Gysan v. Francisko

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

REBECCA GYSAN, individually and )

as executor of the estate of )

SHANE CATALINE, )

)

Plaintiff, ) Case No. 16-cv-8254

)

v. ) Hon. Jorge L. Alonso

)

STEVEN FRANCISKO, and )

MARC MILLER, as director of the )

ILLINOIS DEPARTMENT OF )

NATURAL RESOURCES, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

After her son was shot and killed during an attempt to flee a traffic stop, plaintiff Rebecca

Gysan filed an eleven-count first amended complaint. Ten counts remain against defendants

Steven Francisko (“Francisko”) and Marc Miller, in his official capacity as Director of the

Illinois Department of Natural Resources.1 The parties have filed cross-motions for summary

judgment. For the reasons set forth below, the Court denies plaintiff’s motion for summary

judgment [54]. The Court grants in part and denies in part defendants’ motion for summary

judgment [45].

I. BACKGROUND

The following facts are undisputed unless otherwise noted.2

1 A claim against Marc Miller in his official capacity is really a claim against the Illinois

Department of Natural Resources. Belbachir v. County of McHenry, 726 F.3d 975, 982 (7th Cir.

2013) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)).

2 Local Rule 56.1 outlines the requirements for the introduction of facts parties would like

considered in connection with a motion for summary judgment. The Court enforces Local Rule

Plaintiff Rebecca Gysan (“Gysan”) is the mother and executor for the estate of decedent

Shane Cataline (“Cataline”). Cataline was a 30-year-old college graduate when, on the morning

of November 21, 2013, he left his mother’s home in Ohio in his Mercury minivan to drive to

California for a job. At approximately 10:45 a.m. the following morning, defendant Francisko

saw Cataline’s minivan parked on the side of the road in western Illinois.

At the time he encountered Cataline’s parked minivan, Francisko was on routine patrol

for his job as a conservation police officer for the Illinois Department of Natural Resources. As

a conservation police officer, Francisko had all of the powers (including arrest) possessed by

police officers, except that he could exercise those powers in any county of the State. Prior to

becoming a conservation police officer, Francisko had spent 10-12 weeks in basic training,

which included training in the use of firearms and deadly force.

The morning of November 22, 2013 was the first day of deer-hunting season, and

Francisko was conducting compliance checks on deer hunters in Whiteside County. Francisko

was driving an F-250 pick-up truck with a light bar on top and state conservation police decals

on the sides and tailgate of the truck. Francisko was wearing a uniform, which included a coat

with a star on the front and department patches on the side. Francisko was also wearing a

baseball cap with a star on the front. In addition, Francisko wore his duty belt, with his firearm,

two magazines, a baton, a flashlight, handcuffs and a multi-tool.

56.1 strictly. Where one party supports a fact with admissible evidence and the other party fails

to controvert the fact with citation to admissible evidence, the Court deems the fact admitted.

See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218-19 (7th Cir. 2015); Ammons v.

Aramark Uniform Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004). This does not, however,

absolve the party putting forth the fact of the duty to support the fact with admissible evidence.

See Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir. 2012). The Court does not consider

any facts that parties failed to include in their statements of fact, because to do so would rob the

other party of the opportunity to show that the fact is disputed. The Court notes that it sustained

defendants’ hearsay objections to ¶ 38 of plaintiff’s statement of facts [57] and to plaintiff’s

exhibit A, the autopsy report [53-1].

At about 10:45 a.m., Francisko spotted Cataline’s van parked on the side of Burns Road,

about one mile from the exit from I-88. Cataline sat in the driver’s seat. Francisko noticed

Cataline’s out-of-state license plate and noticed individuals, across the road, exiting the woods

with weapons. Francisko was concerned Cataline might be poaching deer. Francisko activated

his emergency lights and stopped his truck behind Cataline’s minivan on the side of the road.

Francisko was stopping both to check on Cataline’s welfare and to determine whether Cataline

was poaching deer.

Francisko went to Cataline’s window and was there for less than a minute. During that

time, Francisko thought Cataline was acting strangely. Cataline moved his head from side to side

and did not want to answer questions, although Cataline mentioned he was driving to California.

Cataline provided his driver’s license to Francisko.

Francisko went back to his truck to check for outstanding warrants on Cataline’s license.

