Seventh Circuit Affirms Summary Judgement and No Liability Trial Verdict in Section 1983 Police Case

Today the Seventh Circuit issue an opinion in the case of Peals, Robert v. Terre Haute Police et. al. Plaintiff alleged "defendants had performed an unlawful search, falsely arrested him, initiated a retaliatory pros- ecution against him and used excessive force against him." Defendants won summary judgment on the unlawful search, false arrest and retaliatory prosecution claims and received a no liability verdict on the excessive force claim. The Seventh Circuit agreed that plaintiff presented no questions of fact - or any evidence - to survive summary judgment. Interesting issue: On appeal plaintiff raised that the district refused to turn over personnel files. The district court reviewed "in camera the personnel files of the officers. The court held" "All right. The court has examined the personnel files of the two defendant police officers and there is nothing in those files that indicate any discipline or any type of complaints regarding excessive force. There is a notation in there about one of them being late for court, and there is some information, also in there about doing a good job." Plaintiff did not file a motion to reconsider. Seventh Circuit explained: "Generally, the decisions whether to conduct an in camera review of government files in appropriate cases, whether to require discovery of materials contained therein, and in what form such materials should be produced are committed to the sound discretion of the district judge." Phillips, 854 F.2d at 277. In addition, "Mr. Peals failed to object to the district court's decision to review the files in camera instead of making them available to him. Neither did he make any offer of proof to the district court or so much as "hint that impeaching material was contained" in the files. See id. Because he failed to object and make an offer of proof, there is no basis for a finding of prejudice, which is necessary for us to hold that the district court abused its discretion. Cf. Nanda, 509 F.2d at 223; see also Fed. R. Evid. 103(a) ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected."); Fed. R. Civ. P. 61 ("Unless justice requires otherwise, no error in admitting or excluding evidence . . . is ground for granting a new trial." (emphasis added)).

Judge Bucklo on Color of Law, Monell, and Access to the Courts

"Plaintiff alleges that on April 5, 2006, he was restrained and beaten by defendants both inside and outside the restaurant. Defendants dispute this and contend plaintiff was drunk and the aggressor, and any contact with him was in self-defense." Several defendants claimed they were not acting under color of law and thus could not be held liable under Section 1983. Judge Bucklo ruled: there was "a genuine issue of material fact as to whether [individual] was acting under color of law. " "The [Individual] testified that he was trying to "keep the peace" at the time of the alleged incident... also testified at his deposition that once the Forrest Park police arrived "[t]here was no more need for my assistance at that time-other than to talk to the police officers and tell them what I had seen."...[one witness] testified he was ordered by [the individual] to leave the bar and he explained he followed those orders because "he's my boss. I follow anything that he tells me to do." Judge Bucklo also found a question of fact existed on some other officer and non-officer defendants wether they were acting under color of law. As to plaintiff's Monell claim: Judge Bucklo found that one of the individuals at the restaurant, In light of [his] powers and responsibilities as DPS, as set forth under municipal law and the internal police department procedural manual, was a final policymaker under local law. Defendants argued, even if he was a final policy maker, his actions at the restaurant "did not constitute policymaking and cannot be attributed to the City." Judge Bucklo explained: "[N]ot every action taken by employees with decisionmaking authority gives rise to the potential for liability." Eversole, 56 F.3d at 715. "The fact that a particular official-even a policymaking official-has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion.... The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable." Pembaur, 475 U.S. at 481-83 (citations and footnotes omitted). The law is clear that a single act can constitute policymaking. Id. at 481 ("[A] government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government's authorized decisionmakers, it surely represents an act of official government 'policy' as that term is commonly understood.") And concluded "There is a question of fact as to whether [individual's] conduct fell within the ambit of his policymaking authority." Judge Bucklo, did however, grant summary judgement on plaintiff's "access to the courts" claims: Judge Bucklo explained: "The First and Fourteenth Amendments to the U.S. Constitution guarantee the right to seek legal relief for asserted injuries that have a reasonable basis in fact and in law." Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 422 (7th Cir.2000) (citations omitted). Judicial access should be allowed to be rendered inadequate as a result of efforts by state actors to impede an individual's access to courts. Id. (citations omitted); Vasquez v. Hernandez, 60 F.3d 325, 328 (7th Cir.1995) (an attempt to cover up police wrongdoing which succeeded in briefly hiding the facts from the plaintiffs, and which ultimately neither prevented the plaintiffs from pursuing relief nor reduced the value of their claim was not actionable under section 1983). Here, plaintiff first argues that defendants interfered with his access to courts because several witnesses were allegedly ordered to leave the scene by Frank Marzullo. The problem with this argument is that the Forest Park Police was ultimately able to interview Fellows, Baugh, and Jerry Marzullo (who allegedly fled the scene). There is no evidence the Frank Marzullo or any other defendant prevented Forest Park police from actually interviewing any witnesses. Plaintiff also argues that Frank Marzullo intimidated witnesses at the scene as a result of his employment and actions on the night in question. Again, plaintiff concedes, however, that these witnesses did give statements to the Forest Park police. Moreover, plaintiff's argument that the value of this lawsuit has been hindered as a result of Frank Marzullo's conduct is based on the speculation that the Forest Park police would have obtained "more meaningful statements" from witnesses had Frank Marzullo not been involved. None of plaintiff's arguments or speculation establish a genuine issue of material fact with respect to the access to courts claim. See Walters v. Edgar, 163 F.3d 430, 434 (7th Cir.1998) ("[I]n the case of a denial of access to the courts ... if the denial has had no effect on the legal relief sought by the plaintiff, no right has been violated"); Vasquez, 60 F.3d at 329. Accordingly, defendant's motion for summary judgment on count VIII is granted." Pesek v. Marzullo, 2008 WL 2812257 (July 22, 2008) (Bucklo) Thomas George Dicianni and Allen Duarte of Ancel, Glink represent the plaintiff Terrence James Goggin, Goggin and Associates, Oak Brook, IL, Richard J. Reimer, Thomas Steven Radja, Jr., Richard J. Reimer & Associates, LLC, Hinsdale, IL, Keith A. Karlson, Carlson Law Offices, Chicago, IL, Burton S. Odelson, Brian Michael Begley, Mark H. Sterk, Michael Ray Gibson, Michael Joseph Hayes, Jr., Michael J. McGrath, Robert R. Wilder, Odelson & Sterk, Ltd., Evergreen Park, IL, for Defendants.

