                             UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53



           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                            Argued September 27, 2004
                               Decided April 5, 2005

                                      Before

                         Hon. RICHARD A. POSNER, Circuit Judge

                         Hon. MICHAEL S. KANNE, Circuit Judge

                         Hon. ANN CLAIRE WILLIAMS, Circuit Judge


No. 03-4301

GLENN R. NICHOLS,                             Appeal from the United States District
               Plaintiff-Appellant,           Court for the Northern District of
    v.                                        Indiana, Hammond Division.

TOWN OF CEDAR LAKE, CEDAR                     No. 02 C 71
LAKE POLICE DEPARTMENT, and
CARL BRITTINGHAM,                             Philip P. Simon, Judge.
             Defendants-Appellees.


                                     ORDER

       Appellant Glenn Nichols sued the Town of Cedar Lake, Indiana, the Cedar
Lake Police Department, and Officer Carl Brittingham alleging a violation of
Fourth Amendment rights pursuant to 42 U.S.C. § 1983, and under Indiana law for
false arrest and use of excessive force. The district court granted the defendants’
motion for summary judgment on all claims. We affirm, finding that Brittingham
had probable case to arrest Nichols for both public intoxication and disorderly
conduct, and that there was no evidence in the record to establish that Officer
Brittingham used excessive force against Nichols.

      I.      BACKGROUND

      On August 24, 2001, at approximately 6:00 p.m., appellant Glenn Nichols
No. 03-4301                                                              Page 2

went to the Three Stooges Bar in Cedar Lake, Indiana to meet a friend, Rick
Warczynski, for drinks. Nichols stayed at the Three Stooges bar with Warczynski
until approximately 10:00 p.m. Nichols admits that he drank at least five or six
beers during that time at the Three Stooges Bar. (Nichols Dep. at 69.) Nichols then
walked home from the bar and entered his house on Lake Shore Drive. Once
inside, Nichols almost immediately left again, and headed back outside to
Warczynski’s house.

       Nichols claims that once outside, when he approached the end of his
driveway, he saw a marked Cedar Lake police car. (Nichols Dep. at 82-3.) Once he
saw the squad car, Nichols turned around and headed back toward the house.
Nichols alleges that he heard the officer, later identified as Officer Brittingham, say
“hey.” The next thing Nichols recalled was “down on the ground.” (Id.) Nichols
does not recall how he fell. Specifically, Nichols does not recall if he was ever
pushed or even touched by Brittingham. (Id. at 87-88.)

       Brittingham testified that he was on patrol at approximately 10:30 p.m. on
August 24, 2001 when he observed Nichols staggering on and off Lake Shore Drive.
(Brittingham Dep. at 22.) Nichols allegedly ran in front of Brittingham’s squad car
towards a grassy area behind a house on the south side of Lake Shore Drive. (Id. at
23.) Brittingham found this behavior suspicious and he turned his spotlight on
Nichols and followed him. Brittingham lost sight of Nichols when he went behind
the house, but then found him laying face down in a gravel driveway on Lake Shore
Drive. (Id. at 24.) Brittingham testified that “[i]t was obvious to me that he had
fallen, his ball cap was lying in the direction that he was running, several feet away
from him.” (Id.) Brittingham assumes that Nichols fell over a 4-foot retaining wall
that was under construction just off of the gravel driveway, although he did not
actually see him fall. (Id. at 26-28.)

       Upon reaching Nichols, Brittingham saw immediately that Nichols’s head
was bleeding. Brittingham called for an ambulance, told Nichols to stay where he
was, and asked Nichols for identification. Nichols was mumbling, and Brittingham
could smell a strong odor of alcohol coming from him. Nichols was unable to tell
Brittingham who he was. (Id. at 32.) Nichols, has no recollection of these events.
(See generally Nichols Dep. at 88-94.)

       Shortly thereafter, the ambulance arrived. Two emergency medical
technicians (“EMTs”) began to treat Nichols. (Id. at 33). One EMT on the scene,
Dale Holsti, observed that Nichols had alcohol on his breath and that Nichols
admitted to drinking, but would not specify how much he had to drink. (Affidavit of
Holsti ¶ 7.) Holsti claims that Nichols became very aggravated and combative
towards him and the other EMT, and that Nichols grabbed EMT Holsti and tried to
pull him to the ground. (Id.) EMT Holsti’s Patient Report specifies that Nichols’s
No. 03-4301                                                              Page 3

injury was caused by an “accidental fall.” (Affidavit of Holsti at Ex. A.) Nichols
was taken to the hospital for treatment.

       Based on his own observations and as a result of Nichols’s actions towards
EMT Holsti, Brittingham placed Nichols under arrest for disorderly conduct and
public intoxication. Brittingham handcuffed Nichols’s hands in front, for safety,
but Nichols does not recall ever being handcuffed. (Nichols Dep. at 93.) The
charges against Nichols have not yet been resolved.

