# Gaspar v. Murphy

> District Court, N.D. Illinois · January 26, 2018

URL: https://www.frixlaw.com/law-library/cases/10137810

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** January 26, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10137810

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CHRISTOPHER GASPAR, AUSTIN )
WALKER, and DEVIN HEATH, )
)
Plaintiffs, ) Case No. 16 C 7221
)
v. )
)
CITY OF CHICAGO, et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:
On September 12, 2017, Plaintiffs Christopher Gaspar, Austin Walker, and Devin Heath
filed a seven-count Second Amended Complaint against the City of Chicago and certain Chicago
Police Officers alleging violations of their Fourth Amendment rights, a conspiracy claim, and a
failure to intervene claim under 42 U.S.C. § 1983, along with state law claims of battery, false
imprisonment, and indemnification. See 28 U.S.C. §§ 1331, 1367(a). Before the Court is
Defendant Officer Michelle Murphy’s motion for partial summary judgment, Defendant Officer
Megan Leonard’s motion for partial summary judgment, and Defendants City of Chicago’s,
Sergeant Richard Rochowicz’s, and Officer Christopher Liakopoulos’ joint motion for summary
judgment (collectively “City Defendants”) – all brought pursuant to Federal Rule of Civil
Procedure 56(a).
For the following reasons, the Court grants Defendants Murphy’s and Leonard’s partial
summary judgment motions as to Plaintiffs’ conspiracy claim as alleged in Count V. The Court
denies Defendant Leonard’s partial summary judgment motion as to Plaintiffs’ Fourth
Amendment unreasonable seizure claim in Count I. In addition, the Court denies the City
Defendants’ summary judgment motion in its entirety.
Accordingly, the remaining claims in this lawsuit include: (1) Plaintiffs’ Fourth
Amendment unreasonable seizure claim against Defendants Leonard and Murphy in Count I; (2)
Plaintiffs’ state law false imprisonment claim against Defendant Murphy and the City of Chicago

in Count II; (3) Plaintiffs’ Fourth Amendment excessive force claim against Defendants
Liakopolous and Rochowicz in Count III; (4) Plaintiffs’ state law battery claim sounding in tort
against the City of Chicago in Count IV; (5) Plaintiffs’ failure to intervene claim against
Defendant Leonard in Count VI, and (6) the state law indemnification claim against the City of
Chicago in Count VII.
BACKGROUND1
This civil rights lawsuit is based on an incident that took place on February 7, 2014, at
which time the three Plaintiffs were under the age of 18-years-old. (R. 92, City Defs.’ Stmt.
Facts ¶¶ 1-3.) During the relevant time period, Defendants Sergeant Rochowicz, Officer

Liakopolous, Officer Murphy, and Officer Leonard were Chicago Police Officers. (Id. ¶¶ 4-7.)
On the night of February 7, 2014, Plaintiffs drove to a 7-Eleven store at the corner of
111th Street and Kedzie Avenue in Chicago. (Id. ¶ 10.) Defendant Officers Leonard and
Murphy, who were off-duty at that time, were in the 7-Eleven parking lot. (R. 86, Leonard Stmt.
Facts ¶ 5; R. 84, Murphy Stmt. Facts ¶¶ 4, 5.) Defendant Murphy testified at her deposition that
she saw three black males in the their vehicle and that Defendant Leonard and Murphy were
aware of robberies having occurred in the area, including robberies at the same 7-Eleven.

1 Because the Court considered the City Defendants’ arguments concerning Plaintiffs’ Local
Rule 56.1(b)(3)(A) Response in the context of each fact, the Court denies Defendants’ motion to
strike Plaintiffs’ response – argued in Defendants’ reply brief – as moot.

2
(Leonard Stmt. Facts ¶ 15; Murphy Stmt. Facts ¶ 18.) After two of the Plaintiffs entered the 7-
Eleven, Defendant Murphy thought one of the Plaintiffs was carrying a knife based on his quick
movements. (Murphy Stmt. Facts ¶ 15; Leonard Stmt. Facts ¶ 16.) After observing the actions
of the two Plaintiffs inside the 7-Eleven, Defendant Murphy also thought an armed robbery had
occurred. (Murphy Stmt. Facts ¶¶ 16, 17.) On the other hand, Defendant Leonard testified that

