Police Superintendent Jody P. Weis Explains Why He Would Not Release Police Officers Names

In todays Chicago Sun-Times, Superintendent Jody P. Weis wrote the following letter to the editor: 

Serving and protecting the residents of the City of Chicago is a priority for the Chicago Police Department. To do this effectively, the department must work with the communities that we serve, building mutual support and trust. With this in mind, I would like to address my recent decision to initially defy a court order dealing with the release of police officer names on a so-called "repeater" list.
My decision to initially defy Judge Gettleman's order was not an easy one. As superintendent of the Chicago Police Department, I was deeply concerned about the effect that disclosing this list might have on the well-being, safety and reputations of the vast majority of the men and women of the Chicago Police Department who work hard every day to serve our city.

As the chief law enforcement officer for the Chicago Police Department, I am committed to the rule of law and ensuring quality relations with the judiciary. I thought that it was extremely important, though, for the judge to have a complete understanding of the potentially serious consequences of this information becoming public and the effects that might have on the day-to-day operations of the Chicago Police Department. For the well- being of our officers, and for the citizens that they serve, I wanted to be sure that our arguments were heard by the court.

I also want everyone to recognize that the city actually provided the plaintiff with a redacted list. We felt that this information would allow the plaintiff to conduct the statistical analysis that they claimed was necessary, without individual names.

Identifying officers as "repeaters" based on the mere fact that an officer has received more than five complaints in a six-year period, even though the complaints may have been found to be false or their actions were found to be justified under the law, is not fair. On other occasions, the individual filing the complaint did not follow through and sign the affidavit as required by state law, which would have them state that their complaint is true. In those instances, the complaints are closed. Just last year, 62 percent of all complaints were closed due to the lack of the required affidavit.

Again, my intent was to ensure the safety and security of our officers and the city. I continue to disagree with the judge's ruling, but I have made my concerns known in the strongest way possible. As I said in the statement that I filed with the court, plaintiffs would use this list to wrongfully label thousands of Chicago police officers as repeat offenders. This is particularly unfair given that Chicago has an open complaint system, in which all complaints are registered regardless of merit, and the list would include all complaints, regardless of outcome.

Furthermore, if an officer is asked whether his/her name is on the repeater list in open court, they would be forced to answer "yes," without the ability to explain the circumstances. I believe that this will lead to unnecessary lawsuits against officers improperly labeled, and more importantly, to officers second-guessing their actions when we need them to act without hesitation. That is why, after very careful consideration, I initially refused to turn over this list to the court.

I am still concerned about the protections available to those officers who will be included on this list. I am concerned for their well-being, for their careers and for their futures if they appear in court.

The city will aggressively work to ensure that the protective order governing the production of this list remains in full force and effect.

As superintendent, I am committed to leading a department that will increase the respect and cooperation between our members and the public. We will strive for this in a way that is reasonable, well-intentioned and respectful of everyone.

Jody P. Weis,

superintendent of police,

Chicago 

Chicago Police Lieutenants Association President Speaks Out On The Release of Citizen Complaints

 

Here is an article by Robert Weisskopf, president of the Chicago Police Lieutenants Association:

Here in the United States of America, citizens have the right to be treated as innocent until proven guilty in a court of law. If there is an allegation of wrongdoing made against an individual and it is not sustained, then the there should be no presumption of guilt. I think this is obvious logic.

However, here in Chicago a federal court recently determined that a list of Chicago Police Department officers with five or more charges of excessive force must be released to an attorney. This list is being referred to as a list of officers guilty of excessive force.

Most of the allegations made against the officers on the list have not been sustained. As a matter of fact, very few of these allegations have even been sustained. All of these allegations have been investigated either by the former Office of Professional Standards or the new Independent Police Review Authority.

Here is the way it works: A hard-working police officer makes arrests. Many make 200 or more arrests a year. That is not uncommon. Unfortunately not all arrestees say, "Thank you, Officer. No hard feelings." To try to get a little vengeance against an officer, they file a complaint. I have heard that it is not uncommon for a defense attorney to recommend that a client immediately file an accusation of excessive force against the arresting officer to try to muddy the waters and help the case.

The Independent Police Review Authority is required to investigate any and all complaints of excessive force regardless of how outlandish and outrageous the complaints may be. It does its best to thoroughly investigate these allegations. It is not trying to cover up any wrongdoing. In the end the evidence only supports a sustained finding on a small fraction of these complaints.

Every good, hard-working police officer I have ever met has had allegations made against him or her. That is the life of a cop.

