Charles v. Wiberg

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GEORGE CHARLES,

Plaintiff, Case No. 16-cv-679

v. Judge John Robert Blakey

CITY OF CHICAGO, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

This matter concerns the detention and treatment of Plaintiff George Charles

during a police search of his neighbor’s home. Plaintiff initiated this action against

Defendant Officers and the City of Chicago in January 2016 and asserts the

following claims: (I) Excessive Force and Failure to Intervene, in violation of 42

U.S.C. § 1983; (II) Battery; (III) False Arrest and Failure to Intervene, in violation

of § 1983; (IV) False Imprisonment; (V) Supervisory Liability under § 1983; (VI)

liability for the City of Chicago under state indemnification law; and (VII)

respondeat superior liability for the City. [1]. Defendants seek summary judgment

with respect to Defendants Lieutenant Wiberg and Officers Uldrych and Barango

on Counts I and II; summary judgment for all defendants on Counts III and IV;

summary judgment for Lieutenant Wiberg on Count V; and summary judgment for

the City of Chicago on Counts VI and VII to the extent that any underlying claims

are disposed of. [36]. For the reasons stated below, Defendants’ motion is granted

in part and denied in part.

I. Background

On May 19, 2014, Defendants Lieutenant Wiberg and Officers Ortiz,

Skarupinski, Barango, and Uldrych (Defendant Officers) executed a search warrant

in Chicago, Illinois. DSOF ¶ 9.1 Plaintiff resided next door to the target address.

Id. ¶ 13. The two homes form one structure with a shared front porch; two concrete

walkways lead up to the two front doors across the otherwise undivided front yard,

and separate driveways lead past each side of the building toward a backyard. [44-

2]; [38-5] at 19. When Defendant Officers arrived to execute the search warrant,

Plaintiff was on his property, working on his car. DSOF ¶ 13. Plaintiff was either

in his backyard or in his driveway, but in any event Plaintiff was underneath his

car and unaware of the search until Defendant Officer Skarupinski approached

him. See id. ¶ 13, 15; [38-5] at 20.

Officer Skarupinski was establishing a security perimeter around the target

of the search warrant. DSOF ¶¶ 11, 12, 14. Police officers executing a search

warrant establish a perimeter for the safety of the officers and any bystanders. Id.

¶ 11; [38-4] at 5. The perimeter includes at least “the four corners” of the target

location, and in this case such perimeter covered the front yard, both driveways,

and the back of the building. DSOF ¶ 12; [38-4] at 5–6. Skarupinski knew that the

building contained two residences but he considered Plaintiff’s property to be within

the perimeter because the two homes were within one structure. DSOF ¶ 12; R.

1 The facts are taken from the parties’ Local Rule 56.1 statements. DSOF refers to Defendants’

statement of undisputed facts [38], with Plaintiff’s responses [44] cited as R. DSOF. PSAF refers to

Plaintiff’s statement of additional undisputed facts [45], with Defendants’ responses [49] cited as R.

PSAF. References to additional filings are by docket number.

PSAF ¶ 3. The parties agree that when Skarupinski arrived, Plaintiff was not

violating any laws. R. PSAF ¶ 4. From this point forward, the majority of material

facts are disputed.

Plaintiff asserts that—with his head under the car—he asked who was in his

yard and received no response. R. DSOF ¶ 15. He says he then looked out from

under the car and saw Officer Skarupinski with his gun already drawn. Id. The

parties agree that Skarupinski told Plaintiff about the search warrant, and that

Plaintiff replied that his home was not the target address. R. PSAF ¶¶ 7–8.

Plaintiff claims that Skarupinski then grabbed him by the collar, pulled him to his

feet, and handcuffed him tightly; when Plaintiff complained of his discomfort,

Skarupinski told him to “shut the fuck up” and tightened the cuffs further. PSAF ¶¶

10–14; R. DSOF ¶ 15. Defendants admit that Skarupinski “may have been the

officer to handcuff Plaintiff,” R. PSAF ¶ 11, but otherwise deny any roughness.

According to Defendants, Plaintiff became angry and profane with Officer

Skarupinski, which presented a safety risk in the context of establishing a security

perimeter and executing a search warrant. DSOF ¶¶ 10, 16, 18, 19.

Officer Skarupinski next brought Plaintiff around to the front of the house, at

which point Plaintiff admits raising his voice at Skarupinski. PSAF ¶ 18. Out

front, Plaintiff’s next-door neighbors had also been detained and a “large crowd of

people was gathering.” Id. ¶ 20; DSOF ¶ 21. Plaintiff was left handcuffed in the

front yard for between 20 and 45 minutes. R. PSAF ¶ 22. Plaintiff states that he

was in pain from the handcuffs throughout this period. PSAF ¶¶ 20–25.

At this point, another disputed altercation occurred. Officer Ortiz had been

searching the target home, but went out to the front yard where Officer Barango

had apparently called for assistance. DSOF ¶ 23. Around this time, Lieutenant

Wiberg also approached Plaintiff, who admits that he shouted at Wiberg and “told

him shut the F up and that he wanted his handcuffs removed and the officers to get

off his property.” R. DSOF ¶ 30. Plaintiff states that the officers were profane in

response. PSAF ¶ 30. Wiberg then ordered the officers to put Plaintiff in a squad

car. R. DSOF ¶ 31. Plaintiff admits that he refused to go and resisted being taken

to the car. R. DSOF ¶¶ 34, 36. According to Plaintiff, Officers Ortiz, Uldrych, and

Skarupinski then choked, punched, and kicked him before dragging him to the

squad car. PSAF ¶¶ 31, 34–40.