she did not believe a robbery had occurred. (Leonard Stmt. Facts ¶ 22; R. 99, Pls.’ Add’l Stmt.
Facts ¶ 7.) In particular, Defendant Leonard testified that although she saw Plaintiffs inside the
7-Eleven, Plaintiffs did not do anything that would have made someone believe they were
robbing the store. (Pls.’ Add’l Stmt. Facts ¶¶ 2, 3.)
Nonetheless, Defendant Murphy called 911 to report an armed robbery to an Office of
Emergency Management and Communications dispatcher. (City Defs.’ Stmt. ¶ 12; Murphy
Stmt. Facts ¶ 17.) After the 911 call was disconnected, Defendant Murphy called again
identifying herself as an off-duty police officer explaining that she believed the 7-Eleven was
being or had been robbed. (City Defs.’ Stmt. Facts ¶ 13; Leonard Stmt. Facts ¶ 24.) Both the

911 dispatcher and Defendant Leonard told Defendant Murphy multiple times to calm down
while she was making the 911 call. (Murphy Stmt. Facts ¶ 25.) Defendant Murphy’s intention
in making the 911 call was to have on-duty police officers stop the vehicle she had described
based on her suspicion that an armed robbery had occurred inside the 7-Eleven. (City Defs.’
Stmt. Facts ¶ 14; Pls.’ Add’l Stmt. Facts ¶ 16.)
At the same time, after making their purchase inside the 7-Eleven, Plaintiffs Gaspar and
Walker returned to their vehicle where Plaintiff Heath remained. (City Defs.’ Stmt. Facts ¶ 15.)
Gaspar drove out of the 7-Eleven parking lot and began traveling eastbound on 111th Street
toward Western Avenue. (Id. ¶ 16; R. 94-2, Pls.’ Add’l Stmt. Facts ¶ 1.) Defendant Officer

3
Leonard began following Plaintiffs’ vehicle while Defendant Officer Murphy, who was the
passenger, remained on the telephone with the 911 dispatcher, at which time she provided a
description and license plate number of Plaintiffs’ vehicle, along with Plaintiffs’ direction of
travel. (City Defs.’ Stmt. Facts ¶ 17; Leonard Stmt. Facts ¶ 31.) Shortly thereafter, a broadcast
was made over the radio to Chicago Police Officers that an armed robbery had occurred at the 7-

Eleven located at 111th Street and Kedzie Avenue, including a description of the vehicle, the
suspected offenders, and the direction of travel. (City Defs.’ Stmt. Facts ¶ 18.) The dispatcher
also broadcast the information that an off-duty Chicago Police Officer had called in the robbery
and was following the vehicle. (Id. ¶ 19.)
After receiving the broadcast, Defendant Sergeant Rochowicz, who was on duty and in
his unmarked SUV, responded to the call. (Id. ¶ 20.) Defendant Officer Liakopolous also
responded to the call while in his marked squad car. (Id. ¶ 21.) Defendant Rochowicz observed
Plaintiffs’ vehicle at 107th Street and Talman Avenue and then activated his emergency lights,
after which Plaintiffs stopped their vehicle. (Id. ¶ 22.) Defendant Rochowicz then called in the

location of the stop to dispatch and exited his vehicle. (Id. ¶ 24.) Based on the 911 transmission,
Defendant Rochowicz believed that the occupants of the vehicle were armed and dangerous. (Id.
¶ 23.) Also, because the radio broadcast included information that one or more of the individuals
were involved in an armed robbery, Defendant Rochowicz conducted a felony traffic stop. (Id. ¶
25.) During a felony traffic stop, Chicago police officers follow a set of procedures that are
different from a regular traffic stop. (Id. ¶ 26.) The officers, for example, must be on high alert
for weapons and their own safety. (Id.)
Defendant Rochowicz then drew his firearm, approached the vehicle, and gave verbal
direction for the occupants to show their hands. (Id. ¶ 27; Pls.’ Add’l Stmt. Facts ¶ 2.) Gaspar

4
testified at his deposition that Defendant Rochowicz screamed “let me see your fucking hands”
at him, after which he complied. (Pls.’ Add’l Stmt. Facts ¶ 3.) The parties dispute whether
Defendant Rochowicz opened the car door and pointed his gun at Gaspar’s face. (Id. ¶ 4; Defs.’
Stmt. Facts ¶ 31.) Specifically, Gaspar testified that Defendant Rochowicz pointed a gun at his
face and yelled “Don’t fucking move or I’m going to blow your fucking head off.” (Pls.’ Add’l

