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

No. 06-4125
JAMES CHELIOS,
                                                  Plaintiff-Appellant,
                                  v.

LINDSEY HEAVENER, Sergeant,
DAVID L. GERDES, Police Chief,
and CITY OF JOLIET, a
Municipal Corporation,
                                               Defendants-Appellees.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 06 C 909—Charles R. Norgle, Sr., Judge.
                          ____________
    ARGUED DECEMBER 4, 2007—DECIDED MARCH 21, 2008
                          ____________

  Before RIPPLE, MANION and WOOD, Circuit Judges.
  RIPPLE, Circuit Judge. James Chelios filed this action
under 42 U.S.C. § 1983 against Lindsey Heavener, a City
of Joliet police officer, David Gerdes, the police chief,
and the City of Joliet (collectively, the “defendants”). He
alleges that the defendants violated his Fourth and Four-
teenth Amendment rights by unlawfully arresting him
and using excessive force to effectuate the arrest. The
complaint also includes a battery claim based on Illinois
law. The district court granted the defendants’ motion for
2                                             No. 06-4125

summary judgment. Mr. Chelios timely filed a notice of
appeal.
  For the reasons set forth in this opinion, we reverse the
judgment of the district court and remand the case for
further proceedings.


                            I
                    BACKGROUND
                            A.
  In the early morning hours of February 20, 2005, Ser-
geant Heavener was parked at a liquor store located
one block west of Dimitri’s Bar & Grill, a business owned
by Mr. Chelios. Sergeant Heavener heard eight to ten
gunshots and believed them to have come from an area
east of his position. He then went to Dimitri’s and ordered
Mr. Chelios to shut down his business for the remainder
of the evening because the Sergeant believed that the
gunshots had been fired from Dimitri’s parking lot.
Mr. Chelios complied with Sergeant Heavener’s request;
he told the DJ to stop playing music, and he ordered his
security personnel to usher everyone out.
  After closing his business, Mr. Chelios walked outside.
Many patrons had left Dimitri’s but remained outside in
the parking lot. Mr. Chelios encountered Sergeant
Heavener and explained that no shooting could have
taken place in his parking lot because he had been
standing in the vestibule of his business watching a
camera focused on the parking lot and had not seen
any shooting. Sergeant Heavener maintained that the
shooting might have occurred in the parking lot.
No. 06-4125                                                 3

  William Moton, a bouncer at Dimitri’s, approached
Mr. Chelios and told him that he should to go to another
area of the parking lot to hear what a witness was telling
another police officer. Mr. Chelios did so; he claims that
he heard a witness telling a female police officer that
the shooting had not occurred in Dimitri’s parking lot.
   At this point, Mr. Chelios’ and Sergeant Heavener’s
stories diverge. According to Mr. Chelios, he asked the
female officer to inform Sergeant Heavener that the
shooting had not occurred in the parking lot. He and
Moton then began walking toward the entrance of
Dimitri’s. On the way, the two men encountered Ser-
geant Heavener, who was leaning against the building
with his arms folded and one leg resting against the
building. Mr. Chelios told Sergeant Heavener that he
should speak to the female officer regarding the wit-
ness’ statement that the shooting had not occurred in his
parking lot. According to Mr. Chelios, Sergeant Heavener
told him, “Get out of my face.” R.40 ¶ 19, at 12. Mr. Chelios
responded in kind to the officer. Mr. Chelios claims that
he and Moton then walked away from Sergeant Heavener
and toward the entrance of the bar. As the two men
walked away, Mr. Chelios claims that Sergeant Heavener
shouted several times, “If you ever walk up on me again
like that, I will lock your ass up.” Id. ¶ 22, at 12. Sergeant
Heavener followed the men.
  Once they were a few feet from the entrance, Mr. Chelios
asked Sergeant Heavener, “Why don’t you leave me
alone?” R.35 ¶ 23, at 4. In response, Sergeant Heavener
said, “Did you hear me? You know what, you’re under
arrest.” Id., Ex. 2 at 83. Sergeant Heavener then put his
arms around Mr. Chelios’ neck, grabbed his shoulders
and spun Mr. Chelios around. Two other officers had
4                                              No. 06-4125

joined Sergeant Heavener, and Mr. Chelios claims that all
three of them jumped on him and threw him on the
ground.
   Sergeant Heavener has a different account. According
to him, Mr. Chelios approached him after speaking with
the female police officer and the witness. He claims that
Mr. Chelios called him a liar and said that the police
were fabricating the entire incident. Sergeant Heavener
claims that Mr. Chelios was upset. At this point, two
patrons of the bar began to fight, and Sergeant Heavener
claims that he walked away from Mr. Chelios to control
the crowd. About five minutes later, Sergeant Heavener
claims that Mr. Chelios and Moton approached the en-
trance of Dimitri’s and came upon him. Mr. Chelios began
to yell, telling the Sergeant that the gunshots had not been
fired from his property and that he should go speak to the
female officer.
  Sergeant Heavener claims that Mr. Chelios was agitated
and had his finger pointed at the Sergeant’s face. The
Sergeant describes Mr. Chelios as being right up in his
face. According to Sergeant Heavener, Mr. Chelios poked
him in the chin with his outstretched finger. After the
alleged contact, Moton intervened and pulled Mr. Chelios
away. At this point, Sergeant Heavener ordered, “Get
back here.” R.31, Ex. A at 14. Mr. Chelios and Moton,
however, continued to walk away. Sergeant Heavener
then yelled, “I’m going to lock your ass up.” R.40 ¶ 22,
at 12. Sergeant Heavener followed the two men and
claims that Moton put himself between the Sergeant and
Mr. Chelios. Sergeant Heavener told Mr. Chelios that he
was under arrest and ordered Moton not to interfere.
Moton immediately stepped away. Mr. Chelios then
attempted to open the door to Dimitri’s; Sergeant Heavener
No. 06-4125                                                  5

