# Hollstein v. City of Zion

> District Court, N.D. Illinois · April 16, 2019

URL: https://www.frixlaw.com/law-library/cases/10140555

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** April 16, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10140555

## How later opinions describe it (automated extraction)

- reversing a decision that officers who entered the home of an “armed, mentally ill suspect who had been acting irrationally” were not entitled to qualified immunity simply because they could have avoided the situation

## Opinion text

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

ESTATE OF CHARLES HOLLSTEIN, )
)
Plaintiff, ) No. 17 C 00112
)
v. )
) Judge Edmond E. Chang
CITY OF ZION, )
STEVEN VINES, )
and NATHAN HUCKER, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

In January 2016, Steven Vines and Nathan Hucker, police officers for the City
of Zion, stopped Charles Hollstein on the street to question him. But this encounter
ended in death: Vines fatally shot Hollstein. Hollstein’s Estate filed this civil-rights
lawsuit under 42 U.S.C. § 1983, claiming that the officers used unreasonable force in
violation of the Fourth Amendment (as incorporated against local officers through the
Fourteenth Amendment’s due process clause).1 R. 26, First Am. Compl.2 The Estate
also brought state-law claims under the Illinois Survival Act, the Illinois Wrongful
Death Act, common law battery, and a claim for funeral expenses, as well as
respondeat superior and indemnification claims against the City of Zion.3 The

1The Court has jurisdiction over the Estate’s § 1983 claim under 28 U.S.C. § 1331, and
supplemental jurisdiction applies to the state-law claims under 28 U.S.C. § 1367.
2Citations to the record are noted as “R.” followed by the docket number and the page
or paragraph number.
3Initially, Hollstein also brought a claim against the City of Zion under a Monell
liability theory. See R. 26, First Am. Compl. ¶¶ 22-43. That claim was voluntarily dismissed
in October 2017. R. 16.
Defendants move for summary judgment, arguing that the officers’ use of force was
reasonable (or at least protected by qualified immunity), and that their conduct was
not willful and wanton. R. 60, Defs.’ Mot. Summ. J.; R. 61, Defs.’ Summ. J. Br. For

the reasons explained below, summary judgment is granted on the federal claim, and
supplemental jurisdiction is relinquished on the state-law claims.
I. Background
In deciding the Defendants’ motion for summary judgment, the Court views
the evidence in the light most favorable to the Plaintiff. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). On January 6, 2016, police officers
Steven Vines and Nathan Hucker both (in their separate squad cars) “received a call

from their dispatch service that a suspicious person was taking pictures outside of an
elementary school.” R. 67, Pl.’s Resp. DSOF ¶¶ 7-8. They drove (in their separate cars)
to the school and spoke to a man nearby, who claimed to be the 911 caller. Id. ¶¶ 10-
11. The tipster reported that the man taking photos had walked away and pointed
out the direction in which the man had walked; Hucker drove his squad car in that
direction. Id. ¶ 12.

A few blocks from the school, Hucker encountered Charles Hollstein, who “fit
the description” the tipster had given. Pl.’s Resp. DSOF ¶ 13. Vines drove to where
Hucker and Hollstein were. Id. Hucker asked Hollstein why he had been outside of
the school, and Hollstein answered that he was taking pictures of the school for a
newspaper in Waukegan (a nearby city). Id. ¶ 15. Hucker and Hollstein had a
disagreement about whether, at the time Hollstein was taking photos of the school,
there were people in the school. Id. ¶¶ 15-16, R. 62-5, Defs.’ Exh. E, Dashcam Video
at 8:21:10-8:21:55. Then, Hucker asked Hollstein for his identification. Pl.’s Resp.
DSOF ¶ 17. Hollstein objected, and Hucker and Hollstein argued about whether the

request for identification was legal or appropriate. Pl.’s Resp. DSOF ¶¶ 16-19; Defs.’
Exh. E, Dashcam Video at 8:22:44-8:24:00; see also R. 72, Defs.’ Resp. PSOF ¶¶ 5-7.
Hollstein ultimately refused to provide any identification. Pl.’s Resp. DSOF ¶ 19;
Defs.’ Exh. E, Dashcam Video at 8:24:00.
When the officers attempted to arrest Hollstein, he “broke away” and “sprinted
down the street and turned into an alley.” Pl.’s Resp. DSOF ¶ 20; R. 62-2, Defs.’ Exh.
B, Hucker Dep. Tr. at 44:1-10. Hucker and Vines ran after him, and Hucker shot his

