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

 

 

 

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 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.

Michael Evans Loses Final Bid For A New Trial

Michael Evans has lost in his final bid for a new trial. Evans sued ten former Chicago police officers claiming they framed him for the rape and murder of nine-year old Lisa Cabassa back in 1976. Evans had spent 27 years in prison before being released based on new DNA results. A federal court jury rejected his claims and found in favor of the retired police officers. Evans appealed to the Seventh Circuit and lost there too. Evans then filed a petition for rehearing en banc before the Seventh Circuit. That petition has now been denied as well. The retired police officers were represented by Benna Solomon, Myriam Kasper and Jennifer Notz during the appellate proceedings. Andrew M. Hale was lead counsel for the retired police officers at trial in the Northern District of Illinois before the Honorable David Coar. Jon Loevy of Loevy & Loevy represented Evans at trial and on appeal.

Michael Evans Denied A New Trial - Defense Verdict Affirmed

The Seventh Circuit Court of Appeals affirmed a verdict in favor of the City of Chicago and ten former Chicago police officers and against Michael Evans, thereby denying Evans a new trial. Evans had filed suit seeking $60 million claiming the officers framed him for the rape and murder of nine-year old Lisa Cabassa in 1976. In August 2006, a jury returned a verdict in favor of the officers and City of Chicago, finding there to be no police misconduct. On appeal, Evans was seeking a new trial. In a 2-1 decision, the Seventh Circuit held that Evans received a fair trial and was not entitled to a new trial. At trial, the police officers were represented by attorneys Andrew Hale, Eileen Rosen, Kevin Horan and John Rock of Rock Fusco, LLC. On appeal, the police officers were represented by Benna Ruth Solomon, Jenny Notz and Myriam Kasper, attorneys with the Corporation Counsel's appellate group. Evans was represented at trial and on appeal by Jon Loevy of Loevy & Loevy.

Evan Zimmerman Seventh Circuit Appeal Dismissed

Evan Zimmerman, who served three years in prison for a murder conviction that was later overturned, has died of cancer at the age of 61. Zimmerman had been convicted of strangling his ex-girlfriend Kathleen Thomson in Eau Claire, Wisconsin. After being released from prison, Zimmerman filed a federal civil rights lawsuit claiming he had been framed by the police. The district court granted summary judgment in favor of the the police officers and the City of Eau Claire. Zimmerman then appealed the decision to the Seventh Circuit Court of Appeals. Oral argument was heard in April 2007. On July 1, 2007,  prior to the Seventh Circuit rendering a decision, Zimmerman died of cancer.  Zimmerman's attorneys have now dismissed their Seventh Circuit Appeal. Zimmerman was represented by Jon Loevy of the law firm of Loevy & Loevy.

Jose Lopez Civil Rights Lawsuit Is Dismissed Due To Statute Of Limitations

Judge Der-Yeghiayan has dismissed the civil rights lawsuit filed by plaintiff Jose Lopez, stating: "Plaintiff has filed a cause of action pursuant to 42 U.S.C. 1983. Plaintiff has alleged that he was 'arrested and charged' sometime in 2002. (Compl. Par. 7). Plaintiff also alleged that '[a]fter serving several years in jail . . . Plaintiff was tried on the false charges in 2005, whereupon Plaintiff was acquitted of murder.' (Compl. Par. 9). Plaintiff filed the instant action in the Northern District of Illinois on November 15, 2006. Thus, pursuant to the United States Supreme Court's decision in Wallace v. Kato, 127 S.Ct. 1091 (2007), the instant action is time-barred by the applicable statute of limitations and we dismiss the instant action." Plaintiff Jose Lopez  was represented by Jon Loevy and Jon Rosenblatt from Loevy & Loevy. The defendants, the City of Chicago and Chicago Police Officers Robert Gliwa, James K. Sanchez, Adrian Garcia, Michael Pietryla and Thomas Flaherty, were represented by Andrew Hale and Eileen Rosen of Rock Fusco, LLC.