grabbed his right shoulder and informed him again that
he was under arrest. Mr. Chelios dropped to his knees;
Sergeant Heavener also fell to the ground. Sergeant Heav-
ener handcuffed Mr. Chelios and transported him to the
Joliet Police Department.
  The State of Illinois filed a criminal complaint against
Mr. Chelios in Illinois Circuit Court. The complaint
charged Mr. Chelios with battery, a class A misdemeanor.
Mr. Chelios was acquitted of the charge.1 R.1 ¶¶ 23-28;
R.15 ¶¶ 23-27.


                              B.
  In the district court, the defendants moved for sum-
mary judgment with respect to the section 1983 counts
that allege unlawful arrest and excessive force on the
part of Sergeant Heavener and the assault and battery
count asserted against Sergeant Heavener and the City of
Joliet.2 During a hearing on the summary judgment motion,
the district court and Mr. Chelios’ counsel engaged in
the following colloquy:
    The Court:    So here in this case it’s the flipside where
                  according to the arresting officer in a
                  statement under oath, his deposition,


1
  This appeal therefore is not barred under Heck v. Humphrey,
512 U.S. 477 (1994).
2
  Prior to the defendants’ summary judgment motion, the
district court granted Police Chief Gerdes’ and the City of
Joliet’s motion to dismiss Mr. Chelios’ malicious prosecution
claim as well as his claim under Monell v. Department of Social
Services, 436 U.S. 658 (1978). R.21.
6                                              No. 06-4125

                 that is what Chelios did. And so in terms
                 of probable cause, given the nature of the
                 circumstances, that is sufficient to con-
                 stitute probable cause.
    Counsel:     Well, your Honor, I mean, that’s taking
                 only the officer’s version. I mean, that
                 would be—
    The Court:   Well, with probable cause, one doesn’t
                 consider the ultimate defense to the
                 case. It’s whether there was a probabil-
                 ity of criminality in this case. And the
                 probability of criminality is that an Illi-
                 nois crime had just been committed
                 under these circumstances.
    Counsel:     Your Honor, Mr. Chelios denies he ever
                 touched Sergeant Heavener. That’s a
                 material fact. In order to have aggravated
                 battery, to have assault, you had to have
                 a threat of battery or you had to actually
                 have a battery. Chelios denies he ever
                 touched him.
    The Court:   No. You have to have probable cause,
                 the probability that an assault occurred,
                 a probability—
    Counsel:     Correct.
    The Court:   —of disorderly conduct, and the proba-
                 bility of a battery, which would become
                 an aggravated battery in Illinois if it
                 were upon a police officer.
    Counsel:     Your Honor, but that’s only if Chelios
                 agreed that he did what Sergeant
No. 06-4125                                                     7

                   Heavener says he did. But under the
                   facts as James Chelios says they oc-
                   curred, I don’t see how there was
                   any battery. I think a jury could easily
                   find there was no battery and that there
                   was a false arrest.
    The Court:     That there was no probable cause for
                   arrest?
    Counsel:       To believe that there was a battery, cor-
                   rect, Your Honor.
    The Court:     No probability of criminality under
                   these circumstances?
    Counsel:       Under James Chelios’ version of what
                   occurred, yes, Your Honor.
R.72 at 6-7.
  The district court granted the defendants’ summary
judgment motion in all respects. In its opinion, the court
explained that it was taking the “undisputed facts from
the parties’ Local Rule 56.1 Statements and [that it had]
note[d] disputed facts within the text.” R.60 at 1 n.1.3
In setting forth the facts, the court stated:
    According to Heavener, Chelios walked around the
    corner of the building and began to yell at Heavener.
    Chelios pointed his finger in Heavener’s face, and
    eventually poked him in the chin. Heavener describes
    Chelios as being “right up in my face.” As soon as
    Chelios poked Heavener, William Molton [sic] . . .
    interceded and pulled Chelios away.


