                               In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 12-3249

HERBERT WILLIAMS,
                                                  Plaintiff-Appellant,

                                  v.


CITY OF CHICAGO, et al.,
                                               Defendants-Appellees.

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
            No. 10 C 06234 — Charles R. Norgle, Judge.


     ARGUED JUNE 5, 2013 — DECIDED OCTOBER 24, 2013


   Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.
    HAMILTON, Circuit Judge. In the wee hours of November 18,
2009, plaintiff Herbert Williams was returning home from
work. He smelled smoke, saw that his neighbor’s house was on
fire, and went to the porch of the burning home to bang on the
door to rouse anyone who might be inside. Chicago police
officers Matthew O’Brien and Joseph Byrne also spotted the
smoke and found Williams on the porch. They soon arrested
him on suspicion of arson. A prosecutor declined to file arson
2                                                   No. 12-3249

charges later that night. Officers O’Brien and Byrne then
charged Williams with criminal trespass, but that charge was
quickly dismissed.
    Williams brought this suit against Officers O’Brien and
Byrne under 42 U.S.C. §1983 alleging false arrest in violation of
his Fourth Amendment rights and against both officers and the
City of Chicago under state law for malicious prosecution on
the trespass charge. The district court granted the defendants’
motion for summary judgment. Williams v. City of Chicago, 2012
WL 4434678 (N.D. Ill. Sept. 19, 2012). Williams appeals. We
reverse and remand for trial. Whether there was even arguable
probable cause to arrest and charge Williams depends on
disputed issues of fact. Based on Williams’s version of the
evidence, the officers had no reasonable grounds for conclud-
ing that Williams had committed arson or trespass, or that he
was anything other than a good neighbor trying to ensure his
neighbors’ safety.
I. Facts for Summary Judgment
    Because we are reviewing a grant of summary judgment,
we present the facts in the light reasonably most favorable to
Williams, as the non-moving party. Good v. Univ. of Chicago
Med. Ctr., 673 F.3d 670, 673 (7th Cir. 2012). Neither we nor the
district court can resolve issues of credibility when deciding a
motion for summary judgment or an appeal from its grant.
Mullin v. Temco Machinery, Inc., ___ F.3d ___, ___, 2013 WL
5569461, at *5–6 (7th Cir. Oct. 10, 2013). Those are issues for a
jury at trial, not a court on summary judgment.
   Williams came home from his job as a janitor with the
United States Postal Service at approximately 2:30 a.m. on
No. 12-3249                                                                 3

November 18, 2009. When he exited the bus near his Chicago
home, he smelled smoke. He rounded the corner and saw that
the house at 11144 South Edbrooke was on fire. Concerned that
there could be people inside the burning house, he began
banging on the front door in an attempt to rouse them. He did
not enter the burning house.
   Defendant—Officers Byrne and O’Brien were in a patrol car
en route to their police station when they spotted a cloud of
smoke. O’Brien testified that he was one or two houses away
from 11144 South Edbrooke when he first noticed the flames,
which came from the rear of the house. The officers
approached the house in their patrol car and saw Williams on
the front porch, at the door.1
    The officers stopped, went to the porch, and spoke with
Williams. Williams explained that it was his neighbor’s house,
he thought people might be inside, and he was banging on the
door to wake them. The officers then tried to enter the house,
but the front door was locked. Officer O’Brien kicked the door
open and the officers entered.
    They found no one inside who needed to leave, but they
observed a neatly stacked pile of firewood ablaze. They also
saw burning sheets of newspaper stuffed into exposed insula-
tion in the walls. Officer O’Brien recalled seeing a burning
mattress, and he testified that the burning items were spread

