Torry v. City Of Chicago

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARCUS D. TORRY, LATRELL Q. GOSS,

and WILLIAM I. ROBERTS,

Plaintiffs, Case No. 15-cv-8383

v. Judge John Robert Blakey

CITY OF CHICAGO, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

This case arises from a 2014 traffic stop that Plaintiffs claim violated their

Fourth and Fourteenth Amendment rights. Plaintiffs Marcus Torry, Latrell Goss,

and William Roberts sued Defendant Officers and the City of Chicago in September

2015, [1], alleging the following claims: (I) Illegal Stop, under 42 U.S.C. § 1983; (II)

False Arrest/Illegal Detention, under § 1983; (III) Assault; (IV) Battery; (V) Illegal

Search and Seizure, under § 1983; (VI) Failure to Intervene, under § 1983; (VII)

Conspiracy to Interfere with Plaintiffs’ Civil Rights, in violation of 42 U.S.C. § 1985;

and (VII) Conspiracy to Deprive Plaintiffs of Civil Rights, under § 1983, [23].

The parties cross-filed for summary judgment. [63, 66]. For the reasons

explained below, this Court denies Plaintiffs’ motion for summary judgment, [66],

and partially grants and partially denies Defendants’ motion for summary

judgment, [63].

I. Background

A. Local Rule 56.1 and Evidentiary Rules

On September 23, 2014, Officers Jacek Leja and Justin Raether and Sergeant

Robert King (Defendant Officers) stopped Plaintiffs’ car on the 2900 block of West

Polk Street in Chicago. PSOF ¶¶15–18, 21; DSOF ¶ 10.1 The parties dispute many

of the circumstances surrounding the stop and this Court notes those disagreements

in its discussion of the incident.

The parties’ disputes extend to almost the entirety of each other’s statements

of fact. See generally R. DSOF; R. PSOF. This Court has broad discretion to enforce

the local rules governing summary judgment motions. See, e.g., Petty v. City of

Chicago, 754 F.3d 416, 420 (7th Cir. 2014). As such, simply denying a fact that has

evidentiary support “does not transform it into a disputed issue of fact sufficient to

survive a motion for summary judgment,” and this Court disregards any insufficient

denials. Roberts v. Advocate Health Care, 119 F. Supp. 3d 852, 854 (N.D. Ill. 2015)

(citation omitted); see also Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000).

Likewise, “purely argumentative denials,” legal conclusions, and unsupported

general denials do not belong in Local Rule 56.1 statements, and this Court

disregards them as well. See, e.g., R. DSOF ¶ 14; see also Phillips v. Quality

Terminal Servs., LLC, 855 F. Supp. 2d 764, 771 (N.D. Ill. 2012); Malec, 191 F.R.D.

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

statement of undisputed facts [65], with Plaintiffs’ responses [83] cited as R. DSOF. PSOF refers to

Plaintiffs’ statement of undisputed facts [67], with Defendants’ responses [82] cited as R. PSOF.

PSAF refers to Plaintiffs’ statement of additional undisputed facts [84], with Defendants’ responses

[92] cited as R. PSAF. DSAF refers to Defendants’ statement of additional undisputed facts [81],

with Plaintiffs’ responses [97] cited as R. DSAF. References to additional filings use docket numbers.

at 584; Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000)

(applying Rule 56 under its prior designation as Rule 12). Finally, this Court finds

no merit in either parties’ claims that their opponents’ statements of fact are

irrelevant, see e.g., R. DSOF ¶ 11, R. PSOF ¶ 30, because the facts bear directly on

the outcome of this case, see Fed. R. Evid. 401.

This Court further finds the videos of the stop recorded by Torry and Goss, as

well as the statements within Torry’s video, constitute admissible evidence for

purposes of summary judgment. See [60-7]; [60-8]. Although Torry and Goss

recorded the videos and submitted them as joint exhibits with Defendants,

Plaintiffs now appear to challenge the video evidence on the grounds of authenticity

and completeness. See, e.g., R. DSOF ¶ 20. But the parties already agreed to the

tapes’ authenticity in their statements of fact, and thus undermine any challenges

to the admissibility of the videos at this stage. See R. PSOF ¶¶ 9, 10; Fed. R. Evid.

901(a); Smith v. City of Chicago, 242 F.3d 737, 741–42 (7th Cir. 2001).

As to completeness, Plaintiffs contend that “there is no video of the entire

incident, and no video of the incident before plaintiffs were pulled over by

defendants.” R. DSOF ¶ 20. Without citation to any relevant portions of the record,

this insufficient factual denial, see Malec, 191 F.R.D. at 584, fails to show that any

portion of the video has been withheld, or explain how in fairness some other

evidence ought to be considered at the same time as the video evidence. Thus, this

Court has nothing further to consider under Federal Rule of Evidence 106, and

Plaintiffs fail to make a proper showing under the completeness doctrine or

otherwise call the video’s accuracy into question. See United States v. Cejas, 761

F.3d 717, 724–25 (7th Cir. 2014) (affirming admissibility of video absent any “sound

reason to doubt the video’s authenticity”).

As to the statements audible on Torry’s video, [60-7], Plaintiffs offer a general

objection to all such statements as inadmissible hearsay, R. DSOF ¶ 20; [88] at 4.

Where Defendants offer Plaintiffs’ statements as evidence, and vice versa, those

statements are admissible as statements of a party-opponent. See Fed. R. Evid.

801(d)(2). Where Defendants offer their own statements, those made in the context

of King’s heated discussions with Torry are admissible on multiple grounds,

including as present sense impressions or excited utterances. See id. 803(1) and (2).

Finally, this Court finds that any remaining statements not covered by these

provisions meet the requirements for admissibility under the completeness doctrine,

or remain admissible for non-hearsay purposes. See id. 106; United States v.

Haddad, 10 F.3d 1252, 1258–1259 (7th Cir. 1993). Torry’s video is just over 13

minutes long; it depicts the entirety of the stop after King approached Plaintiffs’

car. See generally [60-7]. Plaintiffs challenge the legality of the stop from start to

finish. See generally [68]; [88]. Since determining the reasonableness of an

investigatory stop requires a context-dependent inquiry, in which courts assess the

justification for, duration, and manner of the stop “in light of the surrounding

circumstances,” see Matz v. Klotka, 769 F.3d 517, 523–25 (7th Cir. 2014), this Court

finds that admitting any additional statements in the video: (1) explains the

previously admitted statements; (2) contextualizes them; (3) avoids misleading the

trier of fact; and (4) ensures “a fair and impartial understanding of all the

evidence,” see United States v. Doxy, 225 F. App’x 400, 402–03 (7th Cir. 2007) (citing

United States v. Velasco, 953 F.2d 1467, 1475 (7th Cir. 1992)).

This Court also rejects Plaintiffs’ assertion that Defendants cannot create a

genuine issue of material fact because they no longer independently recall the stop.

See, e.g., [88] at 4. This argument ignores the documentary and video evidence

related to the circumstances of the stop, as well as Defendants’ deposition testimony

about their general recollections of their tasks, duties, and knowledge at the time of

the stop. See, e.g., [60-4]; [61-2]; [65-1]. Absent any meaningful and specific

objection to the exhibits, this Court may properly consider such admissible evidence

at summary judgment. See, e.g., Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.

2009).

