thompson v. buell summary judgment
TRANSCRIPT
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UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
D.Z., by his Next Friend, )A. THOMPSON )
) Plaintiff, ) Case No. 12 C 7580
)v. ) Magistrate Judge Daniel G. Martin
)
MARK BUELL ))
Defendant. )
ORDER
Defendants Motion for Summary Judgment [76] is granted.
STATEMENT
Plaintiff D.Z., a minor, brought this action against the City of Evanston and Evanston
Police Officer Mark Buell by his Next Friend, A. Thompson. D.Z. alleges that Officer Buell
violated his Fourth Amendment rights on August 30, 2012, when Buell detained him in
connection with a reported burglary. The Fourth Amendment allegations include claims for
unreasonable search and seizure and for false arrest.1 D.Z. also alleges various state law
claims. Plaintiff originally raised a failure to train claim against the City of Evanston
pursuant to Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978). The Monellclaim was
later dismissed. This case was first assigned to District Judge Marvin Aspen. The parties
1 Count I in Plaintiffs Complaint brings both of these allegations under the FourthAmendment, though earlier portions of the Complaint cite both the Fourth and theFourteenth Amendments. Under some circumstances, the Fourteenth Amendment can bea basis for a due process claim when a plaintiff has been improperly detained. The Courtconsiders Plaintiffs claim as brought under the Fourth Amendment, as Count I does notcite the Fourteenth Amendment.
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later consented to have this Court conduct all proceedings, including an entry of final
judgment. 28 U.S.C. 636(e); N.D. Ill. R. 73.1(c). Officer Buell now asks the Court to
enter summary judgment on his behalf.
A. Factual Background
1. The Local Rule 56.1 Submissions
Local Rule 56.1 requires the party moving for summary judgment to submit a
statement of material facts (SOF) that it believes are uncontested. The submission must
include citations to the affidavits, parts of the record, and other supporting materials relied
upon to support the facts set forth in [each] paragraph. N.D. Ill. R. 56.1(a). The Rule
stresses that only material facts should be included. N.D. Ill. R. 56.1(a)(3). The non-
moving party must then file a response to that statement, together with similar evidentiary
support that the non-moving party believes demonstrates the existence of a material issue
of fact. N.D. Ill. R. 56.1(b)(3)(B). The non-moving party may also file a statement of
additional facts. N.D. Ill. R. 56.1(b)(3)(C). Courts are entitled to expect strict compliance
with these rules. See Shaffer v. Am. Med. Assn, 662 F.3d 439, 442 (7thCir. 2011); Cracco
v. Vitran Express, Inc., 559 F.3d 625, 632 (7thCir. 2009).
Each party in this case raises serious objections to the others Rule 56.1
submissions. Defendant claims that Plaintiff has attempted to distort the record by making
unsupported arguments in his Rule 56.1(b)(3)(B) response and by addressing what are
largely non-material fact issues. (Reply at 3-4). Plaintiff goes even farther by alleging that
Defendants statement of facts creates an absolute distortion of the record, contains
statements that are absolutely false, and generally shows gross shortcomings and [a]
mischaracterization of events. (Pls. SOF at 17, 20, 27). Plaintiff also accuses
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Defendant and/or his City of Evanston Police partner Russell Brown of lying, and suggests
that Buell may have submitted an untruthful sworn declaration prepared with the help of his
counsel. (Pls. SOF at 20, 21).
After carefully examining all of the citations included in both parties Local Rule 56.1
submissions, the Court finds that Defendant has not acted with an improper motive. It is
true that Buell relies heavily on his own sworn declaration. But that is not inherently
problematic, despite Plaintiffs claim that a Summary Judgment affidavit is not a Homework
assignment or a Re-Do event. (Pls. SOF at 27). A party may rely on a self-serving
affidavit in summary judgment proceedings as long as the record supports the affiants
statements. See Kaba v. Stepp, 458 F.3d 678, 681 (7thCir. 2006); Buie v. Quad/Graphics,
Inc., 366 F.3d 496, 504 (7thCir. 2004).
Conclusory statements, or declarations that contradict prior deposition testimony,
do not support a partys affidavit. Butts v. Aurora Health Care, Inc., 387 F.3d 921, 925 (7th
Cir. 2004); Minn. Elevator, Inc. v. Imperial Elevator Servs., Inc., 758 F. Supp.2d 533, 539
(N.D. Ill. 2010). Plaintiff earlier filed motions to strike the declarations of Buell, Officer
Russell Brown, and Officer Amy Golubski on these grounds. Those motions were denied
because Plaintiff did not show any material conflict between the declarations and these
affiants prior deposition testimony or other sworn statements. (Docs. 139, 153). The
broader evidentiary record also does not conflict with Buells statement, except where
specifically noted below. Plaintiff has not presented any reason for finding that Defendant
has lied or attempted to mislead the Court. Nothing suggests that Defendants counsel
played an improper role in preparing Buells declaration.
Buells complaints about Plaintiffs Rule 56.1 filings present a more complex set of
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issues. The Court agrees that the submissions do not meet the exacting obligation[s] of
Local Rule 56.1.2 Waldridge v. Am. Hoeschst Corp., 24 F.3d 918, 922 (7thCir. 1994). See
also Cady v. Sheahan, 467 F.3d 1057, 1060 (7thCir. 2006); De v. City of Chicago, 912 F.
Supp.2d 709, 712 (N.D. Ill. 2012). Local Rule 56.1 is not a mere formality. Nor is it an
opportunity to argue a partys case or to present evidentiary-based discussions that are
more appropriate to a partys brief. Instead, the rule is designed to conserve a courts time
and resources by identifying and organizing the evidence. See Bordelon v. Chicago Sch.
Reform Bd. of Trustees, 233 F.3d 524, 527 (7thCir. 2000).
District Courts have broad discretion to require that parties strictly comply with Local
Rule 56.1. Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371,
382 n.2 (7thCir. 2008). A partys failure to do so can have serious consequences. At the
extreme end, a court may enter summary judgment when the non-moving party has not
submitted a fact statement in the manner called for by the Local Rule. Waldridge, 24 F.3d
at 922. A court can also strike the non-moving partys response. See Hancock v.
Broullard, 2011 WL 5141510, at *4 (N.D. Ill. Oct. 25, 2011).