      II.     ANALYSIS

      Drawing all reasonable inferences from the record in the light most favorable
to Nichols, the non-moving party, we find that the district court correctly granted
summary judgment in favor of the defendants.

        We review the district court’s grant of summary judgment de novo. Killinger
v. Johnson, 389 F.3d 765, 769 (7th Cir. 2004). To succeed on a false arrest claim,
Nichols must prove that Brittingham arrested him without probable cause. Booker
v. Ward, 94 F.3d 1052, 1057 (7th Cir. 1996). “Probable cause is a ‘commonsense
determination, measured under a reasonableness standard.’” Spiegel v. Cortese,
196 F.3d 717, 723 (7th Cir. 2000) (quoting Tangwall v. Stuckey, 135 F.3d 510, 519
(7th Cir. 1998)). A police officer has probable cause to arrest if the totality of the
facts and circumstances known to a reasonable arresting officer would support the
belief that the suspect has committed or is committing a crime. Driebel v. City of
Milwaukee, 298 F.3d 622, 643 (7th Cir. 2002) (citing Marshall ex rel. Gossens v.
Teske, 284 F.3d 765, 770 (7th Cir. 2002); Woods v. City of Chicago, 234 F.3d 979,
996 (7th Cir. 2000)). “The court must consider the facts as they would have
reasonably appeared to the arresting officer ‘seeing what he saw, hearing what he
heard’ at the time of the incident.” Id. (quoting Richardson v. Bonds, 860 F.2d
1427, 1431 (7th Cir. 1988)).

       It is clear from the facts of this case that Brittingham had probable case to
arrest Nichols for public intoxication. Public intoxication under Indiana law
consists of (1) being in a public place, and (2) being in a state of intoxication, Ind.
Code § 7.1-5-1-3, and it is undisputed that Brittingham (1) observed Nichols
staggering on and off Lake Shore Drive, a public roadway; (2) found Nichols
unconscious on the ground on a gravel driveway that is not a part of Nichols’
property; and (3) smelled alcohol on Nichols. Additionally, it is undisputed that
Nichols was unable to state his name or address after he was asked to do so by
Brittingham. Taking the facts and the circumstances as they must have reasonably
appeared to Officer Brittingham at the time of the incident, Nichols appeared, and
probably was in fact intoxicated. See, e.g., Hirsch v. Burke, 40 F.3d 900, 903-4 (7th
Cir. 1994) (holding probable cause existed for public intoxication where an
No. 03-4301                                                               Page 4

individual was observed in a public place having trouble balancing, appeared
incoherent, smelled of alcohol, had bloodshot eyes, and was unable to state his
name or address).

        In addition, Brittingham had probable cause to arrest Nichols for disorderly
conduct. Under Indiana law, “a person engages in disorderly conduct when they
[sic] recklessly, knowingly, or intentionally engage in fighting or tumultuous
conduct, or makes unreasonable noise and continues to do so after being asked to
stop.” Earles v. Perkins, 788 N.E. 2d 1266, 1265 (Ind. Ct. App. 2003). Moreover,
conduct which is likely to injure persons is sufficient to support a conviction for
disorderly conduct. Gebhard v. State, 484 N.E. 2d 45, 48-49 (Ind. Ct. App. 2003).

       The facts in this case establish that Brittingham had probable cause to arrest
Nichols for disorderly conduct as Nichols was argumentative and combative on the
night in question. According to Brittingham, Nichols was “yelling and cussing and
being vulgar and disorderly” when the medical technicians were attempting to treat
him. Officer Brittingham advised Nichols several times that he was going to be
arrested if he kept behaving in this manner, but Nichols continued and ultimately
became aggressive towards the emergency medical technicians while they were
attempting to load him onto the gurney.

       Nichols also argues that the district court erred in dismissing his excessive
force claim. We disagree. There is no evidence in the record to establish that
Officer Brittingham used excessive force against Nichols. A police officer’s use of
force is unconstitutional if, “judging from the totality of circumstances at the time of
the arrest, the officer used greater force than was reasonably necessary to make the
arrest.” Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987). As applied to
this case, there is nothing in the record to suggest that Officer Brittingham used
greater force than was necessary to place Nichols under arrest. Nichols testified
that he has no recollection of falling, being placed under arrest, or being
handcuffed; therefore, Nichols cannot carry his evidentiary burden and establish
that Brittingham used more force against him than was reasonably necessary.
Nichols’s speculation as to the events that occurred that night are insufficient to
withstand summary judgment.

         For all the reasons stated above, we AFFIRM the judgment of the district
court.
