannot properly be admitted for their
truth unless they can be shown
independently to fall within a recognized
hearsay exception.


  While we agree fully with this principle
of law, we find that it is not implicated
in this case and is of no help to Woods.
As the district court noted, the
defendants offered the statements in the
arrest report and the verified criminal
complaint describing the details of the
alleged altercation between Woods and
Flores not for their truth, but to show
the effect that the statements had on the
officers. Because the officers asserted
the defense of qualified immunity, Woods
had the burden at trial to prove that the
police lacked probable cause to arrest
him. See Sorenson v. Ferrie, 134 F.3d
325, 330 (5th Cir. 1998); see generally
Eversole v. Steele, 59 F.3d 710, 717-18
(7th Cir. 1995). The determination of
whether an arresting officer has probable
cause to arrest an alleged offender turns
on whether a reasonable person in the
officer’s position would have probable
cause to believe that an offense has been
committed. This inquiry, in turn, depends
upon whether the facts and circumstances
communicated to the arresting officer at
the time of the arrest would warrant a
reasonable officer in holding such a
belief. The defendants correctly note
that "so long as a reasonably credible
witness or victim informs the police that
someone has committed . . . a crime, the
officers have probable cause to place the
alleged culprit under arrest . . ."
Jenkins v. Keating, 147 F.3d 577, 585
(7th Cir. 1998), and that once such a
reasonably credible complaint has been
made, the existence of probable cause to
arrest does not depend upon the actual
truth of the complaint. See Kelley v.
Myler, 149 F.3d 641, 647 (7th Cir. 1998)
("Probable cause does not depend on the
witness turning out to have been right;
it’s what the police know, not whether
they know the truth that matters."). In
this case, the defendants offered the
information conveyed to the police by
Flores and memorialized in the
misdemeanor complaint and arrest report
not to show that Woods had actually
performed the conduct as reported in
those documents, but rather to show that
they had probable cause to arrest Woods
based upon the information communicated
to them by Flores. The district court
considered the statements strictly to
determine the effect that they would have
upon the arresting officers when
communicated to them by a presumptively
reliable citizen. Thus, the district
court did not run afoul of the
prohibition on hearsay by considering
these documents for this limited purpose.
B. Woods’ "affidavit" argument

  Woods also argues that the district
court should not have considered the
arrest report and the misdemeanor
complaint because they did not qualify as
admissible "affidavits" under 28 U.S.C.
sec. 1746 and Fed. R. Civ. P. 56(e). Rule
56(e) authorizes parties to submit
affidavits supporting or opposing a
motion for summary judgment, but it
specifically mandates that such
affidavits "shall be made on personal
knowledge, shall set forth such facts as
would be admissible in evidence, and
shall show affirmatively that the affiant
is competent to testify to the matters
stated therein." Moreover, 28 U.S.C. sec.
1746 provides, in relevant part, that
"[w]herever, under any law of the United
States or under any rule . . . made
pursuant to law, any matter is required
or permitted to be supported . . . by .
. . affidavit, such matter may, with like
force and effect, be supported . . . by
the unsworn declaration, certificate,
verification, or statement, in writing of
such person which is subscribed by him,
as true under penalty of perjury . . ."
(emphasis added). Woods contends that the
misdemeanor complaint and the arrest
report were not "affidavits" as
contemplated by 28 U.S.C. sec. 1746
because, while they were purportedly
sworn by Flores and officer Makowski
(respectively), neither document
contained the "penalty of perjury"
language as required by that section.
Moreover, Woods maintains that even if
officer Makowski’s signed declaration on
the arrest report were sufficient to
transform that document into an
"affidavit," the report would still be
inadmissible under Fed. R. Civ. P. 56(e)
because it contained statements made by
Flores regarding matters not within
Makowski’s personal knowledge.


  Woods’ arguments are unpersuasive.
First, while Fed. R. Civ. P. 56(e) allows
a party to submit affidavits in support
of its summary judgment motion, it does
not require that all supporting material
be submitted in affidavit form. See Fed.
R. Civ. P. 56(b) (permitting a party to
move for summary judgment "with or
without supporting affidavits"); Celotex,
477 U.S. at 323 (1986). Sworn testimony
is not the only basis on which summary
judgment may be granted; rather, "’the
court may consider any material that
would be admissible or usable at trial,’"
Aguilera v. Cook County Police & Corrs.
Merit Bd., 760 F.2d 844, 849 (7th Cir.
1985) (citation omitted), including
properly authenticated and admissible
documents or exhibits. See Martz v. Union
Labor Life Ins. Co., 757 F.2d 135, 138
(7th Cir. 1985). Therefore, the district
court was entitled to consider the arrest
report and the misdemeanor complaint even
if they were not admissible as
"affidavits," under 28 U.S.C. sec. 1746
or Fed. R. Civ. P. 56(e), so long as
those documents were properly
authenticated and were otherwise
admissible.


