Megan Nelson v. Bryan Lutzou

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MEGAN NELSON,

Plaintiff,

Case No. 16 C 6962

v.

Judge Harry D. Leinenweber

DET. BRYAN LUTZOU, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Defendants Bryan Lutzou and the City of Chicago move for

Summary Judgment [ECF No. 42]. For the reasons stated herein,

Defendants’ Motion is denied.

I. BACKGROUND

Ms. Megan Nelson (“Nelson” or “Plaintiff”), an AmeriCorps

tutor at Richards Career Academy (“Academy”), files suit under 42

U.S.C. § 1983 against Defendants Detective Bryan Lutzou (“Lutzou”

or “Defendant”) and the City of Chicago. (See generally Compl.,

ECF No. 1.) Nelson claims Defendant violated her Fourth and

Fourteenth Amendment rights by arresting her without probable

cause. (Id.)

The arrest at issue in this case arose from an investigation

conducted by Defendant Lutzou. Lutzou was assigned to investigate

a claim by B.G. (Pl. Resp. to Defs. Statement of Facts (“SOF”)

¶ 2, Dkt. No. 55), a 15-year-old sophomore student at the Academy.

(SOF ¶ 15.) B.G. was a resident of SOS Children’s Villages

(“SOS”), a halfway home for troubled youth, when two SOS employees

overheard B.G. telling friends that a teacher kissed him. (SOF

¶ 18.) One of those employees called the Department of Children

and Family Services (“DCFS”) to report the possible sexual

interaction, resulting in a separate DCFS investigation. (SOF

¶ 19.) DCFS then notified Lutzou, who began the criminal

investigation. (SOF ¶ 2.) Lutzou’s investigation lasted from

January 22, 2016 until May 10, 2016, when Lutzou arrested Plaintiff

Nelson. (Defs. Resp. to Pl. Statement of Additional Material Facts

(“SOAMF”) ¶¶ 7, 15, Dkt. No. 58.) During the first week of the

investigation, B.G. made four separate statements: one to the SOS

employees, one to the DCFS investigator, one to Lutzou, and one to

both Lutzou and the State’s Attorney. (SOAMF ¶¶ 14-16.)

In these statements, B.G. generally described Nelson as

having approached him several times, touched his thigh and kissed

him while watching a movie alone with him, and hugged him at a

later pizza party. (SOAMF ¶¶ 14-16.) After Lutzou completed both

interviews of B.G., Lutzou decided to continue the investigation

further rather than arrest Nelson right away. (SOAMF ¶ 18.) In

the subsequent four months, Lutzou interviewed several witnesses,

including the two SOS employees, two other AmeriCorps tutors, two

Academy students, and B.G.’s bus driver. (SOF ¶¶ 53-63.) Five of

the seven are eye-witnesses, having witnessed B.G. and Nelson

interact first-hand during the times mentioned in B.G.’s

statement. The remaining two witnesses—the SOS employees—base

their knowledge solely on what B.G. told them. Each will be

discussed in turn.

The Court first turns to the two SOS employees. One employee

stated she believed B.G.’s statement given his ability to “repeat[]

the same thing multiple times.” (SOF ¶ 22.) The other employee

believed B.G.’s statement for similar reasons but described B.G.

as a liar who “could not keep a story straight if you gave him a

ruler,” (SOF ¶ 23.) Both employees based their beliefs on personal

knowledge of B.G. and what B.G. told them, (SOF ¶¶ 18-24), though

neither witnessed first-hand any interactions between Nelson and

B.G. (SOF ¶¶ 18-24).

The Court turns next to the two AmeriCorp tutors. Lutzou’s

interview revealed that the tutors were, for the most part, present

when B.G. and Nelson interacted. Both told Lutzou that they never

saw or heard anything inappropriate occur between B.G. and Nelson.

(SOAMF ¶¶ 25-26.) Both were initially present when B.G. and Nelson

watched a movie together and Nelson allegedly kissed B.G. (SOF

¶ 29.) One tutor recalled Nelson and B.G. watching the movie with

more than a foot in distance between them, (SOF ¶ 6), and the other

tutor informed Lutzou that she and Nelson were out buying pizza at

the time Nelson allegedly kissed B.G. (SOAMF ¶ 25.) At another

time, one tutor also witnessed Nelson giving B.G. a side hug at a

pizza party, (SOAMF ¶ 25), which is acceptable under school policy

so long as in the presence of others. (SOF ¶ 36.)

The Court turns finally to the two other Academy students and

B.G.’s bus driver. B.G. referred to the two students as being

present during his interactions with Nelson. (SOAMF ¶¶ 14-16.) In

the interview with Lutzou, one such student recalls a “pinky

promise” exchange between Nelson and B.G. (SOAMF ¶ 20.) The other

does not recall any interaction with B.G. at the pizza party.