Although Plaintiffs submissions do not always comply with Local Rule 56.1, striking
his filings or entering summary judgment on that ground would be counterproductive. The
summary judgment record in this case is long and, as Defendant complained in an earlier
2 A number of the citations that Plaintiff relies on in his statements do not contain
the information that he asserts. (e.g.Ex. 31 in Pls. SOF 20; Exs. 1:1, 10, 56 et al.in 7(B); Ex. 15 in 7(E); Ex. 15 in 27). Many issues are not material. (e.g.Pls. SOF 9,19; Pl.s Add. SOF, passim). Plaintiff also relies on statements that do not address the factallegations that Defendant makes, refers to missing evidence, and speculates on themeaning of the record. (Ex. 75 in Pls. SOF 20; 25; and Exs. 18, 35, 45 in Pls. SOF 29). Page references to the cited exhibits are frequently missing. (e.g.Ex. 31 in Pls. SOF
26; Exs. 24, 24A, 25, 54 in 29).
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filing, at times unclear. Plaintiffs Rule 56.1 filings provide an additional tool for navigating
this record and bringing order to the evidentiary submissions. In addition, some of
Plaintiffs submissions comply with the Local Rule. For these reasons, the Court has fully
considered all of Plaintiffs claims and citations in his Rule 56.1(b)(3)(B) and 56.1(b)(3)(C)
filings in assessing the facts of this case. All of the evidence has been construed in the
light most favorable to Plaintiff, as Fed. R. Civ. P. 56 requires.
2. The Underlying Events
On the morning of August 31, 2012, a resident in Evanston, Illinois reported that she
had observed a burglar in her home. She described the intruder to a police dispatcher as
a young boy, African-American, [wearing] cargo khaki shorts, dark brown T-shirt or [a] dark
shirt. (Defs. Ex. E). She also told the dispatcher that she had observed the young man
running northbound in an alley. (Id.). The individual who took the call then issued a
description of the suspect to police on the dispatch radio. She described him as a black
male, probably in his teens, wearing a dark shirt, and khaki cargo shorts. (Id. at 1:18).
Officer Mark Buell was one of the policemen who heard the broadcast. He was
accompanied in his car by fellow officer Russell Brown. One of the officers noticed an
individual whom he believed matched the description of the suspect on a bicycle.3This fact
was then radioed to the police dispatcher.4 (Defs. Ex. E at 3:38; Ex. B at 5-7; Ex. C at
3 Buell and Officer Brown claim that it was Brown. (Defs. Ex. A at 6; Ex. B at
6). Plaintiff argues that it was Buell himself, but his statement of facts fails to provide anyevidence that disputes the officers statements. (Pls. SOF at 9).
4 Defendant claims that Brown saw the suspect and made the radio call. Plaintiffargues at length that it was Buell and that the distinction creates a jury issue. (Pls. SOFat 10; Resp. at 7-9). The Court disagrees. The specific identify of the officer is not amaterial issue of fact for summary judgment purposes.
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5-7). The officers were not able to catch up to the cyclist. Shortly thereafter, another
officer requested a repeat of the suspects description. The radio dispatcher sent out a
statement that the person in question was a male, black juvenile with a dark shirt and
khaki, uh, shorts or pants, cargo pants. (Defs. Ex. E at 4:07).
In the meantime, another Evanston police officer had stopped an individual at the
intersection of Oakton and Florence Streets. (Defs. Ex. B at 10). Buell radioed in that
the victim should be brought to that location for a show up. (Id.; Defs. Ex. E at 6:30).
When the victim arrived, however, she stated that the person who had been stopped was
not the intruder she saw in her home.
Officer Amy Golubski also radioed in that she had seen a suspect who was riding
his bicycle near Chute Middle School. She described him as riding a blue bike and wearing
cargo shorts [unidentifiable] dark navy blue or black . . . [and] a light gray tank top, blue
cap. (Pls. Ex. 33; Defs. Ex. E at 7:00, 7:30). The cyclist turned out to be Plaintiff. At the
time, D.Z. was a 13 year old African-American youth, approximately five feet and six inches
tall, and wearing navy blue cargo pants with a gray shirt. (Defs. Ex. D at 81, 106-07).
Golubski was then directed to put a stop on the individual. She exited her vehicle and
pursued D.Z. on foot. (Doc. 130, Ex. 1 at 10). Officer Golubski was unable to catch up
with the cyclist, whom both sides concede was not aware that she was pursuing him. Buell,
however, did not know at the time that D.Z. was not trying to evade Golubski. According
to Buell, he saw Officer Golubski running back to her patrol car after she radioed that she
was unable to catch the suspect.5 (Defs. Ex. B at 13).
5 Plaintiff vehemently disputes this claim, in part, because Buell states that he sawboth Golubski and another officer running back to her car. (Pls. SOF at 20). Plaintiff
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Officer Buell then attempted to catch the suspect by turning down another street.
He spotted Plaintiff riding his bicycle and turning into a driveway that Buell later learned
was D.Z.s own residence. (Id. at 14-16). The home was between 0.4 and 0.5 miles
from the victims home. Buell sent out a radio dispatch that the suspect was cutting
through the yards. (Defs. Ex. E at 7:55). Buell stopped his vehicle and pursued D.Z. on
foot up his driveway after Plaintiff got off his bike. A gate divided the driveway from the
homes backyard. D.Z. allegedly placed his hands on it. Buell claims that this action led
him to conclude that Plaintiff was attempting to flee. The officer ordered him to stop, D.Z.
promptly complied, and Buell placed him in handcuffs. (Defs Ex. B at 17-18; Ex. C at
16-17).
While these events were proceeding, a third description of the suspect was
broadcast that was more specific than the earlier ones: black T-shirt, dark cargo shorts,
no hat, skinny, tall probably six feet, high school age. (Defs. Ex. E at 8:00). Unlike the first
two broadcasts, however, no officer responded to this police radio dispatch. Officer Buell
took D.Z. to the front of the driveway and radioed for the burglary victim to be brought to
the scene for a second show up. She arrived no more than ten minutes later and stated
that D.Z. was not the intruder. Plaintiff was immediately released.
B. Legal Standard
1. Summary Judgment
claims that Buell has lied under oath by creating a mystery officer in the secondpoliceman to evade liability. No evidence supports this contention. Plaintiffs reliance onExhibits 31 and 75 is unavailing. After carefully examining all of the evidence that Plaintiffcites, the Court finds that nothing disputes Buells claim to have seen Golubski herselfrunning back to her car. The specific identity of the second officer is not material to theFourth Amendment issues.
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Summary judgment is warranted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact. Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). Such a fact issue exists only where a rational trier
of fact could find for the nonmoving party. Id. at 324. The evidence, together with all
reasonable inferences that can be drawn from it, must be viewed in the light most favorable
to the nonmoving party. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7thCir.
2000).