About this time, Francisko, who had not called for back-up, noticed the marked squad car of an

Illinois State Trooper pull up behind his vehicle. The vehicle was driven by Illinois State

Trooper Luke Kuehl (“Kuehl”), who was wearing an Illinois State Police uniform and a body

microphone. Kuehl’s squad car was equipped with a dashboard camera.

At some point after Francisko took Cataline’s driver’s license but before Francisko

returned to Cataline’s window, Cataline telephoned 911. He told the operator his name and

location. Cataline told the operator, “I am in a lot of trouble right now.” Cataline also said, “I

think I am going to be disappearing or something.” Cataline hung up.

As Francisko reapproached Cataline’s window, he heard Cataline say into a phone, “this

isn’t going to end well,” and then saw him drop the phone. To Francisko, Cataline seemed

nervous, and Francisko was worried he might be tired. Francisko twice asked Cataline for

permission to search Cataline’s car, saying, “a lot of drugs come through here.” Cataline

declined. Francisko handed Cataline back his license and suggested that he check into a hotel to

get some sleep. Francisko told Cataline he was free to go, and Cataline drove off. Francisko had

not asked Cataline to step out of the car and had not conducted a field sobriety test. Kuehl had

accompanied Francisko to Cataline’s window, but he had not spoken.

In the meantime, the 911 operator who had spoken with Cataline telephoned the

dispatcher, because she was concerned about Cataline. The 911 operator was informed that

officers were already with Cataline.

After Cataline drove off, the dispatcher informed Francisko and Kuehl about the 911 call.

Specifically, Kuehl and Francisko were told that Cataline had called 911, had been “cryptic” on

the call, had said he “was in a lot of trouble” and that he “would be disappearing soon.” (Thus,

what Francisko and Kuehl were told is slightly different from what Cataline said during the 911

call.) Defendants put forth disputed evidence that, at that point, they thought they should check

on Cataline’s welfare. Francisko also suspected that Cataline might be transporting drugs.

Francisko drove to the interstate and headed eastbound. Kuehl followed in his squad car.

Eventually, they caught up to Cataline on the interstate. As they were following Cataline’s

vehicle, they were in contact with a dispatcher. Francisko mentioned that he had tried to obtain

consent for a search of Cataline’s vehicle but had been denied. Francisko added that it was “very

possible he was transporting something.” Francisko said he was going to follow Cataline to

“look for some probable cause.” Francisko, who had never been involved with a drug stop,

asked the dispatcher if a K-9 unit were available.

At some point while Francisko and Kuehl were driving behind him, Cataline telephoned

his mother, who thought he sounded scared. Cataline told his mother he was being followed by

two people, at least one of whom was an officer. Cataline told his mother not to trust cops and to

“find a safe place.” Cataline hung up. Around the same time, the dispatcher attempted to reach

Cataline by telephone, but the call went straight to voicemail. The dispatcher informed Kuehl

and Francisko that she had not reached Cataline.

In the meantime, Kuehl had taken the lead and was directly behind Cataline’s vehicle,

with Francisko following Kuehl. Defendants have put forth disputed evidence that Kuehl

received word from his supervisor that, based on the 911 call, Kuehl could pull over Cataline to

check on his welfare. It is undisputed that the dispatcher told Kuehl they could do a wellness

check on Cataline. Defendants put forth disputed evidence that Kuehl saw Cataline cross his

right tires over the white line (which the parties refer to as the fog line) at the right side of the

interstate.

Kuehl put on his emergency lights and initiated a stop of Cataline. When Cataline pulled

over, Kuehl parked his vehicle behind Cataline. Francisko parked his vehicle in front of

Cataline’s minivan. Within 40 seconds after Cataline stopped his vehicle, Kuehl and Francisko

were at his window.

Cataline did not turn off his vehicle or shift it out of drive. Cataline stared straight ahead

with a “thousand-mile stare.” One of the officers told Cataline they wanted to speak to him

about the 911 call he made. They asked him to turn off the car and hand over the keys. Cataline

did not respond or make eye contact. The officers again asked Cataline to turn off the car and

hand over the keys.

