Harris v. Richardt

INTHEUNITEDSTATESDISTRICTCOURT FORTHE

NORTHERNDISTRICT OFILLINOIS,EASTERNDIVISION

JonathanC.Harris,

Plaintiff,

v. CaseNo.15CV5563

TheHonorableJorgeL. Alonso

JosephRichardt,

Defendant.

DEFENDANT’SMOTIONFORJUDGMENT ASAMATTEROFLAW

Defendant, Joseph Richardt, by his counsel, Ellen K. Emery and Lucy B. Bednarek of

Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., moves this Court pursuant to

Federal Rule of Civil Procedure 50(a) for Judgment as a Matter of Law. In support of this

motion,Defendantstates asfollows:

I. INTRODUCTION

Federal Rule of Civil Procedure 50(a) provides that “if a partyhas been fullyheard on an

issue during a jury trial and the court finds that a reasonable jury would not have a legally

sufficient evidentiary basis to find for the party on that issue, the court may grant a motion for

judgment as a matter of law against the party.” When ruling on a motion for judgment as a

matter oflaw,“[t]he mereexistenceofascintillaofevidenceinsupport of theplaintiff’s position

will be insufficient; there must be evidence on which the jury could reasonably find for the

plaintiff.”Andersonv. Lobby,477U.S.242,252 (1986).

Plaintiff Jonathan Harris brought this Section 1983 excessive force action against Zion

Police Officer Richardt for injuries arising from a police shooting of Harris that took place on

Defendant is entitled to judgment as a matter of law on Harris’ excessive force claim

because plaintiff presented no evidence to establish that Officer Richardt’s use of force was not

justifiedunderthecircumstances.

II. THE EVIDENCE

Theevidenceshows thefollowing: On the afternoon ofJune 3, 2014,Zion policeofficers

Joseph Richardt and Derek Zaloudek initiated a traffic stop of a black Dodge Charger near the

2300 block of Lewis Avenue in Zion, Illinois. Plaintiff Jonathan Harris was the driver, and he

hadtwo passengers in thecar.Jennifer Smith was seated in the front passenger seat,and Andrew

Ayers was seated in the back seat behind Smith. Officer Richardt approached plaintiff’s side of

the car, and Officer Zaloudek approached Smith’s side of the car. When asked for his driver’s

license and proof of insurance, plaintiff handed Officer Richardt a temporary driving permit, a

rentalcaragreement, and fleetinsurance-- allregisteredtoaJoshua Ferguson.

Officer Richardt determined thatplaintiffwas drivingwithout avalid licenseand decided

to place plaintiff under arrest. Because there were three individuals and only two officers,

Richardt called for another officer to respond to the scene to provide backup. Soon after,

Sergeant Duane Arrington arrived on scene. By that time, Smith had stepped out of the car, and

was speaking with Officer Zaloudek on the side of the road. Ayers remained in the back seat.

When Sergeant Arrington arrived and began approaching the car, plaintiff said “Uh oh.”

Officer Richardt motioned for Arrington to come over by him. When Arrington was standing

next to him, Richardt attempted to arrest plaintiff. Richardt noticed the car door was locked and

pulled the mechanism to unlock the door. He then opened the driver side front door and at the

same timeasked plaintiff to step outof the car. Instead of gettingout of the car, plaintiff grabbed

thegearshifterinthecenterconsul,putthevehicleintodriveandspedoff. Ayers was stillinthe

backseatofthecar.

Officer Richardt yelled at the driver to put the vehicle in park. Plaintiff ignored him and

continued to accelerate rapidly, dragging Richardt along with the car. Richardt was holding onto

plaintiff with his right hand and part of the car with his left hand. As the car accelerated and he

was being dragged along with the car, Richardt knew he was in danger. He made a split second

decision to step inside the car and hold on to avoid being run over or thrown into oncoming

traffic and severely injured. He was very near plaintiff while holding on to something inside the

car,likelythesteeringwheel. Richardt was notstraddlingplaintiff. Rather, Richardtwas halfway

in and halfway out of the car. Richardt repeatedly told plaintiff to stop the vehicle, but plaintiff

refused. Richardt could hear the engine as they drove down the street and the wind rushing

outsidethecar.