  The district court found the documents
admissible as a business record under
Fed. R. Evid. 803(6). To be admissible as
a business record, a document must have
sufficient indicia of trustworthiness to
be considered reliable. See Saks Int’l,
Inc. v. M/V "Export Champion," 817 F.2d
1011, 1013 (2d Cir. 1987). Normally, to
demonstrate such trustworthiness and
reliability at the summary judgment
stage, the party seeking to offer the
business record must attach an affidavit
sworn to by a person who would be
qualified to introduce the record as
evidence at trial, for example, a
custodian or anyone qualified to speak
from personal knowledge that the
documents were admissible business
records. See Federal Deposit Ins. Corp.
v. Patel, 46 F.3d 482, 484 (5th Cir.
1995); see also Martz, 757 F.2d at 138
("When a party seeks to offer evidence
through other exhibits, they must be
identified by affidavit or otherwise made
admissible in evidence."). However, under
the rather peculiar circumstances of this
case, we feel that the district court did
not abuse its discretion in admitting the
arrest report and the misdemeanor
complaint as business records without
requiring the defendants to authenticate
them by affidavit.


  Woods attached a Chicago Police Case
Report to his response to the defendants’
motion for summary judgment, and he
relied on the case report for its
accuracy both in his original response
before the district court and in his
appellate brief presented to this Court.
The case report recapitulated Flores’
account of the altercation as presented
in the arrest report and the misdemeanor
complaint in each of its essential
details. By submitting and relying upon
the case report, Woods conceded the
accuracy of the documents that the
defendants sought to introduce. This
situation is strikingly similar to the
situation that the First Circuit
confronted in Cerqueira v. Cerqueira, 828
F.2d 863 (1st Cir. 1987). In that case,
the plaintiff sued the legal titleholder
to a fishing boat, seeking recovery for
injuries he sustained while he was
working on the boat. The defendant moved
for summary judgment on the grounds that
he was not the owner of the boat and was
therefore not liable for the plaintiff’s
injuries. The defendant tried to show
that he was not the owner of the boat by,
inter alia, attaching an exhibit to his
legal memorandum supporting his motion
for summary judgment. The exhibit was
purportedly an unsigned draft of an
agreement between the parties prepared by
the plaintiff’s lawyer for use in an
earlier case between them, and it showed
that the plaintiff had bought the boat
and that the defendant held title for the
plaintiff because the plaintiff was not a
U.S. citizen. In his appellate brief, the
plaintiff conceded that he had drafted
the document as a proposed resolution of
the earlier case. While the court noted
that "technically speaking, [the
defendant] should have introduced his
exhibits into the record through
affidavits, not as exhibits to a
memorandum of law . . .," it held that
given the plaintiff’s concession, it was
appropriate for the district court to
have considered the exhibit in ruling on
the motion for summary judgment. Id. at
865. The court reasoned that there was
"no point in remanding this case to
permit [the defendant] to file an
affidavit stating the very thing that
[the plaintiff] has conceded, namely,
that the document is what it purports to
be." Id.


  We find this reasoning persuasive and
applicable to the facts of this case. By
submitting the case report and relying on
it, Woods has conceded that Flores made
out a complaint against him to the
Chicago Police, and that in that
complaint Flores alleged that Woods had
threatened to kill him while wielding a
lead pipe. Since these are exactly the
facts that the defendants sought to prove
through the arrest report and the
misdemeanor complaint, we conclude that
Woods cannot reasonably question the
reliability of those documents. Requiring
authenticating affidavits in this case
would be an empty formality, and the
district court did not abuse its
discretion when it considered the
documents without such affidavits.


  Moreover, even were we to hold that the
district court erred in considering the
arrest report and misdemeanor complaint
absent a certifying affidavit or some
other traditional method of
authentication, such an error would be
harmless in this case. Rule 56(c)
provides that summary judgment shall be
granted if, among other documents, "[the]
admissions on file . . . show that there
is no genuine issue as to any material
fact and that the moving party is
entitled to a judgment as a matter of
law." An "admission" includes "anything
which is in practical fact an admission"
Cerqueira, 828 F.2d at 865 (citation
omitted), including statements made in a
brief presented to the district court,
see United States v. One Heckler-Koch
Rifle, 629 F.2d 1250, 1253 (7th Cir.
1980). Woods submitted the case report to
the district court, and he relied on its
account of the complaint that Flores gave
to the police in his response to the
defendants’ summary judgment motion. As a
practical matter, this amounted to an
admission of the facts presented in the
case report, and the district court was
entitled to consider the facts admitted
in ruling on the defendants’ summary
judgment motion. By continuing to rely on
the case report and subsequently failing
to offer any evidence to rebut its
account of Flores’ complaint, Woods left
the district court free to grant summary
judgment upon consideration of the facts
admitted by Woods alone and without even
considering the arrest report or the
misdemeanor complaint. Thus, even if the
latter documents were inadmissible and
therefore not available for the district
court’s consideration, the court could
still properly have granted summary
judgment for the defendants. See In re
Sunset Bay Assocs. v. Eureka Fed. Sav. &
Loan Ass’n, 944 F.2d 1503, 1513-14 (9th
Cir. 1991) (holding that, once a party
had admitted that the opposing party’s
unauthenticated exhibit contains truthful
information, the court may consider the
material in that exhibit because "an
admission is, or course, admissible in
evidence"). In his reply brief, Woods
tries to avoid having some of the
damaging information in the case report
admitted against him (in particular, the
case report’s statement that the "R/O’s
interviewed the victim") by asserting
that the case report itself is unverified
and lacks the "basic foundation
predicates of date, time, place, and
persons present." However, while
unauthenticated documents generally
cannot be considered on a motion for
summary judgment, a party who submits
such a document without reservation
cannot subsequently complain because the
district court considered the contents of
the document. See Walker v. Wayne County,
Iowa, 850 F.2d 433, 435 (8th Cir. 1988).