The nonmoving party cannot overcome a summary judgment motion by relying on
unsubstantiated facts or by resting on its pleadings. See Hemsworth v. Quotesmith.Com,
Inc., 476 F.3d 487, 490 (7thCir. 2007). Instead, the party that bears the burden of proof on
an issue must demonstrate by means of admissible evidence that a genuine issue of
material fact exists on a particular issue that requires a trial. Id. A court neither weighs
conflicting evidence nor resolves factual disputes in deciding whether summary judgment
is appropriate. Miranda v. Wisconsin Power & Light Co., 91 F.3d 1011, 1014 (7thCir.
1996).
2. Qualified Immunity
Qualified immunity protects public officials from liability for damages if their actions
did not violate clearly established rights of which a reasonable person would have known.
Catlin v. City of Wheaton, 574 F.3d 361, 365 (7thCir. 2009) (citations omitted). The
doctrine is designed to protect all but the plainly incompetent or those who knowingly
violate the law. Malley v. Briggs, 475 U.S. 335, 341 (1986). Two questions are involved:
(1) whether the facts, taken in the light most favorable to the plaintiff, show that the
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defendant violated a constitutional right; and (2) whether that constitutional right was clearly
established at the time of the alleged violation. Wheeler v. Lawson, 539 F.3d 629, 639 (7th
Cir. 2008) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The plaintiff bears the burden
of proof to show both elements of this test once a defendant raises immunity as an
affirmative defense. Purvis v. Oest, 614 F.3d 713, 717 (7thCir. 2010); Eversole v. Steele,
59 F.3d 710, 717 (7thCir. 1995).
The question of whether an official is immune from suit is separate from the merits
of a plaintiffs underlying allegation. Fleming v. Livingston County, Ill., 674 F.3d 874, 879
(7
th
Cir. 2012); Hernandez v. Cook County Sheriffs Office, 634 F.3d 906, 912 n.8 (7
th
Cir.
2011) (A grant of qualified immunity is distinct from a victory on the merits, in that qualified
immunity recognizes a right not to litigate.). In the context of a false arrest or false
imprisonment allegation, this means that an officer is entitled to qualified immunity if
arguable probable cause exists for detaining the plaintiff. That standard is met when a
reasonable officer faced with the same facts and knowledge as the defendant couldhave
reasonably believed that probable cause existed in light of well-established law. Fleming,
674 F.3d at 880 (internal quote and citation omitted). Thus, an officer is immune from suit
if he reasonably, albeit mistakenly, believed that he had probable cause to arrest the
plaintiff. See McComas v. Brickley, 673 F.3d 722, 725 (7thCir. 2012); see also Wollin v.
Gondert, 192 F.3d 616, 621 (7thCir. 1999).
C. Discussion
1. The Fourth Amendment Issues
Defendant argues that he is entitled to qualified immunity concerning the Fourth
Amendment claims stemming from the August 15, 2012 detention. Neither party disputes
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that Plaintiffs Fourth Amendment rights were well established at the time of the incident.
The only question is whether Officer Buell violated those rights. Both parties divide that
analysis into whether Buell had reasonable suspicion to stop Plaintiff, and the separate
question of whether he had probable cause to arrest him (assuming that the initial stop
evolved into a custodial arrest). The Court follows the parties preference in dividing the
facts between the initial stop under Terry v. Ohio, 392 U.S. 1 (1968), and the handcuffing
event that immediately followed.
a. Reasonable Suspicion
An officer can stop a suspect if he has a reasonable suspicion that criminal activity
has occurred or is about to take place. United States v. Booker, 579 F.3d 835, 838 (7thCir.
2009). This requires more than a hunch but less than probable cause and considerably
less than preponderance of the evidence. Gentry v. Sevier, 597 F.3d 838, 845 (7thCir.
2010). The standard is objective: would the facts available to the officer at the moment
of the seizure or the search warrant a man of reasonable caution in the belief that the
action taken was appropriate? United States v. Tilmon, 19 F.3d 1221, 1224 (7thCir. 1994).
An officers subjective intent plays no role in this analysis. United States v. Barnett, 505
F.3d 637, 640 (7thCir. 2007); United States v. Bullock, 632 F.3d 1004, 1012 (7thCir. 2011).
Buell argues that he had reasonable suspicion to stop Plaintiff because he
sufficiently matched the first two descriptions that were broadcast on the dispatch radio.
Plaintiff disputes that claim on grounds that are not always easily separated from one
another. A central argument, however, is that a detailed description of the suspect was
eventually broadcast to the searching officers that was incompatible with D.Z.s
appearance. This description identified a medium complexion, black male, 17-18, 6'0 to
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6'2", 160-180 pds, juvenile, brown Tee shirt, dark tan cargo shorts, black hair, short hair up
to , no facial hair, Brown eyes, thin with no body marks. (Pls. SOF at 7(c) & (d)).
Plaintiff argues that no officer could have reasonably believed that D.Z. matched this
description, which identified someone older, heavier, and taller than Plaintiff.
Plaintiffs extensive reliance on this description is misplaced. Contrary to his
assumption, the evidence plainly shows that it was never broadcast. The dispatch tape,
for example, does not contain the identification in any of the radio flash reports sent out to
Buell or any other officer. (Defs. Ex. E). The identification that Plaintiff relies on is found
in the victims Police Incident Report that she gave several hours afterD.Z. was detained
and released. (Pls. Ex. 1). Plaintiff alleges that the report states that this detailed
description was part of the earlier radio broadcasts. However, the report is silent on this
issue.
The only identifications that Buell clearly heard were the first two that were described
above. Plaintiff claims that these earlier broadcasts were too vague for Buell to have had
cause to detain him, or anyone else for that matter. D.Z. points out that the City of
Evanston has a substantial African-American population. Citing the Ninth Circuits decision
in Choi v. Gaston, 220 F.3d 1010 (9thCir. 2000), Plaintiff argues that Buell could not detain
anyone based on the descriptions he received because Evanston was buzzing with
children who fit the initial description, including an array of children with different skin
complexions that varied from light to medium to dark tones.
The Court finds this reasoning unpersuasive. Choidoes not address a situation in
which the police detained a suspect based on an overly vague identification. The
description that was given to officers in that case identified a Vietnamese man by name
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(Phu Nguyen), age, weight, and height. The problem in Choiarose from the fact that the
officers ignored this specific description to look in broad terms for an Oriental. They
eventually detained a Korean man whose age and physical appearance varied significantly
from the age, weight, height, and identity of the suspect who had been described to the
officers. Given the relative specificity of the given description, the Ninth Circuit found that
an inappropriate ethnic generalization was the only plausible explanation for the fact that
a Korean in his thirties, short and slim, was confused with a Vietnamese teenager, who
was taller and heavier. Choi, 220 F.3d at 1016.
Those facts do not apply to this case. Plaintiff does not even argue that Buell drew
improper generalizations from the description he received. Certainly, the evidence would
not support such a claim. The initial broadcast alerted the Evanston police officers to a
black male, probably in his teens, wearing a dark shirt, and khaki cargo shorts. That
contains five specific identifiers race, gender, age, shirt color, and the type of pants.