3
 The district court’s opinion also is available at Chelios v.
Heavener, No. 06 C 909, 2006 WL 3147717 (N.D. Ill. Oct. 31, 2006).
8                                                No. 06-4125

Id. at 3. The opinion does not note that the parties dispute
whether Mr. Chelios poked Sergeant Heavener in the
chin. Nor did the court grant Sergeant Heavener’s request,
in his response to Mr. Chelios’ statement of facts, that
this fact be stricken from the record for failure to comply
with the local rules.
  On Mr. Chelios’ unlawful arrest claim, the court deter-
mined that Sergeant Heavener had probable cause to arrest
Mr. Chelios because of the alleged contact. The court
explained that this conduct constituted an aggravated
battery under Illinois law. It further determined that
Sergeant Heavener had probable cause to arrest Mr.
Chelios for resisting arrest. In the court’s view, Mr. Chelios
“attempted to resist arrest when he grabbed hold of the
front door to Dimitri’s, and tried to inhibit Heavener
from taking him into custody. It took three officers, includ-
ing Heavener, to finally subdue and handcuff Chelios.”
Id. at 18.
  The district court also granted the defendants’ sum-
mary judgment on Mr. Chelios’ excessive force claim. It
believed that Sergeant Heavener and the two other
officers acted reasonably when they arrested Mr. Chelios.
The court found no evidence to suggest that the amount
of force that the officers used was excessive. The court
noted that Mr. Chelios had poked Sergeant Heavener in
the chin, that he had yelled at the Sergeant at close
range, that Mr. Chelios was accompanied by Moton,
that Sergeant Heavener had responded to a report of
gunshots fired near Dimitri’s and that there was a fight
between two individuals occurring at the same time. The
court believed that, “[g]iven these circumstances, along
with the fact that Chelios had acted hostile and comba-
tive to Heavener, the proper amount of force was used
No. 06-4125                                                 9

to control the situation.” Id. at 20.4


                               II
                       DISCUSSION
  This court reviews de novo a grant of summary judg-
ment. Hurst-Rosche Eng’rs, Inc. v. Commercial Union Credit
Ins. Co., 51 F.3d 1336, 1341 (7th Cir. 1995). All facts and
reasonable inferences must be construed in favor of the
nonmoving party, here, Mr. Chelios. Magin v. Monsanto
Co., 420 F.3d 679, 686 (7th Cir. 2005). We do not evaluate
the weight of the evidence, judge the credibility of wit-
nesses or determine the ultimate truth of the matter; rather,
we determine whether there exists a genuine issue of
triable fact. Anderson v. Liberty Lobby, 477 U.S. 242, 249-50
(1986). Summary judgment is proper if “the pleadings,
depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, 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.” Magin, 420 F.3d at 686 (citing Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The
moving party bears the initial burden of demonstrating
that these requirements have been met; it may discharge
this responsibility by showing “that there is an absence
of evidence to support the nonmoving party’s case.”
Celotex, 477 U.S. at 323. To overcome a motion for sum-
mary judgment, the nonmoving party must come forward
with specific facts demonstrating that there is a genuine


4
  The court explained that it was unnecessary to engage in an
analysis of qualified immunity because it determined that
Sergeant Heavener had acted reasonably.
10                                                 No. 06-4125

issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). The existence of a mere
scintilla of evidence, however, is insufficient to fulfill
this requirement. Anderson, 477 U.S. at 251-52. The
nonmoving party must show that there is evidence upon
which a jury reasonably could find for him. Id.


                 A. Unlawful Arrest Claim
   Probable cause is an absolute defense to a claim of
wrongful arrest asserted under section 1983 against police
officers. Wagner v. Washington County, 493 F.3d 833, 836
(7th Cir. 2007) (per curiam); Potts v. City of Lafayette,
121 F.3d 1106, 1113 (7th Cir. 1997). A police officer has
probable cause to arrest “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.’ ” Wagner, 493 F.3d at
836 (quoting Michigan v. DeFillippo, 443 U.S. 31, 37
(1979) (alteration in original)); see also Beck v. Ohio, 379 U.S.
89, 90 (1964); Maxwell v. City of Indianapolis, 998 F.2d 431,
434 (7th Cir. 1993). In determining whether an officer
had probable cause, the court steps into the shoes of a
reasonable person in the position of the officer. Mustafa
v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006) (noting
that we “evaluate[] probable cause ‘not on the facts as an
omniscient observer would perceive them,’ but rather ‘as
they would have appeared to a reasonable person in the
position of the arresting officer’ ” (quoting Kelley v. Myler,
149 F.3d 641, 646 (7th Cir. 2000))). The probable cause
determination must be made by a jury “if there is room
for a difference of opinion concerning the facts or the
No. 06-4125                                                   11

reasonable inferences to be drawn from them.” Maxwell,
998 F.2d at 434 (explaining that, “[i]f the underlying facts
supporting the probable cause determination are not in
dispute, the court can decide whether probable cause
exists”).