  C. Woods’ discovery request

  Woods also argues that the district
court "applied an erroneous legal
standard" in refusing to permit him to
depose Flores and the arresting officers
before ruling on the defendants’ summary
judgment motion. Citing Illinois State
Employees Union v. Lewis, 473 F.2d 561
(7th Cir. 1973), Woods maintains that
summary judgment should not be entered
"until the party opposing the motion has
had a fair opportunity to conduct such
discovery as may be necessary to meet the
factual basis for the motion." See
Celotex, 477 U.S. at 326 (1986). Woods
contends that the district court
erroneously denied him this opportunity,
and that its "sua sponte" decision to
enter summary judgment was unfair and
premature. Woods’ argument is
unconvincing.

  A district court’s decision to consider
a defendant’s motion for summary judgment
before allowing the plaintiff to depose
certain witness is a discovery matter
which we review for abuse of discretion.
Doty v. Illinois Central R.R. Co., 162
F.3d 460, 461 (7th Cir. 1998). Rule 56(f)
authorizes a district court to refuse to
grant a motion for summary judgment or to
continue its ruling on such a motion
pending further discovery if the
nonmovant submits an affidavit
demonstrating why it cannot yet present
facts sufficient to justify its
opposition to the motion. Fed. R. Civ. P.
56(f). While Woods did ask the district
court to postpone its ruling until he
could depose Flores and the officers, he
did not file an affidavit outlining his
reasons for needing further discovery as
contemplated by Rule 56(f). This alone
justifies affirmance of the district
court’s decision. See Wallace v. Tilley,
41 F.3d 296, 302-03 (7th Cir. 1994)
(holding that the court was precluded
from considering whether the district
court had abused its discretion in ruling
on defendant’s summary judgment motion
before allowing plaintiff to conduct
requested discovery where the plaintiff
had not filed an affidavit pursuant to
rule 56(f), and stating that "’when a
party does not avail himself of relief
under Rule 56(f), it is generally not an
abuse of discretion for the district
court to rule on the motion for summary
judgment’" (citation omitted)); see also
Jones v. Merchants Nat’l Bank & Trust
Company of Indianapolis, 42 F.3d 1054,
1060 (7th Cir. 1994); Kinney v. Indiana
Youth Ctr., 950 F.2d 462, 466 (7th Cir.
1991); Boling v. Romer, 101 F.3d 1336,
1339 n.3 (10th Cir. 1996); Burlington
Coat Factory Warehouse Corp. v. Esprit de
Corp., 769 F.2d 919, 926 (2d Cir. 1985)
(collecting cases); see also Committee
for the First Amendment v. Campbell, 962
F.2d 1517, 1522 (10th Cir. 1992) (ruling
that unverified statements in an
attorney’s memoranda of law alleging a
need for a continuance on a motion for
summary judgment pending further
discovery were insufficient as grounds
for a continuance under Rule 56(f), and
stating that "[a]dvocacy by counsel does
not suffice for evidence or fact in the
Rule 56(f) context.") (citation omitted).


  Further, even if we were to waive Rule
56(f)’s affidavit requirement in this
case, we would still find that the
district court did not abuse its
discretion in ruling on the motion before
granting Woods leave to depose Flores and
the arresting officers. Woods offered
virtually nothing to demonstrate why the
depositions that he sought were likely to
generate any genuine issue of material
fact. Woods never denied that Flores
complained to the Chicago police that
Woods had approached him with a lead pipe
while threatening to kill him (indeed,
his submission of and reliance upon the
case report precluded him from denying
this)./2 This admission alone would be
enough to establish that the arresting
officers had probable cause to arrest
Woods (thereby entitling the officers to
summary judgment on Woods’ sec. 1983
claims), absent some evidence showing
that it should have been apparent to the
officers that Flores was incredible as a
matter of law and that the officers acted
unreasonably in relying on his complaint.
Woods never put forward any such
evidence, nor did he explain why
discovery was likely to unearth it.
Instead, Woods merely pointed to a
sentence in the case report which
indicated that Flores told the police
that he had left the scene of the
altercation with Woods thinking that
Woods was "overreacting," suggesting that
this establishes that the officers should
not have relied on Flores’ account of the
incident when arresting Woods./3
However, Flores’ comment that he thought
that Woods was "overreacting" is
completely irrelevant to the material
facts that Woods needed to contest to
defeat summary judgment; it tends to show
neither that Flores did not report Woods’
assault to the police, nor that Flores’
account of the assault was in any way
incredible. At best it shows merely that
Flores thought that Woods was
"overreacting" when he assaulted Flores,
not that Flores was overreacting by
reporting a crime to the police. Thus,
based upon the facts that Woods presented
to the district court, any claim that
Flores was incredible as a matter of law
and that the officers should not have
relied upon his complaint would have been
pure speculation. This is far too slender
a reed upon which to hang a discovery
request. See generally United States v.
All Assets and Equip. of West Side Bldg.
Corp., 58 F.3d 1181, 1190 (7th Cir.
1995).