Plaintiff met all of these to some degree or other: he was African-American, male, in his
teens, had a gray shirt, and was wearing cargo shorts. The more important question in this
case is whether the description that Buell received was specific enough for him to have had
reasonable suspicion to stop D.Z. Choi does not address the sufficiency of the
identification that was given to the arresting officers.
Unfortunately, neither party in this case has fully addressed the adequacy of the
identification or provided relevant case authorities from this circuit. Courts have reached
varying conclusions about how specific a suspects description must be before an officer
has reasonable suspicion to initiate a stop. At a minimum, a description must not be so
general that it would allow officers to stop an overly broad category of persons. See Reid
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v. Georgia, 448 U.S. 438, 441 (1980); United States v. Hudson, 405 F.3d 425, 439 (6thCir.
2005). This means that a description of race and gender alone will rarely provide
reasonable suspicion justifying a police search and seizure. Brown v. City of Oneonta,
N.Y., 221 F.3d 329, 334 (2d Cir. 2000). SeealsoUnited States v. Brown, 448 F.3d 239,
247-48 (3d Cir. 2006) (finding the description of African-American males between 15 and
20 years of age, wearing dark, hooded sweatshirts and running south on 22ndStreet, where
one male was 5'8" and other was 6' to be too general); United States v. Jones, 619 F.2d
494, 497-98 (5thCir. 1980) (rejecting the description of a black male, 5 feet 6 inches to 5
feet 9 inches tall and weighing between 150 and 180 pounds, with a medium afro hair style,
who was wearing jeans and a long denim jacket); United States v. Moore, F. Supp.2d
2013 WL 5739006, at *3 (E.D. Wis. Oct. 22, 2013) (finding the description of a black
male in dark clothing to be too vague).
Based on these cases, the initial description that went out to the officers in this case
raises some concerns. It was certainly less specific than those given in Jonesand Brown.
That said, it does contain a number of identifying features about the suspects age, weight,
and clothing. Buell claims that these details were sufficient because the police are not
required to have a minute description of a suspect before stopping him. Plaintiff is largely
silent on that issue.
The Court does not believe that the description was too broad for police officers to
have stopped a suspect who matched all the criteria that the victim identified only minutes
earlier. But even if it were, that does not necessarily mean, at least standing alone, that
Buell did not have reasonable suspicion to stop D.Z. The question of whether reasonable
suspicion exists goes beyond a suspects description to include the full range of
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circumstances that the officer faced. See United States v. Clarkson, 551 F.3d 1196, 1202
(10th Cir. 2009). The reasonableness of a stop must be seen in light of all the
circumstances that an officer knew at the time. Bullock, 632 F.3d at 1012; see also United
States v. Brown, 500 F.3d 48, 55 (1stCir. 2007) (Although vague or ubiquitous descriptions
may raise Fourth Amendment concerns . . . everything depends on context.). Even
otherwise innocent behavior which Plaintiff was engaged in here can be considered in
deciding if reasonable suspicion existed to stop a suspect. United States v. Lenoir, 318
F.3d 725, 729 (7thCir. 2003).
One starting point is United States v. Broomfield, 417 F.3d 654 (7
th
Cir. 2005). In
that case, a suspect was described as a black man wearing dark clothing and brandishing
a silver-colored pistol. Id. An officer stopped a black man, at night, in dark clothing, and
less than one mile from the crime scene. The Seventh Circuit disagreed with the District
Court that a seizure actually took place when the man was first stopped. In dicta, however,
the Court found that, even if the Fourth Amendment had been implicated at that moment,
the police would have had reasonable suspicion to stop the individual. The suspect was
close in time and space to the crime scene; it was night; and few other people were out.
See id. at 655 (It would be different had it been Lagos at high noon.). Importantly, one
of the supporting factors was that the individual met the suspects description, even though
the identification itself lacked specificity.6 Id.
As Broomfield demonstrates, reasonable suspicion can exist even when the
suspects description is not specific enough to support that finding on its own. In an
6 Bloomfieldalso involved an arrest issue that is not relevant here.
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The Court concludes that a reasonable officer could have believed at the time of the
incident that Plaintiff was being evasive. See Wheeler, 539 F.3d at 639 (noting that
qualified immunity provides ample room for mistaken judgments).
Defendant was also mistaken that Plaintiff was being evasive when he turned into
his own driveway. However, Buell clearly believed at the time that D.Z. was acting
suspiciously because the officer sent out a broadcast that Plaintiff was cutting through the
yards. (Defs. Ex. E at 7:50). Given that Buell did not know that D.Z. lived at the location,
that was a reasonable conclusion under the circumstances.
The stop also took place only 0.4 to 0.5 miles from the victims home, and
approximately seven minutes after the first description was broadcast. (Pls. Ex. 10 at EV
310, 316). See Lenoir, 318 F.3d at 729; United States v. Goodrich, 450 F.3d 552, 563 (3d
Cir. 2006) (both explaining that a suspects temporal and geographic proximity to a crime
scene can support the reasonableness of an officers suspicion). Indeed, the first
description went out to officers while the victim was still on the phone with the police
dispatcher; the second description was heard by Buell as the search was underway. This
is not a case, therefore, where time meaningfully separates the description and the
detention. Buell was required to act almost simultaneously with the flash reports. And
despite Plaintiffs claim that the area was buzzing with young people, he has not cited any
evidence to show that Buell saw other children of any race during the short period of time
that elapsed in this case. See Goodrich, 450 F.3d at 563 (stating that the number of
persons in the area of the stop is relevant). Indeed, D.Z. does not claim differently in his
own declaration. (Pls. Ex. 25).
Plaintiff has claimed throughout this case that Buell could not have had reasonable
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Racial profiling is generally understood to mean the improper use of race as a basis for
taking law enforcement action. Chavez v. Ill. State Police, 251 F.3d 612, 620 (7thCir.
2001). Such claims are ordinarily brought under the Fourteenth Amendments Equal
Protection Clause. See id.; Maryland State Conference of NAACP Branches v. Maryland
State Police, 454 F. Supp.2d 339, 347 (D. Md. 2006) (Stops and searches based on such
considerations as race . . . are precluded by the Equal Protection Clause of the 14 th
Amendment.); Chriswell v. Village of Oak Lawn, 2013 WL 5903417, at *11 (N.D. Ill. Nov.
4, 2013). Plaintiff has not invoked the Equal Protection Clause. He cannot now urge the
Court to find that Buell engaged in prohibited racial profiling, especially as his Complaint
does not make that allegation in Count I.