About thirty seconds after the officers first approached his window, when the officers

asked Cataline a final time to put the vehicle in park and hand over the keys, Cataline reversed

his car quickly, put it back in drive, turned toward the left and made a U-turn such that he was

heading westbound in the eastbound lanes of I-88. As Cataline started moving his vehicle,

Francisko had to move to avoid being hit. Francisko also started waiving his arms to alert

oncoming traffic, including a semi-truck he could see. As Cataline started moving his vehicle,

Kuehl headed toward his squad car, opened the door and attempted to get in.

Before Cataline got far heading westbound in the eastbound lanes, Cataline turned his car

left and smashed (t-bone style) into Kuehl’s squad car. This was approximately eight seconds

after Cataline started moving his vehicle. It did not appear to Francisko that Cataline had lost

control of his vehicle. It is undisputed that after the impact, Cataline’s car continued to

accelerate, partially pushing Kuehl’s squad car off the road. The vehicles came together such

that they were nearly parallel to each other. The impact caused the driver’s side door on Kuehl’s

squad car to fold backwards.

The parties dispute Kuehl’s location at the time Cataline’s minivan ran into Kuehl’s

squad car. Plaintiff put forth evidence that a truck driver testified that, before impact, Kuehl had

moved behind his vehicle. Defendants put forth evidence that, at the point of impact, Kuehl was

standing inside the open driver’s side door of his squad car. Defendants put forth disputed

evidence that after Cataline’s vehicle hit Kuehl’s squad car, Kuehl’s hips were pinned between

the two vehicles.

It is undisputed that, after impact, Cataline’s engine continued to rev and that his tires

continued to spin. It is undisputed that Cataline did not attempt to exit his vehicle and that it

sounded to Francisko like Cataline had his gas pedal to the floor. Defendants put forth disputed

evidence that Francisko heard Kuehl yelling and that Francisko believed Kuehl was being killed.

Defendants put forth disputed evidence that Kuehl, himself, felt like he was being killed.

It is undisputed that Francisko jumped on the hood of Kuehl’s squad car and discharged

his weapon five times into Cataline’s driver’s-side window. Only six seconds had passed

between the time Cataline’s vehicle first hit Kuehl’s squad car and the time Francisko fired his

first shot. Two seconds elapsed between the first and fifth shots. Defendants put forth disputed

evidence that the reason Francisko jumped on the hood of Kuehl’s squad car was that he did not

want Kuehl to be dragged (by the cars) into the line of fire.

Cataline died at the scene.

II. STANDARD ON A MOTION FOR SUMMARY JUDGMENT

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.

56(a). When considering a motion for summary judgment, the Court must construe the evidence

and make all reasonable inferences in favor of the non-moving party. Hutchison v. Fitzgerald

Equip. Co., Inc., 910 F.3d 1016, 1021 (7th Cir. 2018). Summary judgment is appropriate when

the non-moving party “fails to make a showing sufficient to establish the existence of an element

essential to the party’s case and on which that party will bear the burden of proof at trial.”

Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “A genuine issue

of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a

jury to return a verdict for that party.” Brummett v. Sinclair Broadcast Group, Inc., 414 F.3d

686, 692 (7th Cir. 2005).

III. DISCUSSION

A. Plaintiff’s excessive force claim

In Count II, plaintiff seeks relief under §1983 for defendant Francisko’s alleged violation

of Cataline’s Fourth Amendment right to be free from excessive force. Defendant Francisko

moves for summary judgment on Count II.

A “claim that law-enforcement officers used excessive force to effect a seizure is

governed by the Fourth Amendment’s ‘reasonableness’ standard.” Plumhoff v. Rickard, 572

U.S. 765, 774 (2014). Objective reasonableness is a pure question of law. Scott v. Harris, 550

U.S. 372, 381 n. 8 (2007) (“the reasonableness of [defendant’s] actions . . . is a pure question of

law.”); Phillips v. Community Ins. Corp., 678 F.3d 513, 520 (7th Cir. 2012) (“Objective

reasonableness of force is a legal determination rather than a pure question of fact for the jury to

decide. We defer to a jury’s determination of what occurred during an arrest or whose testimony

is credible. But . . . we must independently review the jury’s interpretation of what is reasonable

under the Fourth Amendment.”).