Further, thecardoorwas open behind Richardt and hebelieved he could easilyfalloutof

the car and be killed. He did not know if plaintiff or Ayers were armed. Richardt feared for his

own life and the lives of the individuals in the car. He drew his firearm from his holster with his

right hand. Richardt told the driver to stop or that he would kill him. Plaintiff did not stop but

continuedtoaccelerate.

Officer Richardt knew if this continued the car would continue to travel faster and he

would be in a more dangerous situation. He, or the other occupants in the car, could likely die.

Richardt did not want to shoot plaintiff in the head or chest because he did not want to kill

plaintiff or shoot Ayers, who was still in the backseat of the car. Instead, Richardt followed his

trainingand shotplaintiffin thepelvicgirdle. He was trained thatshootingsomeoneinthe pelvic

girdleis wayto stop athreat.Richardt puthis firearmto theleftsideofplaintiff’s pelvis andshot

plaintiff twice at a downward angle. Immediately after Richardt shot plaintiff, plaintiff braked

and the car slowed and stopped. Shooting plaintiff stopped the threat to Richardt, Ayers and all

motorists and pedestrians in the area – a threat that plaintiff created. Richardt immediately

requested an ambulance to respond to the scene. Plaintiff was placed under arrest and was taken

tothehospital.

Officer Zaloudek also testified that as plaintiff sped off, he observed Officer Richardt

hanging half in and half out of the car. Zaloudek feared Richardt would be killed if he fell out of

the car or was struck from the vehicles in traffic. As Richardt was being dragged away by

plaintiff’s car, Zaloudek observed Sergeant Arrington get hit by a part of plaintiff’s car, causing

Arrington to flip around, and fall and strike his head on the ground. Zaloudek then heard two

gunshots and saw the car come to a quick stop. Zaloudek did not know who did the shooting. He

calledoutontheradiothatshots werefired,and rantoplaintiff’scartoassistRichardt.

As a result of this incident, on June 24, 2015, plaintiff pled guilty to Aggravated Fleeing

or Attempting to Elude a Peace Officer (Enhanced) in Case No. 14 CF 1676 (Lake County,

Illinois). Plaintiff was sentenced to 82 months incarceration at the Illinois Department of

Corrections.

Plaintiffadmitstoattemptingtofleetoavoid arrest.Plaintiff also admits that if he had

not put his vehicle in drive but rather, would have stayed and obeyed Officer Richardt’s

commands,hewouldnothavebeenshot.

III. OFFICERRICHARDT’SUSE OFFORCE WASJUSTIFIED.

To establish his case under Section 1983, plaintiff bears the burden of proving by a

preponderance of the evidence that Officer Richardt’s use of force was unreasonable under the

circumstances.Asamatteroflaw,Richardt’suse offorcewas justifiedhere.

A police officer’s use of deadly force is a seizure subject to the reasonableness

requirementsofthe FourthAmendment. Tennesseev.Garner,47 U.S.1(1985). Deadlyforceis

justified if the officer reasonablybelieves it is necessaryto protect himself or another from death

orgreatbodilyharm. Id.;Penav.Leombruni,200 F.3d1031(7th Cir.1999).

The court’s inquiry focuses on “whether the officer’s decision to use deadly force was

objectively reasonable.” Maravilla v.United States, 60 F.3d 1230, 1233 (7th Cir. 1995)(emphasis

in original). Whether Richardt acted reasonably in shooting plaintiff must be determined “in

light of the facts and circumstances confronting [him] at the moment [he] acted.” Maravilla, at

1233, (citing Graham v. Connor, 490 U.S. 386, 397 (1989)). In addition, “the ‘reasonableness’

of a particular use of force must be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. The “calculus

of reasonableness must embody allowance for the fact that police officers are often forced to

make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving.”