  Indeed, under the circumstances of this
case, we would most likely affirm even if
the district court had converted the
defendants’ motion to dismiss into a
motion for summary judgment and granted
the motion without giving Woods any
notice of the conversion or any
opportunity to respond to the summary
judgment motion. While the conversion of
a 12(b)(6) motion into a summary judgment
motion "should be accompanied by prior
notice and ’a reasonable opportunity to
establish the existence of material
controverted facts,’" the failure to
afford such procedure will not
necessarily mandate reversal unless "the
record discloses the existence of
unresolved material fact issues," or "the
parties represent that they would have
submitted specific controverted material
factual issues to the trial court if they
had been given the opportunity."
Milwaukee Typographical Union No. 23 v.
Newspapers, Inc., 639 F.2d 386, 391 (7th
Cir. 1981) (citation omitted). As has
been noted, Woods did not present
anything that would create a genuine
issue of material fact, nor did he point
to any specific controverted factual
issue that he would be able to present
after conducting depositions. Thus, the
court could have granted the converted
motion against Woods without notice. The
fact that the court gave Woods notice and
ample opportunity to respond and Woods
still failed to raise any genuine issue
of material fact only strengthens our
conclusion that the district court did
not abuse its discretion when it granted
the motion without allowing Woods to
depose Flores or the officers.


II. Fourth Amendment Issue

  Woods argues that his warrantless arrest
for misdemeanor assault was
unconstitutional because the alleged
assault did not involve a breach of the
peace and did not occur in the presence
of the arresting officers. Woods notes
that the Supreme Court has recently
stated that "[i]n determining whether a
particular governmental action violates
[the Fourth Amendment], we inquire first
whether the action was regarded as an
unlawful search or seizure under the
common law when the Amendment was
framed." Wyoming v. Houghton, 526 U.S.
295, 299 (1999). The common law in
existence at the time of the framing of
the Fourth Amendment prohibited a peace
officer from making a warrantless arrest
for a misdemeanor unless the misdemeanor
was committed in the presence of the
arresting officer and involved a breach
of the peace. See United States v.
Watson, 423 U.S. 411, 418 (1976); Carroll
v. United States, 267 U.S. 132, 156-57
(1925); Bad Elk v. United States, 177
U.S. 529, 534-35 (1900). Relying on
Houghton, Woods maintains that the common
law rule controls the Fourth Amendment
inquiry in this case, and that therefore
his warrantless arrest for a misdemeanor
not committed in the presence of the
arresting officers violates the
Amendment. Woods further argues that the
Chicago "municipal policy" which
authorized his arrest is unconstitutional
insofar as it abrogates the common law
rule. We are not persuaded.


  The Supreme Court has never held that a
police officer violates the Fourth
Amendment merely by arresting someone
without a warrant for a misdemeanor
offense which did not occur in the
officer’s presence and/or did not involve
a breach of the peace. Rather, when
determining the constitutionality of a
warrantless arrest for a criminal
offense, the Court has repeatedly focused
its inquiry on the existence of probable
cause for the arrest. See, e.g., Gerstein
v. Pugh, 420 U.S. 103, 111-12 (1975).
While "the Court has expressed a
preference for the use of arrest warrants
when feasible," Gerstein, 420 U.S. at
113, the Court has never elevated this
judicial preference to a per se rule
mandating warrants for all arrests
irrespective of the existence of probable
cause. See, e.g., Watson, 423 U.S. at 417
(stating that "’such a requirement would
constitute an intolerable handicap for
legitimate law enforcement’" (citation
omitted)). Indeed, in Gerstein, the court
noted that it "has never invalidated an
arrest supported by probable cause solely
because the officers failed to secure a
warrant," 420 U.S. at 113, and in the
intervening years since Gerstein it has
strayed from this principle only once,
when it imposed a warrant requirement for
arrests made in a suspect’s home. See
Payton v. New York, 445 U.S. 573, 585-86,
589-90 (1980) (holding that, absent
exigent circumstances, the Fourth
Amendment prohibits warrantless,
nonconsensual entry into a suspect’s home
in order to make a felony arrest--
notwithstanding the existence of probable
cause to arrest). Moreover, in Payton the
Court justified its departure from the
usual rule by emphasizing that the Fourth
Amendment affords citizens special
protections against government intrusions
into their homes, stating that "’physical
entry of the home is the chief evil
against which the wording of the Fourth
Amendment is directed’" (quoting United
States v. United States District Court,
407 U.S. 297, 313 (1972)) and that the
language of the Fourth Amendment
"unequivocally establishes the
proposition that ’[a]t the very core [of
the Fourth Amendment] stands the right of
a man to retreat into his own home and
there be free from unreasonable
governmental intrusion.’" Id. at 589-90
(citation omitted). No authorities cited
by either of the parties to this appeal,
nor any that we have found, expressly
require the police to obtain an arrest
warrant before lawfully arresting a
subject whom they have probable cause to
believe has committed an offense in any
instance other than an arrest in a
suspect’s home./4 Indeed, we have
concluded otherwise. See, e.g., United
States v. Fernandez-Guzman, 577 F.2d
1093, 1097 (7th Cir. 1978) ("[I]n the
area of arrests made in a public place,
an arrest warrant has never been
considered to be constitutionally
mandated even when there was opportunity
for one to be obtained.") (citing Watson,
423 U.S. 411 (1976)). Because Woods was
not arrested in his home, he cannot avail
himself of Payton’s holding, and under
the inquiry traditionally applied by the
Supreme Court, his arrest would not
violate the Fourth Amendment unless the
arresting officers lacked probable cause.