Plaintiffs race claims appear to allege that (1) the description that Buell received
was so general that he could have detained any African-American youth he saw that day,
or (2) Buell was not permitted to take race into account when searching for the suspect.
The Court rejects the first of these claims for the reasons discussed above. As for the
second, an officer is never permitted to stop a suspect based solely on his race. That
would be tantamount to racial profiling. But an officer is not prohibited from considering
race in all circumstances. Many courts have found that race can be a legitimate factor
when there are other individualized reasons for stopping a suspect. See United States v.
Montero-Camargo, 208 F.3d 1122, 1134 n.22 (9th Cir. 2000) (en banc) (Hispanic
appearance, or any other racial or ethnic appearance, including Caucasian, may be
considered when the suspected perpetrator of a specific offense has been identified as
having such an appearance.); Floyd v. City of New York, F. Supp.2d , 2013 WL
4046209, at *6 (S.D.N.Y. Aug. 12, 2013) ([A] persons race may be important if it fits the
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description of a particular crime suspect.); Cherry v. Washington County Sheriffs Dept.,
2012 WL 2525637, at *5 (E.D. Wis. June 29, 2012) ([T]here is nothing wrong with using
a suspects race as a factor in describing him to the police, or in police relying on the
persons race in determining whether he fits the description of the suspect.).
Plaintiff links his race-based claims to a variety of pre-seizure events that take up
most of his brief. It is not clear if Plaintiff is arguing that the totality of the circumstances
deprived Buell of reasonable suspicion, that the pre-seizure events were themselves
violations of the Fourth Amendment, or both. The Court notes, however, that D.Z.
describes the pursuit that Buell set into motion as an unconstitutional racial profiling jaunt
[ ]. (Resp. at 8). This suggests that Plaintiff is making a constitutional attack on the events
themselves that led up to his detention.
Such an attack is not well founded. Pre-seizure events are important to deciding if
reasonable suspicion exists to stop a suspect. However, such events are not themselves
subject to a Fourth Amendment analysis. Carter v. Buscher, 973 F.2d 1328, 1332 (7thCir.
1992); see also Jackson, 160 Fed.Appx. at 541 (The Fourth Amendment is not implicated
until a person is actually stopped by police.) (citing Terry, 392 U.S. at 16-17). Courts have
been very clear that the Fourth Amendment does not ordinarily apply to the search that
leads up to a seizure. See County of Sacramento v. Lewis, 523 U.S. 833, 842-43 (1998);
Brower v. County of Inyo, 489 U.S. 593, 595-96 (1989); Steen v. Myers, 486 F.3d 1017,
1021 (7thCir. 2007). [A] person is seized only when, by means of physical force or a
show of authority, his freedom of movement is restrained. Only when such restraint is
imposed is there any foundation whatever for invoking constitutional safeguard. United
States v. Mendenhall, 446 U.S. 544, 552-53 (1980). That means that the Fourth
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Amendment was first implicated in this case when Plaintiff was actually stopped by Buell
in his driveway, not when Officer Brown (or even Buell, as D.Z. claims) issued a flash report
that someone on a bike could be a suspect.
If Plaintiff is arguing that Buells pre-seizure behavior created the very circumstances
that support reasonable suspicion, Plaintiff has failed to draw a link from the evidence to
his conclusion. Plaintiff claims that the police fatally misdirected the officers search for a
suspect when Officer Brown first radioed in that he may have spotted a suspect on a
bicycle. According to D.Z., Buell and the officers were strictly limited to looking for
someone who was traveling on foot. Plaintiff has not cited any evidence to support that
allegation. The victim initially told the emergency dispatcher that she had seen the suspect
running away from her house down an alley. But the record does not indicate that the
dispatcher communicated that fact to the officers. The dispatch tape shows that the
dispatcher took the callers description, and then initiated a separate flash outlook to
officers that did not describe in any way how the suspect was traveling.
Plaintiff has also argued at length that it is crucial to distinguish who (and he claims
it was Buell) told Officer Golubski to put a stop on D.Z. when she stated on the radio that
she had spotted someone on a bike who matched the suspects description. He now
claims that this fact is so important that the existence of qualified immunity rests on this and
the bike issue. (Resp. at 4). Plaintiff also argues that it is important to distinguish between
whether the unknown officer commanded Golubski to act or merely requested her to do
so. Buell has testified under oath that the voice on the dispatch tape was someone other
than himself. (Defs. Ex. B at 9). Golubski herself does not state that it was Buell. (Doc.
130, Ex. 1 at 9).
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Several problems arise from Plaintiffs reasoning on this issue. He claims that the
Court must assume that the voice was Buells because the Court is obligated to construe
all facts in D.Z.s favor. But Plaintiff has not presented any relevant facts for the Court to
construe. In his response, Plaintiff engages in a discussion about an officer known as
Detective Bush. Although D.Z. explains little about who this is, he claims that Buell stated
at some point in this case that the voice on the radio really belonged to Bush. Plaintiff does
not cite the record to support that allegation and, equally important, he does not explain
why it is even relevant. (Resp. at 13). D.Z. only argues at some length that the voice could
nothave been Detective Bushs a claim that seems to be suggesting once more that
Buell has somehow lied throughout this case. The Court earlier rejected Plaintiffs motion
to strike Buells declaration on that ground, and it will not revisit the issue here.
Even if it was Buell who made the radio comment, Plaintiffs brief does not explain
why that fact is relevant to Buells claim of qualified immunity. Plaintiffs Rule 56.1
submission is also unhelpful. It claims that, at the time of the radio message to Golubski,
Detective Bush was with the victim and knew that the real suspect was a black male,
medium complexion, 17 to 18 years-old, 6'1 to 6'1, 160 to 180 pounds, thin, no facial hair,
who fled on foot. (Pls. SOF at 17). That could only be relevant if Buell had received this
updated description. As he did not, the question of what the victim may have told Detective
Bush is immaterial to deciding whether Buell had reasonable suspicion to stop D.Z.
For these reasons, the Court finds that Buell had reasonable suspicion to initiate the
Terrystop of D.Z. Even if he did not, however, the circumstances present in this case still
entitle Buell to qualified immunity on the issue. An officer can act reasonably for qualified
immunity purposes even if reasonable suspicion did not exist to make a Terrystop. See
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id.; Sniderv. Pekny, 899 F. Supp.2d 798, 811-12 (N.D. Ind. 2012). A defendant is not
always required to act in an ideal or exemplary manner to be immune from suit. A court
only asks if the officer acted reasonably under the circumstances he faced, not whether
another reasonable, or more reasonable, interpretation of the events can be constructed
several years after the fact. Humphrey v. Staszak, 148 F.3d 719, 725 (7thCir. 1998).