(SOAMF ¶ 21.) In Lutzou’s interview of B.G.’s bus driver, Lutzou

referred to B.G.’s statement. B.G. said he had informed the bus

driver that Nelson kissed him, and, in response, the bus driver

accused him of being a liar. (SOAMF ¶ 19.) To Lutzou, the bus

driver denied both hearing the story and calling B.G. a liar.

(SOAMF ¶ 19.)

It was not until after Lutzou completed the foregoing

interviews that he decided to call Nelson in for questioning.

Then, upon arrival at the station on May 10, 2016 for said

questioning, Lutzou arrested Nelson. (SOAMF ¶¶ 20-31.)

II. ANALYSIS

Under 42 U.S.C. § 1983, Plaintiff Nelson alleges that

Defendant Lutzou falsely arrested her, violating her

constitutional rights. Defendant Lutzou rebuts that, contending he

had probable cause for the arrest, and, regardless of the probable

cause determination, is immune from suit under the qualified

immunity doctrine. Defendant City of Chicago is named for

indemnification purposes. Defendants Lutzou and the City of

Chicago move for summary judgment on all counts.

A. Standard of Review

Summary judgment is appropriate 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 fact is

“material” if it is one identified by the law as affecting the

outcome of the case. Anderson v. Liberty Lobby Inc., 477 U.S. 242,

248 (1986). An issue of material fact is “genuine” if “the

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

the nonmoving party.” Id. The Court must construe all facts and

reasonable inferences in the light most favorable to the non-

moving party. Abdullahi v. City of Madison, 423 F.3d 763, 773

(7th Cir. 2005) (citing Anderson, 477 U.S. at 255).

B. Probable Cause

“[T]he existence of probable cause for arrest is an absolute

bar to a Section 1983 claim for unlawful arrest, false

imprisonment, or malicious prosecution[.]” Schertz v. Waupaca

Cnty., 875 F.2d 578, 582 (7th Cir. 1989) (citation omitted). An

officer has probable cause to arrest when “the totality of the

facts and circumstances within his knowledge and of which he has

reasonably trustworthy information is sufficient that a prudent

person would believe that the suspect committed or was committing

an offense.” Marshall v. Teske, 284 F.3d 765, 770 (7th Cir. 2002)

(citing United States v. Sawyer, 224 F.3d 675, 678-79 (7th Cir.

2000)). Moreover, probable cause must exist “at the moment the

arrest was made.” Tangwall v. Stuckey, 135 F.3d 510, 518 (7th Cir.

1998) (citation omitted). Finally, if “there is room for a

difference of opinion concerning the facts or the reasonable

inferences to be drawn from them,” the question of probable cause

must be submitted to the jury. Gonzalez v. City of Elgin, 578

F.3d 526, 536 (7th Cir. 2009).

Defendant asserts that B.G.’s statement, alone, is sufficient

to establish probable cause, citing Reynolds v. Jamison, 488 F.3d

756, 765 (7th Cir. 2007), Woods v. City of Chicago, 234 F.3d 979,

996 (7th Cir. 2002), and Spiegel v. Cortese, 196 F.3d 717, 726

(7th Cir. 1999). These cases support the proposition that probable

cause exists when a victim positively identifies the suspect, and

the police have no reason to disbelieve the victim. However, in

each of those cases, the arrest occurred immediately after the

victim provided the incriminating statement. See, e.g., Reynolds,

488 F.3d at 759 (“Later that same day, after reviewing the

information he had gathered, [defendant officer] questioned

[plaintiff] and arrested him for telephone harassment.”); Woods,

234 F.3d at 996 (“[T]he arresting officers arrested [plaintiff]

after [the victim] made out a criminal complaint against him,

claiming that [plaintiff] had brandished a lead pipe and threatened

to kill [the victim].”); Spiegel, 196 F.3d at 720-21 (Finding

probable cause for arrest occurring same day the victim reported

the altercation and provided photographs of an injury).

Moreover, the Seventh Circuit has held that absent exigent

circumstances, a witness’s statement can be insufficient to

establish probable cause if further reasonable investigation would

undermine the statement. See BeVier v. Hucal, 806 F.2d 123, 128

(7th Cir. 1986) (finding that defendants lacked probable cause for

an arrest when simple questions would have led to important

information exonerating plaintiffs from the alleged crime); Moore

v. The Marketplace Restaurant, 754 F.2d 1336, 1345-1346 (7th Cir.

1985) (holding that officers did not have probable cause despite

witness’s complaint because arrest could have been avoided if a

proper investigation had been conducted).

