Tate v. The City of Chicago

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EBONY TATE, for herself and on behalf )

of her minor children, E’MONIE BOOTH, )

LA’NIYA BOOTH, LEGEND BOOTH, )

and LAKAI’YA BOOTH; and CYNTHIA )

EASON, )

)

Plaintiffs, )

)

v. ) 18 C 07439

)

THE CITY OF CHICAGO; Chicago Police )

Officers PATRICK BOYLE (star #975); )

JENNIFER BURMISTRZ (star #14060); )

MATTHEW EVANS (star #5815); )

MICHAEL FLEMING (star #15085); JOHN )

FOERTSCH (star #9195); MICHAEL )

HIGGINS (star #3766); PATRICK )

KENNEDY (star #14414); JEFFREY )

LAWSON (star #8353); LIEUTENANT )

JAMES D. CASCONE (star #560); )

S. ANTISUK (star #6607); BARDSLEY )

(star #13848); CUOMO (star #5853); SGT. )

HROMA (star #1729); JAMES (star #4308); )

KILPONEN (star #12854); LINKER )

(star #12858); LOPEZ (star #11987); )

MCCALLUM (star #16333); PANTANO )

(star #11886); ZENERE (star #17319); and )

unknown Chicago Police Officers, )

)

Defendants. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

Before the Court is Defendant City of Chicago (“the City”) and named Chicago

police officers’ (“individual officers”) (collectively, the “Defendants”) motion to

bifurcate Plaintiffs E’Monie, La’Niya, Legend, and LaKai’ya Booth’s (collectively, the

e“Minor Plaintiffs”) Monell claim for purposes of discovery and trial pursuant to

Federal Rule of Civil Procedure 42(b). For the following reasons, the Court denies the

Defendants’ motion.

BACKGROUND

The following facts are taken from the record and are undisputed unless

otherwise noted.

Plaintiff Ebony Tate (“Tate”) is a Chicago, Illinois resident and mother of the

Minor Plaintiffs. LaKai’ya Booth was a four-year-old Chicago resident at the time of

the incident at issue. Legend Booth was an eight-year-old Chicago resident at the time

of the incident at issue. La’Niya Booth was an eleven-year-old Chicago resident at the

time of the incident at issue. E’Monie Booth was a thirteen-year-old Chicago resident

at the time of the incident at issue. Plaintiff Cynthia Eason (“Eason”) (collectively with

Tate and the Minor Plaintiffs, “Plaintiffs”) is a Chicago resident and mother of Tate and

grandmother of the Minor Plaintiffs. At all relevant times, the Plaintiffs lived together

at 5033 S. Hermitage Avenue in Chicago.

Defendant City of Chicago is a municipal corporation under the laws of the State

of Illinois. Defendants Michael Higgins (“Higgins”), Patrick Boyle (“Boyle”), Jennifer

Burmistrz (“Burmistrz”), Matthew Evans (“Evans”), Michael Fleming (“Fleming”),

John Foertsch (“Foertsch”), Patrick Kennedy (“Kennedy”), and Jeffrey Lawson

(“Lawson”) (collectively, “Police Defendants”) were Chicago Police Department

(“CPD”) officers at all relevant times. Defendant Lieutenant James D. Cascone

(“Cascone”) was a supervising officer with the CPD.

Defendants S. Antisuk, Bardsley, Cuomo, James, Kilponen, Linker, Lopez,

McCallum, Pantano, and Zenere were officers of the CPD SWAT Alpha Team at all

relevant times. Defendant Sergeant Hroma (collectively with SWAT officers, “SWAT

Defendants”) supervised the Alpha Team.

On August 9, 2018, the Plaintiffs were spending a quiet evening at their

apartment located at 5033 S. Hermitage Avenue. However, their relaxation was

interrupted by the sound of loud flashbangs going off outside of their front door.

Immediately after, the armed SWAT Defendants broke open the Plaintiffs’ front door

without knocking and announcing their presence or presenting a search warrant.

Instead, the SWAT Defendants rushed inside the Plaintiffs’ home and pointed their

assault rifles at close range toward Tate and four-year-old LaKai’ya. The SWAT

Defendants then shouted instructions for Tate and LaKai’ya to get out of the apartment,

following the pair out with assault rifles pointed at them.