Finally, this Court may take judicial notice of Defendants’ Google Maps print-

out, [65-1] at 13, which shows distances and locations of events relevant to the stop,

see Cloe v. City of Indianapolis, 712 F.3d 1171, 177 n.3 (7th Cir. 2013), overruled on

other grounds by Ortiz v. Werner Enters., Inc., 864 F.3d 760 (7th Cir. 2016). Absent

any showing calling this exhibit’s accuracy into question—which Plaintiffs do not

offer, see, e.g., R. DSOF ¶ 14—this Court may properly consider such evidence at

summary judgment, see Fed. R. Evid. 201(d).

B. The Stop

On the day of the stop, Torry resided at 2442 West Polk Street. [60-1] at 4.

While at home with Roberts, Torry received a call from Goss—Torry’s brother—

whose car had broken down near the intersection of West Polk and South California

Avenue. Id. at 6; PSOF ¶ 14. Around noon, Roberts and Torry picked up Goss, with

Torry driving his mother’s gray Ford Fusion. PSOF ¶¶ 14–15. Plaintiffs then drove

west along West Polk to South Kedzie Avenue, where they turned south to take

Goss to an auto parts store on West Roosevelt Road. Id. ¶¶ 16–17. After Goss

bought the part he needed, Plaintiffs retraced their route to Goss’ disabled car,

ending up eastbound on West Polk toward South California. See id. ¶¶ 14, 18; [60-

1] at 6–7.

Manley High School is located at 2935 West Polk, in the stretch between

South California and South Kedzie. See DSOF ¶ 14; [65-1] at 13. Plaintiffs’ car

therefore approached Manley for at least the second time that day as they drove to

Goss’ car, around 12:48 p.m. See PSOF ¶ 18; DSOF ¶¶ 16, 17. It was at this point

that they were stopped, on the same block as the school. See PSOF ¶¶ 18–22; DSOF

¶¶ 10, 20.

On the day of the stop, King was working as a “school sergeant,” meaning

that he responded to and investigated violence near schools within his beat,

including by patrolling the area around the schools. DSOF ¶¶ 18–19; [60-4] at 7–8.

Around the time of the stop, King stood outside the school and saw Plaintiffs’ car

pass in front of Manley on West Polk for at least the second time “within a short

timeframe.” DSOF ¶ 20. King claims that he initiated the stop alone at

approximately 1:00 p.m. Id.; PSOF ¶ 22. Plaintiffs’ versions of events differ,

compare [60-1] at 11 with [60-2] at 8 and [60-3] at 5, but Goss claims that at least

one other officer participated in the initial stop, [60-2] at 8, and Roberts describes

all three Defendant Officers as standing on the sidewalk together before jumping in

their cars to jointly effect the stop, [60-3] at 12. Goss’ cell phone video shows a

marked police car pulling up to Plaintiffs’ car after King had already approached

Torry’s window to ask for identification, but the angle does not capture any officers

getting in or out of the vehicle. See generally [60-8].

According to King, he stopped Plaintiffs’ car because he had reasonable

suspicion that Plaintiffs might engage in violence related to either an earlier

shooting nearby or ongoing violence in the area, some of which was gang-related.

See DSOF ¶¶ 21–26; [60-4] at 20; PSOF ¶¶ 25, 28. King bases his account upon

Torry and Goss’ videos of the stop, King’s knowledge and experience relating to the

beat he worked at the time, the practices of the police department, police records

from the day of the stop, his duties and tasks as a school sergeant, and his

familiarity with gang and other violence in the vicinity of Manley. See [65-1] at 18–

20; [81-1] at 2–4. King no longer independently recalls the stop. [60-4] at 15, 20.

Drawing upon these sources, however, King states that driving back and

forth in front of a single location in a high-crime area constitutes targeting

behavior, suggesting that the driver may be casing a target for future violence.

DSOF ¶¶ 21, 24. Defendants testified that the area around Manley had

experienced an increase in aggravated batteries involving weapons and threats to

police officers around the time of the stop, DSOF ¶¶ 21–22, and that on the day of

the stop Manley lay within the geographical “box” set up to concentrate further

police investigation related to a nearby shooting earlier that day, DSAF ¶¶ 11, 16.

Defendants also contend that Plaintiffs generally matched a description of

the suspects involved in that earlier shooting, described as three black males

driving a gray vehicle. DSAF ¶ 1. Plaintiffs concede that the race, gender, and

number of individuals in Plaintiffs’ gray car matched this general information. See

PSOF ¶¶ 15, 18, 30. According to Defendants, King responded to the shooting that

morning and would have received the description of the suspects either when he

responded to the scene of the shooting, or via the Office of Emergency Management

Communications (OEMC). DSAF ¶¶ 2–8; [81-1] ¶¶ 7, 10, 12. No evidence in the

record suggests that any unrelated, additional conduct, such as a traffic violation,

prompted the stop. See R. PSOF ¶ 23.

The record confirms that a shooting did, in fact, occur on the morning of the

stop, at or near 640 South Washtenaw Avenue, about a half mile from Manley.

DSOF ¶¶ 11, 13; [65-1] at 3. Police records show that King responded to that

incident, and King also notes that OEMC would have disseminated details related

to the shooting. See [81-1] ¶¶ 2, 7, 8, 10, 11; id. at 7. A police report dated October

2014—over a week after the stop—describes the shooting suspects’ car as a “Grey

Nissan SUV.” [65-1] at 7, 9. An earlier report contains no such description. See id.

at 2–3. The OEMC Event Query Report setting out the chronology of the police

response to the shooting contains various explanatory “remarks” from the day of the

shooting. See [81-1] at 6–10. Those remarks confirm that the police identified the

suspects as three black males in a gray vehicle, but offer conflicting descriptions of

the exact make or model of the suspects’ car. A remark time-stamped 8:51 a.m.

describes it as a “newer model gry Nissan.” Id. at 7. Another remark that appears

to be time-stamped 8:43 a.m. reports a witness saw a “gray Trailblazer,” id. at 9,

while a final remark lacking any time stamp states that the suspects’ car was a

“newer gry Nissan SUV,” id. at 10.

King testified that, at the time of Plaintiffs’ stop, the available information

indicated that the shooting suspects drove a gray vehicle, without the details of its

make or model. See [60-4] at 20; [81-1] ¶ 14. King states that he “was still actively

investigating the shooting incident” at the time of Plaintiffs’ stop and “would have

been on the lookout for a grey vehicle with three African American male occupants.”

[81-1] ¶¶ 13, 14; see also DSOF ¶¶ 20–22. Defendants also contend that these

circumstances combined with Plaintiffs’ repeated passes in front of Manley

suggested that Plaintiffs “were about to be involved in retaliatory actions.” DSOF ¶

21. Plaintiffs argue, on the other hand, that the records of the earlier incident

sufficiently distinguish Torry’s car—a gray sedan—from the suspects’ car, identified

as a gray SUV. [88] at 6, 7.

Once Plaintiffs pulled over, King approached their car and asked Torry for

his license and registration. See PSOF ¶ 32; DSOF ¶ 27; [60-7], at 00:01. Upon

King’s approach, Torry began video-recording the encounter on his cell phone. See

PSOF ¶ 9; see generally [60-7]. Torry’s video runs the full length of the stop, until

he drives off in his car upon his release. See generally [60-7]. Goss also made a

recording, though it lasts only about a minute. See generally [60-8]. At this point,

even though the parties continue to dispute the details of the encounter, this Court

assesses their accounts in light of the video evidence. See Scott v. Harris, 550 U.S.