taser at Hollstein. Pl.’s Resp. DSOF ¶¶ 20-21; Hucker Dep. Tr. at 44:8-45:1. The
Defendants claim that the taser “did not do anything to Hollstein.” Pl.’s Resp. DSOF
¶ 21; see also Hucker Dep. Tr. at 45:2-7. The Estate disputes that characterization,
but at the very least the taser did not totally debilitate Hollstein. Id. Eventually the
officers caught up to Hollstein and began fighting with him. Pl.’s Resp. DSOF ¶ 22.
Hucker and Vines both maintain that as Hucker grappled with Hollstein, Vines “shot

his taser into Hollstein’s leg.” Id. Again, the officers say that this second taser shot
“had no effect” and that Hollstein “ripped out the taser cords and continued to fight
[them].” The taser’s ineffectiveness led Vines to believe that Hollstein might be
wearing body armor. Pl.’s Resp. DSOF ¶ 14; Vines Dep. Tr. at 87:7-89:7. Id.; see also
Hucker Dep. Tr. at 46:4-18; R. 62-1, Defs.’ Exh. A, Vines Dep. Tr. at 15:3-16:11. After
the second taser shot, “Hucker managed to get Hollstein in a headlock, and Vines
pepper-sprayed” him in the face. Pl.’s Resp. DSOF ¶ 23; Vines Dep. Tr. at 53:16-21.
Despite the pepper spray, Hollstein “continued to fight.” Pl.’s Resp. DSOF ¶ 23; see
also Vines Dep. Tr. at 54:6-21.

At that point, the officers say that Hollstein tried to get control of Hucker’s
gun. According to the officers, Hucker screamed, “He’s going for my gun!” Pl.’s Resp.
DSOF ¶ 24; Vines Dep. Tr. at 54:6-10. One of the squad car’s video cameras,
Defendants’ Exhibit E beginning at 8:24:30, captures those words on audio, or
something very close to those words (at this time, Hollstein and the officers were no
longer in the camera’s view, but the camera continued to record audio of the
interaction). Vines then noticed that Hollstein’s fingers were on Hucker’s gun, which

was still in its holster. Pl.’s Resp. DSOF ¶ 27; Vines Dep. Tr. at 54:11-55:6. Vines put
his hand on top of Hollstein’s, to try to prevent him from taking the gun out of the
holster. Pl.’s Resp. DSOF ¶ 27. According to the officers, Hollstein was trying to press
the “thumb break” to remove the hood from the gun, a necessary step to taking it out
of the holster. Pl.’s Resp. DSOF ¶ 28; Vines Dep. Tr. at 54:22-55:6; see also Defs.’
Resp. PSOF ¶ 11; R. 67-1, Pl.’s Exh. 1, Vines Dep. Video Excerpt (Vines

demonstrating the thumb break on his firearm). The Estate agrees that Hollstein’s
hand was on the gun, that Hucker’s hand was also partly on top of Hollstein’s and at
least partly on the thumb break, and that Vines put his hand on top of Hollstein’s.
Defs.’ Resp. PSOF ¶¶ 11-15. But the Estate disputes that Hollstein was attempting
to remove the gun from the holster. Id.; Pl.’s Resp. DSOF ¶ 28. Whether or not
Hollstein was trying to operate the thumb break, it is undisputed that he never
managed to get the gun free from the holster. Defs.’ Resp. PSOF ¶¶ 16-17.
At some point—either before or after Hollstein reached for the gun—Hollstein

and the officers all fell to the ground. Pl.’s Resp. DSOF ¶ 25; Defs.’ Resp. PSOF ¶ 19;
Vines Dep. Tr. at 83:6-85:4. While they were all on the ground, and while Hollstein’s
hand was on top of Hucker’s gun holster—and after Hucker yelled that Hollstein was
trying to get his gun—Vines fired three shots into Hollstein’s torso. Pl.’s Resp. DSOF
¶ 29; Vines Dep. Tr. at 54:22-55:6; see also Defs.’ Resp. PSOF ¶ 17-19. Those shots
killed him. See Defs.’ Resp. PSOF ¶ 17.
II. Standard