Seventh Circuit reverses, in part, district court in Montano v. City of Chicago et. al., 06-2148

Here are the basic facts from this 1997 lawsuit:"Plaintiffs alleged flagrant mistreatment by Chicago police officers during and after the celebration of Mexican Independence Day in Chicago's Little Village neighborhood on September 14, 1997. The five plaintiffs were forcibly arrested and jailed following an altercation between officers and several celebrants on the corner of 25th and Whipple. The plaintiffs describe the incident as a violent police-initiated beating followed by illegal arrests and strip searches at the station house; the City and the officers deny any wrongdoing." Judge Der-Yeghiayan dismissed this case at trial as a sanction, when he found some of the plaintiffs committed perjury at trial. "The plaintiffs argue that the extreme sanction of dismissal was unwarranted in this case because the instances of perjury cited by the district court were merely ambiguities or innocent discrepancies in certain aspects of their testimony. They also argue the sanction unjustly punished Yesenia Mendez and David Mendez, neither of whom were accused of perjury in the officers' motion for sanctions." The Seventh Circuit held "the district court's order and the relevant portions of the record, does not support that the plaintiffs gave "false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." "By dismissing the case with prejudice, however, the district judge took the credibility question from the jury--and he did so on the basis of a paper record from a trial that was impermissibly cut short" The Seventh Circuit also reversed, in part, the granting of defendants motion for directed verdict - but upheld the granting of summary judgment by the City and certain named defendants. David Cerda represents the plaintiffs and Jim Sotos represents the defendants