City Of Chicago Files Response To Michael Evans' Appeal

The City of Chicago and ten former Chicago police officers have filed their response to Michael Evans' Seventh Circuit appeal. In August 2006, a federal court jury found in favor of the City of Chicago and the police officer defendants, rejecting Evans' claim that he had been framed for the rape and murder of Lisa Cabassa back in 1976. Evans spent 27 years in prison before being released in 2003 when DNA found on a rectal swab did not match Evans. An eyewitness, Judith Januszewski, testified that she saw Evans and his friend Paul Terry abducting Lisa Cabassa on the evening she disappeared. In their appellate brief, the defendants argued that the district court did not abuse its discretion in allowing testimony by police officers who fully complied with discovery. The defendants also argued that Evans' failure to ask the district court for additional time to conduct discovery waived any claim of prejudice. For example, the defendants' brief states "Tellingly, the primary relief Evans seeks is a remand to 'provide Plaintiff a reasonable opportunity to take fact and expert discovery. Evans never sought this relief from the district court, although the officers suggested it. Evans wanted to go to trial as quickly as possible. Evans apparently now regrets this strategy, but his gamesmanship should not be rewarded with relief he never sought below. Indeed, because Evans never asked the district court for more time for discovery, this argument is waived." (Defendants' brief at p. 38). Defendants are represented on appeal by Benna Ruth  Solomon (Deputy Corporation Counsel), Myriam Zreczny Kasper (Chief Assistant Corporation Counsel), and Jane Elinor Notz (Assistant Corporation Counsel). Evans is represented on appeal by Jon Loevy, of Loevy & Loevy, who was also Evans' lead trial counsel. At trial, the defendants were represented by Andrew Hale, Eileen Rosen and John Rock from Rock Fusco, LLC.

Michael Evans Appeals Jury Verdict In Favor Of Ten Former Chicago Police Officers

Plaintiff Michael Evans has filed his appellate brief with the Seventh Circuit Court of Appeals. Evans had sued ten former Chicago Police Officers claiming they framed him for the rape and murder of nine-year old Lisa Cabassa back in 1976. Evans was convicted of that crime in 1977 and spent 27 years in prison until being released in 2003 based on the results of DNA testing. Evans later received an innocence pardon from Governor Blagojevich. In August 2006, a jury found in favor of the ten Chicago Police Officers and against Evans. Evans had asked the jury to award him over $50 million in damages.The main issue raised in Evans' appeal is that several of the former Officers were allowed to give depositions shortly before trial after having previously asserted their Fifth Amendment rights. Evans claims he was prejudiced by these depositions, but did not ask District Court Judge David Coar to continue the trial date. The ten former Chicago Police Officers were represented by Andrew Hale, Eileen Rosen and John Rock from the law firm of Rock Fusco, LLC. Michael Evans was represented by Jon Loevy of Loevy & Loevy, Flint Taylor from the People's Law Office and Locke Bowman from the MacArthur Justice Center.

Jose Lopez Files Suit Against City Of Chicago And Five Chicago Police Officers

Jose Lopez has filed a federal court lawsuit against the City of Chicago and five Chicago Police Officers. Lopez alleges that the defendants violated his rights by framing him for a murder they knew he did not commit. Lopez spent two years in jail awaiting his murder trial. He was subsequently acquitted. Lopez is represented by Jon Loevy at Loevy & Loevy. The City of Chicago and the five Chicago Police Officers are represented by Andrew Hale and Eileen Rosen at Rock Fusco, LLC. The case is pending before the Honorable Samuel Der-Yeghiayan in the Northern District of Illinois.

City Of Chicago Settles With Estate Of Cornelius Ware For $5.25 Million

Last Friday, a federal court jury ruled in favor of the plaintiff, the estate of Cornelius Ware, and against the City of Chicago, in the liability phase of plaintiff's civil rights trial. The damages phase was scheduled to commence this week. However, over the weekend, the City of Chicago settled with the plaintiff's estate, agreeing to pay $5.25 million in damages. During the week long trial, plaintiff's attorney Jon Loevy argued that the Chicago Police shot Cornelius Ware when his hands were above his head in a gesture of surrender. The City countered that Ware pointed a gun at the Police Officers, which lead to the shooting. A gun was recovered from Ware's vehicle. Loevy argued that the Police Officers planted the gun, noting that there was no blood on the gun and that there were no fingerprints suitable for comparison obtained from the gun. The nine-person jury heard closing arguments last Friday, and reached their verdict late Friday afternoon. Judge Joan Lefkow presided over the trial.

Jury Hears Testimony In Ware v. City of Chicago, et al.

A ten-person jury began hearing testimony yesterday in the trial brought by Tammy Faye Grant, the mother of Cornelius Ware, who was shot and killed by Chicago police on August 18, 2003. In his opening statement, Jon Loevy, attorney for the plaintiff, told the jury Ware was shot as he sat in his vehicle with his hands above his head in a position of surrender. Margaret Carey, an attorney for the City of Chicago and Chicago Police Officer Anthony Blake, told the jury that Ware was shot after he pointed a gun at a Chicago Police Officer out the driver's side window . Carey told the jury that a gun was recovered from Ware's vehicle. The first witness called to the stand was Ms. Grant, who testified she saw her son with his hands above his head, and not holding a weapon. Upon cross-examination, Ms. Ware could not recall whether she gave a statement to Chicago Police when she arrived at the hospital to see her son. The second witness called, Richard Moore, was Ware's brother, and was 15 years old at the time of the shooting. Upon cross-examination, Moore testified that he heard Chicago Police yell "he's got a gun" before his brother was shot. He also testified that his mother told him she heard Chicago Police also yell "he's got a gun" before Ware was shot. Testimony is expected to last the remainder of the week.