                               1.
   Whether Mr. Chelios poked Sergeant Heavener in the
chin is a critical fact to the section 1983 wrongful arrest
claim. If Mr. Chelios made contact with Sergeant Heavener,
then Sergeant Heavener had probable cause to arrest him
for having committed an aggravated battery under
Illinois law. See 720 Ill. Comp. Stat. 5/12-3 (defining battery
as the intentional or knowing “physical contact of an
insulting or provoking nature” without legal justification),
5/12-4(b)(18) (elevating to aggravated status a battery
committed against a police officer). If Mr. Chelios did not
make contact with Sergeant Heavener, however, Ser-
geant Heavener could not have had probable cause to
arrest Mr. Chelios for aggravated battery.
  Mr. Chelios emphasizes that the parties dispute whether
he ever made any contact with Sergeant Heavener.
Mr. Chelios points to his statement of additional facts filed
under Northern District of Illinois Local Rule 56.1, which
states: “Before his arrest, C[helios] never physically
touched Heavener.” R.35 ¶ 26, at 4 (citing Ex. 1 at 87, 122,
124, 141, 167; Ex. 2 at 39-40, 78, 96).5 These citations refer


5
  In their memorandum filed in response to Mr. Chelios’
statement of facts, the defendants stated: “The material fact
asserted is not supported by [e]xhibit 1, pages 87, 122, 124, 141
                                                  (continued...)
12                                                 No. 06-4125

to transcripts of testimony given at Mr. Chelios’ criminal
trial for battery, which indicate that at no point did
Mr. Chelios make contact—with his outstretched finger
or otherwise—with Sergeant Heavener. For example,
Mr. Chelios testified:
     Q. Did you at any time from the time you saw Ser-
        geant Heavener up here, and even after until you
        got to the door, did you make any contact with
        Sergeant Heavener?
     A. Not at all, sir.
     Q. Did you ever touch him with your finger on the
        chin?
     A. Not at all.
R.35, Ex. 2 at 78. Another witness at the criminal trial also
testified6:
     Q. When he’s—from the time that he did that, from
        the time that he got to the point where he was
        arrested, did you ever see Mr. Chelios make any
        contact with Officer Heavener—


5
   (...continued)
or 167. In further response, the defendants’ [sic] deny the
material fact . . . .” R.40 ¶ 26, at 13. The defendants are cor-
rect that these particular pages of exhibit 1 do not support the
fact. These pages set forth Sergeant Heavener’s testimony, and
it seems that Mr. Chelios’ attorney included them in order to
show the contrast between Sergeant Heavener’s testimony
and Mr. Chelios’ testimony. The other cited pages (exhibit 2,
pages 39-40, 78, 96) do support the fact.
6
  Presumably, this testimony was given by Moton, the bouncer
who worked for Mr. Chelios. The transcript, however, does
not identify the name of the witness.
No. 06-4125                                                13

    A. No sir.
    Q. —of a physical nature?
    A. No, sir.
    Q. Did he ever touch his chin?
    A. No, sir, I was—
    Q. Did he ever wave his finger and strike him in the
       chin?
    A    No, sir. I was with him all the time. . . .
    Q. Did you ever see Jim touch Officer Heavener
       on—or tap him on the chin?
    A. No, sir, not at all.
Id. at 39-40.
  In response, the defendants submit that the statement
of facts that Mr. Chelios filed with the district court
was defective in its entirety and therefore that the court
had only one set of facts before it in ruling on the sum-
mary judgment motion. In support of this contention,
the defendants claim that certain numbered facts are
not supported by supporting materials and that other
numbered facts are not concise statements.
  Federal Rule of Civil Procedure 83(a)(1) authorizes
each district court to make rules governing its practice.
These local rules streamline litigation and save litigants,
lawyers and courts time and effort. Given the often daunt-
ing nature of motions for summary judgment, we have
“emphasized the importance of local rules and have
consistently and repeatedly upheld a district court’s
discretion to require strict compliance with its local rules.”
Koszola v. Bd. of Educ., 385 F.3d 1104, 1109 (7th Cir. 2004)
14                                              No. 06-4125

(internal quotation marks and citation omitted); Smith v.
Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (holding that “a
failure to respond by the nonmovant as mandated by
the local rules results in an admission”).
  As we have already mentioned, the district court
stated that Mr. Chelios poked Sergeant Heavener in the
chin but did not note that the parties dispute this fact. The
court did not strike for noncompliance Mr. Chelios’ Local
Rule 56.1 statement of facts in its entirety; nor did the
court strike any of Mr. Chelios’ responses to the defen-
dants’ statement of facts or any particular additional
fact. Nothing in the court’s opinion or in the transcript of
the summary judgment hearing indicates that the court was
dissatisfied with Mr. Chelios’ submissions under the local
rules. Indeed, the court explained that it was taking the
disputed facts from the “parties’ Local Rule
56.1 Statements” and that it would note disputed facts
within the text. R.60 at 1 n.1. Despite discussing the
differences between Mr. Chelios’ and Sergeant Heavener’s
account of the facts relating to the excessive force claim,
the court did not acknowledge that Mr. Chelios main-
tained that he never made physical contact with Sergeant
Heavener. We therefore cannot accept the defendants’
contention that the district court implicitly rejected
Mr. Chelios’ entire statement of facts. District courts have
the discretion to require strict compliance with the local
rules, but we shall not presume that a party’s entire
statement of facts was stricken when there is no ruling
to that effect. Cf. Cichon v. Exelon Generation Co., 401 F.3d
803, 808-10 (7th Cir. 2005) (upholding a district court’s
decision to strike a party’s statement of facts where the
district court made an explicit ruling).
  Because there is a dispute as to whether Mr. Chelios
ever made physical contact with Sergeant Heavener, the
No. 06-4125                                               15