  However, Woods argues that the
historical analysis employed by the Court
in Houghton changed the traditional
Fourth Amendment inquiry and imposed a
warrant requirement for all routine
misdemeanor arrests unless the
misdemeanor is committed in the presence
of the arresting officer and involved a
breach of the peace. Unfortunately for
Woods, however, Houghton did not
constitutionalize the common law rules
regarding misdemeanor arrests, nor did it
even address the reasonableness of an
arrest under the Fourth Amendment.
Houghton addressed the reasonableness of
a search, not of a seizure of the person,
and it held merely that "police officers
with probable cause to search a car may
inspect passengers’ belongings found in
the car that are capable of concealing
the object of the search." 526 U.S. at
307. Moreover, neither of the cases cited
by Houghton as authority for its
historical analysis held that the common
law rules governing misdemeanor arrests
controls the inquiry into the
"reasonableness" of a misdemeanor arrest
under the Fourth Amendment. California v.
Hodari D. looked to the common law to
determine the meaning of "seizure" under
the Fourth Amendment, not to determine
whether a given seizure was reasonable
under the Amendment. See 499 U.S. 621,
624-29 (1991). Wilson v. Arkansas ruled
that the common law "knock and announce"
rule forms a part of the Fourth Amendment
reasonableness inquiry, and that the
reasonableness of a search of a dwelling
"may depend in part on whether law
enforcement officers announced their
presence and authority prior to
entering." 514 U.S. 927, 931 (1995)
(emphasis added). Indeed, in Wilson, the
Court was careful not to reduce the
reasonableness inquiry to any inflexible,
per se rule, noting that "[t]he Fourth
Amendment’s flexible requirement of
reasonableness should not be read to
mandate a rigid rule of announcement that
ignores countervailing law enforcement
interests," and holding that "although a
search or seizure of a dwelling might be
constitutionally defective if police
officers enter without prior
announcement, law enforcement interests
may also establish the reasonableness of
an unannounced entry." Id. at 934. Thus,
neither Houghton nor the cases it relied
upon directly support Woods’ argument.


  Moreover, in a case that was decided
after both Hodari and Wilson, the Court
strongly and unequivocally affirmed its
traditional view that, absent certain
extraordinary circumstances, a seizure is
reasonable under the Fourth Amendment
when it is based upon probable cause
regardless of the severity of the offense
involved. See Whren v. United States, 517
U.S. 806, 817-18 (1996). In Whren, the
Court held that a traffic stop of a
motorist by plainclothes policemen in an
unmarked car did not violate the Fourth
Amendment where the officers had probable
cause to believe that the motorist
committed a traffic violation. The
motorist argued that the stop was
unreasonable because the law enforcement
interests in investigating minor traffic
offenses were minimal and were outweighed
by the individual motorist’s right to be
free from such intrusions. In rejecting
this reasoning, the Court stated that
while it is true in principle that the
reasonableness inquiry always involves a
balancing of all relevant factors,
"[w]ith rare exceptions . . . the result
of that balancing is not in doubt where
the search or seizure is based upon
probable cause." Id. at 817. The Court
noted that "[w]here probable cause has
existed, the only cases in which we have
found it necessary actually to perform
the ’balancing’ analysis involved
searches or seizures conducted in an
extraordinary manner, unusually harmful
to an individual’s privacy or even
physical interests--such as, for example,
seizure by means of deadly force,
unannounced entry into a home, entry into
a home without a warrant, or physical
penetration of the body." Id. at 818
(citations omitted). After concluding
that the traffic stop at issue did not
"remotely qualify" as any such extreme
practice, the Court held that it was
"governed by the usual rule that probable
cause to believe the law has been broken
’outbalances’ private interest in
avoiding police contact." Id. Whren did
not directly address the question
presented here since it involved a
temporary traffic detention and not a
full custodial arrest, and since it did
not address the relationship between the
Fourth Amendment and the common law
arrest rules. However, Whren’s
unequivocally stated rationale flatly
contradicts Woods’ assertion that certain
warrantless non-felony arrests violate
the Fourth Amendment even if they are
based upon probable cause, and it
undermines any claim that the reasonable
ness of a seizure under the Fourth
Amendment depends entirely upon whether
the offense is classified as a felony or
as a misdemeanor./5