Buell was not required to have behaved perfectly on the facts as perceived by an
omniscient observer, but on the facts as they appeared to a reasonable person in [his]
position, even if that reasonable belief turned out to be incorrect. Stokes v. Bd. of Educ.
of the City of Chicago, 599 F.3d 617, 622 (7
th
Cir. 2010).
The Court finds that Buell meets this standard, which Plaintiff does not address at
all. Plaintiff bears the burden of defeating Buells immunity claim. Jewett v. Anders, 521
F.3d 818, 823 (7thCir. 2008). Plaintiffs arguments rely primarily on pre-stop actions such
as Officer Browns initial broadcast of an allegedly suspicious person an a bicycle, and the
request (by someone) that Golubski stop the later suspect who turned out to be Plaintiff.
But Buell stopped Plaintiff based on his independent observation of D.Z. (Defs. Ex. B at
15-17). The stop took place at the end of brief pursuit of a suspect whom Buell had
reason to believe was fleeing Officer Golubski.7 Based on the totality of the events that
Buell saw, and the communications he heard on the dispatch radio, the Court concludes
7 Plaintiff claims that no pursuit took place in this case. (Resp. at 10). He also
states that Buell engaged in a fast moving[,] aggressive, boots-to-the ground inquisitionof sort[s]. (Id. at 9). That sounds an awful lot like a pursuit. The term that is used is notas important as the fact that Buell ran after Plaintiff as soon as he saw Plaintiff cuttingthrough the yards. (Defs. Ex. B at 16-18).
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that an officer in Buells position could have reasonably, although mistakenly, concluded
that reasonable suspicion existed. Defendants motion is granted on this issue.
b. Probable Cause
A police officer has probable cause to arrest a suspect if, at the time of the arrest,
the facts and circumstances within the officers knowledge . . . are sufficient to warrant a
prudent person, or one of reasonable caution, in believing, in the circumstances shown,
that the suspect has committed, is committing, or is about to commit an offense. Wagner
v. Wash. County, 493 F.3d 833, 836 (7thCir. 2007) (per curiam) (internal quote and citation
omitted). A Fourth Amendment violation does not exist if an officer has probable cause to
arrest a suspect. See Driebel v. City of Milwaukee, 298 F.3d 622, 644 (7thCir. 2002). An
allegation of false imprisonment or false arrest is shorthand for an unreasonable seizure
prohibited by the Fourth Amendment. Gonzalez v. Village of West Milwaukee, 671 F.3d
649, 655 (7thCir. 2012).
Defendant denies that he arrested Plaintiff. D.Z. claims that he did, but Plaintiff fails
to explain how the initial stop evolved into an arrest. The transition from a Terrystop to a
custodial arrest involves a flexible and highly fact-intensive inquiry. Jewett, 521 F.3d at
823. See also United States v. Stewart, 388 F.3d 1079, 1084 (7thCir. 2004). The Court
presumes that Plaintiff is relying on the fact that Buell handcuffed him, though D.Z. never
addresses it directly. Being handcuffed may, or may not, turn a Terrystop into a full
custodial arrest, depending on the circumstances involved. See, e.g., Bullock, 632 F.3d
at 1016; Rebolar ex rel. Rebolar v. City of Chicago, Ill., 897 F. Supp.2d 723, 732 (N.D. Ill.
2012) (doubting that being handcuffed for ten minutes necessarily constitutes an arrest).
But see United States v. Howard, 729 F.3d 655, 661 (7thCir. 2013) (Handcuffs in a Terry
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stop and frisk are not and should not be the norm.).
The Court does not address whether Plaintiff was actually arrested or not.
Defendants argument is that, even if an arrest took place, he is still entitled to qualified
immunity because he had arguable probable cause to act as he did. His argument is
twofold: (1) Buell claims that Plaintiff sufficiently resembled the suspects description, and
(2) Buell had reason to believe that Plaintiff was attempting to flee. The first of these issues
was addressed earlier. The Court now turns to the reasonableness of the second issue.
Buell stated during the internal police review that Officer Golubskis radio reports
concerning Plaintiff led him to believe that Plaintiff was trying to run away from Golubski.
(Pls. Ex. 25 at EV 294). He also thought that D.Z. was being evasive when he turned into
the driveway. (Id.). It was at that point that Buell radioed that Plaintiff was cutting through
the yards. When he saw D.Z. place his hands on the fence gate that divided the end of
the driveway and the back yard, Buell handcuffed him because the officer believed that
Plaintiff was trying to flee. (Id. at 298). D.Z. was released within ten minutes, when the
victim arrived and stated that he was not the intruder. Liberally construed, D.Z. challenges
this claim on five grounds: (1) Buells deposition testimony, (2) D.Z.s subjective intent, (3)
the final flash report, (3) his bicycle, and (4) the location of a latch on the gate. The Court
addresses each of these in turn.
Plaintiffs citation of Buells deposition testimony is unavailing. Buell stated that he
handcuffed D.Z. because: (1) he thought that Plaintiff was trying to flee, (2) D.Z. was in
better shape than Buell himself, and (3) Buell was concerned that not doing so might lead
D.Z. to injure himself, Buell, or another officer. (Pls. Ex. 76 at 76-77). Buell does not rely
on the second and third of these comments to support his motion. His only claim is that he
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thought that D.Z. was trying to run away. Plaintiff does not argue that this conclusion is
unreasonable. His only statement on the issue in his response brief is that Buell
handcuffed [D.Z.] because he claims that D.Z. was about to flee. (Resp. at 15). That
merely restates Buells own allegation. It does not present an argument for finding that the
allegation is not reasonable under the circumstances.
Plaintiffs reliance on his private intent also fails to address Buells argument. D.Z.
alleges in his statement of facts that Buell could not have believed that he was trying to flee
because he was not, in fact, attempting to do so. In support, D.Z. cites his own declaration
and various statements from his mother and other persons, including his expert witness.
8
(Pls. SOF at 29). These citations are not relevant because D.Z.s subjective intent is not
8 Plaintiff cites his expert witness for a variety of claims in his response. Courtshave wide discretion in deciding whether to admit expert testimony as part of summary
judgment. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704-05 (7thCir. 2009). TheCourt declines to consider the experts statements for several reasons. Plaintiff cites theexperts report and deposition, but he does not discuss the experts testimony in his brief.This leaves the Court to fend for itself in the face of 318 pages of expert documents. For
the most part, Plaintiff merely cites to these multiple exhibits without any specificity ordiscussion. Courts are not required to scour the record looking for factual disputes . . . [or]to piece together appropriate arguments. Little v. Coxs Supermarkets, 71 F.3d 637, 641(7th Cir. 1995). This applies to deposition transcripts. Hanno v. Sheahan, 2004 WL419899, at *1 (N.D. Ill. March 1, 2004).