district court erred in ruling, as a matter of law,
that Sergeant Heavener had probable cause to arrest
Mr. Chelios for aggravated battery under Illinois law. Such
a ruling could be supported only if the facts and all reason-
able inferences were construed against Mr. Chelios, a
methodology that contravenes well-established sum-
mary judgment standards. See Magin, 420 F.3d at 686
(requiring that the facts and all reasonable inferences
must be construed in favor of the nonmoving party); see
also Anderson, 477 U.S. at 249-50 (explaining that a court
may not evaluate the weight of the evidence, judge the
credibility of witnesses or determine the ultimate truth
of the matter); see also Payne v. Pauley, 337 F.3d 767, 770
(7th Cir. 2003) (“As we have said many times, summary
judgment cannot be used to resolve swearing contests
between litigants.”).


                             2.
  The district court also determined that Sergeant
Heavener had probable cause to arrest Mr. Chelios for
resisting arrest when he reached to open the front door
of his business and thereby tried to inhibit Sergeant
Heavener from taking him into custody. Under Illinois law,
a person is not authorized to resist an arrest even if the
arrest is unlawful. See 720 Ill. Comp. Stat. 5/7-7. Under
Mr. Chelios’ version of the facts, however, he in no
way resisted Sergeant Heavener after the Sergeant grabbed
and tackled him with the assistance of two other officers.
He maintains that Sergeant Heavener never told him to
“get back here” or ordered him not to go inside his busi-
ness; nor had Sergeant Heavener asked Mr. Chelios for
assistance in connection with the investigation of the
shooting.
16                                                    No. 06-4125

  According to Mr. Chelios, Sergeant Heavener followed
him and Moton after they had their second encounter.
Once they were a few feet from the business entrance,
Mr. Chelios asked Sergeant Heavener, “Why don’t you
leave me alone?” R.35 ¶ 23, at 4. In response, Sergeant
Heavener said, “Did you hear me? You know what,
you’re under arrest.” Id., Ex. 2 at 83. Sergeant Heavener
then put his arms around Mr. Chelios’ neck, grabbed his
shoulders and spun Mr. Chelios around. Two other officers
joined Sergeant Heavener, and Mr. Chelios claims that all
three of them jumped on him and threw him on the
ground. Mr. Chelios, as he portrays the facts, was arrested
unlawfully when Sergeant Heavener grabbed him,7 told
him that he was under arrest and tackled him to the
ground. He therefore had no opportunity to resist the
arrest.8


                  B. Excessive Force Claim
  The force used to effect an arrest must be objectively
“reasonable” under the Fourth Amendment. Abdullahi v.



7
  For purposes of the Fourth Amendment, “a person is
‘seized’ . . . when, by means of physical force . . . his freedom of
movement is restrained.” United States v. Mendenhall, 446 U.S.
544, 553 (1980).
8
   We further note that, under Mr. Chelios’ version of the facts,
Sergeant Heavener did not have probable cause to arrest
Mr. Chelios for resisting or obstructing a peace officer. See 720
Ill. Comp. Stat. 5/31-1(a); see also Payne v. Pauley, 337 F.3d 767,
776 (7th Cir. 2003) (explaining that, under Illinois law, the
resistance or obstruction “must be physical; mere argument
will not suffice”).
No. 06-4125                                                17

City of Madison, 423 F.3d 763, 768 (7th Cir. 2005). To deter-
mine whether the force used to effect an arrest was rea-
sonable the courts must engage in a “careful balanc[ing] of
the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervailing
governmental interests at stake.” Morfin v. City of E. Chi-
cago, 349 F.3d 989, 1004 (7th Cir. 2003) (quoting Tennessee
v. Garner, 471 U.S. 1, 8 (1985)). Proper application of this
balancing test “requires careful attention to the facts and
circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting
to evade arrest by flight.” Id. at 1004-05 (citing Bell v.
Wolfish, 441 U.S. 520, 559 (1979)). The reasonableness
standard also recognizes that “police officers are often
forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.”
Graham v. Connor, 490 U.S. 386, 396-97 (1989). In sum, an
officer’s “use of force is unconstitutional if, ‘judging from
the totality of the circumstances at the time of the arrest,
the officer used greater force than was reasonably neces-
sary to make the arrest.’ ” Payne, 337 F.3d at 778 (quoting
Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987)).
  In deciding this issue, the district court did not view
the facts in the light most favorable to Mr. Chelios. When
viewed in that light, a jury reasonably could find that the
force that Sergeant Heavener and the two other officers
used in arresting Mr. Chelios was unreasonable. According
to Mr. Chelios, Sergeant Heavener never told him that
he was under arrest and never ordered him not to go inside
the bar. Instead, after Mr. Chelios said, “Why don’t you
18                                                 No. 06-4125

