                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 07-2098
KAREN Y. SHIPMAN,
                                            Plaintiff-Appellee,

                              v.

ERIC HAMILTON,
                                         Defendant-Appellant.
                       ____________
         Appeal from the United States District Court
             for the Southern District of Illinois.
          No. 06 C 242—Michael J. Reagan, Judge.
                       ____________
     ARGUED DECEMBER 4, 2007—DECIDED APRIL 1, 2008
                       ____________


 Before RIPPLE, MANION, and WOOD, Circuit Judges.
  MANION, Circuit Judge. Karen Shipman filed suit pursu-
ant to 42 U.S.C. § 1983 against Deputy Eric Hamilton of the
Randolph County Sheriff’s Department. In her complaint,
Shipman asserted that Hamilton had violated her rights
under the Fourth and Fourteenth Amendments when he
arrested her while she was on duty as a nurse at the Sparta
Community Hospital (the “hospital”) in Sparta, Illinois.
Hamilton filed a motion for summary judgment. In that
motion, he argued that he had probable cause to arrest
Shipman. In the alternative, Hamilton asserted that he was
2                                                 No. 07-2098

entitled to qualified immunity. The district court denied
Hamilton’s motion, and he filed this interlocutory appeal.
We affirm.


                               I.
  We begin by setting forth the facts as the district court
found them, that is, in the light most favorable to Shipman.
See Johnson v. Jones, 515 U.S. 304, 319-20 (1995). On the night
of April 28, 2005, Shipman, a registered nurse, was on duty
at the medical-surgical floor of the hospital. While Shipman
had worked a few shifts in the hospital’s emergency room,
that night was Shipman’s first night on duty on the
medical-surgical floor.
  Around midnight, Hamilton and Deputy Rod Queen
entered the hospital to serve an emergency order of
protection1 on Roscoe Handsbury, a 60-year-old patient at
the hospital who was in an “ICU-like” environment. At the
time the officers arrived, Shipman was the highest-ranking
nurse, and the only registered nurse, on the floor. The
officers announced that they had papers to serve
Handsbury and asked to speak to Handsbury’s nurse. In
response, Shipman told the officers that she was
Handsbury’s nurse.
  What happened next is disputed. While Hamilton
testified at his deposition that Shipman would not give the
officers Handsbury’s location, Shipman testified at her
deposition that she pointed out to the officers the room
where Handsbury was located. (Shipman’s testimony is


1
  The record does not disclose why the officers had to serve the
emergency order of protection on Handsbury.
No. 07-2098                                                3

confirmed by Queen, who testified at his deposition that
Shipman told them where Handsbury was and that they
could see Handsbury through the window in his room.)
According to Shipman, after she gave the officers
Handsbury’s location, Hamilton inquired about
Handsbury’s condition. Shipman responded that, although
she was not sure of his exact condition, she thought she
needed to call the doctor because the report on Handsbury
stated that he had been extremely upset and crying
throughout the day. Shipman then told the officers that,
given his condition, she thought they should wait for the
doctor to be present before serving Handsbury. Shipman
was concerned about a stroke or other potential medical
complication if the officers woke up Handsbury in the
middle of the night to serve him. She also feared violating
her obligations under the Health Insurance Portability and
Accounting Act if she let the officers into Handsbury’s
room.
  At that point, Hamilton suggested that Shipman call her
supervisors. Shipman first called the on-call doctor, Dr.
Elvira Salarda. Salarda told Shipman that Handsbury was
not going anywhere and that the officers should come back
in the morning when she was present. Salarda also sug-
gested that Shipman call her supervisor Kathy Lehr. At her
deposition, Shipman testified that, while she was on the
phone with the doctor, Hamilton started to become aggra-
vated. After getting off the phone with Salarda, Shipman
called Lehr and explained to her what Salarda had said.
Shipman then gave the phone to Hamilton (who, Shipman
testified, was at this point “very aggravated”). Lehr told
Hamilton that he ought to return to the hospital at 8:00 a.m.
the next morning so he could serve Handsbury while a
doctor was present.
4                                              No. 07-2098