Summary judgment must 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). A genuine issue of material fact exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating
summary judgment motions, courts must “view the facts and draw reasonable

inferences in the light most favorable to the” non-moving party. Scott v. Harris, 550
U.S. 372, 378 (2007) (cleaned up).4 The Court “may not weigh conflicting evidence or
make credibility determinations,” Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d
697, 704 (7th Cir. 2011) (cleaned up), and must consider only evidence that can “be

4This opinion uses (cleaned up) to indicate that internal quotation marks, alterations,
and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,
18 Journal of Appellate Practice and Process 143 (2017).
presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).
The party seeking summary judgment has the initial burden of showing that there is
no genuine dispute and that they are entitled to judgment as a matter of law.

Carmichael v. Vill. of Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th
Cir. 2008). If this burden is met, the adverse party must then “set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256.
III. Analysis
A. Excessive Force

A police officer’s use of force to effect an arrest is a seizure under the Fourth
Amendment, and to be lawful, it must be reasonable. Horton v. Pobjecky, 883 F.3d
941, 948-49 (7th Cir. 2018). Use of deadly force is reasonable “when an officer
[objectively] 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.” Sherrod v.
Berry, 856 F.2d 802, 805 (7th Cir. 1988) (emphasis omitted); see Tennessee v. Garner,
471 U.S. 1, 11 (1985) (“[I]f the suspect threatens the officer with a weapon or there is

probable cause to believe that he has committed a crime involving the infliction or
threatened infliction of serious physical harm, deadly force may be used if necessary
to prevent escape.”). The reasonableness standard is an objective one: “the question
is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying intent or
motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). When evaluating
reasonableness, courts must consider the totality of the circumstances. Id.
Even where a police officer’s use of force is objectively unreasonable, however,

the officer may still avoid liability under the doctrine of qualified immunity. Police
officers “are entitled to qualified immunity under § 1983 unless (1) they violated a
federal statutory or constitutional right, and (2) the unlawfulness of their conduct
was clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 577,
589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)) (cleaned up). A
right is clearly established if it is “sufficiently clear that every reasonable official
would have understood that [the official’s actions would] violate[] that right.” Reichle,

566 U.S. at 664 (cleaned up). To identify a clearly established right, courts “do not
require a case directly on point.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per
curiam) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011)). Rather, “existing
precedent must have placed the statutory or constitutional question beyond debate.”
Id. (quoting al-Kidd, 563 U.S. at 741). The analysis asks whether the specific conduct
at issue violates clearly established law, and courts must not define prior law at “a

high level of generality.” Id. (quoting al–Kidd, 563 U.S. at 742).
Here, the undisputed facts compel the conclusion that Vines and Hucker are
entitled to qualified immunity. To be sure, the Plaintiff denies parts of the officers’
stories. For example, the Estate disputes that Hollstein ran from the officers, Pl.’s
Resp. DSOF ¶ 20; that Hucker’s initial taser shot failed to have any effect on him, id.
¶ 21; that he “wrestled with and bit Hucker’s arm,” id. ¶ 22; that the second taser
shot had no effect, id.; that he continued to fight with the officers after Vines pepper-
sprayed him, id. ¶ 23; that Hucker yelled, “He’s going for my gun!”, id. ¶ 24; and that
he might have been able to grab Hucker’s gun from his holster, id. ¶¶ 27-29.5 But the

Estate has not offered any evidence of its own that calls into question the officers’
assertions. The Estate cites cases to suggest that because Hollstein is unable to testify
himself, the Court should consider the defense evidence skeptically. R. 66, Pl.’s Resp.
Br. at 3-4 (citing Childs v. City of Chi., 2017 WL 1151049, at *4 (N.D. Ill. Mar. 28,
2017); Estate of DiPiazza v. City of Madison, 2017 WL 1337313, at *10 (W.D. Wis.
Apr. 11, 2017)). But it is still up to the Plaintiff to provide admissible evidence that
brings the defense’s facts into dispute. See Henning v. O’Leary, 477 F.3d 492, 496 (7th