Defendant opposes the admission of the experts statements under Daubert v.Merrell Dow Pharm., Inc., 509 U.S. 579, 579 (1993). The Court declines to undertake aDaubertanalysis at this point, as Plaintiffs brief does not include a narrative discussion ofany of the experts statements. The Courts own review of the experts report, declaration,and deposition transcript suggests that many of his statements are ordinary fact and
opinion testimony. Moreover, the expert also makes a number of legal conclusions that,if accepted, could affect the cases outcome. For example, Plaintiff cites the expert to showthat Buell did not act reasonably. (Resp. at 8). Like most Fourth Amendment issues,however, that presents a mixed question of law and fact. Ornelas v. United States, 517U.S. 690, 696 (1996). Expert conclusions on outcome-determinative legal issues areinadmissible. Good Shepherd Manor Foundation, Inc. v. City of Momence, 323 F.3d 557,564 (7thCir. 2003) (citation omitted).
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at issue. Indeed, all parties agree that D.Z. was not trying to run away. The salient
question is whether Officer Buell had reason to think that he was. Buell could only base
his conclusion on what he saw and heard at the time, not on what D.Z. was subjectively
thinking.
Plaintiffs third ground is more problematic. Plaintiff argues that Buell should have
released him as soon as the officer heard the more detailed flash report that was radioed
while D.Z. was already detained. (Resp. at 2; Pls. Add. SOF at 5). Plaintiff bases this
claim on the assumption that the third description was the one that he has relied on
throughout this case: a black male, 17 to 18 years-old, 6'1 to 6'2, 160 to 180 pounds,
black, medium complexion, thin, no facial hair, etc. (Id.). As discussed earlier, that was
never sent out to the officers. Buell denied in his deposition testimony that he ever heard
it. (Pls. Ex. 15 at 39). The actual flash report described the suspect as wearing a black
T-shirt, dark cargo shorts, no hat, skinny, tall probably six feet, high school age. (Defs.
Ex. E at 8:00).
Plaintiff does not mention this description in his brief and does not claim that Buell
ever heard it. The dispatch tape clearly shows that no police unit responded to the flash
report, though the first two reports elicited responses. Moreover, Plaintiff did not ask Buell
at his deposition if he heard the third description. In the absence of any evidence that Buell
heard the report, and with no argument from Plaintiff on the matter at all, D.Z. has not
shown that Buell should have released him based on the third identification.
Next, Plaintiff contests Buells claim that he saw Plaintiff jump off his bike when he
entered the driveway. (Defs. SOF at 36). Buell stated in his interview with the internal
investigator that he saw the bike laying on the ground not even with the kickstand, just
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like it was thrown on the ground. (Pls. Ex. 31 at 635). Plaintiff claims that this undercuts
Buells reliance on the bike issue as a ground for thinking that D.Z. was fleeing. The Court
agrees that an issue of fact exists on whether Buell saw Plaintiff jump off of his bike.
That is not the same, however, as constituting a genuine issue of material fact that
defeats Buells motion. A fact is material when the factual dispute in question is
outcome-determinative under governing law. Contreras v. City of Chicago, 119 F.3d
1286, 1291 (7thCir. 1997). [F]acts not outcome-determinative under the applicable law,
though in dispute, may still permit the entry of summary judgment. Wainwright Bank &
Trust Co. v. Railroadmens Fed. Sav. & Loan Assn of Indianapolis, 806 F.2d 146, 149 (7
th
Cir. 1986). Buells declaration states that he relied on two factors in concluding that Plaintiff
was fleeing: (1) he matched the suspects description, and (2) the fence issue discussed
below. (Defs. Ex. B at 18). The bike is not part of this. Thus, whether Plaintiff jumped
off his bike or not is not outcome-determinative.
Finally, and most importantly, Plaintiff claims that Buell could not have believed that
D.Z. was trying to flee because the latch to the fence gate was on the driveway side where
D.Z. was standing. Plaintiff does not explain why that fact is relevant to whether Buell had
reason to believe that D.Z. was fleeing. Liberally construed, Plaintiff appears to be claiming
that he would not have placed his hands on the fence to escape, as Buell claims, because
the latchs placement would have allowed him to open the gate without touching the fence.
Plaintiffs brief does not make that argument directly. But the Court cannot discern any
other reasonable basis for the emphasis that D.Z. has placed on the issue, including expert
witness testimony.
The Court finds this position to be unpersuasive. Plaintiff claims that Buells flight
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theory began with the false allegation that the latch was actually on the opposite side of
the gate where D.Z. was standing. (Resp. at 15). But Plaintiff has not cited any evidence
that links the latchs location with the origin of Buells thoughts concerning flight. Buell
never claimed that the latch was not on the driveway side. His declaration does not
mention the latch at all. Plaintiff points to statements on the issue that Officer Hearts-Glass
made to the City of Evanstons Human Services Committee. However, these comments
have no direct relevance to the issue. The important inquiry is the reasonableness of
Buells claims on the issue, not what Ms. Hearts-Glass later stated in her out-of-court
commentary.
In reality, Buell described at the internal investigation that he saw the following:
I saw him with his hands on top of the fence, and I believe that I put out overthe air that he was possibly going through the yards or something like that.
And he had his hands on top of the fence, and it appeared to me like he wastrying to climb over the fence or jump over the fence.
(Pls. Ex. 31 at EV 278). Plaintiff appears to take exception to this claim in his Rule 56.1
submission by citing Buells behavior at his deposition. Plaintiff points out that Buell
physically re-enacted events at the deposition by raising his hands to show what he saw
Plaintiff doing. Plaintiffs counsel stated on the record at the time that Buell was holding up
his hands as if reaching for the top of a fence. (Pls. Ex. 15 at 53). Plaintiff claims that this
demonstrates the gross shortcomings of Buells claim that he saw D.Z. put his hands on
the fence. (Pls. SOF at 27).
The Court is unable to follow what Plaintiff is trying to argue on this point. It may
involve a distinction between claiming that D.Z. put his hands on the fence (as paragraph
37 of Buells Rule 56.1 submission states) and putting his hands on top of the fence. The
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problem with this possibility is that, although it is a straightforward claim to make, Plaintiffs
response does not mention it at all. This fails to respond to Buells argument and
constitutes a waiver of the issue. See Delapaz v. Richardson, 634 F.3d 895, 900 (7thCir.
2011) (noting that arguments not addressed in a response brief are waived). Moreover,
Buells position throughout this case has been that D.Z. placed his hands on the top of the
fence. The Court does not believe that the use of the preposition on, as opposed to on
top of, in Buells declaration is sufficient to defeat his motion.