Defendants claim that when Lieutenant Wiberg ordered the officers to put

Plaintiff in the squad car, Plaintiff was not yet under arrest; the officers were trying

to prevent Plaintiff “from further agitating the crowd that was becoming hostile and

potentially dangerous.” DSOF ¶¶ 31–32. Defendants deny any physical abuse. R.

PSAF ¶¶ 31, 34–40. Defendants also dispute Plaintiff’s identification of Officer

Uldrych as one of the officers involved in his detention and alleged abuse on the

front lawn; they assert that Uldrych was the transport officer, and point to

Plaintiff’s own testimony that he did not interact with the transport officers at this

time. Id. ¶¶ 31–32; [38-5] at 15.

The parties agree that Officer Barango helped pull Plaintiff into the squad

car. R. DSOF ¶ 38. The parties also agree that Lieutenant Wiberg never touched

Plaintiff and that the officers at least believed they had probable cause to arrest

Plaintiff for resisting and obstructing peace officers when they attempted to put him

in the squad car. Id. ¶¶ 42–43. Finally, Plaintiff admits that he identified the

officers that used force against him as having “dark hair, brown hair, sandy brown

hair, or blonde hair,” and that Officer Barango, by contrast, was bald. Id. ¶¶ 40–41.

Once in the squad car, Plaintiff was driven to the police station. Id. ¶ 47. At

the station, Plaintiff was not processed; instead, Lieutenant Wiberg spoke with

Plaintiff and ultimately decided that he should be released without charge. See id.

¶¶ 49–51. Plaintiff was at the station for about an hour, after which two officers

drove him home. Id. ¶ 52.

Plaintiff brought this action in January 2016 against the City of Chicago,

Lieutenant Wiberg, and Officers Ortiz, Skarupinski, Love, Ewing, Puszkiewicz,

Soraghan, Pierce, Baker, Altenbach, Arrellano, Barango, Figus, Uldrych, and

Casales. [1]. The claims against Officers Ewing, Puszkiewicz, Pierce, Baker,

Arrellano, Figus, Casales, and Love have been dismissed by stipulation. [27, 35].

This Court also granted Defendant’s motion to dismiss claims for punitive damages

against Officer Barango, who died in September 2016. [32, 34] Still before the

Court are Plaintiff’s claims against the City, Lieutenant Wiberg, and Officers Ortiz,

Skarupinski, Uldrych, and Barango.

II. Legal Standard

A motion for summary judgment can be granted only when there are no

genuine issues of material fact and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists where

“the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

party seeking summary judgment has the burden of establishing that there is no

genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). The motion will be granted only if, viewing the record in the light most

favorable to the nonmoving party, no jury could reasonably find in the nonmoving

party’s favor. McDonald v. Hardy, 821 F.3d 882, 888 (7th Cir. 2016).

III. Analysis

The number of disputed material facts in this case requires this Court to

deny Defendants’ motion for summary judgment with respect to many of Plaintiff’s

claims. See Anderson, 477 U.S. at 248. Specifically, when resolving Plaintiff’s

claims requires a credibility determination between conflicting accounts, that

determination properly belongs to the factfinder. See id. at 255; Payne v. Pauley,

337 F.3d 767, 770 (7th Cir. 2003). Plaintiff’s admissions, however, have eliminated

disputes about certain facts, and this Court grants summary judgment where those

admissions leave “no genuine issue for trial.” A&M Records, Inc. v. A.L.W., Ltd.,

855 F.2d 368, 372 (7th Cir. 1988).

This Court addresses each of Plaintiff’s claims in turn. Defendants raise a

qualified immunity defense for their actions relating to Plaintiff’s initial detention

and arrest; this Court considers that defense within its discussion of Plaintiff’s

claims for excessive force, false arrest, and false imprisonment.

A. Excessive Force and Failure to Intervene

Claims that law enforcement used excessive force when “making an arrest,

investigatory stop, or other seizure” are analyzed under the Fourth Amendment.

Graham v. Connor, 490 U.S. 386, 388 (1989). Whether the force used in connection

with a specific seizure is permitted under the Fourth Amendment turns on whether

the officer’s actions were “objectively reasonable in light of the facts and

circumstances” as they appeared at the time. Id. at 396. A police officer who fails

to intervene when he has reason to know that excessive force is being used may be

liable under § 1983. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994).

Plaintiff’s excessive force claim incorporates all the events described above.

Construed in Plaintiff’s favor, his Complaint thus alleges excessive force during his

initial detention as well as during the alleged subsequent beating. Defendants seek

summary judgment on Plaintiff’s excessive force and failure to intervene claim (I)

with respect to Defendants Wiberg, Barango, and Uldrych.

1. Initial Detention

When Officer Skarupinski initially detained Plaintiff, it is undisputed that

Plaintiff was within the security perimeter around the target of the search. DSOF ¶

12. Police officers executing a search warrant “may take reasonable action to secure

the premises and to ensure their own safety and the efficacy of the search.” L.A.