  Meanwhile, after handing the phone to Hamilton,
Shipman—believing matters would be taken care of—
returned to her nursing duties. As soon as Hamilton got off
the phone, however, he approached Shipman, who was
preparing an IV, told her she had blocked his service of
process by calling the doctor, stated that he was going to
arrest her, and demanded her name. According to
Shipman, she did not respond to Hamilton because she was
“stunned.”2 Hamilton then grabbed Shipman by the arms,
cuffed her, and forced her down the hallway, out of the
hospital. The charges filed against Shipman list “obstruct-
ing service of process” in violation of 720 ILCS 5/31-3
and “obstructing a peace officer” in violation of 720
ILCS 5/31-1 as the grounds for the arrest.3
  On March 24, 2006, Shipman filed this § 1983 action
against Hamilton. She alleged that Hamilton violated her
rights under the Fourth and Fourteenth Amendments by
arresting her without probable cause. Hamilton moved for
summary judgment. He argued that he had probable cause
to arrest Shipman. In the alternative, he asserted that he
was entitled to qualified immunity. The district court
denied the motion on both grounds, and Hamilton appeals.


                            II.
  The only question before us on this appeal is whether,
taking the facts as the district court presented them, the



2
   Shipman also testified that she was wearing a name badge
displaying her name, title, and picture.
3
   We assume that these charges were later dismissed, though
the record contains no reference to their dismissal.
No. 07-2098                                                   5

district court erred in finding that Hamilton was not
entitled to qualified immunity for his arrest of Shipman.
We have jurisdiction to consider this purely legal question.
Via v. Lagrand, 469 F.3d 618, 623 n.2 (7th Cir. 2006) (citing
Johnson, 515 U.S. at 317); see also Sallenger v. Oakes, 473 F.3d
731, 738 (7th Cir. 2007) (“Recognizing the urgency of
denials of qualified immunity, [a denial of] summary
judgment on these grounds is deemed a ‘final judgment’
under 28 U.S.C. § 1291 and is immediately appealable.”).
We review a district court’s denial of summary judgment
on qualified immunity grounds de novo. Washington v.
Haupert, 481 F.3d 543, 546 (7th Cir. 2007).
  Qualified immunity shields governmental actors per-
forming discretionary functions from suit “insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Whether an officer is entitled to qualified immunity in any
particular case is a two-step inquiry. Saucier v. Katz, 533
U.S. 194, 201 (2001). First, taking the facts in the light most
favorable to the plaintiff, we must consider whether the
officer’s conduct violated a constitutional right. Id. If no
constitutional right would have been violated were the
plaintiff’s allegations established, our inquiry is at an end
and summary judgment should be entered in favor of the
officer. Id. “On the other hand, if a violation could be made
out on a favorable view of the parties’ submissions, the
next, sequential step is to ask whether the right was clearly
established.” Id. “[F]or a constitutional right to be clearly
established, its contours must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right”; in other words, “in the light of preexist-
ing law the unlawfulness must be apparent.” White v. City
6                                                 No. 07-2098

of Markham, 310 F.3d 989, 993 (7th Cir. 2002) (internal
quotations omitted). “If the right was clearly established,
the officer is not entitled to qualified immunity.” Washing-
ton, 481 F.3d at 547 (emphasis in original).
   In this case, the constitutional right Shipman alleges that
Hamilton violated when he arrested her without a warrant
was her right to be free from an unreasonable seizure
under the Fourth and Fourteenth Amendments. “The
Fourth Amendment permits warrantless arrests only if the
arresting officer has probable cause to believe that a crime
has been committed.” Id. (citing Thompson v. Wagner, 319
F.3d 931, 934 (7th Cir. 2003)). Probable cause exists where
an officer reasonably believes, in light of the facts and
circumstances known to the officer at the time of the arrest,
that the suspect had committed or was committing an
offense. Payne v. Pauley, 337 F.3d 767, 776 (7th Cir. 2003).
“The test is an objective one and evaluates whether proba-
ble cause existed on the facts as they appeared to a reason-
able police officer, even if the reasonable belief of that
officer is ultimately found to be incorrect.” Id. (citing Kelley
v. Myler, 149 F.3d 641, 646 (7th Cir. 1998)). According to the
charges filed against Shipman, Hamilton arrested Shipman
for obstructing service of process in violation of 720 ILCS
5/31-3 and obstructing a peace officer in violation of 720
ILCS 5/31-1. The question, then, is whether Hamilton had
probable cause to arrest Shipman for either of those
offenses.
  We can immediately rule out probable cause for an arrest
of Shipman for obstruction of a peace officer. Under Illinois
law, the offense of obstructing a police officer requires
some sort of physical resistance on the part of the suspect.
Payne, 337 F.3d at 776 (“It is well settled under Illinois
law . . . that the resistance [720 ILCS 5/31-1 requires] must
No. 07-2098                                                 7