Determining objective reasonableness requires balancing the government interests with

the individual’s Fourth Amendment interests and “requires analyzing the totality of the

circumstances.” Plumhoff, 572 U.S. at 774. With respect to balancing the interests, the Supreme

Court has advised:

So how does a court go about weighing the perhaps lesser probability of injuring

or killing numerous bystanders against the perhaps larger probability of injuring

or killing a single person? We think it appropriate in this process to take into

account not only the number of lives at risk, but also their relative culpability. It

was respondent, after all, who intentionally placed himself and the public in

danger by unlawfully engaging in the reckless, high-speed flight that ultimately

produced the choice between the two evils that [defendant] confronted.

Scott v. Harris, 550 U.S. 372, 384 & 386 (2007) (“A police officer’s attempt to terminate a

dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate

the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or

death.”). In considering objective reasonableness:

[w]e analyze this question from the perspective ‘of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.’ We thus ‘allo[w] for the

fact that police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—about the amount

of force that is necessary in a particular situation.’

Plumhoff, 572 U.S. at 775 (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)).

Qualified immunity

Defendant Francisko argues that he is entitled to summary judgment on his qualified

immunity defense to Count II. Qualified immunity “shields officials from civil liability so long

as their conduct ‘does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Mullenix v. Luna, __ U.S. __, 136 S.Ct. 305, 308

(2015) (reversing denial of qualified immunity in an excessive force case).

When considering whether a constitutional right is clearly established, a court must not

define the right at a high level of generality; rather “the clearly established right must be defined

with specificity.” City of Escondido, Cal. v. Emmons, __ U.S. __, 139 S.Ct. 500, 503 (2019)

(reversing and remanding denial of qualified immunity in excessive force case). The Supreme

Court has explained:

[I]t does not suffice for a court simply to state that an officer may not use

unreasonable and excessive force, deny qualified immunity, and then remit the

case for a trial on the question of reasonableness. An officer ‘cannot be said to

have violated a clearly established right unless the right’s contours were

sufficiently definite that any reasonable official in defendant’s shoes would have

understood that he was violating it.

Kisela v. Hughes, __ U.S. __, 138 S.Ct. 1148, 1153 (2018). The Supreme Court has also

provided examples of the correct inquiry. As the Supreme Court explained in Mullenix about the

question in another case,

[t]he correct inquiry, the Court explained, was whether it was clearly established

that the Fourth Amendment prohibited the officer’s conduct in the ‘situation [she]

confronted’: whether to shoot a disturbed felon, set on avoiding capture through

vehicular flight, when persons in the immediate area are at risk from that flight.’

Mullenix, 136 S.Ct. at 309 (quoting Brousseau v. Haugen, 543 U.S. 194, 199 (2004)). In

Mullenix, the question was whether “existing precedent placed [beyond debate] the conclusion

that [the officer] acted unreasonably” when he shot “a reportedly intoxicated fugitive, set on

avoiding capture through high-speed vehicular traffic, who twice during his flight had threatened

to shoot police officers, and who was moments away from encountering an officer.” Mullenix,

136 S.Ct. at 309.

The Supreme Court has emphasized:

Use of excessive force is an area of the law ‘in which the result depends very

much on the facts of each case,’ and thus police officers are entitled to qualified

immunity unless existing precedent ‘squarely governs’ the specific facts at issue.

Kisela v. Hughes, __ U.S. __, 138 S.Ct. 1148, 1153 (2018) (reversing denial of qualified

immunity to officer who, concerned for the safety of a person nearby, shot a woman who was

holding a knife she had just hacked into a tree and “whose behavior was erratic enough to cause

a concerned bystander to call 911 and . . . flag down [the officer]”) (quoting Mullenix, 136 S.Ct.

at 309). In Emmons, the Supreme Court again noted “‘[W]e have stressed the need to identify a

case where an officer acting under similar circumstances was held to have violated the Fourth

Amendment.’” Emmons, 139 S.Ct. at 504 (citation omitted).

It is the plaintiff who must show that a right is clearly established, and, to do so, the

“plaintiff must demonstrate that existing caselaw at the time of the events in question ‘placed the

statutory or constitutional question beyond debate.’” Dockery v. Blackburn, 911 F.3d 458, 466

(7th Cir. 2018) (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 741(2011)); Kernats v. O’Sullivan,

35 F.3d 1171, 1176 (7th Cir. 1994) (“The plaintiff bears the burden of establishing the existence

of a clearly established constitutional right.”).