As president of the Chicago Police Lieutenants Association, it is my responsibility to help provide for the common welfare of Chicago Police lieutenants and the support of all measures for the protection and benefit of the public good. I fail to see any public good as the result of this court's action. In spite of this court's failure to support the guardians of their society, officers of the Chicago Police Department will leave the safety of their homes and show up for work today and tomorrow and as long as needed and step out to provide the service our city needs.

Police officers have long been held to a higher standard as well they should.

However, they should have the rights and protections that anyone else enjoys.

 

 

Judge Kendall Allows A Plaintiff To Proceed On An Equal Protection Class of One Claim Based on the Filling of False Reports

In Ivy v Powers, 2009 WL 230542, January 30, 2009, Judge Kendall rulled that a plaintiff could survive a 12(b)(6) motion to dismiss an Equal Protection Class of One claim, based on his allegations that officers filed false police reports and criminal complaints against him to cover-up for their alleged misconduct.

Judge Kendall explained:

[Defendants, relying on the Supreme Court's recent decision in Engquist v. Oregon Department of Agriculture et al., ---U.S. ----, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), argued that plaintiff's Equal Protection “class of one” claim is barred as a matter of law.] In Engquist, the Supreme Court held that the class-of-one theory of equal protection does not apply in the public employment context. 128 S.Ct. at 2151. In reaching its holding the Court reasoned “that there are some forms of state action which by their nature involve discretionary decision making based on a vast array of subjective individualized assessments” and “[i]n such cases the rule that people should be treated alike, under like circumstances and conditions is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted.” Id. at 2154. The Court went on to state that, “[t]his principle applies most clearly in the employment context, for employment decisions are quite often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify.”Id. As an example, the Court stated that an equal protection claim on the ground that a traffic officer gave a speeding ticket to one person and not to others, even if for no discernible reason, would be incompatible with the discretion inherent in the challenged action. Id. Defendants' assert that the Engquist Court's analogy to the enforcement of speeding laws shows that Ivy's Equal Protection claim fails because Ivy's equal protection claim is premised on the decision of the Defendant Officers to arrest Ivy and that decision is discretionary like the decision to give someone a speeding ticket.

Here, however, unlike the Court's analogy in Engquist, Ivy does not base his Equal Protection claim on the Defendant Officers' decision to arrest him. Ivy bases his claim on the Defendant Officers' alleged decision to file false police reports and criminal complaints against him to cover-up for their alleged misconduct. This is different from the discretionary decision to arrest one individual among many (due to logistical reasons) as set forth in the Engquist analogy. “The paradigmatic ‘class of one’ case, more sensibly conceived, is one in which a public official, with no conceivable basis for his action other than spite or improper motive ..., comes down hard on a hapless private citizen.” Lauth, 424 F.3d at 633. Here, Ivy alleges that he was a “hapless” private citizen who was the victim of the Defendant Officers misconduct and that this misconduct was spurred by an improper motive, that is, covering up their alleged violations of Ivy's Fourth Amendment rights. Ivy's claim against the Defendant Officers is not based on their discretionary decision-making duties as police officers, and is therefore unlike the plaintiff's class of one claim in Engquist.

Further, Ivy's factual allegations in support of his Equal Protection Class of One claim are sufficiently plead and provide the Defendants with sufficient notice. Ivy alleges that by falsifying police reports and charging documents against him, the Defendant Officers treated Ivy differently than other persons subject to arrest by the Defendant Officers, that there is no rational basis for the different treatment and that the Defendant Officers acted with discriminatory intent by treating Ivy differently. These facts, if taken as true, at least plausibly suggest that Ivy is entitled to relief. Therefore, Ivy's assertions against the Defendant Officers are sufficient to state a claim for an equal protection class of one violation. See Craft v. Flagg, 2008 WL 1883337 at *3 (N.D.Ill.2008) (Gettleman, J.) (holding plaintiff sufficiently plead equal protection “class of one” claim where he alleged that officers treated him differently then other individuals by planting evidence on him).

