Proper Arrest Defeats Claims for Malicious Prosecution and Retaliation

by | April 29, 2020

Lund v. City of Rockford, 2020 WL 1912223 (7th Cir. 2020)

William Lund was monitoring police radio traffic and soon concluded police were operating a prostitution sting in a particular area. Lund rode his motorized bicycle to the area and began photographing the police activity. A surveillance officer noticed Lund taking photographs and informed other officers on the operation. One of the undercover officers posing as a prostitute also noticed Lund and called another officer, expressing concern about Lund taking pictures of her.

Two officers found Lund in an alley and asked him to move on. Lund asked if he was breaking any laws. The officers told him he was not, but that he could be arrested for obstruction of a police detail if he did not leave. Lund started the engine on his motorized bike and shouted “Goodbye, officers,” so all people in the area could hear the men were police officers. The officers were concerned Lund could post pictures of unarmed, undercover officers on social media while the sting operation was still in progress, creating a danger for the undercover officers operating in a high-crime area. The officers decided to arrest him for obstruction and followed him as he rode the wrong way on a one-way street.

The officers stopped Lund and arrested him for driving the wrong way, operating a vehicle without insurance, resisting or obstructing a police officer, felony aggravated driving on a revoked license, and operating a motor vehicle without a valid driver license.

He also claimed he was arrested in retaliation for what he claimed to be First Amendment-protected activity.

Lund sued for false arrest and a variety of other claims. First, he claimed there was no basis for stopping him because his motorized bike was not a motorized vehicle. Illinois law defines a motorized bicycle as a motor vehicle if it can propel a 170-pound person 20 miles per hour or more on a level surface. Lund weighs approximately 170 pounds, and the officers paced him at 24 miles per hour. Notwithstanding, Lund claimed he had altered the bike so it could not ride faster than 20 miles per hour. Not surprisingly, the court made short work of that claim.

Lund’s name and the fact of his arrest was rolled into a press release about the prostitution sting. Lund claimed the press release defamed him. He also claimed he was arrested in retaliation for what he claimed to be First Amendment-protected activity (photographing undercover officers and loudly announcing they were police officers) and in retaliation for his investigatory journalism. Lund also claimed malicious prosecution.

Eventually, all criminal charges were dismissed. One claim at a time, the court held in favor of the officers. The malicious prosecution claim could not stand because Lund had not shown the prosecution was without merit from the start. The prosecutor simply moved to dismiss the charges without explanation, a motion granted by the court.

The retaliatory arrest claim was resolved once the court found there was probable cause for Lund’s arrest. In Nieves v. Bartlett (139 S. Ct. 1715 (2019)), the Supreme Court held that, with few exceptions, probable cause to arrest defeats a claim of retaliatory arrest. In the Lund case, the court noted, “Lund has made no attempt to present objective evidence showing that the police rarely make arrests for driving the wrong way on a one-way street, or that other similarly situated persons were not arrested, and he has not demonstrated retaliation in some other way.” If he had, the court opined, there might have been a narrow exception to the Nieves doctrine.

Courts have spoken clearly and often about the right of persons to video and audio record the police in action in the public, with some exceptions. Perhaps photographing undercover officers and unarmed decoy officers in the middle of a sting in a high-crime area could be one such exception. In this case, however, Lund provided the officers with probable cause to arrest him on other charges. Perhaps Lund learned a lesson. Perhaps not: Apparently he was well-known to the officers.

But this case does provide a lesson for officers. To avoid the potential charge of retaliatory arrest, be certain there is a solid basis for an arrest and take care not to make an arrest on an obscure charge for which no one is ever arrested.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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