372, 380–81 (2007) (holding that courts need not accept accounts “blatantly

contradicted by the record,” but should view “the facts in the light depicted” by

video evidence); see also Hurt v. Wise, -- F.3d --, 2018 WL 507595, at *6 (7th Cir.

Jan. 23, 2018) (explaining that Scott requires courts to discredit accounts that

“flatly” contradict video evidence, but preserves the rule that courts draw inferences

from the depicted events in the light most favorable to the opposing party).

C. The Video Footage

Torry’s video begins with King’s request for identification, followed by Torry

asking why he was detained. [60-7] at 0:00–0:10. King replies that “this was about

your third pass by this school.” Id. at 0:10. King then clarifies that he is conducting

a Terry stop, or “a custodial stop,” because Torry “cruised this street here around

this school,” adding that the area was “a safe passage” and “the immediate location

of a shooting this morning.” Id. at 0:56–2:00. Over the course of the stop, King

repeatedly emphasizes that he stopped Torry because he saw Torry drive past the

school—Manley—three times. See id. at 2:45, 4:02.

After Torry hands King his license and registration, King and Torry have a

disagreement: Torry denies that he passed the school three times, King tells him

not to argue, and Torry demands King’s badge number. Id. at 0:10. King then

appears to step away from Plaintiffs’ car for a moment. Id. at 0:40–0:56. He

returns and tells Torry, “Step out of the car,” already reaching for the handle of the

driver’s door. Id. at 0:56. Torry asks if he’s under arrest, to which King responds:

“Sir, get out of the car please. Sir, this is a Terry stop, I have the right to search the

car, get out of the car.” Id. at 1:00. By now, a second officer stands with King

outside the driver-side door. Id. at 1:07. King continues: “If you don’t get out of the

car, I will remove you from the car.” Id. Torry responds, “I’m gonna remove myself

but I just don’t want to get—y’all get me, shoot me, or kill me for something I didn’t

do wrong.” Id. at 1:14. King mocks Torry’s concern, saying: “Yes, sir, absolutely;

hands up, don’t shoot, there you go.” Id. at 1:16.

Torry testified that at this point he took off his seatbelt and got out of the car,

but that King took his arm anyway as he exited: “He just grabs me out of the car.”

[60-1] at 9. King then placed Torry in the back seat of his car. Id. Goss testified

that one officer “grabbed” Torry out of the car, while another “grabbed” Goss out.

[60-2] at 10. The video does not capture the parties’ movements at this point, but

King audibly says, “Come on out, sir, let’s go back to my car, sir, right over here,”

while Torry repeats, “Please don’t shoot.” Id. at 1:20–1:27.

Plaintiffs’ account indicates that at about this point—after Plaintiffs had

been ordered out of the car—Leja prepared a can of mace by shaking it. See PSOF

¶¶ 34–40. Defendants offer unrebutted evidence that Leja shook the can only after

Torry “failed to comply with at least 4 different commands to exit the vehicle.”

DSAF ¶ 19; see also R. DSAF ¶ 19; [60-7] at 0:56–1:14 (multiple orders to exit the

car). In any event, Plaintiffs ultimately exited the car and Defendant Officers never

used mace. See PSOF ¶¶ 34, 38; R. DSOF ¶ 30.

Having placed Torry in the back of his car, King remains in the front seat for

a few minutes, ostensibly running the name and warrant checks that the parties

agree took place while Defendant Officers detained Plaintiffs. See [60-7] at 1:30–

4:29; PSOF ¶¶ 64, 69; DSOF ¶ 34. King then returns to the other parties, standing

near Torry’s car, leaving Torry alone in the police car. See [60-7] at 6:13–9:47. On

the video, Torry narrates that Defendant Officers are asking Goss and Roberts for

their information; and at one point, Goss approaches Torry telling him through the

window to be quiet, with Torry responding, “Leave me alone!” See id. at 7:00–8:10.

Goss and Roberts assert that, while Torry was in King’s car, Raether and

Leja patted them down and searched Goss’ pockets. See PSOF ¶ 65; [60-2] at 16.

Neither Torry nor Goss’ cell phone videos capture this interaction, and Leja and

Raether do not now recall if they searched Goss’ pockets. DSAF ¶ 26. Defendants

contend, however, that any search of Goss’ pockets was consensual, prior to them

giving Goss a lift back to his car, as discussed below. Id. ¶ 27.

Plaintiffs also appear to claim that one of the Defendant Officers searched

Torry’s vehicle, see [68] at 10; [88] at 9, although in their statement of facts they

state only that an officer “looked into the car,” PSOF ¶ 70. In his deposition, Torry

stated twice that he saw an officer in his car searching it, though he contradicted

himself on this point. See [60-1] at 12–13. Goss testified that the officers “looked in

the vehicle,” but he did not know if the officers ever entered or rummaged around in

the car. [60-2] at 16. Neither video depicts any vehicle search. See generally [60-7];

[60-8].

About nine and a half minutes after King first asked for Torry’s

identification, and about eight minutes after Torry was placed in King’s car, King

returns to Torry and leads him back to the Ford Fusion. See [60-7] at 09:47. Torry

asks King if he is under arrest, and King replies: “If you were under arrest, you’d be

in handcuffs.” Id. at 9:57. Torry gets back in his car and King returns Torry’s

license and proof of insurance. Id. at 10:02–10:18. Shortly after, one of the

Defendant Officers hands Torry a document through the window. Id. at 10:31. At

this point, Torry’s video captures part of an exchange between Goss and Defendant

Officers. One of the officers says, “You don’t want anything to do with him,” and, in

response to an unintelligible reply, responds, “Yeah, c’mon, jump in the car . . . yeah

we’ll give you a ride home.” Id. at 10:40. Torry can then be heard exclaiming,

“Fuck off then! You don’t side with police.” Id. Goss testified that the officers told

him to get in their car to return to his disabled car. [60-2] at 15.

By the twelve-minute mark, Torry has driven off down West Polk with

Roberts. See [60-7] at 12:15. He narrates, “I’m still recording cause they behind

me,” indicating that Defendant Officers were driving behind his car. Id. at 12:22;

PSOF ¶¶ 76, 77. Goss testified that, while he rode in the squad car with Raether

and Leja behind Torry’s car, they debated pulling Torry over again “to mess with

him.” [60-2] at 17. Torry was not stopped a second time. Id. Torry’s video ends at

about thirteen minutes without any further interactions between Plaintiffs and

Defendant Officers. See [60-7]. The OEMC Event Query documenting this stop

records that the stop started at approximately 12:58 p.m. and “cleared” at 1:21 p.m.,

a period of 23 minutes. See [61-6]. King noted in his deposition that recording an

incident “cleared” does not indicate the time that an officer releases a detained

suspect, but rather when an officer closes out the incident, which might require

completing administrative tasks. See R. PSOF ¶ 71.

Plaintiffs sued Defendants in September 2015. [1]. They amended their

complaint in March 2016. [23]. This opinion addresses the parties’ cross-motions

for summary judgment on all counts. [63, 66].

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 no genuine

dispute exists 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 non-moving party, no jury could reasonably find in the non-moving

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

party is entitled to summary judgment where the non-moving party fails to

establish an “essential element” of the case with respect to which that party has the

burden of proof. Celotex Corp., 477 U.S. at 323; see also Johnson v. Cambridge

Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (“As we have said before, summary

judgment is the put up or shut up moment in a lawsuit, when a party must show

what evidence it has that would convince a trier of fact to accept its version of

events.”) (quoting Schacht v. Wis. Dep’t of Corr., 175 F.3d 497, 504 (7th Cir. 1999))

(internal quotation marks omitted).