Stmt. Facts ¶ 4.) Furthermore, Gaspar testified that Defendant Rochowicz removed him from the
car by grabbing him by the chest and pulling him out of the car, whereas Defendant Rochowicz
testified that he removed Gaspar by using his arm. (City Defs.’ Stmt. Facts ¶¶ 33, 34.) The
parties dispute what happened after Defendant Rochowicz pulled Gaspar out of the car, except
that when Gaspar was on the ground Defendant Rochowicz handcuffed him. (Id. ¶¶ 35-37.)
Gaspar testified that when he hit the ground, it hurt and cause him pain in his knees and elbows.
(Pls.’ Add’l Stmt. Facts ¶ 8.) In addition, Gaspar maintains that Defendant Rochowicz placed
his knee on the back of Gaspar’s neck when handcuffing him. (Id. ¶ 6.) Further, Gaspar testified
that after he explained that he could not get off the ground without assistance, Defendant

Rochowicz grabbed him by the coat, pulled him off the ground, and forcibly shoved him back
into the car. (Id. ¶ 9.) The parties do not dispute that Gaspar did everything Defendant
Rochowicz told him to do and did not resist. (Id. ¶¶ 5, 6.) Moreover, Defendant Rochowicz
testified that Plaintiffs obeyed his commands. (Id. ¶ 21.)
At this point, both Plaintiffs Heath and Walker remained inside the vehicle. (City Defs.’
Stmt. Facts ¶ 40.) A Chicago Police Officer then removed Heath from the vehicle. (Id. ¶ 41.)
Heath testified at his deposition that it was Defendant Rochowicz who removed him from the
vehicle, whereas other deposition testimony indicates that other police officers removed him.
(Id. ¶¶ 42-44; Pls.’ Add’l Stmt. Facts ¶ 10.) After the officer removed Heath from the vehicle,

5
the officer pulled him to the ground. (City Defs.’ Stmt. Facts ¶ 45; Pls.’ Add’l Stmt. Facts ¶ 11.)
The officer then patted down Heath and brought him back to the car. (City Defs.’ Stmt. ¶ 46.)
Heath testified that Defendant Rochowicz dragged him back to the car, handcuffed him, and then
shoved against the car. (Id.; Pls.’ Add’l Stmt. Facts ¶¶ 11-12.) Furthermore, Heath testified that
he was in fear for his life during the incident and experienced neck pain as a result of the

incident. (Pls.’ Add’l Stmt. Facts ¶ 14.)
Thereafter, Defendant Officer Liakopolous grabbed Walker from the car. (City Defs.’
Stmt. Facts ¶¶ 47-48; Pls.’ Stmt. Facts ¶ 16.) Walker testified at his deposition that while being
handcuffed, Defendant Officer Liakopolous put his knee at the back of his neck and applied
pressure. (City Defs.’ Stmt. Facts ¶¶ 49-53; Pls.’ Add’l Stmt. Facts ¶¶ 16, 23-24.) After Officer
Liakopolous released him, Walker discovered that he was bleeding from his knee, shin, and leg
as a result of being thrown to the ground. (Pls.’ Add’l Stmt. Facts. ¶ 17.) Officer Liakopolous
admitted that Walker did not resist being placed in handcuffs. (Id. ¶ 26.)
Over twenty officers responded to Defendant Murphy’s call, and once Plaintiffs were

secured and out of the vehicle, the officers began to investigate what occurred at the 7-Eleven.
(City Defs.’ Stmt. Facts ¶¶ 55-56.) At that time, police officers asked Plaintiffs for identification
information so the officers could perform a name check. (Id. ¶ 62.) About 45 minutes later, the
officers determined that the reported armed robbery had not occurred at the 7-Eleven on 111th
and Kedzie. (Id. ¶ 63.) The officers then released Plaintiffs telling them they were free to leave.
(Id. ¶ 64.) The officers did not charge Plaintiffs with any crimes. (Id. ¶¶ 69-71; Leonard Stmt.
Facts ¶ 44.) Moreover, Defendants concede that there was no knife and no robbery. (Leonard
Stmt. Facts ¶ 43.) At her deposition, Defendant Leonard admitted that the situation was “over-

6
exaggerated” and “was totally completely blown out of proportion and never should have
happened.” (Pls.’ Add’l Stmt. Facts ¶ 23.)
Based on these facts, Plaintiffs bring the following claims in their Second Amended
Complaint: (1) a Fourth Amendment unreasonable seizure claim against Defendants Murphy
and Leonard (Count I); (2) a state law false imprisonment claim against Defendants Murphy and

the City of Chicago (based respondeat superior) (Count II); (3) a Fourth Amendment excessive
force claim against Defendants Rochowicz and Liakopoulos (Count III); (4) a state law battery
claim sounding in tort against the City of Chicago (based on respondeat superior) (Count IV); (5)
a conspiracy claim brought under 42 U.S.C. § 1983 against Defendants Leonard and Murphy
(Count V); (6) a constitutional failure to intervene claim against Defendant Leonard (Count VI);
and (7) an indemnification claim against the City of Chicago (Count VII).
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.