1
  Contrary to Williams’s version of events, the officers testified that they
observed Williams exit the front door. In light of the conflicting testimony,
the officers did not include that assertion in their Local Rule 56.1 statement
of undisputed material facts. In any event, we must accept Williams’s
version for purposes of this appeal.
4                                                    No. 12-3249

out over each of the house’s three floors. Officer Byrne testified
that all the burning materials were on the second floor. The
officers argue on appeal that they believed the fire was likely
the result of arson—Officer O’Brien explained that his arson
determination was based on his training as a police officer and
on “common sense.” This testimony was not part of defen-
dants’ Local Rule 56.1 statement, but even if it had been, it
would not affect the outcome of this appeal. So for purposes of
argument, we will assume they believed the fire was arson.
    When the officers left the burning house, they saw Williams
in front of the house across the street, which was his own
house. They approached and asked Williams for identification.
Williams provided a state identification card and other cards
issued by the United States Postal Service and the Veterans of
Foreign Wars. Officer O’Brien then put Williams in handcuffs
and the officers put him in their patrol car. Williams’s mother
and a neighbor both tried to intercede on his behalf. The
neighbor told the officers that Williams “had nothing to do
with” the fire. After the officers placed Williams in their patrol
car, Officer O’Brien ran a criminal background check on
Williams and found no prior arrests for arson.
    The officers then drove Williams to the police station and
placed him in an interrogation room. Detective Janice Govern
of the Bomb and Arson section of the Chicago Police Depart-
ment investigated the fire and questioned Williams. Detective
Govern did not notice an unusual smell when she was ques-
tioning him. Williams repeated what he had told Officers
Byrne and O’Brien: he was a janitor for the Postal Service. He
never went inside 11144 South Edbrooke, but he was banging
on the front door to warn anyone who might have been asleep
No. 12-3249                                                                 5

in the house. In other words, he was a Good Samaritan doing
exactly what any concerned neighbor would do.
   Detective Govern inspected the inside of the house at 11144
South Edbrooke and concluded that the home was unoccupied.
She confirmed this with the owner of the house, Carl Branigan,
who told Detective Govern that he and his family had recently
moved out. Branigan did not say that he wanted to sign a
criminal complaint against Williams.
    Detective Govern finished her investigation and concluded
that a chemical accelerant was not used to start the fire. Govern
Dep. at 38. Detective Govern’s report said nothing about
whether Williams smelled of gasoline, and she testified that if
Officers Byrne or O’Brien had told her that Williams had
smelled of gasoline, she would have included that fact in her
report. Id. at 29–32. The arrest report prepared by Officers
O’Brien and Byrne also said nothing about Williams smelling
of gasoline when they arrested him. See O’Brien Dep. at 93–96;
Byrne Dep. at 62–63.2


2
   After the fact, though, both officers claimed they recalled smelling
gasoline when they were in Williams’s presence. O’Brien Dep. at 92; Byrne
Dep. at 51. Officer O’Brien testified that he noticed the smell of gasoline
while he was inside Williams’s house. O’Brien Dep. at 92. Officer Byrne
testified that he first smelled gasoline when he and Williams were in the
patrol car. Byrne Dep. at 51. The defendants did not designate this evidence
as part of their Local Rule 56.1 statement of material undisputed facts, and
there is certainly room for reasonable dispute on the matter. Despite the
failure to raise this evidence in the district court, the defendants included
these matters in their brief on appeal. In any event, the discrepancies on
these late reports of a supposedly incriminating aroma only tend to add to
                                                                (continued...)
6                                                         No. 12-3249

    Detective Govern provided the information gleaned from
her investigation to Assistant State’s Attorney Jennifer Sexton,
but she did not recommend that Williams be charged with
arson. ASA Sexton’s notes from that conversation contain the
following narrative:
      the officers observed [Williams] coming from the
      front door. [Williams] stopped officers to notify
      them of fire. Officers entered the residence to check
      for victims and found small piles of wood in the
      back room of the second floor on fire. Officers
      observed newspaper shoved into the walls of the
      residence. [Williams] was then placed into custody.
      Fire investigators related the fire was arson and that
      there were three points of origin. Building is a
      residence but had not been occupied for over two
      weeks. No injuries and no one in residence at the
      time of the fire. Owners of building notified.
    Sexton Dep. at 10–11. ASA Sexton declined to approve an
arson charge against Williams. In her deposition, she explained
that her decision was likely based on a lack of information
about the victim and the absence of eyewitnesses who saw
Williams start the fire. Detective Govern and ASA Sexton did
not discuss whether to charge Williams with criminal trespass
to a residence.
   Detective Govern told Officers O’Brien and Byrne that the
prosecutor had rejected an arson charge against Williams.