Cornelius Ware v. City of Chicago, et al. - Jury Selection On February 5, 2007

Jury selection commences on Monday, February 5, 2007 in the case of Cornelius Ware vs. City of Chicago, et al. Ware was shot and killed by Chicago police on August 18, 2003 after a high-speed chase and after Ware pointed a revolver at the police. The Honorable Joan H. Lefkow is presiding over the trial in the Northern District of Illinois. The estate of Cornelius Ware is represented by Jon Loevy. The City of Chicago is represented by Joseph Polick and Margaret Carey.

Donald Vance Files Suit Against Donald Rumsfeld

On Monday, December 18, 2006, Donald Vance, a 29 year-old former member of the United States Navy, and a former supervisor of security personnel for the Sandi Group and later Shield Group Security (SGS) in Iraq, filed suit against Donald Rumsfeld in the Northern District of Illinois. In his suit, Vance alleges that while employed by SGS in Iraq he observed suspicious payments by SGS agents to Iraqi Sheikhs and reported this activity to the FBI, in particular, to FBI agent Travis Carlisle in Chicago. Vance alleges that he was subsequently removed from the SGS compound and then taken to the US Embassy, then to Camp Prosperity and later to Camp Cropper which Vance alleges houses "high-value" detainees. Vance alleges he was detained for almost 100 days purely for purposes of conducting months of abusive interrogations. Vance alleges he was detained without due process of law, was never charged with a crime, was never told why he was being detained, was never given the opportunity to obtain a lawyer, was never given the opportunity to challenge his detention, and not even his family was told of his detention. Vance alleges that while detained his detention and interrogation were tantamount to torture in that he was exposed to intolerable cold and continuous artificial light, he was placed in solitary confinement, he was subjected to blarring music, he was awoken by startling if he fell asleep, he was subjected to blindfolding and "hooding" and deprived of food and water. Vance alleges that defendant Donald Rumsfeld was personally responsible for developing, authorizing, supervising and implementing the policies and practices of arrest, detention, treatment, and interrogation of detainees in Iraq. Vance alleges that Rumsfeld's policies and directives are inconsistent with fundamental Constitutional and human rights and that "Defendant Rumsfeld is not entitled to any form of official immunity for his knowing decisions to break with the laws protecting American citizens and international treaties on human rights." Vance's complaint contains the following ten counts: false arrest (I), unlawful detention (II), unlawful search and seizure (III), right to counsel in interrogations - coerced statements (IV), denial of Sixth Amendment right to counsel (V), denial of right to confront adverse witnesses (VI), denial of right to present witnesses and evidence, and to have exculpatory evidence disclosed (VII), conditions of detention (VIII), denial of necessary medical care (IX) and denial of property without due process (X). Vance's suit seeks unspecified compensatory damages, punitive damages, costs and attorneys' fees. Vance's suit has been assigned to the Honorable Milton I. Shadur. Vance is represented by attorneys Michael Kanovitz and Jon Loevy of the law firm of Loevy & Loevy.

Dr. Gary Wells Testifies Re: Eyewitness Identification

On October 10, 2006, Dr. Gary Wells, Professor of Psychology at Iowa State University, testified as an expert witness for the plaintiff Alejandro Dominguez in his trial against the City of Waukegan. Dr. Wells testified that he is an expert in eyewitness memory and eyewitness identification. He claims that he has published more than anyone in the world on these topics. Dr. Wells testified that it was improper for the Waukegan police to conduct a "show-up" two days after the subject rape, despite the fact that the rape victim said she had seen her attacker before. He opined that the police should have conducted a line-up instead. He also testified that the police should have given a warning that "the offender might or might not be in the line-up" - which was not given. This is the third case that Dr. Wells has been retained by attorney Jon Loevy. Dr. Wells also testified for the plaintiff Michael Evans this summer in his suit against the the City of Chicago and ten former Chicago police officers. (The jury returned a verdict for all of the defendants in that case). Also, in 2005, Dr. Wells testified for plaintiff Steve Manning in his suit against two FBI agents, Robert Buchan and Gary Miller. (The jury awarded Manning $6.6 million in that case, but pending post-trial motions seek to overturn that award).