Cnty., Cal. v. Rettele, 550 U.S. 609, 614 (2007). That can include detaining persons

entering the security perimeter around the target location. United States v.

Jennings, 544 F.3d 815, 818 (7th Cir. 2008). The right to detain someone

“necessarily carries with it the right to use some degree of physical coercion or

threat thereof to effect it,” but the Fourth Amendment demands that such force be

reasonable under the circumstances, balancing the citizen’s interest against

government intrusion with the “countervailing government interests.” Jacobs v.

City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000) (internal quotation marks

omitted). To strike that balance, courts consider “the severity of the crime at issue”;

“whether the suspect poses an immediate threat to the safety of the officers or

others”; and “whether the citizen was under arrest or suspected of committing a

crime, was armed, or was interfering” with an officer’s “execution of his or her

duties.” Id.

Given the disputed nature of the facts surrounding the manner of Plaintiff’s

initial detention, this Court cannot resolve this fact-intensive inquiry at summary

judgment. Plaintiff alleges being yanked to his feet by his shirt, handcuffed tightly,

and, upon complaining of discomfort, having the handcuffs tightened further. See

R. DSOF ¶¶ 15–20; PSAF ¶ 14. Plaintiff was then detained in his front yard for 20

to 45 minutes, complaining of pain from the handcuffs, even though the search of

his neighbor’s home was nearly complete. PSAF ¶¶ 20–25. Defendants deny any

mistreatment and admit only that Plaintiff was detained for between 20 and 45

minutes. R. PSAF ¶¶ 10–23. Defendants also argue that Plaintiff’s detention was

necessary in light of the ongoing search, the presence of an increasingly hostile

crowd, and Plaintiff’s disruptive behavior. DSOF ¶¶ 21, 24–29; R. DSOF ¶ 30.

Construing these events in the light most favorable to Plaintiff, McDonald,

821 F.3d at 888, the reasonableness of Defendant Officers’ actions cannot be

resolved at summary judgment. Officers do not have free rein to detain any person

within a security perimeter in whatever manner and for however long they choose.

The test for any seizure is its objective reasonableness; detention in connection with

the execution of a search warrant can be unreasonable if it lasts an unreasonably

long time, or involves “excessive force or restraints that cause unnecessary pain or

are imposed for a prolonged and unnecessary period of time.” Rettele, 550 U.S. at

614, 615. Given that during this initial detention, Plaintiff’s version of events

includes him not resisting the officers, not being suspected of a crime, and not

attempting to flee, then the roughness allegedly applied to Plaintiff may have been

unreasonable. See Payne, 337 F.3d at 779–80 (roughness in handcuffing and

pinning plaintiff’s arms was unreasonable where plaintiff did not resist, did not

present a threat, did not attempt to flee, and was only charged with minor offenses).

Further, keeping Plaintiff purportedly painfully handcuffed for up to 45

minutes as the search neared or reached its completion could be unreasonable

under Plaintiff’s version of events. Cf. Jennings, 544 F.3d at 818–19 (it was

reasonable to detain a person who entered the security perimeter “long enough to

ensure that he was unarmed and uninvolved in criminal activity”); see also Payne,

337 F.3d at 779–80 (collecting cases in which improper use of handcuffs supported

excessive force claims). This Court cannot determine otherwise as a matter of law

based upon the conflicting testimony before it. See Payne, 337 F.3d at 781.

Whether Lieutenant Wiberg and Officers Barango and Uldrych remain liable

for failing to intervene is likewise impossible to resolve at summary judgment. An

officer is liable for failing to intervene when he has both reason to know that

excessive force is being used and “a realistic opportunity to intervene to prevent the

harm from occurring.” Abdullahi v. City of Madison, 324 F.3d 763, 774 (7th Cir.

2005) (internal quotation marks omitted). That opportunity exists if an officer could

and should have cautioned the officer using excessive force to stop. See id.; see also

Yang, 37 F.3d at 285. A failure to intervene claim generally presents questions of

fact appropriate for the jury; it should not be decided at summary judgment if the

underlying excessive force claims remain unresolved. Abdullahi, 423 F.3d at 774.

Here, all three officers were near or in the front yard where, construing the

facts in Plaintiff’s favor, Plaintiff may have been detained for an unreasonable

amount of time in an unnecessarily painful manner. Lieutenant Wiberg was near

Plaintiff while he was detained in front of the house. R. DSOF ¶ 29. Officer

Barango called for assistance in the front yard, establishing that he, too, was

nearby. DSOF ¶ 23. Officer Uldrych’s location is disputed, but Plaintiff’s deposition

places him in the front lawn. R. DSOF ¶¶ 45–46. At a minimum, Uldrych could see

and hear Plaintiff in the yard, even when near the squad car. [38-8] at 6. Plaintiff

alleges that he told multiple officers of the pain from the handcuffs, and visibly

gripped his porch railing to relieve the pain. PSAF ¶¶ 13–14, 21, 23, 25. Construed

in the light most favorable to Plaintiff, these actions might have afforded the

officers the opportunity to loosen the handcuffs or to request that they be loosened.

See Abdullahi, 324 F.3d at 774. Therefore summary judgment cannot be granted on

Plaintiff’s failure to intervene claim. See Payne, 337 F.3d at 781.