2
  (...continued)
the circumstantial evidence of deception and malice, as discussed below.
No. 12-3249                                                    7

Officers O’Brien and Byrne then signed a charge of criminal
trespass against Williams, which occurs when a person
“without authority … knowingly enters or remains within any
residence … .” 720 Ill. Comp. Stat. 5/19-4(a)(1), (b)(1) (Class A
misdemeanor). The evidence from the three officers conflicts in
important ways as to how the charging decision was made.
Officer O’Brien recalled that Detective Govern instructed him
to charge Williams with criminal trespass. O’Brien Dep. at 129.
His testimony, however, was contradicted by Detective
Govern, who denied instructing the officers to charge Wil-
liams, and by Officer Byrne who recalled that he and Officer
O’Brien jointly decided to go ahead and charge Williams.
Govern Dep. at 63; Byrne Dep. at 67.
    The district court’s treatment of this factual issue was
erroneous, and it highlights some procedural complications in
this appeal. The district court wrote: “After Detective Govern
told the Officers that Williams could not be charged with
arson, the Officers had a conversation and decided, with
Detective Govern’s approval, to charge Williams with criminal
trespass to residence, a Class A misdemeanor.” Williams, 2012
WL 4434678, at *2. The defendants’ motion for summary
judgment and Local Rule 56.1 Statement did not present this
evidence or claim the facts were undisputed. Williams’s Local
Rule 56.1 Statement also did not cite this evidence. The district
court was not prohibited from examining all of the evidence
filed on the motion for summary judgment, of course, but
when its exploration of that evidence went beyond what the
parties had cited, the risk of error increased.
   We have often explained that district courts may not grant
summary judgment on grounds not argued by the moving
8                                                     No. 12-3249

party, at least not without giving notice so that the non-moving
party has a full opportunity to present relevant evidence and
argument. E.g., Pactiv Corp. v. Rupert, 724 F.3d 999, 1001 (7th
Cir. 2013); see generally Celotex Corp. v. Catrett, 477 U.S. 317,
326 (1986) (“district courts are widely acknowledged to possess
the power to enter summary judgments sua sponte, so long as
the losing party was on notice that she had to come forward
with all of her evidence”). This general principle applies to
matters of fact as well as to matters of law. Pactiv Corp., 724
F.3d at 1001, citing Fed. R. Civ. P. 56(f) (making explicit that a
district court may “consider summary judgment on its own
after identifying for the parties material facts that may not be
genuinely in dispute” “after giving notice and a reasonable time to
respond”) (emphasis added). It is not appropriate to grant
summary judgment based on facts the moving party did not
rely on, at least without giving the losing party advance notice
and an opportunity to be heard.
    We assume that the district court, in stating as a fact that
Detective Govern had approved the criminal trespass charge,
was referring to Officer O’Brien’s testimony that Detective
Govern instructed the officers to charge Williams. As can
happen often when a court ventures beyond the parties’
arguments, as it is entitled to do, the court apparently over-
looked the conflicting evidence from Detective Govern. At this
point, in any event, we must give plaintiff Williams the benefit
of the conflicting evidence and reasonable inferences. We must
assume for now that the officers filed the criminal trespass
charge without any instruction, approval, or advice from
Detective Govern.
No. 12-3249                                                      9

   When Williams was told of the charge, he told Officer
O’Brien he was a “liar” for saying that he saw Williams exiting
the house at 11144 South Edbrooke. Williams Dep. at 37.
Officer Byrne “tried to calm [him] down” by explaining to
Williams, “just calm down, you’re being charged with tres-
passing, but if you—this will most likely get thrown out. All
you have to do is show up for court.” Id. Williams thought that
Officer Byrne was playing the role of “good guy” to Officer
O’Brien’s “bad cop.” The next month, Williams appeared in
court to contest the criminal trespass to a residence charge. The
court indeed dismissed the charge. This suit followed.
II. False Arrest
    We consider first Williams’s constitutional claim, deciding
whether the undisputed facts showed probable cause to arrest
Williams and then whether the undisputed facts show that the
officers are entitled to a defense of qualified immunity.
   A. Probable Cause to Arrest
    To prevail on his constitutional claim for false arrest,
Williams must show there was no probable cause for his arrest.
See Williams v. Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007);
Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006)
(“Probable cause to arrest is an absolute defense to any claim
under Section 1983 against police officers for wrongful ar-
rest[.]”). Probable cause exists if “at the time of the arrest, the
facts and circumstances within the officer’s knowledge … are
sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an
offense.” Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir.
10                                                     No. 12-3249