Cir. 2007) (affirming summary judgment for officers where the plaintiffs “dispute[d]
the officers’ characterization of the events, but [offered] no real evidence to contract
it.”); Muhammed v. City of Chi., 316 F.3d 680, 638-84 (7th Cir. 2002) (“Muhammed
finally argues that summary judgment was not appropriate because a jury could
choose to disbelieve [the defendant’s] account of the shooting. To prevent summary
judgment, Muhammed needed to provide specific evidence when attacking [the

defendant’s] credibility.”).
The only other evidence available in this case—besides the officers’ accounts—
are the video recordings taken from Vines’s taser, R. 62-4, Defs.’ Exh. D, Taser Video,
and Hucker’s squad car’s dashboard camera, Defs.’ Exh. E, Dashcam Video. But

5The paragraph numbers in Plaintiff’s Response to the Defendants’ Statement of
Material Facts are all one number less than the corresponding paragraphs in the defense
Statement, because Paragraph 1 of the defense Statement is actually just a list of exhibits,
rather than an actual asserted fact.
neither video contradicts the officers’ accounts, either directly or via an inference from
the circumstances. The altercation takes place out of view of the dashboard camera,
and the taser video is too close-up and brief to provide a solid understanding of what

the parties’ interactions were like. If anything, the audio accompanying the dashcam
footage supports the officers’ accounts. See Defs.’ Exh. E, Dashcam Video at 8:24:30
(voice yelling what sounds like, “He’s going for my gun.”). So even viewing the facts
in the light most favorable to the Estate, it has failed to bring the officers’ accounts
into dispute.
With those facts as established, qualified immunity applies because the
Plaintiff has not offered any analogous case that deems the officers’ conduct as

unreasonable “beyond debate.” Mullenix, 136 S. Ct. at 308. The Estate argues that
the right at issue is well established: “a person has a right not to be seized through
the use of deadly force unless he puts another person (including a police officer) in
imminent danger or he is actively resisting arrest and the circumstances warrant
that degree of force.” Pl.’s Resp. Br. at 10 (quoting Williams v. Ind. State Police Dep’t,
797 F.3d 468, 484 (7th Cir. 2015). But that defines the right at issue at too “high [a]

level of generality.” al–Kidd, 563 U.S. at 742. Instead, the Plaintiff must point to law
clearly establishing that the officers’ specific conduct here violated his rights. Id.
The Estate critiques the cases cited by Vines and Hucker, arguing that they
are distinguishable from the facts here. Pl.’s Resp. Br. at 11 (arguing that
“[Defendants’] argument rests on the false factual premise that Charles Hollstein was
imminently able to get control of and use Hucker’s gun,” and that a jury could find
Hollstein would not have been able to use Hucker’s gun under the facts of this case);
see also id. at 9-10 (distinguishing Henning, 477 F.3d at 494-95; and Tom v. Voida,
963 F.2d 952, 954-55 (7th Cir. 1992)). But of course that is not the point—Vines and

Hucker are not required to point out cases that exactly match this one to establish
that there was no constitutional violation, just as the Estate need not offer an exact
match. See Defs.’ Summ. J. Br. at 9 (“Henning and Tom state … that it is not a
constitutional violation for an officer to use deadly force when a suspect is going for
an officer’s gun and has the imminent ability to actually get control of it.”). The cases
that the officers have identified, which are similar but not identical to the facts of this
case, suggest if anything that Vines’s use of force was reasonable. See id. (citing

Henning, 477 F.3d at 495 (police shooting case finding no Fourth Amendment
violation when one of the officer’s guns had fallen out of his holster and was on the
ground with the victim’s hand on it); Tom, 963 F.2d at 954-55 (police shooting case
finding no Fourth Amendment violation in which the victim and officer had a physical
fight, and the officer feared the victim would grab her gun). The Estate has not
pointed to a closer case that comes out the other way—and it does not appear that

there is one.
That makes sense. Here, by the time that Vines shot Hollstein, Vines and
Hucker had each attempted to taser him, Vines had pepper-sprayed him, and yet he
was still resisting. More importantly, at that point, Hollstein’s hand was on Hucker’s
gun holster and the officers reasonably believed that Hollstein was trying to get a
hold of the gun. So a reasonable officer would have probable cause to believe that
Vines and Hucker were “in imminent danger of death or serious bodily injury.”
Sherrod, 856 F.2d at 805. And it would have been reasonable for the officers to believe
there was nothing else they could do to protect themselves in that situation. Vines