be physical . . . .”). Here, taking the facts as we have them,
Shipman did not physically resist Hamilton.
   That leaves the offense of obstructing service of process
as the only ground upon which Hamilton can justify his
arrest of Shipman. Obstructing service of process is defined
as “knowingly resist[ing] or obstruct[ing] the authorized
service or execution of any civil or criminal process or
order of any court.” 720 ILCS 5/31-3. In arguing that he
had probable cause to arrest Shipman for obstructing
service of process—or at least could have reasonably
believed under existing law that he had probable cause to
do so—Hamilton places great emphasis on his view that
Illinois law is less than clear on what constitutes obstruct-
ing service of process under 720 ILCS 5/31-3. According to
Hamilton, the offense of obstructing service of process,
unlike the offense of obstructing a peace officer, does not
require an act of physical resistance. Rather, Hamilton
argues that a reasonable police officer could believe that
the offense of obstructing service of process could be
committed simply by any action or inaction that might
impede, hinder, or delay the performance of the officer’s
duties.
  In support of his interpretation of Illinois law, Hamilton
relies on Silverman v. Ballantine, 694 F.2d 1091 (7th Cir.
1982), and People v. Meister, 682 N.E.2d 306 (Ill. Ct. App.
1997). In Silverman, this court held that a decedent had
obstructed service of process when he, in no uncertain
terms, informed officers that they were not going to seize
his computer equipment, retreated from a reception area to
his inner office, and continued to refuse the officers access
to the equipment after they unlocked the door of the
reception area and entered his office. 694 F.2d at 1092-
93, 1095. This court noted that “[a]lthough obstructing
8                                                No. 07-2098

service or execution of process under [720 ILCS 5/31-3]
cannot be premised on ‘mere argument’ with a police
officer, it may be premised on a physical act which . . . may
impede, hinder, interrupt, prevent or delay the perfor-
mance of the officer’s duties.” Id. at 1095 (citing People v.
Raby, 240 N.E.2d 595 (Ill. 1968)) (internal quotation omit-
ted). In Meister, the defendant called the police who were
seeking to serve a subpoena on his wife and gave false
information about his wife’s whereabouts. 682 N.E.2d at
309. Noting that the intentional, “self-initiated provision of
false information” to the police could pose a greater
obstruction on many occasions than any physical act, the
court in Meister held that a physical act was not required to
obstruct service of process under 720 ILCS 5/31-3. Id. at
309-10 (“We believe too much emphasis is often placed
upon the Raby . . . language [requiring a ‘physical act’].”).
The court then found that the defendant’s false information
created an obstacle that may have “impede[d], hinder[ed],
interrupt[ed], prevent[ed] or delay[ed] the performance of
the officer’s duties” and therefore constituted obstructing
service of process. Id. at 310.
  We need not determine whether Hamilton is correct in
asserting that Silverman and Meister take the offense of
obstructing service of process beyond a physical-resistance
requirement. Even if it is unclear as to whether Illinois law
requires physical resistance to arrest a person for obstruct-
ing service of process, no reasonable police officer encoun-
tering the facts as the district court has set them forth in
this case could have believed that he had grounds to arrest
Shipman for obstructing service of process. At no point
before her arrest did Shipman take any action, physical or
otherwise, to hinder the officers’ ability to serve
Handsbury. Indeed, Shipman affirmatively assisted
No. 07-2098                                               9