56(a). A genuine dispute as to any material fact exists if “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, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In determining summary judgment
motions, “facts must be viewed in the light most favorable to the nonmoving party only if there
is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167
L.Ed.2d 686 (2007). 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, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). After “a properly supported motion for summary
judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine

7
issue for trial.’” Anderson, 477 U.S. at 255 (quotation omitted). “To survive summary
judgment, the nonmoving party must show evidence sufficient to establish every element that is
essential to its claim and for which it will bear the burden of proof at trial.” Diedrich v. Ocwen
Loan Servicing, LLC, 839 F.3d 583, 591 (7th Cir. 2016) (citations omitted).
ANALYSIS

I. Constitutional Claims Against Defendants Murphy and Leonard

In Count I of the Second Amended Complaint, Plaintiffs bring a Fourth Amendment
unreasonable seizure claim against Defendants Murphy and Leonard based on the 911 call
reporting that Plaintiffs had engaged in criminal conduct that caused other Chicago Police
Officers to seize them without any legal justification. See Green v. Newport, 868 F.3d 629, 633
(7th Cir. 2017) (“The Fourth Amendment prohibits unreasonable searches and seizures, but
police may conduct an investigatory stop of an individual when the officer has reasonable
suspicion that a crime may be afoot.”). Plaintiffs bring this claim against Defendants Murphy
and Leonard asserting that the off-duty officers’ actions set into motion a series of events that
they knew or reasonably should have known would cause Defendants Rochowicz and
Liakopoulos to seize Plaintiffs without sufficient legal cause. See Rasho v. Elyea, 856 F.3d 469,
478 (7th Cir. 2017) (a “defendant will be deemed to have sufficient personal responsibility if he
directed the conduct causing the constitutional violation, or if it occurred with his knowledge or
consent.”) (citation omitted); see also Surita v. Hyde, 665 F.3d 860, 875 (7th Cir. 2011)
(government official may cause constitutional deprivation if he “sets in motion a series of events
that [he] knew or reasonably should have known would cause others to deprive plaintiff of
constitutional rights.”) (quoting Brokaw v. Mercer Cnty., 235 F.3d 1000, 1012 (7th Cir. 2000));
see also Conner v. Reinhard, 847 F.2d 384, 397 (7th Cir. 1988) (“requisite causal connection is

8
satisfied if the defendant set in motion a series of events that the defendant knew or should
reasonably have known would cause others to deprive the plaintiff of her constitutional rights.”).
In her motion, Defendant Murphy makes no arguments pertaining to the unreasonable
seizure claim brought against her in Count I, and thus the Court addresses Defendant Leonard’s
arguments in relation to Count I.2 In her summary judgment motion, Defendant Leonard asserts

that she did not participate in any unlawful seizure. She first posits that she did not personally
seize Plaintiffs, which is clearly undisputed. Second, Defendant Leonard argues that she did not
set the traffic stop in motion. In doing so, she points to evidence that she did not participate in
Defendant Murphy’s decision to place the 911 call and that she and Murphy did not talk to one
another during Murphy’s two 911 calls. These factual assertions, however, are disputed by
evidence in the record, including that Defendant Murphy testified she had a conversation with
Defendant Leonard before calling 911. (Murphy Stmt. Facts ¶ 20.) Viewing the facts and
reasonable inferences in Plaintiffs’ favor, not only did Murphy testify that she and Leonard
talked about the 911 call before making it, they jointly decided to follow Plaintiffs’ car. (Pls.’

Add’l Stmt. Facts ¶ 15.) Defendant Leonard also testified that she was following Plaintiffs’ car
to assist Murphy with reporting to 911 the direction of Plaintiffs’ travel. (Id. ¶ 18.) Further, it is
undisputed that Murphy’s 911 call was based in part on what Leonard had witnessed at the 7-
Eleven. (Id. ¶ 32.) In addition, the recording of the 911 call indicates that Defendant Murphy
was communicating with Leonard during the call. (Id. ¶ 19.) As such, Plaintiffs have provided
sufficient evidence – viewed in their favor – raising a triable issue of fact that Defendant Leonard

2 In Count VI, Plaintiffs bring a failure to intervene claim against Defendant Leonard. Although
Defendant Leonard argues that she did not have a realistic opportunity to intervene, she is not
pursuing summary judgment on this claim because a failure to intervene analysis “almost
always” implicates questions of fact for the jury.