III. Analysis

Certain disputed facts in this case require this Court to deny the parties’

motions for summary judgment with respect to a few of Plaintiffs’ claims. See

Anderson, 477 U.S. at 248. Specifically, when resolving a claim requires making a

credibility determination or weighing evidence, these tasks belong to the factfinder,

not to the district judge at summary judgment. See Payne v. Pauley, 337 F.3d 767,

770 (7th Cir. 2003). Here, however, Plaintiffs’ admissions and other record evidence

eliminate various factual disputes, and this Court grants summary judgment where

that evidence leaves “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 Plaintiffs’ claims in turn. Defendants raise a

qualified immunity defense with respect to Counts I, II, and V, and a state tort

immunity defense with respect to Counts III and IV. [64] at 11, 13, 14. This Court

considers these defenses within its discussion of each claim.

A. Count I: Illegal Stop

When a police officer has “a reasonable, articulable suspicion that criminal

activity is afoot,” the Fourth Amendment permits a “brief, investigatory stop.”

Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (discussing Terry v. Ohio, 392 U.S. 1

(1968)); see also United States v. Snow, 656 F.3d 498, 500 (7th Cir. 2011).

Reasonable suspicion means “more than a hunch but less than probable cause and

considerably less than preponderance of the evidence,” Snow, 656 F.3d at 500

(internal quotation marks omitted).

In determining whether reasonable suspicion exists, courts assess the

reasonableness of the officer’s stop objectively, taking into account the totality of the

circumstances. See United States v. Cortez, 449 U.S. 411, 417 (1981) (courts must

consider the “whole picture”); United States v. Johnson, 170 F.3d 708, 714–15 (7th

Cir. 1999) (courts consider “the totality of the circumstances” from “the standpoint

of an objectively reasonable police officer”) (internal quotation marks omitted).

Relevant circumstances include “the experience of the officer and the behavior and

characteristics of the suspect,” United States v. Bullock, 632 F.3d 1004, 1012 (7th

Cir. 2011), whether the location of the stop is a high-crime area, Wardlow, 528 U.S.

at 125, as well as “rational inferences” from the facts available to the detaining

officer, Terry, 392 U.S. at 21; see also Bullock, 632 F.3d at 1012. The suspect need

not have actually committed or be engaged in illegal activity; reasonable suspicion

may be “based on acts capable of innocent explanation.” United States v. Valentine,

232 F.3d 350, 356 (3d Cir. 2000); see also United States v. Miranda-Sotolongo, 827

F.3d 663, 669 (7th Cir. 2016) (officers may consider “suspicious behavior” that also

has “an innocent explanation”). The circumstances, however, “must raise a

suspicion that the particular individual being stopped is engaged in wrongdoing.”

Cortez, 449 U.S. at 418.

Additionally, an officer’s stop is reasonable if it is justified based upon “the

collective knowledge of the agency for which he works,” even if the officer’s

firsthand knowledge is insufficient to create reasonable suspicion on its own.

United States v. Williams, 627 F.3d 247, 252 (7th Cir. 2010); see also United States

v. Ledford, 218 F.3d 684, 689 (7th Cir. 2000) (holding that if the search or seizure

constitutes a “joint endeavor,” the trial court may properly consider what other

officers knew and impute that collective knowledge to the officer taking action).

Ultimately, determining whether “reasonable suspicion exists is not an exact

science, and ‘must be based on commonsense judgments and inferences about

human behavior.’” Matz, 769 F.3d at 522 (quoting Wardlow, 528 U.S. at 125).

Here, the undisputed facts of the stop at issue include: (1) the area around

Manley had seen a recent spike in violence; (2) Plaintiffs were stopped within the

geographic “box” within which law enforcement was still investigating a nearby

shooting from earlier that morning; (3) King had responded to the shooting and was

still actively investigating it; (4) the race, gender, and number of individuals in

Plaintiffs’ car matched the information about the suspects in the earlier shooting;

(5) Plaintiffs’ car at least partially matched the description of the suspects’ car; (6)

Plaintiffs drove past Manley twice;2 (7) King’s experience led him to believe that

2 On Torry’s video, King claims that he saw Plaintiffs’ car pass Manley three times, [60-7] at 4:02,

while Torry claims he drove past only once, id. at 2:45. Plaintiffs argue that this Court must credit

Torry’s statement. [88] at 6. Not so. As discussed above, the record unequivocally establishes that

Plaintiffs’ car drove down West Polk at least twice before they were stopped. This Court need not

credit a statement that is “blatantly contradicted by the record.” See Scott, 550 U.S. at 380.

Moreover, at the motion hearing, Plaintiffs’ counsel conceded the fact that Plaintiffs’ car drove past

the location at least twice.

“repeated passes” in front of a single location demonstrated “gang rival targeting”

behavior; and (8) in the context of the earlier shooting that morning, King believed

that this behavior suggested imminent retaliatory actions. See [65-1] at 20; [81-1]

at 6–10; PSOF ¶¶ 15, 18, 30; DSOF ¶¶ 11, 21–24; DSAF ¶¶ 11, 16, 21–22, 24.3

Taken together, these facts provide the “minimal level of objective

justification” needed to support reasonable suspicion. Wardlow, 528 U.S. at 124.

Recent shootings and gang activity “can contribute to reasonable suspicion,” United

States v. Ford, 872 F.3d 412, 415 (7th Cir. 2017), as can an officer’s informed

conclusion that a suspect has engaged in casing behavior, see Green v. Newport, 868

F.3d 629, 631, 634 (7th Cir. 2017). In light of the totality of the circumstances here,

including the recent violence in the immediate area, the fact that Plaintiffs passed

Manley twice and matched the general information about the suspects in the earlier

shooting (i.e., the number, gender, and race of individuals driving in a gray vehicle),

the law permits the “rational inference,” Terry, 392 U.S. at 21, that Plaintiffs may

have been about to engage in violence. This Court also accords an appropriate

amount of deference to King’s professional assessment of Plaintiffs’ actions at the

time of the stop, see Ornelas v. United States, 517 U.S. 690, 699 (1996) (noting that

a police officer’s inferences drawn from the facts and the officer’s experience

“deserve deference”); see also Plumhoff v. Rickard, 134 S.Ct. 2012, 2020–21 (2014)

(explaining that courts cannot analyze the totality of circumstances “with the 20/20

3 This Court considers the final listed fact undisputed because Plaintiffs’ denial rested upon

improper legal conclusions and statements that did not contradict Defendants’ statement. See R.

DSOF ¶ 21. As discussed above, such a denial is insufficient to dispute a fact supported by record

evidence. See Phillips, 855 F. Supp. 2d at 771; Malec, 191 F.R.D. at 584.

vision of hindsight” and instead must allow for the fact that police officers “are often

forced to make split-second judgments”).

Contrary to Plaintiffs’ claims, this stop did not depend upon “suspicion so

broad that it would permit the police to stop a substantial portion of the lawfully

driving public.” Miranda-Sotolongo, 827 F.3d at 669. Rather, Plaintiffs’ behavior,

vehicle, and general description, viewed in context, provided specific, articulable

suspicion. See Wardlow, 528 U.S. at 124 (sustaining stop where defendant fled

police in area known for drug trafficking); Green, 868 F.3d at 631 (sustaining

vehicle stop where suspect’s car circled robbery target multiple times); United

States v. Breland, 356 F.3d 787, 790–91 (7th Cir. 2004) (sustaining stop where

defendant matched general description of suspected drug dealer and was near

building known for drug trafficking); United States v. Tirrell, 120 F.3d 670, 674–75

(7th Cir. 1997) (sustaining vehicle stop where one of the car’s five occupants

generally matched description of a bank robber and the car matched a vehicle

involved in a different robbery); United States v. Tilmon, 19 F.3d 1221, 1225, 1228

(7th Cir. 1994) (sustaining vehicle stop where defendant matched the general

description of a bank robber and his vehicle, despite two-hour and 50-mile “gap”

between the stop and the robbery).