2009), quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). “It
is a fluid concept that relies on the common-sense judgment of
the officers based on the totality of the circumstances.” United
States v. Reed, 443 F.3d 600, 603 (7th Cir. 2006). To make this
determination, we must “step[ ] into the shoes of a reasonable
person in the position of the officer[,]” Wheeler v. Lawson, 539
F.3d 629, 634 (7th Cir. 2008), considering the facts known to the
officer at the time. Carmichael v. Village of Palatine, 605 F.3d 451,
457 (7th Cir. 2010). In deciding this question of law as part of
a motion for summary judgment, however, we must give the
non-moving party the benefit of conflicts in the evidence about
what the officers actually knew at the time.
    Based on the version of the evidence most favorable to
plaintiff Williams, the defendant officers did not have probable
cause to believe that he was committing or had committed a
crime on November 18, 2009. When they arrived on the scene,
Williams was on the porch of a burning house, banging on the
door to rouse anyone inside. His presence on the porch,
without more, should not have led these officers to conclude
that he had committed a crime. “Clearly physical proximity to
a suspected crime, without other indicia of … involvement, is
insufficient to support a finding of probable cause.” United
States v. Ingrao, 897 F.2d 860, 863 (7th Cir. 1990); see also United
States v. Richards, 719 F.3d 746, 757 (7th Cir. 2013) (noting that
it is a “well-settled proposition” that “mere proximity to
suspected criminal activity does not, without more, generate
probable cause”); United States v. Bohman, 683 F.3d 861, 864 (7th
Cir. 2012) (“A mere suspicion of illegal activity at a particular
place is not enough to transfer that suspicion to anyone who
leaves that property.”) (citation omitted). The officers observed
No. 12-3249                                                     11

no other circumstances that could have reasonably indicated
that Williams was involved in a crime. His mere presence was
not sufficient to support a finding of probable cause to arrest
him for arson or criminal trespass, and on Williams’s version
of the evidence that’s all the officers had.
    The officers argue that their observations of the fire gave
them a reasonable suspicion that the fire had been intentionally
set, which in turn supplied probable cause to arrest Williams
for arson. (As noted above, the defendants’ Local Rule 56.1
Statement oddly did not assert that they believed the fire had
been caused by arson, but we will assume as much for pur-
poses of the argument.) Once they had broken down the front
door, the officers observed either two or three separate fires,
including a pile of wood that had been arranged in a “campfire
fashion.”
    The problem is that regardless of what the officers reason-
ably believed about how the fire might have started, they did
not observe anything indicating that Williams was involved.
We must assume they had seen Williams only outside the
burning house and outside the locked front door. Williams
identified himself to the officers without hesitation or deceit as
a neighbor who smelled smoke, found its source, and was on
the porch to bang on the door to rouse anyone inside. The
officers had no factual basis for thinking Williams was an
arsonist rather than a Good Samaritan.
    The defendants argue that “where a fire is intentionally set
and only one person appears to have been in a position to start
the fire, it is reasonable to conclude that person is responsible,”
but the cases they cite in support involved facts that simply are
12                                                     No. 12-3249

not comparable in terms of facts indicating who was responsi-
ble for the fire. See Def. Br. at 16, citing People v. Lawson,
549 N.E.2d 1006, 1008 (Ill. App. 1990) (defendant’s confession
of arson was independently corroborated; fire was set in a
maximum security cell in prison, all combustible materials in
cell had been placed in one corner and set alight, and defen-
dant was the sole occupant), and Sherrod v. Illinois, 50 Ill. Ct. Cl.
23, 31, 41 (Ill. Ct. Cl. 1997) (crediting arson investigator’s
conclusion that arson fire in a locked apartment was set by the
mentally disturbed person who was the only occupant of the
apartment, but concluding that state was not negligent in
failing to commit that person involuntarily). In this case,
Williams was present but was outside the locked and burning
house. His mere presence was not enough to provide probable
cause. If Williams’s mere presence outside the burning house
were enough to arrest someone for arson, imagine the disin-
centives for neighbors to help each other.
    What about arresting Williams for criminal trespass? The
defendants argue that “the same facts that reasonably led
Officers O’Brien and Byrne to believe Williams had committed
arson would also lead a reasonable person to believe he had
committed criminal trespass to a residence.” Def. Br. 19. We
disagree. Criminal trespass requires that a person enter or
remain without authority. Assuming Williams’s version of the
facts, the officers had no indication that he had been inside.
The officers had no reasonable basis to believe Williams had
committed arson, and this unreasonable belief cannot be
bootstrapped into a reasonable belief that Williams had
committed criminal trespass.
No. 12-3249                                                  13