9
participated in the 911 call that set into motion the alleged unlawful seizure. The Court therefore
denies Defendant Leonard’s motion in respect to Count I.
Next, both Defendants Leonard and Murphy assert that Plaintiffs’ § 1983 conspiracy
claim as alleged in Count V fails as a matter of law. In particular, Defendants Leonard and
Murphy contend that Plaintiffs’ conspiracy claim embraces the same alleged misconduct in

Count I and does not seek to attach liability to any other Defendants. Indeed, Plaintiffs’
conspiracy claim does not allege any injury above and beyond the predicate unreasonable seizure
claim as alleged in Count I – nor does it seek to spread liability to additional defendants. See
Moore v. Morales, 445 F. Supp. 2d 1000, 1012 (N.D. Ill. 2006) (“A plaintiff cannot prevail if the
defendants did not cause any injury above and beyond the torts that they allegedly conspired to
commit.”); see also Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008) (“conspiracy is not an
independent basis of liability in § 1983 actions”); Jones v. City of Chicago, 856 F.2d 985, 992
(7th Cir. 1988) (“the function of [the] conspiracy doctrine is merely to yoke particular
individuals to the specific torts charged in the complaint”); Hostrop v. Bd. of Jr. College Dist.

No. 515, 523 F.2d 569, 576 (7th Cir. 1975) (“The doctrine of civil conspiracy extends liability
for a tort ... to persons other than the actual wrongdoer.”); Cf. Gramenos v. Jewel Co., Inc., 797
F.2d 432, 435 (7th Cir. 1986) (“If the arrest was constitutionally unreasonable, then the police
are liable under § 1983 without regard to the ‘conspiracy’”). In response, Plaintiffs point to a
district court decision that highlights the above precedent, but where the court concluded that the
plaintiff’s conspiracy claim was not “subsumed in the other substantive tort claims” because the
alleged conspiracy involved more than an unlawful seizure, but also allegations of false arrest
and malicious prosecution, and extended the liability to another defendant. See Martinez v. City
of Chicago, No. 14-CV-369, 2016 WL 3538823, at *5 (N.D. Ill. June 29, 2016). Such is not the

10
case here. Therefore, Plaintiffs’ conspiracy claim is redundant of their unreasonable seizure
claim as alleged against Defendants Leonard and Murphy in Count I of the Second Amended
Complaint.3 The Court therefore grants Defendants Leonard’s and Murphy’s partial summary
judgment motions as to Count V.
II. Constitutional Claim Against Defendants Rochowicz and Liakopoulos

In Count III of the Second Amended Complaint, Plaintiffs allege that Defendants
Rochowicz and Liakopoulos used excessive force during the February 7, 2014 traffic stop in
violation of the Fourth Amendment. See Archer v. Chisholm, 870 F.3d 603, 617 (7th Cir. 2017)
(“The Fourth Amendment prohibits the use of excessive force during a seizure.”). “When an
officer is accused of using excessive force, the decisive question is whether the officer’s conduct
meets the Fourth Amendment’s objective standard of reasonableness.” United States v. Brown,
871 F.3d 532, 536 (7th Cir. 2017). Simply put, “[i]n deciding excessive force claims, the issue is
whether an officer’s use of force was objectively reasonable given the information he or she
knew at the time.” Doornbos v. City of Chicago, 868 F.3d 572, 579 (7th Cir. 2017); see also

White v. Hefel, 875 F.3d 350, 358 (7th Cir. 2017) (“[T]he key inquiry in an excessive-force case
is the amount of force used, not the degree of harm that was inflicted on the victim.”). “The
nature and extent of the force that may be used depends upon the circumstances surrounding an
arrest, including ‘the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.’” Howell v. Smith, 853 F.3d 892, 898 (7th Cir. 2017)

3 Although a plaintiff may pursue alternative theories of liability at the pleading stage, see
Fed.R.Civ.P. 8(d)(3), to “survive summary judgment, the nonmoving party must show evidence
sufficient to establish every element that is essential to its claim and for which it will bear the
burden of proof at trial.” Diedrich v. Ocwen Loan Servicing, LLC, 839 F.3d 583, 591 (7th Cir.
2016) (citations omitted).