The SWAT Defendants proceeded into the remainder of the apartment,

encountering Eason, La’Niya, Legend, and E’Monie in the hallway. The SWAT

Defendants pointed an assault rifle at eleven-year-old La’Niya’s face and screamed at

her to get out of the apartment. They proceeded to follow her toward the exit of the

apartment with a gun pointed at her back.

The SWAT Defendants tendered a similar treatment to the young boys and their

grandmother. The SWAT Defendants trained their guns on the three Plaintiffs, with

one officer pointing the tip of his assault rifle directly at the bridge of Eason’s nose.

The officer screamed at Eason, demanding to know who was in the apartment. Once

Eason stated that only her daughter, grandkids, and herself were in the apartment, the

officer turned his gun and pointed it directly at eight-year-old Legend’s face. The

officer then shifted again and pointed his gun at thirteen-year-old E’Monie’s chest.

Several other SWAT Defendants also had their guns fixed on Legend and E’Monie,

with one gun aimed only inches from E’Monie’s head.

When Eason asked why the officers were pointing their guns at the children, they

screamed in response for her and the boys to get out of the apartment. Since Eason was

preparing to take a bath before the SWAT Defendants arrived, she was only in a t-shirt

and her underwear. She told the officers she wanted to get clothes to cover herself

before going outside in her underwear, but the officers refused and told her to get out

immediately. As Eason and the young boys were leaving the apartment, the SWAT

Defendants kept their assault rifles pointed at the trio.

Once the SWAT Defendants had cleared the apartment of all residents, the Police

Defendants entered the apartment. Their search lasted over an hour, during which the

Plaintiffs were forced to sit on the running board of the SWAT truck while neighbors

and onlookers witnessed the spectacle. Despite the Plaintiffs’ various states of undress,

the officers would not bring them appropriate items to cover themselves or allow them

to get clothes or shoes. One SWAT Defendant “simply laughed at [Eason] and her

humiliating predicament,” given that she was forced to remain outside in only her t-

shirt and underwear. Several of the Plaintiffs were crying, and Tate began to have a

panic attack. One of the CPD officers sarcastically advised Tate to “breathe through

[her] nose,” but offered no other assistance until Eason demanded that someone help

Tate.

After approximately one hour, one of the Police Defendants brought Tate into

the apartment and gave her a copy of the search warrant for “Javale Bell” at her address.

Tate replied that she had never seen Bell before, prompting another officer to retort, “I

guess we got the wrong house.”

As the circumstances proved, the Defendants did have the wrong house. In

preparation for the search, Officers Higgins and Burmistrz secured two simultaneous

search warrants for two different buildings based on the same information provided by

a confidential informant. Both officers swore that the informant said Bell resided at the

address listed on the search warrant complaint, one of which was Plaintiffs’ address at

5033 S. Hermitage Avenue and the other at 5039 S. Hermitage Avenue. Despite their

knowledge of this inconsistent information, the officers pursued and executed duplicate

search warrants.

At about the same time the Defendants entered and searched the Plaintiff’s

apartment, CPD officers entered and searched the neighboring building at 5039 S.

Hermitage Avenue. There, they apprehended and arrested Bell and found the gun

described in the warrant. Despite determining the correct address, the Defendants

continued to search the Plaintiffs’ home.

After seventy-five minutes, the Plaintiffs were permitted back inside their

apartment. Upon their re-entry, the Plaintiffs found their apartment in a state of

disarray. Their front screen door and door frame were damaged when the SWAT

Defendants forced it open. There was a hole in Eason’s bedroom closet. The utility

room door was damaged. The Plaintiffs’ personal belongings were scattered across the

apartment, many of which were broken beyond repair. It took the Plaintiffs weeks to

clean up the mess the officers left.

Worse yet, the Minor Plaintiffs have experienced “immediate, severe, and lasting

emotional and psychological distress and injury” due to the Defendants’ conduct. The

Minor Plaintiffs now follow Tate around the house out of fear and anxiety and plead

with her not to leave them when she goes to work. Legend is afraid to be alone and

asks Eason to stand by the door when he uses the bathroom. The Minor Plaintiffs now

freeze at the sight of police and often have trouble sleeping. Since the incident, the

Minor Plaintiffs’ teachers have asked whether the children have recently experienced

trauma. The Minor Plaintiffs “now require high quality, long-term, costly,

psychological care and counseling in order to cope with the long-term, psychological

injuries caused by [D]efendants’ terrorizing display of unnecessary force.”