 

Judge Gottschall Cautions: Attaching a Grand Jury Transcript to a Motion, without Illinois Court Approval, is Punishable by Contempt

In response to a motion to reconsider the granting of summary judgment, defendants attached a copy of the grand jury testimony to support their contention that probable cause existed to prosecute the plaintiff, requiring dismissal of plaintiff's malicious prosecution claim.  Addressing the grand jury transcripts, Judge Gottschall explained:

[Defendants] attached a portion of the grand jury testimony to their motion for summary judgment. Disclosure of Illinois grand jury testimony is prohibited by law absent an order from an Illinois court, and improper disclosure is punishable by a contempt of court action.  (citations omitted). The secrecy of grand jury proceedings is maintained “to insure the grand jury freedom in its deliberations, to prevent subornation of perjury, to encourage disclosure by witnesses, and to protect the innocent from unwarranted exposure,” as well as to “assure freedom of deliberation of future grand juries, and the participation of future witnesses, as well as to provide these assurances to those who appeared before the instant proceeding.” (citations omitted). There is no indication from [Defendant's] papers that a prior order from an Illinois court was obtained which authorized disclosure of this transcript, nor is it clear how this document was obtained. This exhibit is stricken from the record, though Defendants may resubmit it upon a showing that disclosure is legally authorized. 

The Court also disagreed with the premise that because the Grand Jury indicted the plaintiff without testimony from the defendants, defendants cannot be held liable for prosecution.  Defendants were unable to establish that the indictment came independently from them. 

The decision also discusses the Seventh Circuit's holding in Village v. Hoffman Estates, namely that a finding of probable cause for any arrest does not necessarily forecloses every malicious prosecution claim.   Probable cause needs to be established for each count of the prosecution. 

Akbar v. City of Chicago, 2008 WL 5272463 N.D.Ill.,2008.

 

This is a first for me.  Do we need to re-examine the use of grand jury transcripts in civil cases?

Lawyer Facing Contempt For Contacting Jurors

 Tess Koppelman of Fox 4 News in Kansas City is reporting that one of the defense attorneys in the Ted White case is facing potential contempt sanctions for sending jurors a questionnaire asking them about their findings in the case. The jurors recently awarded White $16 million in his civil rights suit against detective RIchard McKinley. In most jurisdictions, attorneys must obtain the court's permission before contacting jurors. 

Seventh Circuit Rules - Acquittal Bars a Due Process Civil Brady Claim

Today the Seventh Circuit has finally made clear that an acquittal bars a Due Process Brady Claim and has rejected the "prospective approach" to Brady analysis taken by a majority of the District Court Judges.

“The constitutional violation alleged in this case was a violation of due process for failure to turn over exculpatory/impeaching evidence to the defendant as constitutionally requireda so-called Brady violation. Brady v. Maryland, 373 U.S. 83 (1963).”

A Brady violation can be broken down into three basic elements: (1) the evidence at issue is favorable to the accused, either being exculpatory or impeaching; (2) the evidence must have been suppressed by the government, either willfully or inadvertently; and (3) there is a reasonable probability that prejudice ensuedin other words, “materiality.” 

Two Important discussions on this:

“A lying witness is certainly not a Brady violation. It is already established law that Brady does not extend so far as to provide relief in a situation where “a police officer makes a false statement to a prosecutor.” Harris v. Kuba, 486 F.3d 1010, 1017 (7th Cir. 2007) (“Harris essentially seeks an extension of Brady to provide relief if a police officer makes a false statement to a prosecutor by arguing that an officer is ‘suppressing’ evidence of the truth by making the false statement. This court has already fore- closed this extension.”); see also Sornberger v. City of Knox- 

ville, 434 F.3d 1006, 1029 (7th Cir. 2006) (“The Constitution does not require that police testify truthfully; rather the constitutional rule is that the defendant is entitled to a trial that will enable jurors to determine where the truth lies.” (citations omitted)). 

Moreover, both Hunter and Dominguez were accessible to the defense for the hearing on the motion to suppress the identification in the criminal case. It is Carvajal’s responsibility to probe the witnesses and investigate their versions of the relevant events. There was nothing preventing Carvajal from discovering and drawing out this discrepancy between the officers’ stories during the suppression hearing. 

 

On the Kennelly Prospective Approach:

The district court’s “prospective” test does not seem to accurately capture what Brady protects and misunderstands  the “materiality” requirement in a true Brady violation.

[T]he term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidencethat is, to any suppression of so-called “Brady material”although strictly speaking, there is never a real “Brady violation” unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. 

 

 “[T]he question is whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 289. Therefore, while a prosecutor has to make decisions about what is Brady material prospectively, so to speak, a true constitutional violation is measured with the outcome in mind.2

 

We are equally doubtful, given the considerations in deciding whether to recognize a Bivens cause of action that such an action exists for a Brady violation. Most specifically it seems that there is an “alternative, existing process for protecting the interest”: namely, the disclosure obligation put on the prosecution under Brady itself protects the defendant’s interest in a fair trial, and, the fact that if a criminal defendant does establish a Brady violation he already has a remedy in getting his conviction overturned (of course, an acquittal from the outset, as the defendant received here, is even better). 