    The district court considered the criminal trespass question
as part of the malicious prosecution claim and concluded that
even if the officers had not seen Williams exiting the burning
house, a mistaken belief that he had “was not unreasonable
under the circumstances.” Williams, 2012 WL 4434678, at *5.
This conclusion departed from the standard that governs
summary judgment motions. On this point, the court gave the
moving parties, not the non-moving party, the benefit of
conflicts in the evidence and the choice among conflicting
inferences. Based on the conflicting evidence, it would also be
reasonable to conclude that Williams has been telling the truth
and that the officers were lying, not just honestly mistaken,
about whether they saw him coming out of the locked house.
    Based on Williams’s evidence, none of the circumstances of
the fire supported a reasonable belief that he had committed
either arson or criminal trespass. Williams has offered suffi-
cient evidence from which a jury could conclude that Officer
O’Brien and Officer Byrne arrested him without probable
cause.
   B. Qualified Immunity
    The individual officers argue that they are entitled to
qualified immunity on the false arrest claim because, even if
probable cause was lacking, a reasonable officer could have
believed there was probable cause to arrest Williams. The
district court did not reach the defense. We hold that the
officers are not entitled to qualified immunity on summary
judgment.
    Qualified immunity “protects government officials from
liability for civil damages insofar as their conduct does not
14                                                   No. 12-3249

violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks
omitted). In evaluating qualified immunity, the court asks two
questions: (1) whether the facts, taken in the light most
favorable to the plaintiff, make out a violation of a constitu-
tional right, and (2) whether that constitutional right was
clearly established at the time of the alleged violation. Id. at
232.
    We have already answered the first question in the affirma-
tive. The facts in this case, taken in the light most favorable to
Williams, show a violation of his constitutional right to be free
from arrest without probable cause. We move on to the second
question, which is similar to but distinct from the first. See
Abbott v. Sangamon County, 705 F.3d 706, 715 (7th Cir. 2013)
(distinguishing question of existence of probable cause on the
merits of constitutional violation from question of arguable
probable cause on question of whether right was clearly
established). Because this is a false arrest claim, the second
question can be framed as “whether a reasonable officer could
have mistakenly believed that probable cause existed.” See
Fleming v. Livingston County, 674 F.3d 874, 878 (7th Cir. 2012),
quoting Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998).
This concept is often called “arguable probable cause,” see
Thayer v. Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012), and it is
sufficient to grant qualified immunity to officers who reason-
ably but mistakenly believed they had probable cause to arrest.
See Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).
   Viewing the evidence in the light most favorable to Wil-
liams, we do not find room for a reasonable mistake by the
No. 12-3249                                                   15

officers about whether they had probable cause to arrest
Williams. The defendants argue that the officers reasonably
concluded that the fire had been set intentionally. We can
assume that is true, but the argument misses the mark. The
question is not whether the fire was arson but whether it was
reasonable to arrest Williams for arson. On this point, the
defendants have only Williams’s presence on the porch. And
as explained above, it is and was well established that mere
presence is not enough for probable cause. When asked,
Williams freely identified himself and explained he was there
trying to rouse any occupants in the locked and burning home.
For purposes of summary judgment, we must assume there
was no indication that Williams had been inside the home, let
alone that he had set the fire. Based on those factual assump-
tions, there was no basis for reasonable minds to differ on
whether there was probable cause to arrest Williams. On this
record, these officers are not entitled to summary judgment on
the defense of qualified immunity.
III. Malicious Prosecution
     Williams has also sued both the officers and the city itself
under state law for malicious prosecution based on the short-
lived prosecution for criminal trespass. The elements of
malicious prosecution in Illinois are (1) commencement of
criminal proceedings by the defendants; (2) termination of that
matter in favor of the plaintiff; (3) the absence of probable
cause for the proceedings; (4) the presence of malice; and (5)
resulting damages. Gonzalez v. City of Elgin, 578 F.3d 526, 541
(7th Cir. 2009), citing Swick v. Liautaud, 662 N.E.2d 1238, 1242
(Ill. 1996). Malicious prosecution is offense—specific, so we
focus our attention on the criminal trespass charge. The
16                                                   No. 12-3249

