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.

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.

Seventh Circuit Hears Oral Argument In Evan Zimmerman Case

On April 10, 2007, the Seventh Circuit Court of Appeals heard oral argument in the case of Evan Zimmerman versus the City of Eau Claire, et al. Last year, District Judge John C. Shabaz granted summary judgment to the defendants, the City of Eau Claire, and police officers Eric Larsen, Donn Adams, Gary Foster and Todd Trapp in Zimmerman's civil rights lawsuit. In 2001, Zimmerman was charged with the murder of Kathy Thompson, a woman who was recently married and whom Zimmerman had previously dated. Thompson had been strangled. At his criminal trial, Zimmerman was convicted of murder. Zimmerman was granted a new trial due to his trial counsel's deficiencies. After a second criminal trial was commenced in April 2005, the district attorney decided to drop its prosecution of Zimmerman. Zimmerman subsequently filed a civil rights lawsuit claiming the defendants denied him due process of law by withholding exculpatory evidence. Zimmerman claimed that the defendants withheld exculpatory evidence concerning the testimony of Maureen Horne. The district court rejected this argument, stating "This argument is highly speculative. . . There is no evidence in the record that an earlier statement by Horne existed and was destroyed or that she was improperly coached by defendant Larsen. Plaintiff has failed to show that there was any statement by Horne that was exculpatory which was destroyed or suppressed by the defendants." Zimmerman also claimed that the police officers coerced testimony from witness Brice Rene. The district court rejected that argument too, stating "there is no evidence that any of Rene's statements were coerced or improperly coached. Plaintiff's attorney had the opportunity to cross examine Rene concerning his statements and the hypnosis. Rene's statements did not deny plaintiff due process." The district court also rejected Zimmerman's claim that defendant Trapp falsified plaintiff's polygraph report. Thus, the district court granted summary judgment to the defendants. At the oral argument before the Seventh Circuit, Zimmerman's attorney, Jon Loevy of Loevy & Loevy, argued that summary judgment should not have been granted and that Zimmerman was entitled to a trial. Counsel for the police officers argued that Zimmerman's arguments were based on mere speculation and there was no evidence of police misconduct. Judge Richard Posner chaired the Seventh Circuit panel that heard oral argument. A decision is expected later this year.

Detective Wins Summary Judgment Based On Qualified Immunity

Judge Robert Miller, United States District Court for the Northern District of Indiana, ruled that detective Ronald Lawson is entitled to qualified immunity from liability as to plaintiff Michelle Wheeler's claim under the Fourth Amendment alleging an unreasonable search and seizure. The court stated "Detective Lawson investigated the fire at Ms. Wheeler's garage and found evidence of a methamphetamine lab, a quantity of methamphetamine, and a surveillance camera focused on the garage that could be monitored from inside Ms. Wheeler's house. Based on the totality of the circumstances then known to Detective Lawson and reasonable inferences drawn from those circumstances, Detective Lawson had probable cause to believe criminal activity had occurred on Ms. Wheeler's property and probable cause to arrest Ms. Wheeler for maintaining a common nuisance under Ind. Code 35-48-4-13." The full opinion can be found at 2007 WL 844870.

Seventh Circuit Affirms Denial Of Summary Judgment On Qualified Immunity Claim

In a March 27,2007 opinion, the Seventh Circuit Court of Appeals affirmed the district court's denial of a motion for summary judgment brought by City of Fort Wayne police officers based on qualified immunity. The court noted that "Governmental actors performing discretionary functions are entitled to qualified immunity and are 'shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known," citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The court noted that "typically, cases in which we have affirmed the grant of summary judgment on qualified immunity grounds to police officers involve arrests in which a witness, most commonly the putative victim, provides sufficient support to justify the officer's decision." The court noted that "in the present case, there are no witnesses offering testimony to support the officers' version of the Washingtons' arrests. Both Clara Washington and Leon Washington deny any physical altercation which would qualify as domestic battery under Indiana law, and they claim that they told the officers they were simply play-fighting." The court also stated that "however implausible the Washingtons' account might seem, it is not our place to decide who is telling the truth. Where the parties present two vastly different stories - as they do here - it is almost certain that there are genuine issues of material fact in dispute."

Seventh Circuit Holds Police Officer's Use Of Deadly Force Was Reasonable

The Seventh Circuit Court of Appeals has held that a Janesville, Wisconsin police officer's use of deadly force was reasonable, thereby affirming the district court's granting of summary judgment in the officer's favor. Garrett Henning was shot by Officer Timothy O'Leary after resisting arrest. The court first stated that "Deadly force, which O'Leary employed in this case, is reasonable where an officer has reasonable cause to believe that the suspect poses a danger of serious bodily harm, such as when the officer believes the suspect has a weapon or has committed a violent crime." The court went on to state that "Here, there can be no doubt that O'Leary had the requisite reasonable cause. In the tense struggle that followed Henning's refusal to submit to the officers' attempts to handcuff him, Peterson's gun got loose, and at least two officers believed Henning had his hands on or near it. Police officers cannot be expected to wait until a resisting arrestee has a firm grip on a deadly weapon and completely freed himself from officers trying to subdue him before taking action to ensure their safety. Nor can they be required to take a less deadly shot where none is available that would not place someone else also in jeopardy." Finally, the court held that plaintiff offered no real evidence in opposition to the motion, stating "The Hennings dispute the officers' characterization of the events, but they offer no real evidence to contradict it. . . Yet, minor inconsistencies are not unusual - indeed exact, step by step recall of this incident by three different officers would be unusual. Absent something else, the Hennings really offer nothing to corroborate their version of the events - certainly not enough to get them to a jury. The plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment." The Seventh Circuit panel was comprised of Judges Easterbrook , Posner and Evans.

Judge Leinenweber Grants Summary Judgment To Chicago Police Officers Kearns And Yzaguirre

Northern District of Illinois Judge Harry D. Leinenweber recently granted summary judgment to Chicago Police Officers Patrick Kearns and Michael Yzaguirre in a case brought by plaintiff Juan Rivera. Judge Lienenweber initially stated that "In a civil rights action, the plaintiff must prove that the defendant personally participated in or caused the unconstitutional actions." Judge Leinenweber then held that "In this case, the undisputed facts show that Defendant Officers Kearns and Yzaguirre could not have personally participated in or caused the alleged constitutional deprivations because they were not present at the 19th District Police Station, the Police Station where the Plaintiff claims the violations occurred on January 3, 2005."