Based on these events, the Plaintiffs filed their initial complaint on

November 9, 2018, which was amended for the third time on March 19, 2019. The

complaint alleges various civil rights and state law violations as to all the Plaintiffs,

including unlawful search, false arrest, assault, intentional or negligent infliction of

emotional distress, and trespass. The Minor Plaintiffs also allege a Monell claim against

the City due to its de facto policy and practice of not avoiding unnecessary uses of force

against children. On April 8, 2019, the Defendants filed a joint motion to bifurcate the

Minor Plaintiffs’ Monell claim for purposes of discovery and trial pursuant to Federal

Rule of Civil Procedure 42(b).

LEGAL STANDARD

Federal Rule of Civil Procedure 42(b) provides that, “[f]or the convenience, to

avoid prejudice, or to expedite and economize, the court may order a separate trial of

one or more separate issues [or] claims….” This rule “is read in light of the overarching

policy principle behind the Federal Rules, which seeks the just, speedy, and inexpensive

resolution of every trial. Accordingly, because bifurcation risks additional delay, it has

remained the exception and not the rule.” A.L. Hansen Mfg. Co. v. Bauer Products,

Inc., 2004 WL 1125911, at *2 (N.D. Ill. 2004); See Real v. Bunn-O-Matic Corp., 195

F.R.D. 618, 620 (N.D. Ill. 2000) (“The piecemeal trial of separate issues in a single

lawsuit is not to be the usual course.”); See also Awalt v. Marketti, 2012 WL 1161500,

at *10 n.2 (N.D. Ill. 2012) (“The Court has looked at every decision in this District

involving bifurcation of Monell claims…since the Seventh Circuit decided Thomas v.

Cook County Sheriff’s Dep’t. It is clear that the weight of authority holds that

bifurcation is now heavily disfavored.”) (internal citations omitted). However, because

this determination involves a balancing of equities, the ultimate decision is within the

Court’s discretion. Houseman v. U.S. Aviation Underwriters, 171 F.3d 1117, 1121 (7th

Cir. 1999).

DISCUSSION

The Defendants urge the Court to bifurcate the Minor Plaintiffs’ Monell claim

for purposes of discovery and trial. In deciding whether to grant a motion to bifurcate,

the Court must consider “whether separate trials would avoid prejudice to a party or

promote judicial economy.” Id. If one of those circumstances exists, then the Court

needs to ensure that the decision to bifurcate would “not unfairly prejudice the non-

moving party.” Id. Only once both criteria are found can the Court grant the motion to

bifurcate.

I. Avoidance of Prejudice

The Court must first consider whether bifurcation would avoid prejudice to the

Defendants. The Defendants argue that bifurcation would prevent prejudice because it

would avert the possibility of Monell evidence being imputed to the individual officers

when assessing their liability. Moreover, the Defendants allege that bifurcation would

prevent evidence of any individual officer’s infractions being mistakenly attributed to

the City in evaluating its Monell liability.

The Court finds neither of these arguments persuasive. Regarding potential

prejudice to the individual officers, a limiting instruction to the jury is the proper

mechanism to address that concern. As this Court has previously stated, “[t]hough the

Court is cognizant of the possibility of prejudice to the individual officers if the claims

are tried together, our system generally trusts jurors to understand and follow limiting

instructions regarding consideration of evidence against some defendants and not

others….” Medina v. City of Chi., 100 F.Supp.2d 893, 897 (N.D. Ill. 2000). Concerning

the potential prejudice to the City, the same principles prevent such evidence from being

misattributed by a jury. Indeed, the Federal Rules of Evidence anticipate and provide

for this exact scenario, asserting, “[i]f the court admits evidence that is admissible

against a party or for a purpose—but not against another party or for another purpose—

the court, on timely request, must restrict the evidence to its proper scope and instruct

the jury accordingly.” Fed. R. Evid. 105. Given that the Court has appropriate

mechanisms in place to address the Defendants’ concerns, bifurcation would not serve

the interests of avoiding prejudice in this case.

II. Judicial Economy

The Defendants next argue that bifurcation would serve the interests of judicial

economy by avoiding unnecessary discovery and litigation. The Defendants first assert

that the Minor Plaintiffs’ Monell claim may not need to be adjudicated at all, as it is

contingent on a finding of liability on behalf of the individual officers. The Defendants

also assert that discovery on the Monell claim at this juncture would add needless time

and expense to the case. The Court addresses each argument in turn.