Judge Andersen partially reconsiders his position on prosecutorial immunity

On March 31, 2008, in Hughes v. Krause 06 C 5792, Judge Andersen ruled that "that plaintiff's section 1983 claims against ASA Canellis were barred by absolute prosecutorial immunity...however, plaintiff's state law claims on the basis that ASA Canellis was not entitled to absolute prosecutorial immunity under Illinois law." In an opinion issued, granting a motion to reconsider, Judge Andersen explained: "Specifically, in our previous Memorandum Opinion and Order, we found that Illinois law recognizes some form of prosecutorial immunity or public official immunity, but we concluded that such immunity was not absolute. We concluded that under Illinois law, absolute prosecutorial immunity does not applicable if the state official acted with malicious motives. It is this conclusion that ASA Canellis asks us to reconsider. In our previous Memorandum Opinion, we determined that ASA Canellis acted firmly within the scope of his official capacity when he weighed evidence and chose to pursue the criminal case against plaintiff and, therefore, was entitled to federal prosecutorial immunity. Upon further consideration, we find that ASA Canellis is entitled to that same absolute prosecutorial immunity under state law as well. Relying on Aboufaris v. City of DeKalb, 305 Ill.App. 1054 (2nd Dist.1999), in our previous Memorandum Opinion, we recognized that the Illinois Appellate Court analyzed the issue of prosecutorial immunity under the rubric of public official immunity. Although the Illinois Appellate Court in Aboufaris may have discussed the doctrine of public official immunity and a lack of malice requirement in order for the official to be afforded protection for acts performed within their official capacity, the Appellate Court ultimately concluded that "a prosecutor acting within the scope of her prosecutorial duties enjoys immunity from civil liability, the same immunity afforded to the judiciary." 305 Ill.App.3d at 1065, 239 Ill.Dec. 273, 713 N.E.2d 804. There is no question that the immunity afforded to the judiciary is absolute. Similarly in White v. City of Chicago, 369 Ill. Ap.3d 765 (1st Dist.2006), the Illinois Appellate Court affirmed the dismissal of both state and federal law claims against the defendant prosecutors on the basis of absolute immunity. " As such, Judge Andersen concludes that: "Prosecutors, like judges, must be allowed to perform the functions of their jobs fearlessly and without fear of consequence" See Hughes v. Krause 2008 WL 2788722 July 17, 2008 The co-defendant States Attorney, who is alleged to have acted in investigatory capacity, akin to that of a police officer, still remains a defendant. Kathleen T. Zellner represents the plaintiff, Stephen L. Garcia represents the Cook County State's Attorneys, and Josh Engquist represents the City defendants.

Judge Aspen grants City of Chicago's Monell Bifurcation

Judge Aspen: "We agree with the City that it is more efficient to resolve Plaintiffs' claims against Defendant Officers "before turning to the more burdensome and time-consuming task" of litigating the Monell claim. (Mot.ΒΆ 4). Convenience, expedition, and economy are furthered "where a separate trial 'disposes of one charge or establishes a necessary element of a second charge.' " Myatt v. City of Chi., 816 F.Supp. 1259, 1264 (N.D. Ill 1992) (quoting Ismail v. Cohen, 706 F.Supp. 243, 251 (S.D.N.Y.1989)). In the instant case, unless Plaintiffs can prove that Defendant Officers violated their constitutional rights, their Monell claim against the City will fail as a matter of law. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573 (1986) (explaining that Monell does not authorize an award of damages against a municipality based on the action of its officers if a jury concludes that no constitutional harm was inflicted); Myatt, 816 F.Supp. at 1264 (stating that if "the individual officers are not held liable, the City cannot be held liable under a Monell claim"). Judge Aspen also explained: "that there is a real "danger that evidence admissible on the issues relating to conduct by the City ... will contaminate the mind of the finder of fact in its consideration of the liability of the other defendant[s]" A MUST SEE: Desperate to keep their Monell claim in the case - plaintiff's counsel has made the following representation in response to the City's motion, "Plaintiffs contend that litigating the Monell claim will not require significant additional time, effort, or money outside of that required for litigation of the claims against Defendant Officers. " Michael Oppenheimer and Brendan Shiller represent plaintiff. Marc J. Boxerman, Diane Cohen and Meghan Kennedy on behalf of defendants See Ojeda-Beltran v. Lucio, 2008 WL 2782815 (July 16, 2008)

Judge Kennelly denies summary judgment in a wrongful death case against Village of Glen Ellyn