testified that the officers believed that Hollstein was wearing body armor, Pl.’s Resp.
DSOF ¶ 14; Vines Dep. Tr. at 87:7-89:7, and Hollstein’s resistance to the two taser
shots renders that belief reasonable. Under these circumstances, at the very least,
qualified immunity protects the officers from liability.
The Estate argues that Vines’s and Hucker’s hands were on top of Hollstein’s—
preventing him from actually getting to Hucker’s gun. Pl.’s Resp. Br. at 5 (“Hollstein
did not have possession of the gun and very likely could not have gained possession

of the gun.”); id. at 11 (“[A] jury could certainly determine that Charles was unable
to get possession of [] Hucker’s gun imminently or otherwise.”); Defs.’ Resp. PSOF
¶¶ 11-15. But this argument does not work. Just because the officers might have been
winning their fight with Hollstein when Vines fired the shots does not mean that the
officers could not have reasonably believed that they were in imminent danger. To be
sure, in the same situation, some officers might have waited longer before firing or

tried other ways to subdue Hollstein. But as the Seventh Circuit put it in Henning,
“[p]olice officers cannot be expected to wait until a resisting arrestee has a firm grip
on a deadly weapon and completely freed himself from officers trying to subdue him
before taking action to ensure their safety.” 477 F.3d at 496.
On the importance of Hollstein trying to operate the thumb break, the Estate
maintains that Hollstein did not know how the thumb break worked, while Vines
testified (at his deposition) that he believed Hollstein was trying to operate it. See
Pl.’s Resp. DSOF ¶¶ 28-29; Vines Dep. Tr. at 54:22-55:11 (“I saw [Hollstein] start to
manipulate the thumb break on the holster.”). It is true that, as noted earlier,

circumstantial evidence sometimes is enough for a reasonable jury to reject an
otherwise one-sided account. On the thumb-break issue, however, a thumb break is
just a strap that holds the gun in a holster. See Pl.’s Resp. DSOF ¶ 28 (not disputing
the description of a thumb break). There is nothing particularly complicated about a
thumb break that would allow a reasonable jury to disbelieve Vines’s assertion that
Hollstein was trying to operate it—or, at the very least, that a reasonable officer
would believe that Hollstein was trying to remove the gun from the holster. Under

these circumstances, again it is not clearly established that a reasonable officer
lacked probable cause to believe that the officer’s life was in imminent danger. So
qualified immunity applies.
Moving beyond the details of the hand-to-hand struggle itself, the Estate more
broadly argues that the officers were the first to escalate the situation by
unreasonably asking Hollstein for his identification and attempting to arrest him in

the first place. Pl.’s Resp. Br. at 2 (“The Defendant officers were unjustifiably and
immediately aggressive with Charles, needlessly escalating the encounter. They
violently initiated an arrest for which they had no probable cause.”) (internal
citations omitted); id. at 7 (“The lack of probable cause for the initial seizure is
important in evaluating the totality of the circumstances resulting in the Defendants’
use of deadly force against Charles.”). The Plaintiff argues that Illinois law does not
prohibit arguing with or refusing to provide identification to a police officer. Id. at 7-
8. In the Estate’s view, the lack of probable cause for an arrest should “inform the
fact-finders’ ultimate determination of the objective reasonableness of the use of

force.” Id. at 7.
Hucker and Vines counter that whether they had probable cause to arrest
Hollstein initially is irrelevant. R. 71, Defs.’ Reply Br. at 6; (citing City and Cty. of
S.F., Calif. v. Sheehan, 135 S. Ct. 1765, 1776-78 (2015) (reversing a decision that
officers who entered the home of an “armed, mentally ill suspect who had been acting
irrationally” were not entitled to qualified immunity simply because they could have
avoided the situation) (internal quotation omitted); Marion v. City of Corydon, Ind.,

559 F.3d 700, 705 (7th Cir. 2009) (“Pre-seizure police conduct cannot serve as a basis
for liability under the Fourth Amendment; we limit our analysis to force used when
a seizure occurs.’)).6 The Defendants are right in a limited sense: whether the officers
initially had probable cause to arrest Hollstein is not dispositive of whether Vines
later used force that was excessive. In County of Los Angeles, California v. Mendez,
the Supreme Court rejected the Ninth Circuit’s “provocation rule.” 137 S. Ct. 1539,

1543-44 (2017) (holding that “[i]f law enforcement officers make a ‘seizure’ of a person
using force that is judged to be reasonable .. [they may not] nevertheless be held liable
for injuries caused by the seizure on the ground that they committed a separate
Fourth Amendment violation that contributed to their need to use force.”). Mendez