Hamilton. When Hamilton asked Shipman where
Handsbury was, Shipman pointed him to Handsbury’s
exact location. From where he was standing, Hamilton
could see Handsbury through the window in Handsbury’s
room. At any point after he obtained Handsbury’s location
from Shipman, Hamilton could have walked into
Handsbury’s room and served him; yet Hamilton never
did.
  Nevertheless, Hamilton presents several theories of how
he could have reasonably believed Shipman’s actions
constituted the offense of obstructing service of process as
he defines it. First, Hamilton contends Shipman obstructed
his service of Handsbury by advising the officers that,
given Handsbury’s tenuous condition, they might want to
wait until a doctor was present before serving Handsbury.
This advice was given only after Hamilton initiated a
conversation with Shipman about Handsbury’s condition.
Moreover, it was only advice; Shipman did not order the
officers to wait for a doctor. Nor did Shipman threaten to
refuse the officers entry into Handsbury’s room if they did
not wait. Thus, Shipman’s suggestion that the officers wait
for a doctor could not possibly have impeded or delayed
Hamilton’s service of Handsbury because Hamilton was
free to ignore her suggestion, walk into Handsbury’s room,
and serve him. But, again, for whatever reason, Hamilton
chose not to do so.
  Second, Hamilton faults Shipman for not giving him
permission to enter Handsbury’s room. He asserts that a
reasonable officer could have believed that express permis-
sion was necessary before entering Handsbury’s room.
Consequently, Hamilton argues that Shipman’s failure to
give him express authority to serve the order could reason-
ably be construed as obstruction. The facts as they are
10                                             No. 07-2098

presented to us, however, indicate that the authority was
not Shipman’s to give. Although Shipman was the only
registered nurse on duty on the medical-surgical floor, this
was her first night on that floor. She did not appear to
believe that she had the authority to allow the officers to
enter (in the middle of the night) an “ICU-like” room of an
older patient in poor condition, since she recommended
that the officers wait for a doctor. Hamilton apparently did
not believe that Shipman had the authority either, since it
was at his suggestion that Shipman called her supervisors.
Because neither Shipman nor Hamilton believed that
Shipman had the authority to give Hamilton permission to
enter Handsbury’s room, a reasonable officer could not
have believed that Shipman was impeding or hindering his
ability to serve Handsbury by not giving him permission to
enter the room.
  Next, Hamilton asserts that Shipman’s handing him the
phone (to talk to her supervisor), then walking away to
resume her hospital duties, obstructed him. But as previ-
ously discussed, that assertion fails. At the point Shipman
resumed her duties, she had (1) shown Hamilton where
Handsbury was; (2) expressed concern about Handsbury’s
condition, his possible negative medical reaction when
confronted by the officers delivering the notice, and the
limits to her own authority under the law as well as the
rules and procedures of the hospital; (3) called
Handsbury’s treating physician, who advised delaying
service until she arrived in the morning and told Shipman,
in the meantime, to contact her supervisor about hospital
procedure; (4) contacted her supervisor who advised
waiting until morning for service; and (5) handed the
phone to Hamilton to talk directly to the supervisor (the
presumed decisionmaker). Even if a reasonable officer
No. 07-2098                                             11

would not have served Handsbury, despite knowing his
location, because he could have believed that he needed
express authority to enter Handsbury’s room, it should
have been clear to such an officer at the time Shipman
returned to her duties that the authority to enter
Handsbury’s room was not Shipman’s to give. Conse-
quently, Shipman could not have posed any impediment
to serving Handsbury because her involvement was at an
end. She could do no more to help the officers; her failure
to do more cannot constitute obstruction.
  Finally, Hamilton contends that Shipman’s failure to give
her name upon request constituted obstruction. Like the
others, this theory does not survive scrutiny because
Hamilton had already informed Shipman that she was
under arrest before he asked her for her name. Thus,
because Hamilton had already arrested her, Shipman’s
failure to give Hamilton her name cannot add anything to
the analysis as to whether Hamilton had probable cause to
make the arrest in the first place. Payne, 337 F.3d at 776
(probable cause must be based on the facts and circum-
stances known to the officer at the time of the arrest).
  In sum, the district court did not err in denying Hamil-
ton’s motion for summary judgment based on qualified
immunity. Under these facts, a reasonable officer would
not have believed that he had grounds to arrest Shipman,
the only registered nurse on duty that night.


                           III.
  The district court did not err in denying Hamilton’s
motion for summary judgment based on qualified immu-
nity. Under the facts as they are presented to us, no
reasonable officer could have believed that he had proba-
12                                          No. 07-2098

ble cause to arrest Shipman for obstructing service of
process after she affirmatively assisted the officers by
pointing out the location of Handsbury, the person to be
served. In addition, Shipman’s failure to give Hamilton
express authority to enter Handsbury’s room did not
constitute obstruction because neither she nor Hamilton
believed the authority was hers to give. We AFFIRM.




                  USCA-02-C-0072—4-1-08