Judge Kennelly denies summary judgment in a wrongful death case. "This case involves Bradley's fatal shooting of Benjamin on April 26, 2006 during a response to a domestic violence call." After arriving for the call, police found Benjamin standing naked and unarmed in the courtyard. Bradley attempted unsuccessfully to grab and arrest him. Benjamin told Bradley that he was going to have to do better than that in order to stop him. Benjamin took a baby and ran. Bradley contends that Benjamin slipped and fell outside of the apartment's bathroom, dropping the baby in the process. Benjamin then picked up the child and took it into the bathroom. Bradley followed them into the bathroom where he saw the two of them in a full bathtub. Bradley says that Benjamin was holding the baby under the surface of the water and indeed, approximately twenty seconds after he reported that Benjamin had picked up the child, he reported over his radio to dispatch, "He's trying to drown the kid." Bradley says he told Benjamin to let go of the baby. They then began to struggle. Bradley was able to pull the baby out of the tub. He says that Benjamin continued to strike at him from the bathtub, hitting him in the face, neck and chest. Bradley handed off the baby to someone else. " Bradley continued to struggle with Benjamin. "Bradley [police officer] asserts that Benjamin's [victim] attack on him in the bedroom justified his use of deadly force. More specifically, he contends that he knew Benjamin was violent based on the original call from dispatch; Benjamin's irrational behavior at the scene; his statement, after being pepper sprayed, that Bradley would have to do more to stop him; Benjamin's attempt to drown a baby; and his violent attack just before Bradley shot him. Bradley contends that the circumstances of that attack placed him in imminent danger of serious bodily injury or worse." Judge Kennelly explained: "A jury that believed Bradley's account almost certainly would find that his use of deadly force was objectively reasonable. Plaintiff provides no eyewitness testimony to rebut Bradley's account. That, however, is unsurprising given that Bradley alone survived the encounter between him and Benjamin. The Seventh Circuit has cautioned that "[t]he award of summary judgment to the defense in deadly force cases may be made only with particular care where the officer defendant is the only witness left alive to testify." Plakas v. Drinski, 19 F.3d 1143, 1147 (7th Cir.1994). Because a defendant in a self-defense case "knows that the only person likely to contradict him or her is beyond reach ... a court must undertake a fairly critical assessment of the forensic evidence, the officer's original reports or statements and the opinions of experts to decide whether the officer's testimony could reasonably be rejected at trial." Id; see also Maravilla, 60 F .3d at 1233-34 ("In these situations we think it wise to examine all the evidence to determine whether the officers' story is consistent with other known facts."). See generally Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir.2005) (because Fourth Amendment reasonableness inquiry "nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom ... summary judgment ... in excessive force cases should be granted sparingly" (internal quotation marks and citation omitted))." Plaintiff claims that photographs of injuries sustained to the police officer call into question his version events - as such - the "photographs" help sustain the "question of fact" Judge Kennelly did however grant summary judgment on the Monell claim against the village: "Plaintiff offers no evidence of other instances of deadly force or even excessive force violations by the Glen Ellyn Police Department. Indeed, he makes no mention of any such occurrences. It therefore appears that he is proceeding under the first method of proving deliberate indifference. Plaintiff's Monell theory is, however, asserted rather vaguely. Plaintiff offers no direct support for his contention that the Village failed to train Bradley on the proper use of deadly force. His failure to train theory is best discerned, as defendants suggest, through the opinions of retired Alabama police investigator William Gaut, plaintiff's expert witness. Gaut testified that the Village's failure to properly train officers and dispatchers on how correctly to respond to a domestic violence complaint FN2 resulted in Bradley's decision to approach Benjamin alone, without waiting for back-up to arrive-a decision that plaintiff contends led to Bradley's unjustified use of deadly force." Benjamin Obi Nwoye and Douglas Hopson represent the plaintiff Thomas George DiCianni of Ancel Glink represents the defendants. See Uwumarogie v. Village of Glen Ellyn, 2008 WL 2782833 (July 15, 2008)

Judge rules Mayor Daley is not a proper Section 1983 Defendant in lawsuit filed by Second Amendment Foundation, Inc., and Illinois State Rifle Association

In McDonald v. City of Chicago, 08 C 3645 - 2008 WL 2741216, filed by the Second Amendment Foundation, Inc., and Illinois State Rifle Association - Judge Shadur explains why he sua sponte dismissed Mayor Daley as defendant: "It is of course true that Mayor Daley is a "person" for Section 1983 purposes-the failure of a putative defendant to fit into that concept typically impacts only on the state and its agencies ( Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989)). But any notion that "naming mayors and cities both as defendants in civil rights actions is accepted practice" (Response at 1) is not itself a predicate for targeting Mayor Daley here-that general notion is basically at odds with the teaching of Monell v. Dep't of Social Services of City of New York, 436 U.S. 658, 691 (1978) and its almost innumerable progeny, which ground Section 1983 liability solely on a defendant's direct involvement, rather than on respondeat superior principles. Despite such pejorative characterizations in connection with Chicago-style politics as "King Daley" (a label more often attached to the first Mayor Richard Daley than to the present incumbent), the legal control of Chicago's government is not essentially vested in its Mayor. When the Illinois Municipal Code was revamped and codified in 1961, the one provision of the Revised Cities and Villages Act of 1941 that was not repealed was its Article 21 dealing with the City of Chicago, which was retained and is now found at 65 ILCS 20/0.01 et seq. Nothing in that statute appears to place the matters that are the subject of plaintiffs' Complaint within Mayor Daley's purview. Hence whatever may be the case as to the mayors of cities elsewhere in the United States, or of Illinois cities other than Chicago, to this Court's knowledge the matters that form the gravamen of the present Complaint are not powers vested in Mayor Daley. It should be remembered that Section 1983 liability is generally imposed only on municipal "decisionmakers" (see, e.g., this Court's opinion in Limes-Miller v. City of Chicago, 773 F.Supp. 1130, 1136 (N.D.Ill.1991)). And so far as this Court is aware, the situation here is not of the type that brings into play the variant on that doctrine described in Auriemma v. Rice, 987 F.2d 397, 399 (7th Cir.1992)."