With this legal backdrop in mind, the Court considers whether defendant is entitled to

judgment as a matter of law on his qualified immunity defense. The Court first notes that, if a

trier of fact concluded that, when Cataline crashed his car into Kuehl’s squad car, Kuehl was

pinned between the vehicles, then it would be clear, as a matter of law, that Francisko would be

entitled to judgment as a matter of law on his qualified immunity affirmative defense (and, for

that matter, that the force he used was objectively reasonable). At the time Francisko fired, there

was no precedent which said it was excessive force for an officer to shoot a driver who was

injuring a police officer with his car and continuing to rev the engine.

That, however, is not the question for this Court. The parties dispute whether Kuehl was

actually pinned between the cars, and those issues of fact prevent the Court from ruling on the

qualified immunity issue as though Kuehl were pinned between the cars. See Strand v. Minchuk,

910 F.3d 909, 918 (7th Cir. 2018) (“The existence of substantial factual disputes about the

circumstances and timing surrounding [defendant’s] decision to shoot [plaintiff] precludes a

ruling on qualified immunity at this point.”3 The question for this Court is whether “[t]aken in

the light most favorable to party asserting the injury, do the facts . . . show the officer’s conduct

violated a constitutional right?” Brousseau v. Haugen, 543 U.S. 194, 197 (2004) (quoting

Saucier v. Katz, 533 U.S. 194, 197 (2001)).

3 In Strand, the Seventh Circuit explained that, where issues of fact preclude summary judgment

on qualified immunity, a district court may use special interrogatories to resolve the issues of fact

and, if appropriate, grant qualified immunity at trial. Strand, 910 F.3d at 918-19 (citing Warlick

v. Cross, 969 F.3d 303, 305 (7th Cir. 1992) (“When the issue of qualified immunity remains

unresolved at the time of trial, as was the case here, the district court may properly use special

interrogatories to allow the jury to determine disputed issues of fact upon which the court can

base its legal determination of qualified immunity.”)).

So the question is whether plaintiff (who, as noted above, has the burden) has pointed out

any existing caselaw that shows Francisko violated a clearly-established constitutional right

when he shot a person who had called 911 earlier to say he “would be disappearing soon” and

had, less than fifteen seconds earlier, fled a road-side stop by turning the wrong direction into

oncoming traffic on an interstate highway, smashed his car into a police vehicle and then

continued to rev the engine such that the wheels on the person’s vehicle were spinning. The

Court concludes that plaintiff has not “identif[ied] a case where an officer acting under similar

circumstances was held to have violated the Fourth Amendment.” See Emmons, 139 S.Ct. at 504.

Plaintiff’s response to the qualified immunity question is three sentences long and paints

the constitutional issue at a very high level of generality by noting “[t]here are few constitutional

rights more clearly established than the right to be free from excessive force.” (Plaintiff’s Resp.

Brief/Docket 56 at 13). The case she cites for the proposition (Sallenger v. Oakes, 473 F.3d 731

(7th Cir. 2007)) is not a case involving a police shooting, so it sheds no light on the issue. The

closest plaintiff comes to citing a case that sheds light on the reasonableness of the force used in

this case is her citation to Estate of Starks v. Enyart, 5 F.3d 230 (1993).

In Starks, the Seventh Circuit considered the appeal of an officer who had been denied

qualified immunity by the district court. There, Starks stole a taxicab and, when surrounded by

police officers, attempted to escape by driving away. A police officer jumped in front of the

moving car and shot Starks. Starks, 5 F.3d at 232. The Seventh Circuit, before dismissing the

appeal for lack of jurisdiction, noted that Starks’s “escape attempt did not involve menacing a

police officer or civilian with a weapon—at least not until [the officer] stepped into the path of a

car that had just begun to accelerate quickly.” Starks, 5 F.3d at 233.

This case is different. First, Cataline had already menaced innocent bystanders and an

officer (Francisko, who had to move out of the way) when Cataline fled the traffic stop by

turning into oncoming traffic on the interstate and then slamming into Kuehl’s squad car.