11
(citation omitted); see also Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d
443 (1989).
Examining the evidence and all reasonable inferences in Plaintiffs’ favor, Plaintiffs –
who were all under the age of eighteen at the time of the incident – claim that Defendant
Rochowicz pointed a gun at Gaspar’s face and yelled “Don’t fucking move or I’m going to blow

your fucking head off.” Other evidence viewed in Plaintiffs’ favor indicates that Defendant
Rochowicz removed Gaspar from the car by grabbing him by the chest and pulling him out of
the car, after which Defendant Rochowicz placed a knee on Gaspar’s neck while handcuffing
him. Gaspar also testified that Defendant Rochowicz thereafter grabbed him by the coat, pulled
him off the ground, and forcibly shoved him back into the car. Plaintiff Heath testified that
Defendant Rochowicz dragged him back to the car after he was on the ground, and then shoved
him against the car. Also, Plaintiff Walker testified that Defendant Liakopolous grabbed him
and placed his knee at the back of Walker’s neck and continued to kneel on Walker’s back after
he was handcuffed. There is also undisputed evidence that Gaspar did not resist arrest and that

all three Plaintiffs complied with the police officers’ orders. In addition, Officer Liakopolous
admitted that Walker did not resist being placed in handcuffs. During the traffic stop,
Defendants never saw Plaintiffs engage in any illegal activity, but based on the radio
transmission, Defendants Rochowicz and Liakopolous believed that the occupants of the vehicle
were armed and dangerous.
Defendants first argue that Defendant Rochowicz was justified in pointing his gun at
Gaspar under the circumstances highlighting the Seventh Circuit’s decision in Williams v. City of
Champaign, 524 F.3d 826 (7th Cir. 2008). Indeed, Williams teaches “that if you are a police
officer with reason to believe there may be an armed robber in a [vehicle,] you approach with

12
utmost caution, which may include pointing a gun at the occupants.” Id. at 828. That being said,
viewing the circumstances known to Defendant Rochowicz while he seized Gaspar, based on
Gaspar’s compliance with Defendant Rochowicz’s orders, the undisputed fact that Gaspar did
not resist arrest, and the fact that Plaintiffs quickly pulled over after spotting Defendant
Rochowicz’s lights and siren, Defendant Rochowicz’s conduct after he encountered Gaspar and

subdued him raises a genuine dispute of material fact that his use of force was objectively
unreasonable and violated Gaspar’s right to be free from excessive force because Gaspar was
subdued and no longer a threat of danger to the officer. See Miller v. Gonzalez, 761 F.3d 822,
829 (7th Cir. 2014) (“prohibition against significant force against a subdued suspect applies
notwithstanding a suspect’s previous behavior—including resisting arrest, threatening officer
safety, or potentially carrying a weapon.”). Likewise, construing the facts in Plaintiffs’ favor,
testimony reveals that Defendant Rochowicz slammed Heath to the ground, dragged him along
the ground, stood him up, and then shoved him against the car despite undisputed evidence that
Heath obeyed police orders. See Becker v. Elfreich, 821 F.3d 920, 928 (7th Cir. 2016) (“Force is

reasonable only when exercised in proportion to the threat posed[.]”) (citation omitted). Last,
Defendant Liakopolous treated Walker similarly, namely, throwing him to the ground, kneeling
on his neck, and handcuffing him – although Walker did not resist and obeyed police orders. At
that time, Defendant Rochowicz had already handcuffed and searched Gaspar and Heath, and
other officers were present at the scene of the traffic stop. See Abbott v. Sangamon Cnty., Ill.,
705 F.3d 706, 731 (7th Cir. 2013) (“this is not the case of a single officer attempting to control
and detain multiple suspects”). Indeed, the Seventh Circuit has “held that significant force is
unreasonable after a suspect has stopped resisting or evading arrest.” Alicea v. Thomas, 815 F.3d
283, 288 (7th Cir. 2016); see also Cyrus v. Town of Mukwonago, 624 F.3d 856, 863 (7th Cir.