Finally, Defendants are not entitled to qualified immunity with respect to

Plaintiff’s initial detention on these disputed facts. To determine whether an officer

is entitled to qualified immunity at summary judgment, courts ask “whether the

facts alleged, taken in the light most favorable” to the nonmovant, show that the

officer violated a constitutional right, and whether that right was clearly

established at the time. Id. at 775. These questions need not be answered in that

order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

If, as Plaintiff alleges, he was unreasonably and painfully handcuffed,

Defendant Officers violated clearly established law on the use of excessive force.

Precedent dating back decades before this case establishes that such actions would

be unreasonable. See Payne, 337 F.3d at 779–80 (collecting cases). A reasonable

officer would have known that taking or allowing such actions was unlawful. This

is sufficient to deny qualified immunity on summary judgment, where inferences

must be drawn in favor of the nonmovant. See id. at 780.

2. Alleged Abuse/Beating

Similar analysis also preserves Plaintiff’s excessive force claim as to his

alleged beating. The beating occurred in Plaintiff’s front yard after Plaintiff

resisted Lieutenant Wiberg’s order that he be placed in the squad car. R. DSOF ¶¶

32, 44–45. Plaintiff alleges that Officer Uldrych beat him and places Lieutenant

Wiberg and Officer Barango in the front yard and near the squad car, respectively.

Id. Given the highly visible nature of the abuse, as Plaintiff describes it, a

reasonable jury could find that the officers in the vicinity were aware of the beating

and possessed an opportunity to tell the other officers involved to stop. See

Abdullahi, 324 F.3d at 774.

The kind of assault alleged by Plaintiff, even if it occurred in response to

Plaintiff’s admitted resistance to being placed in the squad car, could be found

unreasonable under the Fourth Amendment. According to Defendants’ own

account, the extent of Plaintiff’s resistance consisted of holding on to his porch rail

and “trying to pull away and walk in the opposite direction” of the squad car. DSOF

¶¶ 35, 37. The bare fact of resistance does not preclude a finding that excessive

force was used; the normal factors for evaluating the use of force apply. Gregory v.

Oliver, 226 F. Supp. 2d 943, 951 (N.D. Ill. 2002); see also O’Leary v. Luongo, 692 F.

Supp. 893, 903–04 (N.D. Ill. 1988). Officers did not suspect Plaintiff of any crime up

to the time that he resisted. Plaintiff was not armed, and did not otherwise pose a

significant threat to the officers—in fact, Plaintiff was still handcuffed. Plaintiff’s

verbal protests may have interfered with Defendant Officers’ execution of the

search, but, construing the facts in Plaintiff’s favor, the situation remained largely

under control, with the inhabitants of the target home detained in handcuffs. PSAF

¶ 20. Under those circumstances, the force alleged—choking, kicking, and

punching—went far beyond what would have been objectively reasonable to subdue

and contain Plaintiff. See DuFour-Dowell v. Cogger, 969 F.Supp. 1107, 1119–20

(N.D. Ill. 1997) (throwing plaintiff to the ground when no “direct threat” was posed

and plaintiff could have been restrained with less force was excessive force). Any of

the officers who witnessed such an alleged assault could and should have called on

the participating officers to stop. See Abdullahi, 324 F.3d at 774.

Defendants dispute Plaintiff’s version of events wholesale, and their account

may very well prevail at trial. See DSOF ¶ 44. The credibility determination

between Plaintiff’s account and Defendant Officers’ account, however, “is the job of

the jury, and not the district court judge at summary judgment.” Payne, 337 F.3d at

778. Summary judgment is therefore inappropriate as to Plaintiff’s claims for

excessive force and failure to intervene, with respect to the alleged assault.

B. Battery

Defendants seek summary judgment for Lieutenant Wiberg and Officers

Barango and Uldrych on Plaintiff’s claim for battery. In Illinois, a claim for battery

requires: (1) the intention to cause harmful or offensive contact with the person of

another, which (2) results in harmful contact. See, e.g., Cohen v. Smith, 648 N.E.2d

329, 332 (Ill. App. Ct. 1995). Battery also encompasses “nonharmful” but offensive

contact that “offends a reasonable sense of personal dignity.” Id.

With respect to Officer Uldrych, the foregoing discussion illustrates the

continuing factual disputes about his contact with Plaintiff. Uldrych denies that he

ever touched Plaintiff, [38-8] at 11, while Plaintiff alleges that Uldrych choked him

for “one to two minutes,” PSAF ¶ 31. The parties dispute Uldrych’s role during

these events and Plaintiff’s subsequent identification of Uldrych as the man who

choked him. R. PSAF ¶¶ 31–32. The evidence before this Court consists solely of

the parties’ conflicting accounts, presented in depositions and affidavits. See [38,

44]. As the Seventh Circuit has repeatedly warned, “summary judgment cannot be

used to resolve swearing contests between litigants.” Payne, 337 F.3d at 770.

Summary judgment is thus inappropriate as to Officer Uldrych.

With respect to Officer Barango, the parties agree that he “assisted in placing

Plaintiff in the squad car and then assisted in getting Plaintiff into the vehicle by

opening the other rear door, placing his arms under Plaintiff’s armpits and pulling

him into the car.” DSOF ¶ 38; R. DSOF ¶ 38. The parties also agree that Barango’s

physical description does not match Plaintiff’s description of the officers who

allegedly assaulted him. DSOF ¶¶ 39–41.