Furthermore, Cataline’s engine continued to rev and the wheels on the vehicle to spin, so a

reasonable officer could have believed (as Francisko actually did) that Cataline had the pedal to

the floor. A reasonable officer could believe Cataline was continuing to attempt to escape and

that innocent bystanders (namely the individuals traveling down the interstate) could be injured.

See Plumhoff, 572 U.S. at 776 (“[Plaintiff’s] outrageously reckless driving posed a grave threat

to public safety. And while it is true that [plaintiff’s] car eventually collided with a police car

and came temporarily to a near standstill, that did not end the chase. Less than three seconds

later, [plaintiff] resumed maneuvering his car. Just before the shots were fired, when the front

bumper of his car was flush with that of one of the police cruisers, [plaintiff] was obviously

pushing down on the accelerator because the car’s wheels were spinning, and then [plaintiff]

threw the car in reverse ‘in an attempt to escape.’ . . . Under the circumstances at the moment

when the shots were fired, all that a reasonable police officer could have concluded was that

[plaintiff] was intent on resuming his flight and that, if he was allowed to do so, he would once

again pose a deadly threat for others on the road. . . . [T]he police acted reasonably in using

deadly force to end that risk.”); Marion v. City of Corydon, Ind., 559 F.3d 700, 705-06 (7th Cir.

2009) (even when the plaintiff had driven his vehicle onto the median, plaintiff continued to rev

the engine and “attempted to regain traction” such that “a reasonable officer would have

determined that, if he did reach the eastbound lanes, there was a significant possibility that

[plaintiff] would have rammed one or more bystander’s vehicles or caused an accident between

bystanders’ vehicles, posing a substantial risk of injury or loss of life.”).

In short, plaintiff has not shown that existing precedent placed the specifically-defined

constitutional issue beyond debate. She has not identified a case that squarely governs this one.

Accordingly, defendant Francisko is entitled to judgment as a matter of law on his qualified

immunity defense to Count II. The Court grants his motion for summary judgment as to Count

II, and Count II is dismissed with prejudice.

B. Plaintiff’s claim for unreasonable seizure

In Count I, plaintiff asserts a claim for violation of Cataline’s Fourth Amendment rights.

The Fourth Amendment to the Constitution protects “[t]he right of the people to be secure in

their persons . . . against unreasonable searches and seizures.” U.S. Const. Amend IV. In her

amended complaint, plaintiff alleges that Francisko violated Cataline’s Fourth Amendment rights

both: (1) when he initially walked up to Cataline’s parked minivan; and (2) when he and Kuehl

pulled over Cataline’s vehicle when Cataline was driving on interstate 88.

First stop

Defendant first moves for summary judgment with respect to the first stop, which began

when Francisko walked up to Cataline’s minivan, which was parked on the side of the road.

Defendant argues that this was not a seizure for purposes of the Fourth Amendment. See Florida

v. Bostick, 501 U.S. 429, 437 (1991) (“[N]o seizure occurs when police ask questions of an

individual, ask to examine the individual’s identification, and request consent to search his or her

luggage—so long as the officers do not convey a message that compliance with their requests is

required.”); U.S. v. Clements, 522 F.3d 790, 794 (7th Cir. 2008) (“The police encounter in this

case was not a seizure for Fourth Amendment purposes. Clements had voluntarily stopped his

car; he did not stop because of the flashing police lights. Likewise, Clements was not seized

when the officers approached his car. The officers approached the car to investigate why the car

had been parked and running on a public street for hours, a circumstance unusual enough to at

least merit some investigation.”). The Court agrees. Cataline was voluntarily parked, and

Francisko did not seize Cataline when he walked up to his parked vehicle and asked a few

questions, including to see Cataline’s identification. Plaintiff has put forth no evidence that the

interaction was not voluntary. In fact, Cataline declined Francisko’s request to search the

vehicle.

In any case, as defendants point out, plaintiff has not responded to this argument.

Accordingly, the Court grants defendants’ motion for summary judgment with respect to the first

stop, and that portion of Count I is dismissed with prejudice. See Burton v. Board of Regents of

the Univ. of Wis. Sys., 851 F.3d 690, 695 (7th Cir. 2017) (“[I]t is a well-settled rule that a party

opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual,

why summary judgment should not be entered. If the [nonmoving party] does not do so, and

loses the motion, it cannot raise such reasons on appeal.”) (citations omitted).