leave me alone,” R.35 ¶ 23, at 4, Sergeant Heavener said,
“Did you hear me? You know what, you’re under arrest,”
id., Ex. 2 at 83. Sergeant Heavener immediately put his
arms around Mr. Chelios’ neck, grabbed his shoulders,
spun Mr. Chelios around and then two other officers
and Sergeant Heavener tackled Mr. Chelios. Under this
version of the facts, Mr. Chelios had not committed any
crime, had not presented any sort of threat to Sergeant
Heavener or any third parties and had not attempted to
flee or evade arrest.
  In Morfin, there was a dispute as to whether the plaintiff
had been interfering with the police’s investigation of voter
machine tampering on election day. According to the
plaintiff’s version of the facts, he had been “grabbed” by
two police officers who “twisted his arms, shoved him
against the wall and took him to the floor.” Morfin, 349
F.3d at 993. Until that point, the plaintiff “had not resisted
any police action and informed the officers, ‘I’m going
peacefully, you don’t have to put handcuffs on me.’ ” Id.
After he said that, the plaintiff “crossed his arms on his
chest to prevent the officers from handcuffing him.” Id. The
district court held that the officer’s use of force was reason-
able and granted summary judgment in favor of
the officers. We reversed. We held that,
     viewing the record in the light most favorable to [the
     plaintiff], a jury could reach the opposite conclusion.
     According to [the plaintiff and another witness], [the
     plaintiff] did not pose a threat to the officers—he
     was docile and cooperative. Furthermore, [the plaintiff]
     did not resist arrest in any way prior to the officers’ use
     of excessive force. [The plaintiff] testified that [two
     officers] grabbed him, twisted his arm, shoved him
     toward the wall and took him to the floor. To this
No. 06-4125                                                    19

      point, [the plaintiff] had not resisted any police ac-
      tion . . . . It was only after the officers took [the plain-
      tiff] to the floor that [he] crossed his arms on his
      chest to prevent the officers from handcuffing him. If
      a jury were to credit [the plaintiff’s] version of events
      over that of the arresting officers, it could conclude
      that there was no reason for the officers to exert such
      force on [him].
Id. at 1005.
  Under Mr. Chelios’ version of the facts, he neither had
committed a crime nor had threatened Sergeant Heavener
or his fellow officers. Although we might not use the
terms “docile and cooperative” to describe Mr. Chelios,
even under his version of the facts (he told Sergeant
Heavener to leave him alone), a jury certainly could find
that his conduct in no way warranted being tackled by
three officers.
  The district court emphasized the chaotic nature of the
circumstances that night as well as Mr. Chelios’ failure
to proffer any evidence showing that he had suffered
injury as a result of the arrest.9 Respectfully, we believe that
this analysis is flawed. Both parties’ versions of the facts
undercut the district court’s description of the scene as


9
    The court stated:
      Heavener was responding to a report of shots fired at or
      around Dimitri’s bar, and there was another fight between
      two females occurring at the same time. Given these
      circumstances, along with the fact that Chelios had acted
      hostile and combative to Heavener, the proper amount of
      force was used to control the situation.
R.60 at 9.
20                                                 No. 06-4125

being chaotic at the time that Mr. Chelios was arrested.
When Mr. Chelios encountered Sergeant Heavener in
the confrontation that led to the arrest, the parties agree
that Sergeant Heavener was leaning against the building
with his arms folded and one leg resting against the
building. The inference from this fact—an inference to
which Mr. Chelios is entitled given the posture of this
case—is that, by the time that Mr. Chelios was arrested, the
situation had calmed down substantially. Moreover, the
scene’s chaotic nature has little bearing on the threat that
Mr. Chelios posed to Sergeant Heavener or other officers.
None of the officers suspected that Mr. Chelios had
perpetrated the shooting, that he had been connected
in any way to the shooting or that he was armed. Indeed,
Mr. Chelios had cooperated with the police; he closed
down his business and ordered his patrons out of the bar.
Mr. Chelios’ failure to proffer evidence showing the
severity of his injuries also does not warrant summary
dismissal. Although injury is a relevant factor in deter-
mining whether an officer used excessive force, an exces-
sive force claim does not require any particular degree of
injury. See Holmes v. Vill. of Hoffman Estates, 511 F.3d 673,
687 (7th Cir. 2007) (“That [a plaintiff’s] injuries may
have been minor does not militate against a finding of
excessive force.”); McNair v. Coffey, 279 F.3d 463, 468 (7th
Cir. 2002) (Cudahy, J., concurring) (“Physical injury is not
a necessary element of a claim for excessive force.”);
Lanigan v. Vill. of E. Hazel Crest, Ill., 110 F.3d 467, 471 n.3
(7th Cir. 1997); Rambo v. Daley, 68 F.3d 203, 207 (7th Cir.
1995); Meyer v. Robinson, 992 F.2d 734, 738 (7th Cir. 1993);
Williams v. Boles, 841 F.2d 181, 183 (7th Cir. 1988); Lester, 830
F.2d at 713-14. Accordingly, taking the facts in the
light most favorable to Mr. Chelios, a jury could find that
No. 06-4125                                               21

Officer Heavener used excessive force when he and two
other officers tackled Mr. Chelios.