Id.at 396-97. Thereasonableforceanalysis considers the “severityof thecrimeatissue, whether

the suspect poses an immediate threat to the safety of the officer or others, and whether he is

activelyresistingarrestorattemptingtoevadearrestbyflight. Id.at396.

When an officer believes that a suspect's actions place him, his partner, or those in the

immediate vicinity in imminent danger of death or serious bodily injury, the officer can

reasonably exercise the use of deadly force. Muhammed v. City of Chicago, 316 F.3d 680, 683

(7th Cir.2002). Further, if the suspect threatens the officer with a weapon, the risk of serious

physical harm to the officer or others has been established. Bell v. Irwin, 321 F.3d 637, 639 (7th

Cir.2003). See also Plumhoff v. Rickard, 134 S.Ct. 2012 (2014) (no excessive force found when

suspect was killed by police in high speed car chase after police fired 15 shots into his vehicle);

Scott v. Harris, 550 U.S. 372 (2007) (finding that “the car chase that respondent initiated in this

caseposed asubstantial and immediate risk of serious physical injuryto others” and the officer’s

attempttoterminatethechasebyforcingrespondentofftheroad wasreasonable).

Plaintiff’s attempt to flee the scene, and his failure to stop the car with Officer Richardt

hanging onto to it was sufficientlylethal and imminent to justifyRichardt’s use of deadly force.

These circumstances show plaintiff placed himself, Ayers and Richardt in imminent danger of

seriousbodilyinjuryorworse.

Plaintiff was in control of and threatening Officer Richardt’s life with a deadly weapon –

a 3000 pound car that could be used as a missile. Richardt was being dragged along with the car.

With every second the car continued to accelerate, the missile was becoming even deadlier.

Richardt was not required to wait to be thrown out of car and into oncoming traffic and run over

before using deadlyforce to stop plaintiff. Significantly, Lewis Avenue was described as a busy

street, with a 45 mph speed limit, and no median separating Richardt from the fast-moving cars

travelingontheothersideofthestreet.

Further, plaintiff was not only threatening Richardt’s life as he sped away in reckless

manner, but he also was threatening the life of passenger Ayers and the lives of all other

pedestrians and motorists in the area. The evidence shows plaintiff never abandoned his attempt

to flee. Plaintiff’s recklessness in an attempt to evade arrest posed a “grave public safety risk.”

SeePlumhoff,134S.Ct.at2022.

If ever there was a “split-second judgment in circumstances that are tense, uncertain, and

rapidly evolving,” it was here. The facts are undisputed that plaintiff put the car in drive and

sped away with Officer Richardt hanging onto car. It is also undisputed that plaintiff was trying

to get away to avoid arrest and drove away recklessly. It is further undisputed that plaintiff

refused to slow down and did not slow down until he was shot. Notably, Richardt did not shoot

to kill plaintiff. Rather, Richardt’s intent when shooting plaintiff’s pelvic girdle was to stop the

threatcreatedbyplaintiff,notkillplaintiff.

The evidence shows Richardt’s use of force was objectively reasonable in light of the

facts and circumstances surrounding him when he acted. Therefore, this Court should grant

judgmentasa matteroflawinfavorofdefendant OfficerJosephRichardt.

IV.OFFICERRICHARDT ISENTITLEDTO QUALIFIEDIMMUNITY

In the alternative, Officer Richardt is entitled to qualified immunity. Qualified immunity

applies to governmental employees performing discretionary functions and shields them from

“liability for civil damages, insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

475 U.S. 800, 818 (1982); Filarsky v. Delia, 566 U.S. 377 (2012). When qualified immunity is

raised, a two-part inquiry is triggered. The first inquiry addresses whether a plaintiff’s complaint

states a constitutional violation. The second examines whether the constitutional right was

clearly established at the time of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 227

(2009).