Here, B.G. provided a statement to Lutzou in January, but

Nelson was not arrested until May. In the interim, Lutzou

continued his investigation and more of the story unfolded. Taken

in the light most favorable to the Plaintiff, Defendant may have

had probable cause to arrest Nelson at the time B.G.’s statement

was provided, but these subsequent findings diminished the

original probable cause determination. See BeVier v. Hucal, 806

F.2d 123, 128 (7th Cir. 1986) (“A police officer may not close her

or his eyes to facts that would help clarify the circumstances of

an arrest.”). Lutzou uncovered no new evidence to further

implicate Nelson. In fact, his investigation revealed more to

bolster Nelson’s defense against the alleged misconduct. A handful

of witnesses provided exculpatory information to Lutzou. Some

witnesses contradicted B.G.’s statement, others informed Lutzou

they had never seen Nelson behave inappropriately towards B.G.

during the relevant time. One witness even claimed to be with

Nelson buying pizza at the time Nelson allegedly kissed B.G.

Despite all this evidence undermining B.G.’s statement and

contradicting his credibility, however, Lutzou proceeded to arrest

Nelson. In light of that, a reasonable jury could find that Lutzou

lacked probable cause to arrest Nelson.

C. Qualified Immunity

The Court next addresses whether Defendants are entitled to

qualified immunity. Qualified immunity shields government

officials from liability for performing discretionary actions

within their official capacity so long as the actions do “not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Eversole v. Steele,

59 F.3d 710, 717 (7th Cir. 1995) (internal quotation marks and

citations omitted). The doctrine allows “ample room for mistaken

judgments by protecting all but the plainly incompetent or those

who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224,

229 (1991). Moreover, the immunity is available for “officers who

make a reasonable error in determining whether there is probable

cause to arrest an individual.” Chelios v. Heavener, 520 F.3d

678, 691 (7th Cir. 2008).

Qualified immunity applies unless: (1) the facts, taken in

the light most favorable to the plaintiffs, show the violation of

a federal constitutional right, and (2) the constitutional right

was clearly established at the time of the alleged violation.

Pearson v. Callahan, 555 U.S. 223, 129 (2009); Saucier v. Katz,

533 U.S. 194, 201 (2001). Plaintiffs have the burden of showing

that the constitutional right was clearly established. Purtell v.

Mason, 527 F.3d 615, 621 (7th Cir. 2008). They can meet this

burden by showing either “a clearly analogous case establishing a

right to be free from the specific conduct at issue” or that “the

conduct is so egregious that no reasonable person could have

believed that it would not violate clearly established rights.”

Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001).

Lastly, “[w]hen the qualified immunity inquiry cannot be

disentangled from disputed facts, the issue cannot be resolved

without a trial.” Gonzalez, 578 F.3d at 540 (citing Clash v.

Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996)).

As this Court has discussed, taking the facts in the light

most favorable to the Plaintiff, a prudent person in Lutzou’s

position would not believe Nelson had committed a crime

establishing probable cause for her arrest. See Ornelas v. United

States, 517 U.S. 690, 696 (1996); Smith v. Ball St. Univ., 295

F.3d 763, 768 (7th Cir. 2002). Lutzou’s investigation revealed

ample evidence contradicting B.G.’s statement and questioning

B.G.’s credibility, as well as exculpating Nelson at the alleged

time of unlawful activity. In light of this evidence, a reasonable

jury could find that Defendant lacked probable cause at the time

of Nelson’s arrest and thus, violated her constitutional rights.

Moreover, that right has been clearly established for decades.

See Marshall ex rel. Gossens v. Teske, 284 F.3d 765, 772 (7th Cir.

2002); Jenkins v. Keating, 147 F.3d 577, 585 (7th Cir. 1998);

United States v. Gilbert, 45 F.3d 1163, 1166 (7th Cir. 1995);

Simkunas v. Tardi, 930 F.2d 1287, 1291 (7th Cir. 1991).

The Defendants are thus not entitled as a matter of law to

qualified immunity. However, if the jury accepts the Defendants’

account of the facts and determines Lutzou had probable cause,

Defendants may still prevail on the merits.

D. Indemnification

Nelson also brings an indemnification claim against the City

of Chicago, which goes unmentioned in Defendants’ briefing.

Because Defendants moved for summary judgment in full, however,

the Court will address the claim here. As established above,

Defendant is not entitled to qualified immunity. Given that

Plaintiff’s constitutional claim proceeds to trial, there is no

basis for the Court to grant summary judgement on the

indemnification claim.

III. CONCLUSION

For the reasons stated herein, the Court denies Defendants’

Motion for Summary Judgment. (ECF No. 42.)

IT IS SO ORDERED.

«Harry D. Leinenweber, Judge

United States District Court

Dated: 9/11/2018

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