13
2010) (“It’s the totality of the circumstances, not the first forcible act, that determines objective
reasonableness.”).
Because Plaintiffs were not resisting arrest, attempting to flee, or posing an immediate
threat to the officers’ or others’ safety once Defendants Rochowicz and Liakopolous initially
encountered them, Plaintiffs have presented evidence creating a genuine factual dispute for trial

that the force Defendants used was objectively unreasonable under the circumstances. See
Graham, 490 U.S. at 396; Howell, 853 F.3d at 898.
Next, Defendants Liakopolous and Rochowicz argue that they are shielded by qualified
immunity. Police “officers are entitled to qualified immunity under §1983 unless (1) they
violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was
‘clearly established at the time.’” D.C. v. Wesby, ___ S.Ct. ___, 2018 WL 491521, at *10 (U.S.
Jan. 22, 2018) (quoting Reichle v. Howards, 566 U. S. 658, 664 (2012)); see also Pearson v.
Callahan, 555 U.S. 223, 231 (2009). “To be clearly established, a legal principle must have a
sufficiently clear foundation in then-existing precedent.” D.C. v. Wesby, 2018 WL 491521, at

*11 (U.S. Jan. 22, 2018). “It is not enough that the rule is suggested by then-existing precedent,”
rather the “precedent must be clear enough that every reasonable official would interpret it to
establish the particular rule the plaintiff seeks to apply.” Id. “Qualified immunity balances two
important interests—the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when
they perform their duties reasonably.” Pearson, 555 U.S. at 231. “Although qualified immunity
is an affirmative defense, the plaintiff has the burden of defeating it once the defendants raise it.”
Archer, 870 F.3d at 613.

14
Because Plaintiffs have presented sufficient evidence raising a triable issue of fact as to
their excessive force claim, the Court turns to whether the alleged unlawfulness of Defendants’
conduct was clearly established at the time of the February 7, 2014 traffic stop. When assessing
the clearly established prong of qualified immunity “the inquiry is aimed at determining whether
a reasonable person in the officer’s position would have understood his actions to be against the

law at the time he acted,” and “the Supreme Court has stressed that the right at issue must be
articulated at a meaningful level of particularity.” Canen v. Chapman, 847 F.3d 407, 412 (7th
Cir. 2017). Thus, to carry their burden, Plaintiffs must “show either a reasonably analogous case
that has both articulated the right at issue and applied it to a factual circumstance similar to the
one at hand or that the violation was so obvious that a reasonable person necessarily would have
recognized it as a violation of the law.” Id. (quoting Chan v. Wodnicki, 123 F.3d 1005, 1008 (7th
Cir. 1997)).
In their legal memoranda, Defendants focus on cases in which police officers reasonably
believed a suspect had a weapon. See, e.g., Roos v. Patterson, No. 10-4073, 2013 WL 3899966,

at *8 (C.D. Ill. July 29, 2013) (“Courts within the Seventh Circuit have regularly granted and
affirmed summary judgment on excessive force claims where the suspect threatened an officer
with a weapon or where the officer reasonably believed that the suspect had a weapon.”). As
discussed above, however, at issue is whether Defendant Officers’ continued use of force was
objectively reasonable once they determined that Plaintiffs were not armed, had been subdued,
and obeyed the officers’ orders. Under these circumstances, “[i]t is well established that a police
officer may not continue to use force against a suspect who is subdued and complying with the
officer’s orders.” Johnson v. Scott, 576 F.3d 658, 660 (7th Cir. 2009); see also Abbott, 705 F.3d
at 732 (“[p]rior to 2007, it was well-established in this circuit that police officers could not use

15
significant force on nonresisting or passively resisting suspects [and] it was well-established in
2007 that police officers cannot continue to use force once a suspect is subdued”). Plaintiffs
point to several other cases showing that they had a clearly established right to be free from
excessive force once they no longer posed a threat and were subdued. See Miller, 761 F.3d at
829 (“force that is reasonable while a suspect poses a threat may no longer be reasonable as the

threat decreases.”); see also Dye v. Wargo, 253 F.3d 296, 298 (7th Cir. 2001). Accordingly, at
the time the officers seized Plaintiffs, it was clearly established that it was objectively
unreasonable to use significant force when a suspect is subdued and no longer posing a threat.
Therefore, Plaintiffs have met their burden in showing that Defendants are not shielded by
qualified immunity when viewing the facts and evidence in their favor. The Court therefore
denies Defendants’ summary judgment motion as to Count III of the Second Amended
Complaint.
III. State Law Claims