Given the undisputed portions of the record, Plaintiffs fail to undermine the

legality of the stop. Other than Plaintiffs’ attempts to discount Defendants’

evidence, addressed above, their primary argument for why these circumstances fail

to establish reasonable suspicion is that certain police records show the shooting

suspects’ car—unlike Plaintiffs’—was an SUV. See [68] at 5; [88] at 6. Reliance

upon this lone fact, however, is misplaced.

When viewed in context, the police records do not undermine the reasonable

suspicion collectively held by King and the police department. See Williams, 627

F.3d at 252 (collective knowledge doctrine). The OEMC event query documenting

the police response to the shooting indicates that the police department had some

conflicting initial information about the exact make and model of the suspects’ gray

car. See [81-1] at 7, 9 (“gry Nissan” and “gray Trailblazer”). A third remark

describing the suspects’ car as a Nissan SUV, however, lacks a time stamp. See id.

at 10. Finally, a police report (dated more than a week after the stop occurred)

indicates that the suspects’ vehicle was a “Grey Nissan SUV,” [65-1] at 7–9, but this

after-the-fact report sheds no light on what police knew before Plaintiffs’ stop, which

is what matters to the reasonable suspicion determination, see D.Z. v. Buell, 796

F.3d 749, 754 (7th Cir. 2015) (assessing the reasonableness of an investigatory stop

in light of the facts available at the time). This later report has even less probative

value because an earlier report from the day after Plaintiffs’ stop (and the shooting)

lacks the SUV information altogether. See [65-1] at 2–3.

In short, Plaintiffs offer no evidence that King or the police department knew,

at the time of the stop, that the shooting suspects drove an SUV. See Buell, 796 F.3d

at 754. Nor do they controvert King’s statement that he was “on the lookout for a

grey vehicle with three African American male occupants.” [81-1] ¶ 14; see also R.

DSAF ¶ 16. And, consistent with the color of the gray car visible on Torry’s video,

Plaintiffs admit, as they must, that they matched this description at the time of the

stop. See PSOF ¶¶ 15, 30; [60-7] at 9:04. Certainly, there is no evidence in the

record to establish that, prior to the stop, the police possessed sufficient information

to exclude Plaintiffs from the ongoing investigation.

In any event, the law does not require reasonable suspicion to be an “exact

science.” Matz, 769 F.3d at 522 (citing Wardlow, 528 U.S. at 125). Accordingly,

police officers may stop cars that only generally match descriptions of a suspect

vehicle, particularly where other factors bolster their suspicion. See United States

v. Wimbush, 337 F.3d 947, 950 (7th Cir. 2003) (holding that stop was reasonable

where defendant “matched the description of the suspect” and drove a car

“substantially similar to the one driven by the suspect” only blocks from the site of a

recent shooting). Given the natural inconsistencies often present in reliable

eyewitness accounts, the law provides some leeway to police officers and allows

them to pursue investigations even when they receive imperfect information in the

field. Thus, reasonable suspicion can exist even in the midst of factual

discrepancies. See United States v. Hurst, 228 F.3d 751, 756 (6th Cir. 2000)

(sustaining stop where suspect’s car was described as “a Ford Thunderbird

containing two persons” and defendant’s car was “a Mercury Cougar containing

three persons”); Guidry v. Boyd, No. 06-c-1600, 2007 WL 2317174, at *7 (N.D. Ill.

July 17, 2007) (collecting cases). And even a clear mistake of fact regarding the

make or model of the suspects’ car would not necessarily vitiate the reasonableness

of Defendant Officers’ suspicion. See Snow, 656 F.3d at 499–500 (inaccurate

description of vehicle by 911 operator supported officer’s reasonable suspicion);

United States v. McDonald, 453 F.3d 958, 962 (7th Cir. 2006) (detaining officer’s

reasonable mistake of fact can support reasonable suspicion).

Lastly, even if the circumstances here fell short of reasonable suspicion

(which they do not), Plaintiffs fail to overcome Defendant Officers’ qualified

immunity defense. The doctrine of 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 v. Callahan, 555 U.S.

223, 231 (2009). The protection of qualified immunity, therefore, applies regardless

of whether the officer’s error is a mistake of law, a mistake of fact, or a mistake

based upon mixed questions of law and fact. Id.

Once Defendants invoked qualified immunity, the burden shifted to Plaintiffs

to show: “(1) that the official violated a statutory or constitutional right, and (2) that

the right was clearly established at the time of the challenged conduct.” Ashcroft v.

al-Kidd, 563 U.S. 731, 735 (2011) (internal quotation marks omitted). If this Court

answers either inquiry “in the negative, the defendant official is entitled to

summary judgment.” Green, 868 F.3d at 633. These inquiries need not be

answered in order. Pearson, 555 U.S. at 236. Here, Plaintiffs cannot show that

Defendant Officers violated a “clearly established” right under the requisite

qualified immunity analysis.

To demonstrate that a right was “clearly established” at the time of the

alleged violation, Plaintiffs must identify “existing precedent” placing “the statutory

or constitutional question beyond debate.” Green, 868 F.3d at 633 (internal

quotation marks omitted).4 Moreover, the relevant law supporting the clearly

established right cannot be “defined at a high level of generality,” but must be

“particularized to the facts of the case.” Id. (internal quotation marks omitted). As

the Supreme Court puts it, the term “clearly established” means that, at the time of

the officer’s conduct, the law must be “sufficiently clear that every reasonable

official would understand that what he is doing is unlawful.” District of Colombia v.

Wesby, 138 S.Ct. 577, 589 (2018) (internal quotation marks omitted). Such

specificity is “especially important in the Fourth Amendment context,” where the

Supreme Court has recognized that it is sometimes difficult for an officer to

determine how the “relevant legal doctrine” will apply to the “factual situation the

officer confronts.” Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (quoting Saucier v.

Katz, 533 U.S. 194, 201 (2001)); see also Malley v. Briggs, 475 U.S. 335, 341 (1986)

(qualified immunity protects “all but the plainly incompetent or those who

knowingly violate the law”).

Here, the only case Plaintiffs identify as “clearly established law” that

Defendant Officers violated is Phelan v. Vill. of Lyons, 531 F.3d 484, 489–90 (7th

Cir. 2008). See [88] at 11. Phelan involved an officer who failed to read the full

4 Given the record here, it should go without saying that the facts fail to constitute the “rare obvious

case” where a body of relevant case law is not needed. District of Colombia v. Wesby, 138 S.Ct. 577,

590–91 (2018) (citing Brosseau v. Haugen, 543 U.S. 194, 199 (2004)).

description of a suspect’s car in a Law Enforcement Agencies Data System (LEADS)

report. See 531 F.3d at 488. But that case addressed the probable cause standard,

not reasonable suspicion, and so it does not apply. Id. Besides, Plaintiffs also fail to

explain how the relevant facts in Phelan otherwise relate to the specific

circumstances of the stop at issue here. See [88] at 11. Such “perfunctory and

undeveloped arguments, and arguments that are unsupported by pertinent

authority, are waived (even where those arguments raise constitutional issues).”

Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016) (internal quotation marks

omitted).

In broad strokes, Plaintiffs simply assert that they have a clearly established

right not to be stopped absent suspicion. See [88] at 11. This argument defines the

law much too generally to overcome a qualified immunity defense, and fails to

properly address the particular circumstances of this case. See Green, 868 F.3d at

633. In fact, the Seventh Circuit recently sustained a grant of qualified immunity

on similar facts, finding no precedent barred an investigative stop where the

subjects drove near an auto parts store multiple times in a manner that the officer

interpreted as “casing” behavior. See id. at 634. There, as here, the

constitutionality of the officer’s conduct was not “beyond debate,” id., and thus,

Defendant Officers merit qualified immunity on Count I.

B. Count II: False Arrest/Illegal Detention

When a traffic stop “extends beyond the time reasonably necessary to

complete the purpose for which the stop was made,” it might convert “into a full-

blown arrest.” Huff v. Reichert, 744 F.3d 999, 1005 (7th Cir. 2014). Whether or not

a stop rises to the level of custodial arrest, the touchstone for its constitutionality

remains reasonableness: “Stops too intrusive to be justified by suspicion under

Terry, but short of custodial arrest, are reasonable when the degree of suspicion is

adequate in light of the degree and duration of restraint.” United States v. Chaidez,

919 F.2d 1193, 1198 (1990). The reasonableness of any detention thus depends in

key part upon “the degree of intrusion,” with the necessary level of suspicion

increasing as the stop becomes more intrusive. Id. at 1197–98. A detention must be

“reasonably related in scope and duration to the circumstances that justified the

stop in the first instance so that it is a minimal intrusion on the individual’s Fourth

Amendment interests.” Bullock, 632 F.3d at 1015. Accordingly, there is no “rigid

time limit” for a stop, but in assessing its reasonableness courts should consider

“the law enforcement purposes to be served by the stop, the time reasonably needed

to effectuate those purposes, and whether the police diligently pursued their

investigation.” Id. (citing United States v. Sharpe, 470 U.S. 675, 685–87 (1985)).

Based upon the record, the minimal intrusion on Plaintiffs’ Fourth

Amendment interests was not unconstitutional. Plaintiffs were detained for under

thirteen minutes in a public space and then immediately released. See [60-7]. For

approximately eight of those minutes, Torry sat in King’s car but was never

handcuffed. See id. Officers patted down Goss and Roberts and may have searched

Goss’ pockets; Plaintiffs also claim that an officer searched their car. See PSOF ¶¶

65, 70. Whether those alleged searches were permissible is discussed below, but, as

to the detention itself, no evidence suggests that Defendant Officers failed to

diligently pursue their investigation to dispel their suspicions that Plaintiffs might

be involved in violent activity. See Sharpe, 470 U.S. at 686; see also [60-7]; PSOF

¶¶ 32, 64, 68, 69; DSOF ¶¶ 34, 41, 45, 46. Indeed, the parties agree that Defendant

Officers quickly performed name and warrant checks on Plaintiffs, see PSOF ¶¶ 64,

68; DSOF ¶ 34, and Torry’s video also shows Defendant Officers actively

interviewing Goss and Roberts, see [60-7] at 7:51–8:00, 9:03–9:21.

Under well-established precedent, the level of suspicion required to justify

such a brief detention is correspondingly minor. See Bullock, 632 F.3d at 1015;

Chaidez, 919 F.2d at 1197–98. In light of the totality of the circumstances noted

above, including the fact that Plaintiffs matched information about a recent

shooting that King was still investigating, Defendant Officers’ decision to run name

and warrant checks and talk to Goss and Roberts constituted reasonable means

“likely to confirm or dispel” their suspicions. United States v. Adamson, 441 F.3d

513, 521 (7th Cir. 2006). Taking thirteen minutes to do so is not obviously

unreasonable, and Plaintiffs identify no authority suggesting that it is. See [88] at

6–7. This Court also takes into account Torry’s confrontational exchanges with

King, which ostensibly delayed the short investigation to a minor extent. See [60-7]

at 0:10–1:20, 1:58–4:02; see also Adamson, 441 F.3d at 521 (sustaining 25-minute

investigative detention based in part upon suspects’ failure to cooperate). The

length of detention is a “critical factor” in evaluating the intrusiveness of a stop,

United States v. Robinson, 30 F.3d 774, 784 (7th Cir. 1994) (citing Sharpe, 470 U.S.

at 685–86), and here, the evidence weighs in Defendants’ favor.

Additionally, the circumstances support the officers’ decision to place Torry in

the squad car, given that they were investigating a violent offense in a high-crime

area, and in light of Torry’s combative demeanor and initial failure to follow

instructions. See [60-7] at 0:10–1:00; Whitehead v. Bond, 680 F.3d 919, 932 (7th

Cir. 2012) (noting that a stop’s location in a high-crime area is relevant to the

detention, particularly where there is a connection between the crime rate and the

facts supporting suspicion); Bullock, 632 F.3d at 1016 (holding that officers’ decision

to handcuff defendant and place him in the squad car was reasonable where they

were investigating crimes “associated with dangerous and violent behavior”); Jewett

v. Anders, 521 F.3d 818, 824–25 (7th Cir. 2008) (noting that “an investigatory stop

can involve a measured use of force” and relevant circumstances include “the

defendant’s own actions in resisting an officer’s efforts”) (internal quotation marks

omitted).

In any event, this unlawful detention claim also falls to qualified immunity.

Again, once Defendants invoked qualified immunity, it became Plaintiffs’ burden to

show that Defendants violated a clearly established right. See al-Kidd, 563 U.S. at

735. Like before, Plaintiffs fail to identify “existing precedent” placing “the

statutory or constitutional question beyond debate.” Green, 868 F.3d at 633

(internal quotation marks omitted). As explained above, Plaintiffs offer up only

Phelan, 531 F.3d at 489–90, which does not address the reasonable suspicion

standard of a Terry stop, and when Plaintiffs cite only a generalized right to be “free

of a traffic stop” absent particularized suspicion, see [88] at 10–11, they define the

relevant law at an impermissibly “high level of generality,” Green, 868 F.3d at 633

(internal quotation marks omitted). As such, Plaintiffs fail to satisfy their burden.

See id.

Moreover, existing precedent supports investigative stops under sufficiently

similar circumstances such that the legality of Defendant Officers’ conduct is clearly

not “beyond debate.” Id.; see also Sharpe, 470 U.S. at 688 (sustaining 20-minute

detention “when the police have acted diligently” and suspect’s actions contributed

to delay); Rabin v. Flynn, 725 F.3d 628, 632 (7th Cir. 2013) (sustaining 90-minute

detention where officers diligently pursued their investigation); Jewett, 521 F.3d at

825–26 (sustaining 30-to-40-minute detention based upon officer’s mistaken

identification of defendant as a murder suspect and defendant’s flight); United

States v. Muriel, 418 F.3d 720, 725–26 (7th Cir. 2005) (13-minute traffic stop was

reasonable where officers ran license and warrant checks while asking defendant

questions); Robinson, 30 F.3d at 783–84 (sustaining 20-minute detention to

question suspects who matched description of drug dealers); Pliska v. City of

Stevens Point, 823 F.2d 1168, 1178 (7th Cir. 1987) (sustaining 10-minute detention

in squad car to determine suspect’s identity and dispel officer’s suspicion that he

was planning a burglary).