                 C. Qualified Immunity
  The doctrine of qualified immunity shields from liability
public officials who perform discretionary duties. Belcher v.
Norton, 497 F.3d 742, 749 (7th Cir. 2007). Qualified immu-
nity shields from liability police officers “who act in ways
they reasonably believe to be lawful.” Anderson v. Creighton,
483 U.S. 635, 638-39 (1987). The defense provides “ample
room for mistaken judgments” and protects all but the
“plainly incompetent and those who knowingly violate
the law.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quot-
ing Malley v. Briggs, 475 U.S. 335, 343 (1986)); Clash v.
Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996) (noting, in the
excessive force context, that the “police cannot have the
specter of a § 1983 suit hanging over their heads when
they are confronted with a dangerous fugitive, possible
escapee, or as long as their behavior falls within reasonable
limits”). Qualified immunity thus protects those officers
who make a reasonable error in determining whether
there is probable cause to arrest an individual. Anderson,
483 U.S. at 643; Belcher, 497 F.3d at 749.
   The Supreme Court of the United States has articulated
a two-part test for qualified immunity: (1) whether the
facts, taken in the light most favorable to the plaintiff,
show that the defendants violated a constitutional right;
(2) whether that constitutional right was clearly estab-
lished at the time of the alleged violation. Saucier v. Katz,
533 U.S. 194, 201 (2001). A plaintiff may discharge the
burden of showing that the constitutional right was
clearly established by showing that there is “a clearly
22                                                 No. 06-4125

analogous case establishing a right to be free from the
specific conduct at issue” or that “the conduct is so egre-
gious that no reasonable person could have believed that
it would not violate clearly established rights.” Smith v.
City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001); Saffell v.
Crews, 183 F.3d 655, 658 (7th Cir. 1999).


                               1.
   When the facts of this case are taken in the light most
favorable to him, Mr. Chelios has shown that Sergeant
Heavener violated his constitutional rights by arresting
him without probable cause. Moreover, given that,
under his version of the facts, Mr. Chelios had not made
physical contact with Sergeant Heavener, conducted
himself in a disorderly manner or otherwise obstructed
or impeded Sergeant Heavener in his duties, we believe
that case law would have put him on notice that
Mr. Chelios had a right to be free from arrest under the
particular circumstances of this case. See, e.g., Pourghoraishi
v. Flying J., Inc., 449 F.3d 751, 762 (7th Cir. 2006) (explaining
that an officer did not have probable cause to arrest
where the individual “did not raise his voice, use pro-
fanity, make unreasonable noise, or otherwise engage
in any behaviors prohibited by the disorderly conduct
statute”); Payne, 337 F.3d at 775-78 (holding that similar
facts did not create probable cause to arrest for resisting
or obstructing a police officer); Morfin, 349 F.3d at 997-
1000 (same).
No. 06-4125                                                  23

                              2.
  With regard to his excessive force claim, Mr. Chelios
similarly may defeat Sergeant Heavener’s qualified im-
munity defense by
    (1) pointing to a closely analogous case that established
    a right to be free from the type of force the police
    officers used on him, or (2) showing that the force was
    so plainly excessive that, as an objective matter, the
    police officers would have been on notice that they
    were violating the Fourth Amendment.
Clash, 77 F.3d at 1048. Our prior cases indicate that “[i]t is
clear . . . that police officers do not have the right to shove,
push, or otherwise assault innocent citizens without any
provocation whatsoever.” Id. Although there are not
many cases that are closely analogous to this one, see, e.g.,
Morfin, 349 F.3d at 993 (denying summary judgment
where two officers tackled a passive, non-resisting in-
dividual), Mr. Chelios, nonetheless, may show that the
force that Sergeant Heavener used in effectuating the
arrest was so plainly excessive that a reasonable police
officer would have been on notice that such force is
violative of the Fourth Amendment.
  Establishing that the use of force in a particular case
was “so plainly excessive” requires a fair amount of
factual development. Thus, “if the facts draw into ques-
tion the objective reasonableness of the police action under
the alleged circumstances, they must be developed in the
district court before a definitive ruling on the defense
can be made.” Clash, 77 F.3d at 1048. In Clash, some
passers-by had called the police because they had seen
several youngsters in a parked automobile playing with
a gun. Id. at 1046. One of the passers-by reported that
24                                               No. 06-4125