  In addition, while we have never decided
whether the Fourth Amendment incorporates
the common law "in the presence" rule for
misdemeanor arrests,/6 we have held
that other aspects of the common law
standards of misdemeanor arrests are not
part of the Fourth Amendment’s
prohibition of "unreasonable" searches
and seizures. In Ricci v. Arlington
Heights, Illinois, the plaintiff brought
a sec. 1983 action against the Village of
Arlington Heights and the police officers
who had arrested him, arguing that a full
custodial arrest for the fine-only
misdemeanor offense of operating a
business without a license violated the
Fourth Amendment. See 116 F.3d 288, 288
(7th Cir. 1997). The plaintiff did not
dispute that the officers had probable
cause to believe that he was violating
the ordinance. See id. at 290. However,
the plaintiff argued that the misdemeanor
offense for which he was arrested did not
involve a breach of the peace, and that
because the common law prohibited
custodial arrests for such offenses, his
arrest was unreasonable under the Fourth
Amendment. We declined to read the
literal strictures of the common law rule
into the Fourth Amendment, and we upheld
the plaintiff’s arrest on Fourth
Amendment grounds, noting that "the
common law rule has been relaxed to
include arrests for offenses other than
breaches of the peace." Id. at 291
(citations omitted). Woods correctly
notes that Ricci is distinguishable from
his case in some key respects, because
Ricci (unlike Woods) committed his
offense in the presence of the arresting
officers, and because Ricci did not
directly address the question of whether
and under what circumstances a warrant is
constitutionally required for a non-
felony arrest./7 However, the fact
remains that we upheld a warrantless
arrest in Ricci which would not have been
permitted under framing-era common law,
and in doing so we rejected the argument
that the strict terms of the common law
rule control the inquiry into the
constitutionality of a misdemeanor
arrest. Thus, while Ricci does not
definitively refute Woods’ argument, it
directly undermines his major premise.


  Moreover, several of our sister circuits
have squarely addressed Woods’ argument,
and they have uniformly held or stated
that the common law "in the presence"
rule is not part of the Fourth Amendment.
See Vargas-Badillo v. Diaz-Torres, 114
F.3d 3, 6 (1st Cir. 1997) (upholding a
grant of summary judgment for defendant
police officer on a sec. 1983 claim
alleging illegal arrest, and stating that
"[t]o date, neither the Supreme Court nor
this circuit ever has held that the
Fourth Amendment prohibits warrantless
arrests for misdemeanors not committed in
the presence of arresting officers");
United States v. Smith, 73 F.3d 1414,
1416 (6th Cir. 1996) (stating that the
requirement that a misdemeanor must have
occurred in the officer’s presence to
justify a warrantless arrest "is not
mandated by the Fourth Amendment; it is
merely a rule of the common law"); Pyles
v. Raisor, 60 F.3d 1211, 1215 (6th Cir.
1995) (rejecting a Fourth Amendment
challenge to a misdemeanor arrest when
probable cause existed, and holding that
the plaintiff’s "right as an alleged
misdemeanant to be arrested only when the
misdemeanor is committed in the presence
of the arresting officer [is] not
grounded in the federal Constitution and
will not support a sec. 1983 claim");
Fields v. City of South Houston, Texas,
922 F.2d 1183, 1189 (5th Cir. 1991)
(ruling that "[t]he United States
Constitution does not require a warrant
for misdemeanors not occurring in the
presence of the arresting officer");
Barry v. Fowler, 902 F.2d 770, 772 (9th
Cir. 1990) (ruling that "[t]he
requirement that a misdemeanor must have
occurred in the officer’s presence to
justify a warrantless arrest is not
grounded in the Fourth Amendment");
Street v. Surdyka, 492 F.2d 368, 372
(1974) (rejecting a constitutional
challenge to a warrantless misdemeanor
arrest and stating that "[w]e do not
think the fourth amendment should now be
interpreted to prohibit warrantless
arrests for misdemeanors committed
outside an officer’s presence. . . . The
fourth amendment protects individuals
from unfounded arrests by requiring
reasonable grounds to believe a crime has
been committed. The states are free to
impose greater restrictions on arrests,
but their citizens do not thereby acquire
a greater federal right"); see also Scott
v. District of Columbia, 101 F.3d 748,
754 (D.C. Cir. 1996) (noting that several
circuits agree that "the Fourth Amendment
does not incorporate the common-law
presence requirement for misdemeanor
arrests, and that no cause of action
exists under sec. 1983 unless the
arresting officer lacked probable cause
to believe a crime was committed," but
declining to decide the issue)./8
  Therefore, given the weight of Supreme
Court authority on this issue, the
overwhelming consensus of the circuits,
and our similar holding in Ricci, we
reject Woods’ invitation to
constitutionalize the framing-era common
law of misdemeanor arrests and to
overturn any Illinois state or municipal
laws which abrogate it.