defendants contend that Williams’s malicious prosecution
claim fails because he cannot demonstrate an absence of
probable cause to charge him with criminal trespass and
because he cannot show malice. We address each issue in turn.
     A. Probable Cause to Charge
    In a malicious prosecution case, probable cause is defined
as “a state of facts that would lead a person of ordinary care
and prudence to believe or to entertain an honest and sound
suspicion that the accused committed the offense charged.”
Gauger v. Hendle, 954 N.E.2d 307, 329–30 (Ill. App. 2011)
(emphasis omitted), quoting Fabiano v. City of Palos Hills, 784
N.E.2d 258, 266 (Ill. App. 2002). “It is the state of mind of the
person commencing the prosecution that is at issue—not the
actual facts of the case or the guilt or innocence of the ac-
cused.” Sang Ken Kim v. City of Chicago, 858 N.E.2d 569, 574 (Ill.
App. 2006). Errors that are not grossly negligent do not affect
the probable cause inquiry when the complainant has an
honest belief that the accused is probably guilty of the offense.
Id. at 574–75.
    Williams has offered evidence from which a jury could find
that a reasonable person standing in the shoes of these officers
could not have had “an honest and sound suspicion” that he
had “entered or remained” within 11144 South Edbrooke
without authority, as required to commit the crime of criminal
trespass. See 720 ILCS 5/19-4(a)(1). Williams testified that when
the officers arrived, he was banging on the front door of the
burning residence in an attempt to rouse anyone inside.
Williams did not enter the building. We credit Williams’s
testimony on this point for purposes of summary judgment,
No. 12-3249                                                     17

and as explained above, Williams’s mere presence was not
sufficient to extend the officers’ arguably reasonable belief that
someone had entered the residence to commit arson into an
“honest and sound suspicion” that the someone was Williams.
Nothing about this situation suggested that Williams had
committed a crime or that he had any criminal intent. He was
exactly where anyone would want their neighbor to be—on the
porch trying to warn any occupants of the danger in the
middle of the night. A jury presented with this record could
conclude that a reasonable person would not have believed
that Williams had committed a criminal trespass.
   B. Malice
    The district court did not reach the question of probable
cause on the malicious prosecution claim because it found that
Williams had not offered sufficient evidence that the officers
had acted with malice, though the two questions are closely
related. We disagree with the district court’s conclusion.
“Malice” in the context of malicious prosecution means that the
officer who initiated the prosecution had “any motive other
than that of bringing a guilty party to justice.” Aleman v. Village
of Hanover Park, 662 F.3d 897, 907 (7th Cir. 2011), quoting
Carbaugh v. Peat, 189 N.E.2d 14, 19 (Ill. App. 1963). The evi-
dence in this record could reasonably suggest to a jury that
these officers charged Williams with criminal trespass not
because they believed he was guilty and wanted to bring him
to justice, but for some other reason—such as perhaps covering
up a bad arrest for arson. Again, taking the version of disputed
facts most favorable to Williams, a jury could reasonably find
that the officers concocted the trespass charge against him
18                                                    No. 12-3249