he had heard the child say, “if you don’t get away from
the car I’m going to blow your weed off your head.” Id.
The police arrived on the scene and arrested the plaintiff
as he was coming back to his car from inside a store. Id.
at 1047. The officer handcuffed the plaintiff and then
discovered that the gun with which the children in his
car had been playing was a toy. Id. Despite this discovery,
the plaintiff alleged that the officer escorted him to a
police car and told him to get in. Id. The plaintiff told
the officer that he would not fit inside the car, and the
officer responded by shoving him into the car, making
the plaintiff’s knee pop loudly. Id. We affirmed the dis-
trict court’s denial of qualified immunity because the
“missing facts, which will be developed at trial, concern the
relationship between the shove and the harm Clash may
have presented.” Id. at 1048. In light of the factual disputes
between the parties, we explained, a trial was required
before determining whether the officer should “have
known in the circumstances presented that the shove
was ‘plainly excessive.’ ” Id.
  This case similarly is susceptible to additional factual
development on both sides before a conclusion can be
reached as to whether Sergeant Heavener’s use of force was
plainly excessive. Sergeant Heavener and Mr. Chelios are
disputing most of the facts that bear on the objective
reasonableness of the officers’ use of force. The parties
dispute whether and to what degree Mr. Chelios had
become agitated and threatening in speaking to Ser-
geant Heavener, how chaotic the scene was at the time
of Mr. Chelios’ arrest, what was the exact sequence of
events leading up to the arrest and whether Mr. Chelios
had made any physical contact with Sergeant Heavener.
These factual disputes bear on the objective reasonable-
No. 06-4125                                                 25

ness of the force used to arrest Mr. Chelios, and therefore
a trial is required before a determination can be made as
to whether Sergeant Heavener is entitled to qualified
immunity.


           D. Illinois State Law Battery Claim
  Lastly, Mr. Chelios contends that the district court
equated the Fourth Amendment excessive force claim
with the Illinois state law battery claim and therefore
erroneously dismissed the battery claim without any
further analysis.
   Under Illinois law, battery is the “unauthorized touch-
ing” of another that “offends a reasonable sense of personal
dignity.” Cohen v. Smith, 648 N.E.2d 329, 332 (Ill. App. 1995)
(internal quotation marks and citation omitted). The
record contains facts that, if accepted by a jury, would
meet this definition. Mr. Chelios, however, must clear
another hurdle: The Illinois Tort Immunity Act shields
public employees from liability for actions committed “in
the execution or enforcement of any law unless such act
or omission constitutes willful and wanton conduct.” 745
Ill. Comp. Stat. 10/2-202; see also id. 10/1-202 (defining
“employee” as a “present or former officer”). The
Illinois courts have held that a police officer is not guilty
of willful or wanton conduct unless he acted with
“actual or deliberate intention to harm or with an utter
indifference to or conscious disregard for the safety of
others.” Breck v. Cortez, 490 N.E.2d 88, 94 (Ill. App. 1986);
see also Carter v. Chi. Police Officers, 165 F.3d 1071, 1080-81
(7th Cir. 1998). Although willful and wanton conduct
“consists of more than mere inadvertence, incompetence,
or unskillfulness,” it need not be an “intentional act;
26                                             No. 06-4125

rather, it may be an act committed under circumstances
exhibiting a reckless disregard for the safety of others.”
Carter, 165 F.3d at 1071. Whether an officer acted in such
fashion “is normally a question of fact to be determined
by the jury.” Stamat v. Merry, 397 N.E.2d 141, 145 (Ill.
App. 1979).
  In response to the defendants’ motion for summary
judgment, Mr. Chelios submitted a transcript of Ser-
geant Heavener’s testimony from a hearing held before
the Joliet, Illinois Liquor Commission. At this hearing,
Sergeant Heavener testified:
     And, yes, when he put his finger—I was actually pretty
     calm until he put his finger in my face and made
     contact with me. At that point, you know, I’ve got
     to take action or my credibility as a police officer is
     shot. I respond [to Dimitri’s Bar] every weekend. If
     these people see the owner treating the police like
     that, that’s going to make them think that they can
     treat the police like that, and I’m going to lose my
     credibility with those people, okay.
R.35, Ex. 1 at 123-24. From Sergeant Heavener’s testimony,
a jury might well conclude that his arrest and tackling of
Mr. Chelios was an intentional and calculated display of
force. This inference, combined with its acceptance of
Mr. Chelios’ version of the events that night, might lead
a jury to find, reasonably, that Sergeant Heavener acted
with “actual or deliberate intention to harm.” This factual
question certainly is a close one. Nevertheless, we must
conclude that, under Mr. Chelios’ version of the facts, he
is entitled to have a jury determine whether the Sergeant
engaged in actions for which he can be held liable under
Illinois law. Accordingly, we believe that Mr. Chelios
should be allowed to proceed with the state law battery
claim.
No. 06-4125                                            27



  It bears emphasis that, at this stage of the litigation,
we must take the facts in the light most favorable to
Mr. Chelios and must resolve all evidentiary conflicts in
his favor. Although a factfinder ultimately may credit
Sergeant Heavener’s version of the events, we must
decide the case on the record before us.


                       Conclusion
  For the foregoing reasons, the judgment of the district
court is reversed, and the case is remanded for further
proceedings consistent with this opinion. On remand,
Circuit Rule 36 shall apply.
                                 REVERSED and REMANDED




                   USCA-02-C-0072—3-21-08