In light of the above, Defendant Officers are entitled to qualified immunity on

Count II.

C. Count III: Assault

In Illinois, a person commits assault when they engage “in unlawful conduct

which places another in reasonable apprehension of receiving a battery.” Van

Horne v. Muller, 705 N.E.2d 898, 904 (Ill. 1998); see also 720 ILCS 5/12-1(a). A

plaintiff alleging assault must show “(1) a threatening gesture, or an otherwise

innocent gesture made threatening by the accompanying words, that (2) creates a

reasonable apprehension of an imminent battery.” Kijonka v. Seitzinger, 363 F.3d

645, 647 (7th Cir. 2004) (applying Illinois law). Here, Plaintiffs claim that King

committed assault when he mockingly said “hands up, don’t shoot,” while taking

Torry out of the car, and that Leja committed assault when he shook a can of mace

shortly thereafter. See [68] at 12.

With respect to King’s actions, this Court understands that a mocking

reference to protests against officer-involved shootings could reasonably unsettle

Plaintiffs within the context of this traffic stop. Long-settled law, however, requires

that words be accompanied by a threatening gesture to constitute assault; at a

minimum, Plaintiffs must show the rare circumstance showing “that the threat was

quite likely to be carried out—immediately.” Kijonka, 363 F.3d at 647. Here, even

if one were to take King’s words as threatening in some manner, no evidence

indicates that King made any threatening gesture indicative of immediate violence.

The imminence element of assault cannot be waived. See id.

Obviously, Leja’s preparation of the mace falls closer to the line; however,

assault only encompasses “unlawful conduct.” Van Horne, 705 N.E.2d at 904.

Plaintiffs’ account indicates that Leja prepared the mace after Defendant Officers

ordered Plaintiffs out of the car. See PSOF ¶¶ 34–40. In fact, Defendants offer

unrebutted evidence that Leja shook the can only after Torry “failed to comply with

at least 4 different commands to exit the vehicle.” DSAF ¶ 19; see also R. DSAF

¶ 19. Consequently, Leja reasonably prepared his mace in the event that Plaintiffs

physically resisted King’s directions, which would constitute obstruction of a peace

officer under Illinois law. See People v. McCoy, 881 N.E.2d 621, 631 (Ill. App. Ct.

2008) (refusing to exit car and needing to be physically removed from the vehicle

constitutes obstruction). At that point, Defendant Officers would have possessed

probable cause to arrest Plaintiffs, and the authority to use the force reasonably

necessary to effect an arrest or prevent escape. See Moore v. Chi. Police Bd., 355

N.E.2d 745, 749 (Ill. App. Ct. 1976). In this case, Torry’s resistance to Defendant

Officers’ instruction gave Leja reasonable grounds to think that some force might be

necessary. See People v. Jones, 35 N.E. 3d 970, 975 (Ill. App. Ct. 2015) (sustaining

officer’s use of force to arrest defendant where defendant “was belligerent and

combative from the beginning of the encounter” and failed to cooperate).

Ultimately, however, Torry exited the car voluntarily and Leja never needed

to use the mace. See PSOF ¶¶ 34, 38; R. DSOF ¶ 30. Preparing for an eventuality

in which force would have been justified, and ultimately not using force when that

eventuality failed to materialize, does not constitute “unlawful conduct.” Cf. 720

ILCS 5/12-1(a). Nor do Plaintiffs offer any authority suggesting that it does. See

[68] at 12.

Accordingly, neither King’s nor Leja’s actions meet the statutory definition of

assault in Illinois. Nor is the City of Chicago liable on this claim since its

employees are not liable. See 745 ILCS 10/2-109. This Court grants summary

judgment to Defendants on Count III.

D. Count IV: Battery

In Illinois, a claim for battery requires: (1) the intent 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.

Here, Plaintiffs’ battery claim includes the allegedly unjustified detention of

Torry and Goss, and the patdowns of Roberts and Goss. See [68] at 11. Plaintiffs’

brief refers only to the fact of Torry and Goss’ detention rather than any physical

contact, see id., but construing the record in the light most favorable to Plaintiffs,

this Court credits Torry and Goss’ statements that Defendant Officers touched them

while they exited or were removed from their car, see [60-1] at 9; [60-2] at 10.

Illinois law permits such contact if it is legally justified. See Holder v.

Ivanjack, 93 F. Supp. 2d 933, 940 (N.D. Ill. 2000) (applying Illinois law); 720 ILCS

5/12-3 (“A person commits battery if he intentionally or knowingly without legal

justification and by any means, (1) causes bodily harm to an individual or (2) makes

physical contact of an insulting or provoking nature with an individual.”). As

discussed above, Defendant Officers had sufficient suspicion to justify Plaintiffs’

stop, so their conduct was legally justified. But this Court need not rely solely upon

this basis, because Defendants also merit state tort immunity on this claim.

745 ILCS 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” requires “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 a detention. See Jones v. Vill. of Villa

Park, 784 F. Supp. 533, 536 (N.D. Ill. 1992) (applying Illinois law).

None of the Defendant Officers’ alleged actions rise to the level of “willful and

wanton” conduct necessary to pierce state tort immunity. Even if they “grabbed”

Torry and Goss out of the car, [60-2] at 10, nothing in Plaintiffs’ account shows “an

actual or deliberate intention to cause harm,” nor do Plaintiffs allege any such

injury or intent. 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” was not willful and wanton).

And Plaintiffs fail to contend that Defendant Officers were not engaged in the

execution of “any law.” 745 ILCS 10/2-202. Nor could they, since King, at the very

least, was still “actively investigating” the earlier shooting, see DSAF ¶ 16, Leja and

Raether were assisting him, see PSOF ¶¶ 21, 25; DSOF ¶¶ 26–27, and all three

officers were on duty and within the geographical “box” set up to investigate the

earlier shooting incident, see DSAF ¶ 11; DSOF ¶ 25; [60-5] at 8–9.

Defendant Officers are therefore entitled to state tort immunity.

Accordingly, the City of Chicago is also not liable on this claim since its employees

are not liable. See 745 ILCS 10/2-109. This Court grants summary judgment to

Defendants on Count IV.

E. Count V: Illegal Search and Seizure

Plaintiffs claim that Defendant Officers illegally searched Torry’s car, frisked

Goss and Roberts, and searched Goss’ pockets. See [68] at 9–10. Officers may

conduct a protective sweep of a car where they have reasonable suspicion that a

suspect is dangerous and “may gain immediate control of weapons.” Michigan v.

Long, 463 U.S. 1032, 1049 (1983). Similarly, a lawful patdown requires reasonable

suspicion that the suspect is “armed and dangerous.” Green, 868 F.3d at 635. A

follow-up search of a suspect’s pockets, however, cannot be justified on the same

basis as the initial stop or frisk, unless the frisk reveals an object whose

“incriminating character” is “immediately apparent.” Minnesota v. Dickerson, 508

U.S. 366, 379 (1993); see also United States v. Brown, 188 F.3d 860, 865 (7th Cir.

1999). Finally, merely glancing into a car from a “lawful position” does not

implicate the Fourth Amendment. See United States v. Willis, 37 F.3d 313, 316 (7th

Cir. 1992) (citing Texas v. Brown, 460 U.S. 730, 739–40 (1983) (“There is no

legitimate expectation of privacy shielding that portion of the interior of an

automobile which may be viewed from outside the vehicle by either inquisitive

passersby or diligent police officers.”)).