Second stop

With respect to the second stop (when Kuehl turned on his emergency lights to pull over

Cataline and Francisko parked in front of Cataline’s stopped car), both sides move for summary

judgment.

“The temporary detention of an individual during the stop of an automobile by the police,

even if only for a short period of time and for a limited purpose, constitutes the seizure of a

person within the meaning of [the Fourth Amendment].” Carmichael v. Village of Palatine, Ill.,

605 F.3d 451, 456 (7th Cir. 2010) (citing Delaware v. Prouse, 440 U.S. 648, 653 (1979)). Thus,

“an automobile stop is subject to the constitutional imperative that it not be ‘unreasonable’ under

the circumstances.” Whren v. United States, 517 U.S. 806, 810 (1996). Generally, “the decision

to stop an automobile is reasonable where the police have probable cause to believe that a traffic

violation has occurred.” Whren, 517 U.S. at 810 (citing Prouse, 440 U.S. at 659).

In this case, it is clear that plaintiff is not entitled to summary judgment on Count I with

respect to the second stop. Defendants put forth evidence (albeit disputed) that Cataline crossed

the fog line (the white line on the outside of the lane in which he was traveling) before Kuehl

pulled him over. Crossing the fog line is a traffic violation in Illinois. See United States v.

Bentley, 795 F.3d 630, 633-34 (7th Cir. 2015) (citing 625 ILCS 5/11-709(a)). Thus, defendants

have put forth evidence from which a reasonable jury could find that probable cause supported

the stop.

Despite this evidence, plaintiff argues that probable cause is not enough where an officer

has a mixed motive. Plaintiff further argues Francisko had a mixed motive, because he

suspected Cataline was transporting drugs. Francisko’s motivations, however, are irrelevant.

Ashcroft v. Al-Kidd, 563 U.S. 731, 740 (2011) (“Efficient and evenhanded application of the law

demands that we look to whether the arrest is objectively justified, rather than to the motive of

the arresting officer.”); Whren, 517 U.S. 806, 813 (1996) (rejecting “any argument that the

constitutional reasonableness of traffic stops depends on the actual motivations of the individual

officers involved” and holding “[s]ubjective intentions play no role in ordinary, probable-cause

Fourth Amendment analysis.”). Plaintiff’s motion for summary judgment as to Count I is

denied.

Defendant Francisko, too, has moved for summary judgment on Count I. Defendant is

entitled to summary judgment if the undisputed facts, in the light most favorable to the non-

moving party, demonstrate that stopping Cataline’s vehicle was objectively reasonable under the

circumstances known to the officers at the time. “[T]he ultimate touchstone of the Fourth

Amendment is ‘reasonableness.’” Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006). As

the Court noted above, objective reasonableness is a question of law, not of fact. Scott v. Harris,

550 U.S. at 381 n. 8 (2007); Phillips v. Community Ins. Corp., 678 F.3d at 520.

Here is what is undisputed about what the officers knew before they pulled over

Cataline’s vehicle. When Francisko first spoke with Cataline, before checking his license,

Francisko perceived him as acting strangely. Cataline mentioned to Francisko that he was

driving to California. As Francisko approached Cataline’s window to return his driver’s license,

he heard Cataline say, “this isn’t going to end well.” To Francisko, Cataline seemed tired, and

Francisko suggested he get a hotel to get some sleep. After Cataline drove off, Francisko learned

from the dispatcher that Cataline had placed a “cryptic” 911 call, in which he said he “was in a

lot of trouble” and “would be disappearing soon.”

Based on these undisputed facts, the Court concludes it was objectively reasonable to pull

over Cataline. A reasonable officer could conclude that Cataline was in actual trouble and

needed help. Courts have approved searches and seizures as reasonable when undertaken to help

and protect individuals. See Brigham City, 547 U.S. at 406 (“We think the officers’ entry [into a

home without a warrant] was plainly reasonable under the circumstances. . . . [T]he officers

had an objectively reasonable basis for believing both that the injured adult might need help and

that the violence in the kitchen was just beginning. . . . The role of peace officer includes

preventing violence and restoring order, not simply rendering first aid to casualties.”); Sutterfield

v. City of Milwaukee, 751 F.3d 542, 561 & 566 (7th Cir. 2014) (warrantless entry into home was

reasonable where homeowner’s physician told police homeowner was suicidal); United States v.