6The officers also argue in the alternative that they did have probable cause to arrest
Hollstein. Defs.’ Reply Br. at 6. The Court need not consider that argument in light of the
holding, as explained above.
held that, so long as an officer’s use of force was reasonable at the time of the seizure,
the officer’s pre-seizure violation of the Fourth Amendment cannot be the basis for
liability for the seizure itself. Id. But the opinion left open two other inquiries in

which an officer’s pre-seizure conduct might still be relevant.
First, if an earlier violation of the Fourth Amendment was the proximate cause
of the harm arising from the use of force applied at the time of the seizure, then the
victim could recover (subject to qualified immunity) damages that are proximately
caused by the earlier Fourth Amendment violation. Mendez, 137 S. Ct. at 1548-49
(directing the Ninth Circuit to consider this issue on remand: “[T]he court should
revisit the question whether proximate cause permits respondents to recover

damages for their shooting injuries based on the deputies’ failure to secure a warrant
at the outset.”). But here, the Estate has not argued that the officers’ allegedly
improper initial stop or attempt at the arrest proximately caused Hollstein’s death.
The argument does not show up in the Plaintiff’s summary judgment briefing, nor
does the First Amended Complaint describe the officers’ initial attempt to arrest
Hollstein as a cause of the fatal shooting. First Am. Compl. ¶¶ 19-21. In any event,

the argument would likely have fallen short, because the struggle between Hollstein
and the officers—including Hollstein’s attempt to reach for Hucker’s gun—would
almost surely have been deemed an intervening event that broke the chain of
proximate cause between the attempted arrest and the firing of the shots. And again,
at the very least, qualified immunity would apply in this factual setting.
Mendez also leaves open the possibility that an initial Fourth Amendment
violation could be considered as part of the totality of the circumstances that might
render an officer’s use of force excessive. See Mendez, 137 S. Ct. at 1547 n.2 (“Graham

commands that an officer’s use of force be assessed for reasonableness under the
totality of the circumstances. On respondents’ view, that means taking into account
unreasonable police conduct prior to the use of force that foreseeably created the need
to use it.… [W]e decline to address [that issue] here.”) (cleaned up). Perhaps this is
the argument the Estate’s brief relies on, though the argument is not developed (nor
is it clear how different this theory of liability is from the proximate-cause theory). In
any event, the officer’s initial stop—even if there was no basis for it—did not

foreseeably create the need to use excessive force. Nothing about the way the officers
conducted the flawed stop and arrest would foreseeably lead to Hollstein wrestling
with the officers and reaching for Hucker’s gun.
To illustrate this point, consider a very different example. Imagine that a police
officer encounters a man who is crossing a street outside of the marked crosswalk,
and jay-walking is a crime. The officer instructs the jay-walker to stop, and the officer

draws and points his gun right at the jay-walker. In response, the pedestrian tries to
grab the officer’s gun, which then prompts the officer to shoot the man. It is arguably
foreseeable that the pedestrian, reacting to this life-threatening scenario, would try
to grab the officer’s gun. On those facts, the officer’s abrupt, unnecessary, and life-
threatening escalation of the encounter would make it much more likely (that is,
foreseeable) that the officer’s own conduct before shooting the pedestrian created the
need to use deadly force, even though at the moment of the shooting, the pedestrian
was grabbing for the officer’s gun. Here, the situation is much different: the officers
drove up to Hollstein and began questioning him. Nothing they did, even attempting

to arrest him on an allegedly mistaken view that Hollstein had to provide
identification, would foreseeably create the struggle, Hollstein’s attempt to grab the
gun, and the ensuing shooting. Qualified immunity must apply here because the
officers did not violate clearly established law.
B. Failure to Intervene
Hollstein argues that Hucker is liable under the Fourth Amendment because
he failed to intervene when Vines shot Hollstein. Pl.’s Resp. Br. at 6. To be liable for

another officer’s excessive force, an officer must have “had a realistic opportunity to
intervene and stop the first officer’s actions.” Miller v. Gonzalez, 761 F.3d 822, 827
(7th Cir. 2014). Having a realistic opportunity requires “reason to know … that
excessive force was being used.” Abdullahi v. City of Madison, 423 F.3d 763, 774 (7th
Cir. 2005).
Leaving aside the question of whether Hucker had a realistic opportunity to

