The excessive force claim must be distinguished from the plaintiff's argument that the defendants lacked probable cause to arrest him. It is undisputed that an officer found plaintiff, apparently intoxicated, hitting his head against a building, and took him into custody. These facts imply disorderly conduct, which supports an arrest. Plaintiff contends that he was not drunk but was suffering from an insulin reaction, and that the police should have figured this out. The magistrate judge, presiding by consent under
28 U.S.C. § 636(c), concluded that plaintiff had not adduced sufficient evidence to dispute the officers' version of the arrest—which, if accepted, entitles them to immunity if not to prevail outright.
Hunter v. Bryant, 502 U.S. 224, ––––, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991);
Mahoney v. Kesery, 976 F.2d 1054, 1057–59 (7th Cir.1992). But the judge concluded that because the excessive force claim had to be tried, and because the plaintiff might come up with more evidence before trial, the false arrest claim also should be tried.