Based upon these facts, Officer Barango is entitled to the protection of 745

ILCS 10/2-202 against Plaintiff’s state-law battery claim. Section 10/2-202 bars

liability for public employees engaged in the execution of “any law,” unless their

actions constitute “willful and wanton conduct.” “Willful and wanton conduct”

refers to “a course of action which shows an actual or deliberate intention to cause

harm or which, if not intentional, shows an utter indifference to or conscious

disregard for the safety of others.” 745 ILCS 10/1-210. Section 10/2-202 applies to

officers effecting an arrest or detention. See Jones v. Vill. of Villa Park, 784 F.

Supp. 533, 536 (N.D. Ill. 1992) (applying Illinois law). Officer Barango’s alleged

actions in no way rise to the level of “willful and wanton” conduct required to pierce

his state tort immunity. Lifting and pulling Plaintiff into the squad car—absent

any allegation of injury or other unreasonable force—was a reasonable use of

Barango’s authority. See Smith v. City of Chicago, 242 F.3d 737, 744 (7th Cir. 2001)

(finding that “pulling a suspect from a car, pushing him against the car, and

pinning his arms behind his back to handcuff him were reasonable actions” and not

willful and wanton); Gill v. Vill. of Melrose Park, 35 F. Supp. 3d 956, 968 (N.D. Ill.

2014) (using minimally forceful contact to restrain plaintiff was not willful and

wanton). Summary judgment for Officer Barango is therefore granted as to

Plaintiff’s battery claim (II).

With respect to Lieutenant Wiberg, Plaintiff admits that the Lieutenant

never touched him. R. DSOF ¶ 43. Given that some sort of contact or intended

contact is necessary to sustain a battery claim, see Cohen, 648 N.E.2d at 332, and

Plaintiff has alleged neither, summary judgment for Lieutenant Wiberg is granted

as to Plaintiff’s battery claim (II).

C. False Arrest and False Imprisonment

Defendants seek summary judgment for all Defendant Officers and the City

of Chicago on Plaintiff’s claims for false arrest (III) and false imprisonment (IV). As

these claims are closely related, this Court considers them together, addressing first

Plaintiff’s initial detention by Officer Skarupinski and his subsequent arrest.

1. Initial Detention

a) § 1983 False Arrest Claim (III)

A false arrest claim requires that Plaintiff “show there was no probable cause

for his arrest.” Jackson v. Parker, 627 F.3d 634, 638 (7th Cir. 2010). Plaintiff’s

false arrest claim centers on his initial detention by Officer Skarupinski and the 20

to 45 minutes that he was detained in his yard before he physically resisted being

placed in the squad car. See [43] at 6. Plaintiff contends that he was arguably

already under arrest at this time, and that Defendant officers lacked probable cause

or any individualized suspicion as a basis to detain him. Id. at 4–6. Plaintiff

misunderstands the circumstances of his detention in two ways: he was not yet

under arrest, and the officers on the scene of the search did not need probable cause

or individualized suspicion to detain him.

Plaintiff suggests that he was under arrest when Officer Skarupinski

allegedly pointed his gun at Plaintiff in the driveway. Id. at 5 n. 2. The case

Plaintiff cites, however, does not support that conclusion. In Sornberger v. City of

Knoxville, Ill., the Seventh Circuit described an arrest as a “restraint on freedom of

movement of the degree which the law associates with formal arrest.” 434 F.3d

1006, 1017 (7th Cir. 2006). The Seventh Circuit relied on Supreme Court precedent

establishing that a detention crosses the “line” between seizure and arrest when

police officers “forcibly remove a person from his home or other place in which he is

entitled to be and transport him to the police station, where he is detained,

although briefly, for investigative purposes.” Id., 434 F.3d at 1017 (quoting Hayes v.

Florida, 470 U.S. 811, 815–16 (1985)). Plaintiff’s initial detention thus lacks both

ingredients of a de facto arrest: transportation to a police station and custodial

interrogation. See id. Moreover, the Court has expressly found that being

handcuffed while detained incident to search does not convert the detention to an

arrest. Muehler v. Mena, 544 U.S. 93, 99–102 (2005).

The officers undoubtedly seized Plaintiff within the meaning of the Fourth

Amendment, because a reasonable person would not have felt free to leave once

Officer Skarupinski either pointed a gun at Plaintiff or handcuffed him. See United

States v. Mendenhall, 446 U.S. 544, 554 (1980); PSAF ¶ 11. But those actions fail to

constitute an arrest under the circumstances here, and as a result, Plaintiff’s false

arrest claim fails. See Bianchi v. McQueen, 818 F.3d 309, 322 (7th Cir. 2016) (a

false arrest claim arises “from a warrantless arrest without probable cause”). Even

if this Court construes Plaintiff’s false arrest claim to include a claim for an

unreasonable seizure short of an actual arrest, see Gonzalez v. Vill. of Milwaukee,

671 F.3d 649, 655 (7th Cir. 2012), Plaintiff’s claim still fails, because the undisputed

portions of the record confirm that his initial detention was not unreasonable.