stop Vines from shooting Hollstein (an unlikely proposition, given he was on the
ground fighting with Hollstein at the time), and even assuming that Vines did use
unreasonable force, Hucker had no reason to know that Vines was about to use force
that was excessive. For the same reasons that Vines cannot be liable, set out above,
Hucker is also protected from liability on a failure-to-intervene theory by qualified
immunity. Vines did not violate Hollstein’s clearly established right, so neither can
Hucker be held liable for failing to stop Vines. At the end of the day, then, the Estate’s
excessive-force claims against both Vines and Hucker must fail as a matter of law.7
C. State-Law Claims

Now that judgment is granted for the Defendants on Count One, the remaining
claims are the state-law survival, wrongful death, funeral expenses, and battery
claims. Those claims turn on whether the officers’ conduct was “willful and wanton”
under the Illinois Tort Immunity Act. 745 ILCS § 10/2-202; see also Horton, 883 F.3d
at 954. But because the federal claims are dismissed, the usual presumption kicks in:
“when the federal claims are dismissed before trial, there is a presumption that the
court will relinquish jurisdiction over any remaining state law claims.” Dietchweiler

by Dietchweiler v. Lucas, 827 F.3d 622, 631 (7th Cir. 2016) (per curiam) (citing cases).
This presumption is expressed in 28 U.S.C. § 1367(c)(3), which provides for the

7In addition to the excessive-force claims for Vines’s gunshot, the First Amended
Complaint also claimed that both Vines’s and Hucker’s use of their tasers against Hollstein
also constituted an unreasonable seizure. First Am. Compl. ¶ 20. The officers make two
arguments in response. First, they argue that their use of tasers “did not constitute a
seizure,” because they claim the taser shots had no effect on Hollstein. Defs.’ Summ. J. Br. at
4-5 (citing Abbott v. Sangamon Cty. Ill., 705 F.3d 706, 719-20 (7th Cir. 2013) for the
proposition that a taser application is a seizure “because it incapacitates the person who
receives the electrical jolt it delivers.”). Second, the officers also argue that “use of a taser
against an actively resisting suspect either does not violate clearly established law or is
constitutionally reasonable.” Defs.’ Br. at 5 (quoting Abbott, 705 F.3d at 727). Leaving aside
whether those arguments could succeed (the undisputed facts establish that Hollstein was
running away when Hucker first used his taser, Pl.’s Resp. DSOF ¶¶ 20-21, but that he was
actively fighting with Hucker when Vines used his taser, Pl.’s Resp. DSOF ¶ 22), the Estate
explicitly abandons this theory of liability in its response brief, see Pl.’s Resp. Br. at 4 n.1,
which does not argue that either use of the taser was unreasonable.

The Estate abandons the conspiracy claim as well, Pl.’s Resp. Br. at 13 n.2 (“Plaintiff
concedes that the evidence developed during discovery does not support a continued claim for
conspiracy.”), so the Court will also enter judgment for the Defendants on that claim.
discretionary relinquishment of jurisdiction over state claims when the claims
providing original jurisdiction have dropped out of the case.
Here, Count One created federal-question jurisdiction, and the Estate has not

asserted diversity jurisdiction. There is no good reason to hang onto the state claims:
there will be no statute of limitations bar because of Illinois’s savings statute, 735
ILCS 5/13-217, and the Court has not spent significant judicial resources on the state
claims; nor is it crystal clear how they should be decided. See Williams Elecs. Games,
Inc. v. Garrity, 479 F.3d 904, 906-07 (7th Cir. 2007). Although the parties have spent
considerable time on discovery (which overlapped with the federal claims), they will
be able to use the fruits of that labor in any future state-court case. Because the

federal claims have been dismissed, this Court will also relinquish supplemental
jurisdiction over the state-law claims (with the exception of the conspiracy claim
(Count Six), which the Estate concedes should be dismissed, see supra n. 6).
IV. Conclusion
The Defendants’ motion for summary judgment is granted on the Estate’s
§ 1983 claim (Count One) and the state-law conspiracy claim (Count Six). The Court

relinquishes jurisdiction over the remaining state-law claims. Final judgment will be
entered.
ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge

DATE: April 16, 2019

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10140555. Public record. Not legal advice.