Judge Castillo grants, in part, summary judgment in Warfield

Warfield v. City 2008 WL 2764862 (July 16, 2008) Judge Castillo granted in part summary judgment in Warfield v. City 05 C 3712. The Court ruled that plaintiffs, like an innocent bystanders, cannot recover for be shot by police, under a Fourth or Fourteenth Amendment theory. Under the Fourth, since plaintiff were "not the intended targets of the officers' bullets. In Bublitz v. Cottey, for example, a family was killed after their vehicle collided with the car of a fleeing felon when police officers used a tire-deflation device to stop the felon's car. 327 F.3d 485, 489 (7th Cir.2003). In that case, the Seventh Circuit reasoned that just because the officer intended to stop the felon's car, it does not follow that he therefore intended to stop any other car that could potentially become involved in a subsequent collision. Id. The Court held that the family's suffering was an "accidental and wholly unintended consequence;" because the family "was simply not the intended object" of the defendant officers' attempts to seize the fleeing criminal. Id. Therefore, the Fourth Amendment was not implicated and could not provide the basis for a Section 1983 claim. Id. Similarly, in the instant case, Plaintiffs were not the intended object of the officers' attempts to seize Smith, and so the Fourth Amendment is not implicated here." Under the Fourteenth: The Court explained that "[O]nly the most egregious official conduct can be said to be 'arbitrary in the constitutional sense...." Bublitz, 327 F.3d at 490. When officers are faced with a "dangerous, fluid situation, in which they were forced to make decisions in haste, under pressure," their conduct does not violate the Fourteenth Amendment unless it "shocks the conscience." Schaefer, 153 F.3d at 797-98 (citing Lewis, 523 U.S. at 846-47). In these cases, "even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates the concerns of substantive due process." Id. "The sine qua non of liability" in these cases is "a purpose to cause harm." Id. In Schaefer, the defendant officers fired their weapons at a husband who was holding his wife hostage, and accidentally fatally shot the wife. Id. at 798-99. The Seventh Circuit held that the officers' conduct did not "shock the conscience" because the officers did not intend to shoot the wife. Id." The Court applied that same standard in this case where the officers "were in the type of "dangerous, fluid situation" to which the shocks the conscience standard applies. Smith had just pointed a gun at Officers Chatman and Collier, and the officers were giving chase. To "shock the conscience," the officers must have intended to cause harm to Plaintiffs. Schaefer, 153 F.3d at 798-99. Although the parties dispute whether the officers knew Plaintiffs were in the vestibule when the officers fired their guns, there is no evidence of any intention or purpose on the part of the officers to cause harm to Plaintiffs." After finding that no 4th or 14th amendment violation occurred from the shooting, Judge Castillo granted summary judgment on plaintiff's IIED claim explaining: "Plaintiffs have not presented evidence that they suffered sever emotional distress...the innocent bystander shot during Officers Chatman's and Collier's pursuit of Smith, is not a plaintiff in this case. In essence, all that remains are Plaintiffs' complaints of "fright, horror, grief, shame, humiliation, [and] worry," which are not sufficient to state a claim for intentional infliction of emotional distress." However, Judge Castillo denied summary judgment on plaintiff's unlawful detention claim and explained that a question of fact existed as to whether plaintiffs who were brought to the police station for questioning were free to leave. Trial will be set on the remaining unlawful detention and false imprisonment claims of the multiple plaintiffs. Eileen Rosen of Rock Fusco and Andrew M. Hale of Andrew M. Hale & Associates represent the CIty of Chicago and the police officers. Jon Loevy of Loevy and Loevy represent the plaintiffs.