Key Footnote:

The plaintiff, as well as Illinois district judges in similar cases, pointed to Carey v. Piphus, 435 U.S. 247 (1978), in support. We find this reliance misplaced. In addressing a high school stu- dent’s suspension without a hearing, the Court concluded that “the denial of procedural due process should be actionable for nominal damages without proof of actual injury.” Id. at 266. In doing so, the Court was focusing on fair process and was not holding that there was any actual damage or harm resulting from the insufficient process. Therefore, there is not a parallel from Carey’s holding to the materiality/prejudice requirement of Brady, which requires more in order to establish the constitutional violation at issue. Additionally, unlike the instant case, Carey was a § 1983 action.

Carvajal v. Dominquez

Judge Hibbler Rules No Constitutional Violation in Loevy's Car Accident Case

"On May 19, 2004, 8 year old Gregory Jones and 11 sufficent year old Dantondra Mitchell were struck by an unmarked police car.  Both children were gravely injured and Jones died the next day.  The plaintiffs - parents of the children - allege the officers' reckless driving deprived the victims of their substantive due process rights.  In response, the officers moved for summary judgment and assert vehicular accidents cannot support a finding of constitutional liability. " Judge Hibbler, citing US Supreme Court and Seventh Circuit cases, agreed.  

 
The Court explained:
"The threshold question of any substantive due process challenge is whether the behavior of a state actor 'is so egregious, so outrageous that it may fairly be said to shock the contemporary conscience.'"
 
"Ultimately the [Supreme Court] held the police officers' conduct did not deprive the plaintiff of substantive due process: 'high speed chases with no intent to harm...do not give rise to liability under the Fourteenth Amendment" ...As there was no time for reflection or deliberation it cannot be said the officer's conduct was deliberately indifferent.
 
The Court also discussed the relevant Seventh Case on point, Hill v. Schobe:
In Hill, the officer - who was not chasing a suspect or responding to an emergency call - was driving over the speed limit, and failed to turn on his lights or sirens even though it was after midnight.  Subsequently, the officer ran a red light and struck and killed Robert Hill.  The Seventh Circuit held, "the officer must have knowledge of the danger so the court can "infer he intended to inflict the injury" - He must have known it "was imminent but consciously and culpably refused to prevent it." The key word is accident - "if the vehicular collision was accidental - there is no constitutional liability. "
 
As such, summary judgment was granted in favor of defendants.  
 
Jon Loevy, Arthur Loevy, Douglas Shreffler, Amanda Antholt, Michael Kanovitz, Samantha Liskow, Loevy & Loevy for plaintiffs 
 
Liza Franklin, Steve Borkan, Stellato & Schwatrz, George John Yamin, Jr., Jordan Marsh, Scott Jebson, City of Chicago , for Defendants.

Jones v. City of Chicago 04 C 3742

 

 

 

Judge Kendall Rejects Plaintiff's "Class of One" Equal Protection Claim

Plaintiff was arrested on February 18, 2005 and charged with unlawful use of a weapon... According to plaintiff, "Holden, he was frightened when a male police officer pulled up behind him in a police car while he was urinating in an alley and yelled a racial epithet at him. He ran, scaled two gates, ran through a gangway and jumped onto Pulaski Avenue where he surrendered to two male police officers who arrived in a second marked police car.  Plaintiff further claims, "[o]ne of the two arresting officers grabbed Holden's leg and “snapped it in half,” making an audible noise, while Holden was lying on the sidewalk. The officer then threw him into the open door of the police car, slammed the car door against his head several times and punched his injured leg and eye.  Plaintiff claims that the officers "decided to falsely accuse him of a robbery."  The Officers deny any force and claim they "apprehended Holden and transported him to the police station."
 
At issue on Summary Judgment was "Holden's claim that he was treated differently than other individuals who have had interaction with police officers. However, at his deposition, he could not identify another person treated differently. Holden, however, suggests that some of the actions taken against him and statements made by the officers to him establish differential treatment.
 
Specifically, "Holden argues that he suffered discrimination as a “class of one” in violation of the Equal Protection Clause. He asserts that he was discriminated against because the officers abused him, did not send the allegedly recovered weapon for fingerprinting, and did not file a tactical report even though Department regulations require that weapons be fingerprinted and officers file tactical reports when they use force."
 