In Count IV of the Second Amended Complaint, Plaintiffs bring a state law battery claim
sounding in tort against the City of Chicago based on Defendant Rochowicz’s and Liakopoulos’
conduct in seizing Plaintiffs. Under Illinois law, battery is defined as “the unauthorized touching
of the person of another.” Wilson v. City of Chicago, 758 F.3d 875, 879 (7th Cir. 2014); see also
Chelios v. Heavener, 520 F.3d 678, 692 (7th Cir. 2008) (“Under Illinois law, battery is the
‘unauthorized touching’ of another that ‘offends a reasonable sense of personal dignity.’”)
(citation omitted).4 The City maintains that Plaintiffs have failed to set forth sufficient evidence
creating a triable issue of fact that Defendant Rochowicz’s or Liakopoulos’ conduct amounted to
battery arguing that Defendants’ contact with Plaintiffs was “justified.” In essence, Defendants

4 Defendants’ reliance on Illinois’ criminal battery statute is misplaced. See 720 ILCS 5/12-3(a).

16
are arguing that their use of force was justifiable in relation to self-defense, which “in the context
of a civil action for the tort of battery makes sense where justifiable use of force or self-defense
is raised.” Davis v. City of Chicago, 8 N.E.3d 120, 147 (1st Dist. 2014); see 720 ILCS 5/7-1. In
support of this contention, Defendants argue that “[b]ased on the information received through
the 911 dispatch, the officers were justified in stopping the Plaintiffs’ vehicle and using an

objectively reasonable amount of force in detaining the Plaintiffs[] while the armed robbery was
investigated.” (R. 91, Opening Brief, at 14.) As discussed above, however, Plaintiffs have
presented sufficient evidence creating a triable issue of fact that certain aspects of Defendants’
contacts with them were not legally justified based on the amount of force used after Plaintiffs
complied with the officers’ orders, were subdued, and not resisting arrest.
Turning to Defendants’ better argument, they maintain that their conduct was not willful
and wanton, and thus they are immune under the Illinois Tort Immunity Act. See 745 ILCS
10/2-202 (a “public employee is not liable for his act or omission in the execution or
enforcement of any law unless such act or omission constitutes willful and wanton conduct”).

The Tort Immunity Act defines willful and wanton conduct as “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 or their property.” 745 ILCS 10/1–
210. “Although willful and wanton conduct ‘consists of more than mere inadvertence,
incompetence, or unskillfulness,’ it need not be an ‘intentional act; rather, it may be an act
committed under circumstances exhibiting a reckless disregard for the safety of others.” Chelios,
520 F.3d at 693 (citations omitted). “Whether an officer acted in such fashion ‘is normally a
question of fact to be determined by the jury.’” Id. (citation omitted); see also Robles v. City of
Chicago, 2014 IL App (1st) 131599, 381 Ill.Dec. 151, 10 N.E.3d 236, 240 (1st Dist. 2014)

17
(“Whether a person is guilty of wilful and wanton conduct is a question of fact for the jury and
should rarely be ruled upon as a matter of law.”).
Accepting Plaintiffs’ version of the February 7, 2014 incident, a reasonable jury could
find that Defendants’ continued force when they slammed Plaintiffs against the vehicle and
forcibly shoved and grabbed them – although Plaintiffs were following the officers’ orders –

reflected a reckless disregard for Plaintiffs’ safety. See, e.g., Cravatta v. Lopez, No. 12 CV
50306, 2016 WL 5871508, at *11 (N.D. Ill. Oct. 7, 2016) (“the court finds no reason to depart
from the Seventh Circuit’s admonition that the determination of willful and wanton behavior
should normally be a question of fact for the jury”). In addition, “when an officer’s use of force
rises to the level of being unconstitutionally excessive, it will also constitute willful and wanton
conduct for purposes of Illinois’ Tort Immunity Act.” Karkoszka v. Dart, No. 13 C 1635, 2016
WL 164331, at *5 (N.D. Ill. Jan. 14, 2016); see also Lopez v. Dart, No. 06 C 4836, 2008 WL
4889088, at *5 (N.D. Ill. July 17, 2008) (collecting cases). For these reasons, the Court denies
the City’s summary judgment motion as to Count IV of the Second Amended Complaint.

On a final note, Defendant Murphy and the City of Chicago do not challenge Plaintiffs’
false imprisonment claim as alleged in Count II and the City of Chicago does not move for
summary judgment as to the indemnification claim in Count VII. Therefore, Counts II and VII
remain in this lawsuit.

18
CONCLUSION
For these reasons, the Court grants Defendant Murphy’s partial motion for summary
judgment [82], grants in part and denies in part Defendant Leonard’s partial motion for summary
judgment [79], and denies the City Defendants’ motion for summary judgment. [90].
Dated: January 26, 2018
ENTERED
be
AMY J. ST.
United States District Court Judge

19

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10137810. Public record. Not legal advice.