Seventh Circuit Affirms Kunz v. City

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 Today the Seventh Circuit  affirmed the district court’s judgment in its entirety in Kunz v. City.

"On March 22, 1999, Jeremy Kunz spent the afternoon and evening in a bar watching March Madness and consuming a few Guinnesses....Kunz left [to run an] errand—which turned out to be the delivery of some drugs—he grazed a parked car and kept driving. His actions prompted a 911 call from a witness; Officer DeFelice and his partner responded. Despite the flashing lights on the police car, Kunz kept driving, with the police in pursuit. [the car he was driving was reported stolen]. When Kunz finally stopped the car, he got out and tried to flee on foot...[and toss his drugs]."  

"As he was being handcuffed, multiple police officers kicked Kunz, eventually causing a sharp pain later diagnosed as a broken rib. The police then dragged the injured and restrained Kunz to their squad car and took him back to the station, where they placed him in a room on a stool, still cuffed and facing DeFelice. DeFelice repeatedly punched Kunz in the face hard enough to make him pass out several times. "

Kunz plead guilty, severed his time, and then brought a lawsuit.

Kunz prevailed, winning jury verdicts against Officer DeFelice for $10,000 in compensatory damages and $250,000 (later reduced to $90,000) in punitive damages, as well as a verdict against the City for another $15,000 in compensatory damages. 

The parties cross-appealed. 

The Court affirmed keeping out a retail theft conviction and affirmed the exclusion of James O'Donell, the toxicologist.   Judge Zagel excluded O'Donell because his testing was not based on a sound methodology.  Moreover, the Seventh Circuit held noted that  "O’Donnell was a 
singularly unimpressive witness. His credentials were weak, at best: his degree is called a Pharm.D.; he earned it after one year of classes, only one of which was in pharmacology. Despite the title, his Pharm.D. is not actually in pharmacology, and O’Donnell admitted elsewhere to advertising falsely that it was.

The Seventh Circuit also affirmed the exclusion of witnesses as Zagel barred their testimony  as a discovery sanction under FED. R. CIV. P. 37.  DeFelice claimed that named were in the police reports, "but with nothing to signal that they had anything useful to add. The district court found that it would place an excessive burden on the plaintiff to require him to sift through every single name turned over in discovery."

On the cross-appeal, Kunz challenged the granting of summary judgment on his unlawful detention and malicious prosecution.  Specifically, Kunz challenged the district court's denial of his theory that "the coercive force DeFelice used proximately caused his extended detention and ensuing damages...under the Fourth or Fifth Amendment.  However, Kunz did not develop his fifth amendment his "novel legal theory" at the district court level and therefore it was waived. 
 
Joseph Roddy represented Officer DeFelice, Jon Loevy represented Kunz.
 

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)