Plaintiff may also be trying to claim that, in light of the latchs placement, he did not
need to put his hands on or on top of the fence to open the gate. This could pose a
genuine issue of material fact if Plaintiff proffered evidence showing that he did not act in
the way that Buell alleges. Again, however, his response is silent on the issue. Plaintiff
cites parts of his deposition transcript, but they only describe immaterial background facts.
(Defs. Ex. D at 14-21; Resp. at 15). His Rule 56.1 submission references pictures of the
gate. (Pls. SOF at 27). That is unavailing because the latchs location does not establish
anything about what Buell claims he saw.
Plaintiff must allege that he in fact put his hands on the latch instead of raising
them as Buell states. The Courts independent review of Plaintiffs deposition shows that
his counsel asked him at one point if one would need to reach over the fence to open the
gate. Plaintiff stated that the latch on the outside of the gate would open it. D.Z. does not
rely on this testimony in his response. Thus, the deposition statements only address the
issue in the hypothetical. Plaintiff was never asked what he actually did on August 30,
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2012.9 (Defs. Ex. D at 55). Even if Plaintiff had cited this evidence, which he has not, it
would be insufficient to dispute Buells claim. The fact that D.Z. did not need to put his
hands on the top of the gate to open it does not mean that he did not do so as Buell ran up
to him on the driveway.
Under these facts, the only way to set aside Buells alleged reasons for thinking that
Plaintiff was trying to flee is to find that he is not credible. Plaintiff tried to do that earlier by
attacking his declaration under the sham affidavit rule. The Court has already rejected that
claim. Courts are strictly forbidden at the summary judgment stage from making credibility
decisions, weighing the evidence, or deciding what inferences should be drawn from the
facts. Paz v. Wauconda Healthcare and Rehab. Centre, LLC, 464 F.3d 659, 664 (7thCir.
2006). It was Plaintiffs responsibility to cite evidence that controverted Buells claim. Since
he has not done so, Defendants Statement of Fact No. 37 is undisputed. See N.D. Ill. R.
56.1(b)(3)(B) (All materials facts set forth in the statement required of the moving party will
be deemed to be admitted unless controverted by the statement of the opposing party.).
Under these facts, the Court concludes that Officer Buell had arguable probable
cause to effect an arrest, even assuming that the Terry stop in this case became a
custodial arrest. Buell was mistaken about Plaintiff. However, that does not preclude him
from having arguable probable cause to act as he did. The Court stresses that Plaintiff has
the burden of showing that Buell is not entitled to qualified immunity. Yet his brief does not
mention arguable probable cause. Since arguable probable cause exists, Buell is immune
9 Plaintiff states in his declaration that he did not try to climb the fence. (Pls. Ex.25 at 13). Plaintiff does not appear to believe this is relevant, as he has not cited thestatement in his response. Even if he did, however, the declaration fails to address Buellsbasic allegation that he saw D.Z. put his hands on the fence.
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from Plaintiffs Fourth Amendment seizure claim. Williams v. Jaglowski, 269 F.3d 778, 781
(7thCir. 2001). Immunity on the seizure claim also makes Buell immune from the false
imprisonment allegation. See Fleming, 674 F.3d at 880 (discussing the issue in relation to
false arrest claims). Defendants Motion for Summary Judgment is granted on the Fourth
Amendment issues.
2. The State Law Claims
The Illinois Tort Immunity Act provides immunity to local government employees
from tort claims that arise in the scope of enforcing laws, as long as the employees
conduct is not willful or wanton. See Carter v. Chicago Police Officers, 165 F.3d 1071,
1080 (7thCir. 1998). An act is willful if it is committed with actual or deliberate intention to
harm or with an utter indifference to or conscious disregard for the safety of others. Hart
v. Jage, 1999 WL 51792, at *6 (N.D. Ill. Jan. 29, 1999) (internal quote and citation omitted).
Buell asks the Court to find that he is immune from Plaintiffs state-law claims under this
provision, as well as under Illinois common law. In the alternative, he argues that the Court
should decline to exercise supplemental jurisdiction over these claims. Plaintiff has not
responded to either of these requests.
The Court does not reach the immunity issue under these facts. Buell cites a series
of cases for general principles, but he does not address the specific claims that Plaintiff has
brought. The Court will not do so on its own, in part, because Plaintiff alleges more than
state-law tort claims. Count II alleges assault (though Paragraph 1 of the Complaint calls
its battery), and Count II complains of false imprisonment. Both of these allegations involve
common law tort claims that are potentially subject to the Illinois Tort Immunity Act.
However, Count IV of the Complaint alleges a due process violation under the Illinois state
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constitution. This involves the alleged infringement of a constitutional right, not a tort
action. [T]he Tort Immunity Act applies only to tort actions and does not bar actions for
constitutional violations. People ex rel. Birkett v. City of Chicago, 325 Ill.App.3d 196, 202,
758 N.E.2d 25 (Ill.App. Ct. 2001). Thus, even if the Court found that Buell is immune from
Plaintiffs tort claims, the state constitutional allegation would still remain in the case.
Under these facts, the Court will not exercise its supplemental jurisdiction over any
of Plaintiffs state-law claims. A court may decline to exercise its supplemental jurisdiction
over claims like those at issue here once the court has dismissed all claims over which it
has original jurisdiction. 28 U.S.C. 1367(c)(3). A court does not lose subject matter
jurisdiction; rather, it has the discretion to decide whether to exercise its additional
jurisdiction over the state-law claims. See City of Chicago v. Intl College of Surgeons, 522
U.S. 156, 172 (1997). Courts have broad power to decide the issue. See Contreras v.
Suncast Corp., 237, F.3d 756, 766 (7thCir. 2001); Kennedy v. Schoenberg, Fisher &
Newman, Ltd., 140 F.3d 716, 727-28 (7thCir. 1998). [I]t is the well-established law of this
circuit that the usual practice is to dismiss without prejudice state supplemental claims
whenever all federal claims have been dismissed prior to trial. Groce v. Eli Lilly & Co., 193
F.3d 496, 501 (7thCir. 1999).
The only claims in this case over which the Court had original jurisdiction were those
brought pursuant to the Fourth Amendment. Those claims have been dismissed, and the
Court will not exercise its supplemental jurisdiction over the remaining state-law allegations.
Counts II, III, and IV of the Complaint are dismissed without prejudice. Plaintiff remains
free to re-file them in state court.
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D. Conclusion
For all these reasons, Defendants Motion for Summary Judgment [76] is granted.
Plaintiffs Fourth Amendment claims in Count I are dismissed with prejudice. His state-law
claims in Counts II, II, and IV are dismissed without prejudice.
Date: February 26, 2014 _________________________
United States Magistrate Judge
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