As noted above, officers executing a search warrant “may take reasonable

action to secure the premises and to ensure their own safety and the efficacy of the

search.” Rettele, 550 U.S. at 614. That includes the right to detain a person within

the security perimeter around the target residence, even if that person is not an

inhabitant. See Jennings, 544 F.3d at 818. The Supreme Court has established an

officer’s “categorical” authority “to detain incident to a search,” which police may

exercise absent any particularized suspicion. Bailey v. United States, 568 U.S. 186,

193 (2013). The Court first set out this detention authority in Michigan v.

Summers, which held that the minimal intrusiveness of temporary detention was

outweighed by the government interests in officer safety, “the orderly completion of

the search,” and preventing flight from the scene. 452 U.S. 692, 702–03 (1981).

Summers approved the detention of someone leaving the target location, id.

at 693, and various appellate courts, including the Seventh Circuit, have construed

this detention authority to include persons arriving on the scene of a search or in

the immediate vicinity of the search’s target location. United States v. Allen, 618

F.3d 404, 408 (3d Cir. 2010) (detaining a security guard standing in front of the bar

to be searched was lawful); United States v. Sanchez, 555 F.3d 910, 918–19 (10th

Cir. 2009) (detaining a nonresident on the curtilage of the home to be searched was

reasonable); Jennings, 544 F.3d at 818 (detaining a person who drove into a security

perimeter was reasonable); United States v. Bohannon, 225 F.3d 615, 616–17 (6th

Cir. 2000) (detaining a nonresident approaching the home to be searched was

lawful). The conclusion of these appellate courts was buttressed by the Supreme

Court’s ruling in Bailey that Summers detention authority includes at least “the

immediate vicinity of the premises covered by a search warrant.” 568 U.S. at 192.

Under this precedent, Defendant Officers’ initial detention of Plaintiff

incident to their authorized search of his neighbor’s home was reasonable. It is true

that Plaintiff was on his property and did not reside at the target location, but he

was undisputedly within the security perimeter. R. DSOF ¶¶ 9, 11–12. That is

sufficient to sustain his detention under the Seventh Circuit’s precedent in

Jennings, 544 F.3d at 818, and as set out further in Summers and Bailey. Plaintiff

was located within the immediate vicinity of the target location, he was within the

line of sight of that target, and he was close enough to disrupt the officer’s “safe and

efficient execution” of the search warrant. See Bailey, 568 U.S. at 201–02; see also

Jennings, 544 F.3d at 818; United States v. Pace, 898 F.2d 1218, 1239 (7th Cir.

1990) (detaining nonresidents for duration of the search was reasonable); Simmons

v. City of Chicago, No. 14-c-9087, 2017 WL 635144 at *7 (N.D. Ill. Feb. 16, 2017)

(“Any person present during the search may be detained for its duration.”).

Although Plaintiff alleges that when Officer Skarupinski brought him to the front

yard his neighbors were already detained, PSAF ¶ 20, he offers no evidence that the

search had been completed, and admits that at least one officer was drawn away

from executing the search to respond to Plaintiff’s disruptive conduct in the front

yard, R. DSOF ¶ 23. Detaining Plaintiff until the conclusion of the search was

undoubtedly reasonable under these circumstances. See Pace, 898 F.2d at 1239.

Finally, even if Plaintiff alleged facts showing that his initial detention was

unreasonable—which he has not done—Defendant Officers would be entitled to

qualified immunity. Qualified immunity protects government officials from liability

“insofar as their conduct does not violate clearly established” rights. See Pearson,

555 U.S. at 231 (internal quotation marks omitted). To overcome Defendant

Officers’ qualified immunity defense, Plaintiff needed to point to “existing

precedent” that “placed the statutory or constitutional question beyond debate.” See

Rabin v. Flynn, 725 F.3d 628, 632 (7th Cir. 2013). In other words, Plaintiff had the

burden of identifying the “clearly established” law that Defendant Officers would

have violated by detaining him incident to the search. Id. Plaintiff has offered no

such precedent. See [43] at 8. Indeed, the strong weight of precedent supports the

reasonableness of Plaintiff’s initial detention under the circumstances. Accordingly,

this Court grants summary judgment for all defendants on Plaintiff’s false arrest

claim (III) with respect to his initial detention.

b) False Imprisonment Claim (IV)

A similar analysis governs Plaintiff’s common-law claims for false

imprisonment. See Wallace v. Kato, 549 U.S. 384, 388–89 (2007) (discussing overlap

of the two claims). In Illinois, false imprisonment requires that Plaintiff show “that

his personal liberty was unreasonably or unlawfully restrained against his will and

that defendant(s) caused or procured the restraint.” Arthur v. Lutheran Gen. Hosp.,

692 N.E.2d 1238, 1243 (Ill. App. Ct. 1998).

As discussed, however, Plaintiff’s initial detention was not unlawful. It was a

reasonable exercise of Defendant Officers’ authority to detain persons incident to a

search. This analysis does not change for Plaintiff’s state-law claim. Illinois courts

have applied Michigan v. Summers similarly to the federal courts, and have

sustained the reasonableness of detaining nonresidents present at the location

targeted by a search warrant. See People v. Wright, No. 13-1487, 2016 WL 1592758,

at *5 (Ill. App. Ct. Apr. 19, 2016) (detaining defendant in “the immediate vicinity of

the targeted premises” was reasonable under Summers and Bailey); People v.