The Court rejected this claim and ruled: 
"To succeed on a "class of one" equal protection claim, the plaintiff must prove that: 1) he was intentionally treated differently from other individuals similarly situated; and 2) there was no rational basis for the difference in treatment or the cause of the differential treatment was “totally illegitimate animus” by the defendant." 
 
The Defense argued "that this case is ill-suited to Equal Protection analysis and that in any case, Holden has failed to adequately demonstrate that similarly situated individuals were treated differently. Generally, whether individuals are similarly situated is a question of fact for the jury, but courts may grant summary judgment when no reasonable jury could find that this requirement has been met.  To meet the similarly situated requirement, plaintiffs must prove “that they were treated differently than someone who is prima facie identical in all relevant respects.”
 
The Court held that "[s]pecific evidence of similarly situated individuals is necessary in class of one claims because individuals must be compared on a very detailed level to determine if they are in fact prima facie identical."  As such, the Court granted defendants' partial motion for summary judgment.  
 
Abbas Badruddin Merchant, Amanda Sunshine Yarusso, Blake Wolfe Horwitz, Horwitz, Richardson & Baker LLC, Chicago, IL, for Plaintiff.
 
Christopher A. Wallace, Liza Marie Franklin, Thomas Howard Freitag, George John Yamin, Jr., Thomas Jon Aumann, City of Chicago , for Defendant.

Holden v. A. Carey 2008 WL 4006753 N.D.Ill.,2008 (Kendall, J).

 

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)."

Appellate Court Expunges Stanley Howard's Arrest Records

The Illinois State Appellate Court has issued an opinion reversing the circuit court of cook county's denial of Stanley Howard's petition to expunge records of his arrest for a crime for which he was pardoned by Governor Ryan. Howard was arrested on November 1, 1984 by Chicago police officers for a number of crimes, including murder, attempted robbery, and kidnapping. Howard was tried for the various crimes and was found guilty of the attempted robbery and murder charges and was sentenced to death. In post conviction proceedings, Howard claimed his confession at trial on the murder charge resulted from police torture. On January 10, 2003, prior to resolution of his post conviction claim, Howard received a full pardon from Governor Ryan based on innocence. Howard subsequently petitioned to expunge the record of his arrest for his murder conviction under subsection 5(c) of the Criminal Identification Act (20 ILCS 2630/5(c)). The State objected to Howard's request, contending the Criminal Identification Act did not permit expungement of arrest records when the petitioner had other convictions.  The circuit court denied Howard's petition for expungement. On appeal, the court reversed, finding that the legislature intended for the wrongfully convicted to receive automatic expungements.

Patterson v. Burge, et al. - Magistrate Brown Grants Defendants' Motion For Protective Order Re: Grand Jury Materials

In the case of Aaron Patterson vs. Jon Burge, et al., the defendants moved for a protective order barring the parties from disseminating grand jury transcripts of Chicago Police Officers who appeared before the grand jury pursuant to the Office of the Special Prosecutor's investigation. The defendants did not object to the use of the grand jury transcripts for purposes of the present litigation, but contended that public disclosure of the grand jury proceedings conflicts with the principles of grand jury secrecy and would harm their reputation and allow Patterson to exploit several Officers' assertion of their Fifth Amendment privilege. Magistrate Geraldine Soat Brown granted the defendants' motion for protective order, stating, in part, that "public disclosure of grand jury testimony in this high profile case increases the probability that prospective witnesses will be discouraged from participating in future grand jury proceedings." Magistrate Brown concluded that "[i]n light of the well-established principles favoring secrecy for the protection of the institution of the grand jury, the court finds good cause for the entry of a protective order limiting the disclosure of the grand jury transcripts."

False Arrest Claims - Statute of Limitations

The United States Supreme Court recently held oral argument in Wallace v. City of Chicago, a case which arose out of the arrest of Andre Wallace on charges of murder. After being released from custody in 2002, Wallace filed suit against the City of Chicago and two detectives, alleging, among other things, a false arrest claim. The district court granted the defendants' motion for summary judgment on the false arrest claim, finding the claim to be time-barred. The Seventh Circuit affirmed, finding the statute of limitations had begun to run on the false arrest claim at the time of arrest. Wallace filed a petition for certiorari to the United States Supreme Court, challenging the Seventh Circuit's determination that his false arrest claim was time-barred and noting that other federal appeals courts have held that the statute of limitations does not begin to run on a false arrest claim until the underlying charges are dismissed. The United States Supreme Court granted Wallace's petition and oral argument was held on November 6, 2006. A decision on this important issue is expected by the Spring of 2007.