In deadly force cases, qualified immunity shields a police officer from liability for civil

damages if “areasonable officer, facingthesame situation, could havebelieved thatdeadlyforce

was necessary to protect himself or others from death or serious physical harm.” Ellis v.

Wynalda, 999 F.2d 243, 246 (7th Cir.1993). This immunity “gives ample room for mistaken

judgmentsbyprotectingallbuttheplainlyincompetentorthosewho knowinglyviolatethelaw.”

Hunterv.Bryant,502U.S.224,229(1991).

First, as explained above, no constitutional violation occurred because no excessive force

in violation of the Fourth Amendment occurred. Second, qualified immunity protects Officer

Richardt because a reasonable officer could have believed that shooting plaintiff was necessary

to protect not onlythe officer’s life, but the life of passenger Ayers, and pedestrians or motorists

in the area. Plaintiff’s actions of speeding off with Officer Richardt hanging half in and half out

ofthecarcreated animminentthreat–athreatthattheshootingstopped.

There is no settled Fourth Amendment principle that required Officer Richardt to let go

of the car and risk being run over by plaintiff’s car or thrown into oncoming traffic and killed

himself before shooting plaintiff. See White v. Pauly, 137 S.Ct. 548 (2017). In other words,

Richardt’s attempt to terminate a dangerous situation that threatened his life and the lives of

innocentbystanders does notviolatethe Fourth Amendment, even when it placed plaintiff at risk

of serious injury or death. Further, it was not clearly established that it was unconstitutional to

shoot a fleeing driver, like plaintiff, whose flight put Richardt’s life and the life of others in

danger. In Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014), the officers were entitled to

qualified immunity in shooting a suspect in a high speed car chase because the shooting of

plaintiff put to end a high speed pursuit that indisputably posed a danger to the officers involved

and any civilians nearby – it was not clearly established that it was unconstitutional to shoot a

fleeingdrivertoprotectthosewhomhis flightmightendanger.

As in Plumhoff, plaintiff’s flight posed a grave public safety risk and Officer Richardt

acted reasonably in using deadly force to end that risk. As the Supreme Court recognized, it was

notclearlyestablishedthatitwasunconstitutionaltoshootafleeingdriver toprotectthosewhom

his flight might endanger. Id. For these reasons, Officer Joseph Richardt is entitled to qualified

immunityandthisCourtshould grantjudgmentas amatteroflawinfavor ofhim.

Respectfullysubmitted,

By: /s/ LucyB.Bednarek

LucyB.Bednarek

EllenK.Emery

eemery@ancelglink.com

LucyB.Bednarek

lbednarek@ancelglink.com

ANCEL,GLINK,DIAMOND,BUSH,DICIANNI&KRAFTHEFER,P.C.

Attorneys forDefendant

140SouthDearborn Street,Sixth Floor

Chicago, Illinois 60603

(312)782-7606

CERTIFICATE OFSERVICE

The undersigned, one of the attorneys of record herein, hereby certifies that on April 10,

2018, the foregoing Defendants’ Motion for Judgment as a Matter of Law was electronically

filedwiththeClerkof theU.S.DistrictCourt usingtheCM/ECFSystem,andmailednotification

ofsuchfilingtothefollowing:

PaulHenryMillewich

LawOfficesofStevenH.Mevorah &Associates

134NorthBloomingdaleRoad

Bloomingdale, IL60108

PMillewich@mevorahlaw.com

/s/LucyB.Bednarek

LUCYB.BEDNAREK, ARDC #6269389

AttorneyforDefendants

ANCEL, GLINK, DIAMOND,BUSH,DICIANNI

&KRAFTHEFER,P.C.

140SouthDearborn Street,Sixth Floor

Chicago, Illinois60603

Telephone: (312)782-7606

Facsimile: (312)782-0943

E-Mail: lbednarek@ancelglink.com

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