Conner, 832 N.E.2d 442, 452–453 (Ill. App. Ct. 2005) (detaining nonresident present

in searched location was reasonable).

In any event, Defendant Officers are entitled to state tort immunity with

respect to Plaintiff’s initial detention. The immunity granted to officers enforcing

the law applies to claims for false imprisonment. See Ross v. Mauro Chevrolet, 861

N.E.2d 313, 320 (Ill. App. Ct. 2006); 745 ILCS 10/2-202. Plaintiff must allege

“willful and wanton intent” to overcome that immunity. Neal v. City of Harvey, Ill.,

1 F. Supp. 2d 849, 857 (N.D. Ill. 1998). Plaintiff has alleged no facts to show that

his initial detention was willful and wanton—to the extent that the manner of his

detention was otherwise “wantonly” unreasonable, those concerns remain addressed

by Plaintiff’s excessive force claims, which survive summary judgment. On

Plaintiff’s false imprisonment claim, however, summary judgment is granted to the

defendants.

2. Arrest

The parties do not dispute that Defendant Officers had probable cause to

arrest Plaintiff once he physically resisted being placed in the squad car. R. DSOF

¶ 42. 720 ILCS 5/31-1(a) prohibits any person from “knowingly” resisting or

obstructing “the performance by one known to the person to be a peace officer”

acting in official capacity. It covers any “physical act that impedes, hinders,

interrupts, prevents or delays the performance of the officer's duties, such as going

limp, forcefully resisting arrest, or physically helping another party to avoid

arrest.” People v. McCoy, 378 Ill. App. 3d 954, 962 (2008).

Plaintiff clearly engaged in this prohibited conduct when he began to “pull

away” from Defendant Officers and “walk in the opposite direction” of the squad car.

DSOF ¶¶ 35, 37. At that point Defendant Officers had probable cause to arrest

Plaintiff for the misdemeanor offense of resisting a peace officer.

Probable cause is an absolute defense to both a § 1983 false arrest claim and

a common-law false imprisonment claim. Neal, 1 F. Supp. 2d at 857; Lappin v.

Costello, 598 N.E.2d 311, 317 (Ill. App. Ct. 1992). Accordingly, summary judgment

is granted to all defendants on Plaintiff’s false arrest (III) and false imprisonment

(IV) claims with respect to his arrest.

D. Supervisory Liability

Defendants seek summary judgment for Lieutenant Wiberg on Plaintiff’s

claim for § 1983 supervisory liability as it relates to Plaintiff’s false arrest and false

imprisonment claims. [37] at 11. Supervisory liability under § 1983 is appropriate

where a supervisor “approves” of his subordinates’ conduct “and the basis for it.”

Backes v. Vill. of Peoria Heights, 662 F.3d 866, 869–70 (7th Cir. 2011). The

supervisor must “know about the conduct and facilitate it, approve it, condone it, or

turn a blind eye for fear of what they might see.” Id. If, however, there is no

underlying constitutional violation, there is no supervisory liability. See, e.g.,

Gossmeyer v. McDonald, 128 F.3d 481, 195 (7th Cir. 1997); Beller v. Bd. of Trs. of

Univ. of Ill., No. 97-c-4888, 1998 WL 832636, at *6 (N.D. Ill. Nov. 24, 1998).

Because this Court grants summary judgment to defendants on Plaintiff’s

false arrest and false imprisonment claims, it also grants summary judgment to

Lieutenant Wiberg for any supervisory liability arising from those claims.

E. The City’s Liability

Plaintiff brought claims against the City of Chicago as Defendant Officers’

employer, based upon Illinois statutory liability for public employers (VI) and a

theory of respondeat superior (VII). [1] Defendants seek summary judgment for

the City on both claims to the extent that Defendant officers are awarded summary

judgment on any of the underlying claims. [37] at 15.

The City’s statutory liability arises under the indemnification provision of

745 ILCS 10/2-109, which makes local public entities responsible for damages

arising from their employees’ liability. To the extent that the City’s employees are

not liable for any claim, the City cannot be liable under § 10/2-109. See, e.g., Miles

v. Vill. of Dalton, No. 15-cv-5017, 2016 WL 1161293, at *8 (N.D. Ill. Mar. 23, 2016)

(applicability of statute depends upon employee liability). Therefore the City is

granted summary judgment with respect to Plaintiff’s false arrest and false

imprisonment claims, but the City remains potentially liable on the other claims

pending against the Defendant Officers.

This Court, however, grants the City of Chicago summary judgment on

Plaintiff’s claim for respondeat superior liability (VII) with respect to Plaintiff’s §

1983 claims. Municipalities like the City “cannot be held liable under § 1983 on a

respondeat superior theory.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S.

658, 691 (1978); see also Lanigan v. Vill. of E. Hazel Crest, Ill., 110 F.3d 467, 478

(7th Cir. 1997). A municipality can only be liable under § 1983 for constitutional

violations that arise from government “custom or usage.” Monell, 436 U.S. at 691.