Here, Plaintiffs’ own account of the nature and scope of Defendant Officers’

alleged vehicle search remains unclear. See PSOF ¶ 70; [60-1] at 12–13; [60-2] at

16; [60-7]. Resolving this factual issue would require making credibility

determinations and weighing evidence; these tasks, however, belong to the

factfinder and not to the district court at summary judgment. Payne, 337 F.3d at

770. Nor can this Court grant qualified immunity where such material facts remain

in dispute. See Isby v. Browne, 856 F.3d 508, 530 (7th Cir. 2017). Given that this

Court cannot determine what kind of search occurred, qualified immunity here

presents questions of fact rather than law. See id. Accordingly, in light of the

record, this Court denies summary judgment to both parties with respect to the

alleged search of Plaintiffs’ car. See id.

Similarly, the parties dispute whether any search of Goss’ pockets was

consensual. See PSOF ¶ 65; DSAF ¶ 27. Resolving this issue would also require a

credibility determination inappropriate at summary judgment. Payne, 337 F.3d at

770. Absent consent, any search of Goss’ pockets would appear to be unlawful,

given that there is no evidence in the record that the patdowns revealed any object

of an incriminating character, see Dickerson, 508 U.S. at 379; DSAF ¶ 27; PSOF ¶

65, or that Plaintiffs were ever arrested, see DSOF ¶ 44; cf. United States v.

Whitsett, 207 F. App’x 723, 725, 727 (7th Cir. 2006) (searching pockets is

permissible when search is incident to arrest). Accordingly, this claim turns upon

factual questions, including whether Goss consented to any search of his pockets

and whether any such search even occurred; these factual questions belong to a

jury. Payne, 337 F.3d at 770. Given the present record, this Court also cannot

grant qualified immunity, see Isby, 856 F.3d at 530, and summary judgment is

denied to both parties on the alleged search of Goss’ pockets.

By contrast, the record presents sufficient undisputed facts to justify the

patdown of Goss and Roberts. Here, the circumstances justifying the initial stop

also justify the patdown since they created reasonable suspicion that Plaintiffs were

possibly “armed and dangerous.” Green, 868 F.3d at 635. As discussed above, the

location of the stop was a high-crime area; King was still actively investigating an

earlier shooting and Plaintiffs were stopped within the geographic “box” set up to

concentrate the police investigation; the race, gender, and number of individuals in

Plaintiffs’ car matched the information about the shooting suspects; Plaintiffs’ car

partially matched the description of the suspects’ car; Plaintiffs drove past Manley

twice; and, based upon the context and King’s experience, this behavior suggested

imminent violence. See [65-1] at 20; DSOF ¶¶ 11, 21–24; DSAF ¶¶ 11, 21–22. Such

reasonable suspicion that someone “might be involved” in a violent crime justifies a

patdown. See Snow, 656 F.3d at 501.

In any event, because Defendant Officers invoke qualified immunity, the

burden again shifts to Plaintiffs to identify clearly established law violated by

Defendants’ conduct. al-Kidd, 563 U.S. at 735. Plaintiffs once again fail to identify

any precedent showing that on these specific facts, “every reasonable official would

understand” that Defendant Officers’ actions violated Plaintiffs’ rights. Green, 868

F.3d at 633 (internal quotation marks omitted); see [88] at 9–11. In fact, an officer’s

observation of casing behavior related to a violent crime supports reasonable

suspicion that the suspect is “armed and dangerous,” and an officer conducting a

patdown under such circumstances merits qualified immunity. Green, 868 F.3d at

635. This Court grants summary judgment to Defendants on the alleged patdowns.

F. Count VI: Failure to Intervene

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

that another officer is violating a constitutional right and “a realistic opportunity to

intervene to prevent the harm from occurring.” Yang v. Hardin, 37 F.3d 282, 285

(7th Cir. 1994). That opportunity exists if an officer could and should have

cautioned the officer violating the right to stop. See Abdullahi v. City of Madison,

423 F.3d 763, 774 (7th Cir. 2005). A failure to intervene claim generally presents

questions of fact appropriate for the jury; and it should not be decided at summary

judgment if the underlying constitutional claims remain unresolved. See id. But

such claims necessarily fail if no constitutional violation occurred. See id. Thus,

Count VI survives only with respect to the unresolved constitutional claims that

remain pending following this ruling.

G. Counts VII and VIII: § 1985 and § 1983 Conspiracy Claims

A § 1985 conspiracy claim requires showing that: (1) the defendants

conspired; (2) to deprive any person or class of persons the equal protection of the

law; and (3) took or caused another to take an act in furtherance of the conspiracy;

(4) resulting in the plaintiff’s personal injury or deprivation of a civil right. See

Griffin v. Breckenridge, 403 U.S. 88, 102–03 (1971). Additionally, the plaintiff must

offer “proof of an invidious discriminatory motivation.” Munson v. Friske, 754 F.2d

683, 694 (7th Cir. 1985).

Plaintiffs’ claim for conspiracy under § 1983 requires showing: (1) an express

or implied agreement among Defendant Officers to deprive Plaintiffs of their

constitutional rights; and (2) “actual deprivations of those rights in the form of overt

acts in furtherance of the agreement.” Thurman v. Vill. of Hazel Crest, 570 F. Supp.

2d 1019, 1029 (N.D. Ill. 2008) (citing Scherer v. Balkema, 840 F.2d 437, 441 (7th Cir.

1988)). Conspiracy claims “cannot survive summary judgment based on vague

conclusory allegations that include no overt acts reasonably related to promoting

the conspiracy.” Id. (citing Amundsen v. Chi. Park Dist., 218 F.3d 712, 718 (7th Cir.

2000)). Nor may Plaintiffs rely on speculative evidence. Williams v. Seniff, 342

F.3d 774, 785 (7th Cir. 2003).

Here, Plaintiffs’ claims are based upon the bare facts that Defendant Officers

allegedly got in their cars at the same time to conduct the stop; that King’s mocking

invocation of “hands up, don’t shoot” purportedly reveals racial animus; and that

the actions Defendant Officers ultimately took “violated plaintiffs’ civil rights.” See

[68] at 14–15. On these conclusory allegations, Plaintiffs fail to demonstrate the

existence of a conspiracy. See Thurman, 570 F. Supp. 2d at 1029 (absent proof of an

agreement, the mere fact that officers communicated prior to stop did not bar

summary judgment on conspiracy claim). Plaintiffs fail to even allege that any

supposed agreement had the purpose of interfering with, or depriving them of, their

civil rights, a required element of both claims. See Griffin, 403 U.S. at 102–03;

Thurman, 570 F. Supp. 2d at 1029. This Court grants summary judgment to

Defendants on Counts VII and VIII.

IV. Conclusion

This Court partially grants and partially denies Defendants’ motion for

summary judgment, [63], as follows: this Court grants summary judgment to

Defendants on Counts I, II, III], IV, VII, and VIII, and on Count V with respect to

the alleged patdowns. This Court denies summary judgment on Count V with

respect to the alleged vehicle search and the search of Goss’ pockets. Count VI

(Failure to Intervene) survives only with respect to the surviving allegations in

Count V. This Court denies Plaintiffs’ motion for summary judgment, [66], in full,

as the disputed facts likewise prevent this Court from granting Plaintiffs summary

judgment on Counts V or VI, see Anderson, 477 U.S. at 247-48.

Dated: February 20, 2018

Entered:

John Robert Blakey

United States District Judge

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