  However, while the Fourth Amendment does
not require a warrant for a misdemeanor
arrest like the one effected here, it
does require that all warrantless arrests
be "reasonable." Payton, 445 U.S. at 585
(citations omitted). We have held that
the "reasonableness of an arrest depends
on the existence of two objective
factors: First, did the arresting
officers have probable cause to believe
that the defendant had committed or was
committing an offense. Second, was the
arresting officer authorized by state and
or municipal law to effect a custodial
arrest for the particular offense."
Ricci, 116 F.3d at 290 (quoting United
States v. Trigg, 878 F.2d 1037, 1041 (7th
Cir. 1989)). Woods’ warrantless
misdemeanor arrest was authorized by
Illinois law, see 725 ILCS 5/107-2
(1998), so in order to survive summary
judgment, Woods needed to raise a genuine
issue regarding whether the officers had
probable cause to arrest him. On the
facts presented, there can be no doubt
that Woods failed to do so.


  Probable cause has been defined as
"facts and circumstances ’sufficient to
warrant a prudent man in believing that
the [suspect] had committed or was
committing an offense.’" Gerstein, 420
U.S. at 111-12 (quoting Beck v. Ohio, 379
U.S. 89, 91 (1964)); see United States v.
Rucker, 138 F.3d 697, 700 (7th Cir.
1998). The rule of probable cause is a
"practical, nontechnical conception" that
affords the "best compromise" between the
interests of individual liberty and
effective law enforcement. Illinois v.
Gates, 462 U.S. 213, 231 (1983);
Gerstein, 420 U.S. at 112 (citation
omitted). Contrary to what its name might
seem to suggest, probable cause "demands
even less than ’probability,’" United
States v. Moore, 215 F.3d 681, 685 (7th
Cir. 2000) (quoting United States v.
Burrell, 963 F.2d 976, 986 (7th Cir.
1992)); it "requires more than bare
suspicion but need not be based on
evidence sufficient to support a
conviction, nor even a showing that the
officer’s belief is more likely true than
false." Id. at 686 (citation omitted).


  Applying this standard, we have
consistently held that an identification
or a report from a single, credible
victim or eyewitness can provide the
basis for probable cause. See Tangwall v.
Stuckey, 135 F.3d 510, 520 (7th Cir.
1998); Hebron, 18 F.3d at 422; Gramenos
v. Jewel Cos., Inc., 797 F.2d 432, 439
(7th Cir. 1986) (holding that a police
officer had probable cause to arrest an
alleged shoplifter based upon the
uncorroborated report of a single
security guard, and stating that "[w]hen
an officer has ’received information from
some person--normally the putative victim
or eye witness--who it seems reasonable
to believe is telling the truth,’ he has
probable cause") (citation omitted). In
this case, the evidence showed that the
arresting officers arrested Woods after
Flores made out a criminal complaint
against him, claiming that Woods had
brandished a lead pipe and threatened to
kill Flores. Woods has offered nothing to
dispute the fact that the complaint was
made, nor does he offer anything to
challenge either the accuracy or the
credibility of Flores’ description of the
incident. Woods argues that the complaint
as made by Flores, if true, establishes
only that Woods had committed a "verbal
assault," which is not a crime under
Illinois law; thus, Woods argues that
Flores’ complaint did not give the
arresting officers probable cause to
believe that Woods "had committed an
offense." However, as Woods notes, a
offender commits an assault under
Illinois law when he engages in "conduct
which places another in reasonable
apprehension of receiving a battery" 720
ILCS 5/12-1 (1998), and Woods offers
nothing which would suggest why his
wielding a lead pipe while moving towards
Flores and threatening to kill him would
not place Flores in reasonable
apprehension of receiving a battery.
Indeed, such conduct would seem to be the
paradigm case of assault as defined by
the Illinois Criminal Code, and as the
defendants note, the very case which
Woods relies upon for his claim that no
crime occurred here states that
"[w]ielding a tire iron while using
threatening words has been held an
assault." People v. Floyd, 663 N.E.2d 74,
76 (Ill. App. Ct. 1996) (citing People v.
Alexander, 350 N.E.2d 144 (Ill. App. Ct.
1976)). Thus, Flores’ complaint clearly
related the occurrence of an assault
under Illinois law.


  Woods also asserts that there is no
documentation showing that the officers
attempted to corroborate Flores’
complaint in any way, for example by
speaking with Flores’ supervisor, his
coworkers, or the leasing company about
his complaint. However, police officers
have no constitutional obligation to
conduct any further investigation before
making an arrest if they have received
information from a reasonably credible
victim or eyewitness sufficient to supply
probable cause. See Gramenos, 797 F.2d at
440. This is true even if sound police
technique would have required such
further investigation. See id.; see also
Spiegel v. Cortese, 196 F.3d 717, 725
(7th Cir. 2000) ("’[t]he inquiry is
whether an officer has reasonable grounds
on which to act, not whether it was
reasonable to conduct further
investigation.’") (citation omitted).
Therefore, even if the police had relied
exclusively on Flores’ complaint in
making the arrest and had made no effort
to investigate or corroborate Flores’
version of the events, they would have
been justified in making the arrest
provided that a reasonable officer would
have found Flores’ complaint to be
reasonably credible.