Plaintiff has alleged no such custom, usage, or policy. [1] Proof of a “single incident

of unconstitutional activity is not sufficient to impose” liability on a municipality,

“unless proof of the incident includes proof that it was caused by an existing,

unconstitutional municipal policy.” Lanigan, 110 F.3d at 479. Thus, even if

Plaintiff ultimately prevails on his excessive force claim, as a matter of law, he

could not thereby impose liability on the City where he has offered no evidence—nor

alleged any basis for inferring—that the violation was the result of an

unconstitutional municipal policy or custom. See id. Summary judgment for the

City is therefore granted as to Plaintiff’s respondeat superior claim (VII) as it

relates to his § 1983 claims.

F. Request to Strike Rule 56 Statements

Lastly, Plaintiff has asked this Court to disregard certain paragraphs in

Defendants’ Local Rule 56.1 statement of facts, on the grounds that they are too

long, or contain improper argument. [43] at 11–13. Rule 56.1 statements must

contain only material facts; consist of “only one or two individual allegations”; and

be supported by “specific reference” to the record. Malec v. Sanford, 191 F.R.D. 581,

583 (N.D. Ill. 2000). Legal conclusions are inappropriate and should be disregarded.

Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 1997). If a party fails to comply

with Rule 56.1, district courts have the discretion to disregard any improper

statements. See id.; Ammons v. Aramark Unif. Servs., 368 F.3d 809, 817 (7th Cir.

2004); see also Midwest Imps., Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir. 1995)

(district court interpretations of local rules receive “considerable weight”).

Plaintiff objects to the following paragraphs of the Defendants’ statement of

facts [38] as improper: paragraphs 15–17, 19, 29, 31, 32, 33, and 45 as too long and

compound; and paragraphs 25, 27, 29, 32, 33, 35, 37, and 44 as containing improper

argument. This Court disagrees that the first set of paragraphs are improperly

long. Rule 56.1 “does not mandate that each numbered paragraph” in a party’s

statement of facts contain only one, discrete fact. Ronald A. Chisholm, Ltd. v.

Fulton Mkt. Cold Storage Co. LLC, No. 9-c-4623, 2011 WL 6182347, at *1 (N.D. Ill.

Dec. 13, 2011). Paragraph 16 arguably approaches the limit of what the rule

permits, containing a number of distinct quotes attributed to Plaintiff. DSOF ¶ 16.

But Plaintiff allegedly spoke each phrase to Officer Skarupinski in a brief period,

and it is logical that Defendants grouped them together. Nor was Plaintiff’s

response to this statement hampered by its supposed length; rather, Plaintiff

disputes the nature of all of his interactions with Officer Skarupinski and his

responses were used to set forth his basis for doing so. R. DSOF ¶ 16. This is an

appropriate use of Rule 56.1. The other paragraphs are even more concise, and this

Court declines to reject them on these technical grounds.

This Court also declines to strike paragraphs 25, 27, 29, 32, 33, 35, 37, and 44

of Defendants’ statement of facts. Although paragraphs 25, 27, and 29 certainly

contain evocative adjectives, they remain supported by factual allegations. For

example, paragraph 27 states that Plaintiff was “belligerent and agitated in that he

was yelling and screaming.” DSOF ¶ 27 (emphasis added). Furthermore, Plaintiff

has admitted to other paragraphs that support those allegations, acknowledging

that he raised his voice and used profanity towards Lieutenant Wiberg. R. DSOF ¶

30. Paragraphs 35 and 37 rest upon similar factual allegations. Finally,

paragraphs 32, 33, and 44 fail to contain improper legal conclusions simply because

their language echoes legal claims. When Defendants deny that any officer “used

force against Plaintiff,” they specifically state that they deny this allegation,

because they never saw any officer “strike, punch, kick or choke Plaintiff.” DSOF ¶

44. Paragraphs 32 and 33 simply convey events from Defendant Officers’

perspective, based upon their depositions. As such, this Court declines to totally

disregard the disputed statements, and instead properly views them in context.

Even if this Court granted Plaintiff's request to disregard these paragraphs,

the outcome here would not differ and, as required by the summary judgment

standard, this Court has construed all events in the light most favorable to Plaintiff.

McDonald, 821 F.3d at 888. That includes accepting Plaintiff's evidence and

drawing “all justifiable inferences” in his favor. Anderson, 477 U.S. at 255. This

Court has done so, and has rendered judgment accordingly.

IV. Conclusion

In light of the foregoing, Defendants’ motion for summary judgment is

granted in part and denied in part as follows: (1) Summary judgment is denied on

Count I; (2) Summary judgment on Count II is granted as to Officer Barango and

Lieutenant Wiberg, and otherwise denied; (3) Summary judgment is granted to

Defendants on Count II; (4) Summary judgment is granted to Defendants on Count

IV; (5) Summary judgment is granted to Lieutenant Wiberg on Count V with

respect to the underlying claims for false arrest and false imprisonment; (6)

Summary judgment is granted to the City of Chicago on Count V with respect to the

underlying claims for false arrest and false imprisonment; and (7) Summary

judgment is granted to the City of Chicago on Count VII with respect to all

underlying § 1983 claims. The case remains set for a pretrial conference at 1:30

p.m. on 2/15/2018 in Courtroom 1203. All other dates and deadlines stand.

Dated: January 8, 2018

Entered:

prt Bh

Zk

United States District Judge

26