without authority from either the homeowner or the case
detective, and that it was unsupported by probable cause.
    The officers were not required to have the approval of
either the owner or the detective, of course, but a reasonable
jury could find that Officer O’Brien lied about having been told
by Detective Govern to file the charge. Moreover, after O’Brien
told Williams that he would be charged with trespass and that
he had seen Williams leaving the house (prompting Williams
to call him a liar), Officer Byrne told Williams that the charge
would “most likely get thrown out.” On this record, Byrne’s
statement is not easy to reconcile with any belief the officers
might have had that Williams had actually committed trespass.
It certainly cannot be reconciled as a matter of law. We leave
that question to the jury.
    The district court stated its conclusion on this element of
malice: “On these facts, the want of probable cause has not
been ‘clearly proved’ such that the Court must infer that the
Officers acted with malice.” Williams, 2012 WL 4434678, at *5;
see also Aguirre v. City of Chicago, 887 N.E.2d 656, 663 (Ill. App.
2008) (affirming jury verdict for plaintiffs wrongly accused and
convicted of kidnapping and murder; malice may be “inferred
from want of probable cause when the circumstances are
inconsistent with good faith by the prosecutor and where the
want of probable cause has been clearly proved”). The district
court’s phrasing of this conclusion effectively reversed the
summary judgment standard. It is well established that a jury
can infer malice from an absence of probable cause. Aguirre,
887 N.E.3d at 663; see also Rodgers v. Peoples Gas, Light & Coke
Co., 733 N.E.2d 835, 842 (Ill. App. 2000) (permitting inference
of malice to be drawn from absence of probable cause); Mack
No. 12-3249                                                    19

v. First Security Bank of Chicago, 511 N.E.2d 714, 717 (Ill. App.
1987) (same). To defeat summary judgment, plaintiff Williams
was not required to “clearly prove” the lack of probable cause
or to come forward with evidence that would require the court
to infer malice. He was required to come forward only with
evidence that would permit a finding of no probable cause and
permit a reasonable inference of malice. Williams has done so.
He is entitled to have a jury determine whether the officers
acted with malice.
    In addition, a jury hearing the discrepancies in the officers’
testimony could find that the officers lied concerning several
key points. The officers testified that they saw Williams exiting
the house. He denies it and says they must be lying. The
officers also testified that when they arrested Williams, they
smelled gasoline on his person. This information, if true,
would have been highly relevant to the grounds for Williams’s
arrest and Detective Govern’s arson investigation. Yet there is
no mention of a gasoline smell on Williams’s person in the
officers’ arrest report or in Detective Govern’s report. Detective
Govern testified that the officers did not tell her that Williams
smelled of gasoline and that she did not smell it herself when
she interviewed him. The gasoline smell seems to have
surfaced for the first time in the officers’ depositions in this
lawsuit.
    The officers’ testimony is also inconsistent regarding the
decision to charge Williams with criminal trespass. Detective
Govern was the only one who spoke with the homeowner. She
testified that the owner did not state that he wished to press
charges against Williams. Officer O’Brien recalled that Detec-
tive Govern instructed him to charge Williams with criminal
20                                                    No. 12-3249

trespass anyway. His testimony, however, was contradicted
by Detective Govern, who denied instructing the officers to
charge Williams, and also by Officer Byrne, who testified that
he and Officer O’Brien decided to charge Williams with
criminal trespass without Detective Govern’s input.
    In the context of employment litigation, the law permits the
trier of fact to infer an improper motive if an employer has lied
about its motive for taking action against an employee, calling
it “pretext.” See Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 146–48 (2000) (linking rule to general principle of
evidence law that factfinder is entitled to consider a party’s
dishonesty about a material fact as affirmative evidence of
guilt); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993);
Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir. 2002)
(“Pretext means a lie, specifically a phony reason for some
action.”) (internal quotation marks omitted). This principle in
employment law is drawn from the general principle of
evidence law that a trier of fact is entitled to consider a party’s
dishonesty about a material fact as affirmative evidence of
guilt. Reeves, 530 U.S. at 147, citing Wright v. West, 505 U.S. 277,
296 (1992); Reeves, 530 U.S. at 154 (Ginsburg, J., concurring).
Though the context is different, we see no reason why a
parallel inference could not reasonably be drawn here. The
district court erred in granting the defendants’ summary
judgment motion on Williams’s malicious prosecution claim.
    Plaintiff Williams has offered sufficient evidence from
which a jury could find that the defendants are liable for an
unconstitutional false arrest and for malicious prosecution
under state law. The conflicting evidence presents genuine
issues of material fact that could not be resolved on summary
No. 12-3249                                              21

judgment. The judgment of the district court is REVERSED and
the case is REMANDED to the district court for further
proceedings consistent with this opinion.