  In an effort to call the credibility of
Flores’ complaint into question, Woods
notes that Flores made out the complaint
three days after the alleged assault
occurred. He also points to the case
report, which, in reporting Flores’
description of the assault, states that
Flores told the officers that he left the
altercation thinking that Woods was
"overreacting." As we have already noted,
however, the case report submitted by
Woods indicated that Flores told the
police that Woods had renewed his threats
against Flores through two of Flores’
coworkers on the very day that Flores
made out his complaint. This amounts to
an apparently credible explanation for
why Flores reported the offense when he
did, and Woods offers absolutely nothing
either to rebut this explanation or to
undermine its credibility. Moreover, the
bare fact that Flores left the scene of
the altercation thinking that Woods was
overreacting does not support any reason
able inference that Flores did not take
Woods’ threats seriously, nor does it in
any way tend to diminish the credibility
of Flores’ account of the incident.
Finally, even if these facts did somehow
diminish the credibility of the complaint
that Flores made to the police, they
certainly would not render it dubious
enough to require the police to conduct a
further investigation before arresting
Woods (that is, they would not render his
report incredible as a matter of law). We
have found probable cause to arrest based
upon uncorroborated citizen complaints
which were far more questionable than was
Flores’ complaint. See Spiegel, 196 F.3d
at 724-26 (finding that the defendant
police officer had probable cause to
arrest the plaintiff even though the
victim had waited nearly a month to make
a report, and even though there were
inconsistencies in the victim’s report as
well as evidence suggesting that the
victim’s charge against the plaintiff was
retaliatory); Gerald M. v. J. Conneely,
858 F.2d 378, 380-81 (7th Cir. 1988)
(upholding district court’s grant of
summary judgment for police officer in a
sec. 1983 case, reasoning that the
uncorroborated complaint of a ten-year-
old child that his bicycle had been
stolen by two other children was
sufficient to provide the officer with
probable cause to arrest the accused
children, even though the arresting
officer knew of a long-standing grudge
between the victim’s family and the
family of the accused children). Thus,
as Woods failed to raise any material
fact calling into question the officers’
claim that they had probable cause to
arrest him, he was unable to state a
constitutional violation as required by
sec. 1983, and the defendants were
entitled to summary judgment.

CONCLUSION

  For the foregoing reasons, the judgment
of the district court is AFFIRMED.
/1 The defendants also asserted the defense of
qualified immunity and argued that Woods failed
to establish a causal connection between the
alleged municipal policy and his claimed injury.
However, the district court did not address these
issues, and they are not at issue in this appeal.

/2 Woods did contend that there was no evidence that
Flores’ complaint was communicated to the partic-
ular officers who arrested him, but given that
the case report opened its narration of Flores’
complaint with the statement that "R/O inter-
viewed victim who related to R/O that. . . . "
this argument is at worse disingenuous, and is at
best pure sophistry.

/3 Woods also pointed to Flores’ delay in reporting
the incident as a possible ground for the police
to doubt his credibility. However, as the case
report indicates, Flores provided the police with
a credible explanation for the delay--namely, the
renewed threat that Woods had communicated to
Flores’ co-workers on the day that he reported
the incident. Woods does not deny that Flores
gave this explanation, nor does he suggest why it
might have been incredible.

/4 In Maryland v. Macon, which was decided five
years after Payton, the Court expressly reserved
the question of whether the Fourth Amendment
prohibits a warrantless arrest outside of the
home for the state law misdemeanor of distribu-
tion of obscene materials. See 472 U.S. 463, 471
(1985).

/5 Furthermore, even after Houghton, courts have
continued to apply the traditional "probable
cause" standard that was reaffirmed in Whren in
determining the reasonableness of an arrest. See,
e.g., United States v. Moore, 215 F.3d 681, 685
(7th Cir. 2000); Wooley v. City of Baton Rouge,
211 F.3d 913, 925 (5th Cir. 2000).

/6 In Gramenos v. Jewel Cos., Inc., we reserved the
question of whether a state statute abrogating
the common law "in the presence" rule for misde-
meanor arrests "without putting equivalent guar-
antees of reasonable conduct in its place" com-
ports with the Fourth Amendment. 797 F.2d 432,
441 (7th Cir. 1986).

/7 As Woods notes, in Ricci we held that the plain-
tiff had waived any argument under the warrant
clause. See id. at 292.

/8 Indeed, most of these courts upheld the constitu-
tionality of the warrantless misdemeanor arrests
at issue even though the arrests violated the
relevant state law which had incorporated some
variant of the common law "in the presence" rule.
Since Illinois law authorizes misdemeanor arrests
regardless of whether the offense occurred in the
presence of the arresting officer, Woods’ claim
of a Fourth Amendment violation seems even weaker
than the similar claims rejected by many of our
sister circuits.