Toussaint, 838 F.3d 503, 508 (5th Cir. 2016) (“[I]n proper circumstances, the emergency-aid

exception to the Fourth Amendment’s warrant requirement can be used to justify a traffic stop.”).

Plaintiff argues that a mixed motive bars a wellness check. Specifically, plaintiff argues

that because Francisko suspected Cataline might be transporting drugs, he could not have been

concerned about Cataline’s welfare. The Supreme Court has rejected this argument. In Brigham

City, the party argued the warrantless search was unreasonable, because “the officers were more

interested in making arrests than quelling violence.” Brigham City, 547 U.S. at 404. The

Supreme Court rejected the argument, explaining:

Our cases have repeatedly rejected this approach. An action is ‘reasonable’ under

the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as

long as the circumstances, viewed objectively, justify [the] action.’ The officer’s

subjective motivation is irrelevant.

Brigham City, 547 U.S. at 404.

The Court concludes that the second stop was objectively reasonable. Accordingly,

Francisko’s motion for summary judgment is granted on Count I, which is dismissed with

prejudice.4

C. Plaintiff’s remaining claims

Defendants argue that without an underlying violation of the constitution, plaintiff’s other

§ 1983 claims (Count VIII for conspiracy to deprive constitutional rights and Count X for failure

to intervene) necessarily fail. The Court agrees. In Count X, plaintiff alleges that Francisko

failed to intervene to prevent Kuehl from initiating the second stop of Cataline. The Court,

however, has already concluded that the stop was reasonable, so Francisko cannot be liable for

4 To the extent plaintiff was attempting to prove a Monell claim in Counts I or II, the Court notes

plaintiff has put forth no evidence to support such a claim. In any event, a municipality cannot

be liable under Monell without an underlying constitutional violation. Horton v. Pobjecky, 883

F.3d 941, 954 (7th Cir. 2018).

failing to intervene. Francisko is granted summary judgment on Count X, and it is dismissed

with prejudice.5

Likewise, Count VIII for conspiracy to deprive constitutional rights fails now that the

Court has granted defendant summary judgment on the underlying constitutional claims. Katz-

Crank v. Haskett, 843 F.3d 641, 650 (7th Cir. 2016) (“Without a viable federal constitutional

claim the conspiracy claim under § 1983 necessarily fails; there is no independent cause of

action for § 1983 conspiracy.”). Defendants’ motion for summary judgment is granted as to

Count VIII, and Count VIII is dismissed with prejudice.

Defendants also argue that plaintiff’s remaining state-law claims (Count IV for false

imprisonment, Count V for battery, Count VI for assault, Count VII for conspiracy, Count IX for

intentional infliction of emotional distress and Count XI for indemnification) fail, because

Francisko’s actions were reasonable. Defendants have cited no caselaw to support the

proposition, and the Court is not going to consider the merits of six state-law claims without

defendants’ so much as briefing the issues.

In any case, the Court has already resolved the federal claims before it. As is the general

rule, the Court exercises its discretion and dismisses the state-law claims over which its

jurisdiction is merely supplemental. Burritt v. Ditlefsen, 807 F.3d 239, 252 (7th Cir. 2015) (“The

general rule, when the federal claims fall out before trial, is that the [district court] should

relinquish jurisdiction over any supplemental . . . state law claims in order to minimize federal

judicial intrusion into matters of purely state law.”). Counts IV, V, VI, VII, IX and XI are

dismissed without prejudice.

IV. CONCLUSION

5 The Court notes that plaintiff also asserted this claim against “unknown officers.” Plaintiff,

however, never named those officers, and the statute of limitations has run.

For all of these reasons, the Court denies plaintiff's motion for summary judgment [54].

The Court grants in part and denies in part Defendants’ motion for summary judgment [45].

Defendants Miller and Francisko are granted summary judgment on Counts I and II. Defendant

Francisko is granted summary judgment on Counts VHI and X. Counts I, I, VIII and X are

dismissed with prejudice. The Court relinquishes jurisdiction over Counts IV, V, VI, VII, IX and

XI, which are dismissed without prejudice.

SO ORDERED. ENTERED: February 14, 2019

JORGEL.ALONSOU

United States District Judge

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