A. Pendency of Monell Claim on Individual Officer Liability

The Defendants contend that “unless Plaintiffs prove an underlying

constitutional violation against the individual Defendant Officers, the City cannot be

held liable.” However, that is not a bright line rule. According to the Seventh Circuit,

“a municipality can be held liable under Monell, even when its officers are not, unless

such a finding would create an inconsistent verdict.” Thomas v. Cook Cty. Sherrif’s

Dep’t, 604 F.3d 293, 305 (7th Cir. 2010). To determine whether the findings would be

inconsistent, the Court must “look to the nature of the constitutional violation, the

theory of municipal liability, and the defenses set forth.” Id.

The Court first turns to the nature of the constitutional violations and theories of

liability asserted. The Plaintiffs’ complaint alleges constitutional claims for unlawful

search and false arrest pursuant to 42 U.S.C. § 1983 on behalf of all the Plaintiffs. The

complaint also alleges a Monell claim for use of excessive force on behalf of the Minor

Plaintiffs. The complaint is atypical in that there is no accompanying claim against the

individual officers for use of excessive force. Given that structure, there is no

possibility for inconsistent verdicts, as there is no count other than the Monell claim

that is predicated on excessive force. See Mendez v. City of Chicago, 1:18-cv-5560,

Dkt. 69 (denying motion to bifurcate where the Monell claim was based on excessive

force and the individual claims were based on unlawful search and seizure because “trial

as to the individual claims will not resolve the Monell claim”). Therefore, the claims

involved do not necessitate the conclusion that liability as to the City and not to the

individual officers would be inconsistent.

Additionally, the Court needs to consider the defenses set forth by the parties,

including the asserted defense of qualified immunity. In cases where qualified

immunity is available, the jury could find the City liable for Monell violations despite

the individual officers being shielded from liability. Medina v. City of Chi., 100

F.Supp.2d at 896 (“Thus when a plaintiff loses his claim against a police officer based

on qualified immunity, he can still recover against the municipality if he can prove a

constitutional deprivation caused by a municipal policy or custom. In this situation,

bifurcation will not avoid a second trial….”); Awalt, 2012 WL 1161500, at *12 (“In

addition, it is likely that some of the Defendants in this case will assert immunity from

liability—qualified immunity, state-law immunity, etc. …This leaves open the

possibility that no inconsistent verdict will arise….”).

Divergent findings between the individual officers and the City are not

necessarily inconsistent of one another. Therefore, the Minor Plaintiffs’ asserted

Monell claim may proceed independent of a finding on the individual officers’ liability.

Accordingly, bifurcation would not serve the interests of judicial economy on this

ground, as the claim could be adjudicated regardless of the outcome in the trial against

the individual officers.

B. Increased Discovery and Litigation Costs

The Defendants next assert that the increased discovery burden of proceeding

with the Monell claim is grounds for bifurcation. Even if the Court agreed that the

Monell claim could not proceed until a jury found individual officer liability, the

argument that bifurcation would decrease the discovery burden is mistaken in practice.

As our sister court reasoned in the analogous case Sierra v. Guevara:

I do not believe that bifurcation of discovery or trial would materially

facilitate the speedy and efficient resolution in this case. In fact, in my

experience, bifurcating Monell discovery only tends to prolong the case

and leads to unnecessary disputes as to the appropriate scope of non-

Monell versus Monell discovery.

1:18-cv-3029, Dkt. 88. This problem is exacerbated in cases such as this where there

is an overlap in the witnesses, experts, and evidence that would be involved in each

phase of the litigation. This could create double work in the sense of, for example,

needing to first depose witnesses or solicit testimony regarding the Defendants’ specific

actions in executing the search warrant on August 9, 2018 and a second time regarding

how the City’s policies regarding use of force impacted that case work. See Cadiz v.

Kruger, 2007 WL 4293976, at *4 (N.D. Ill. 2007) (“The vast majority of

these…witnesses have been identified as relevant to both the Monell and the individual

claims. For those witnesses who would speak to both claims, bifurcation would lead to

the possibility of requiring them to sit for multiple depositions, which likely would

increase the cost of the depositions to the parties and which surely would be less

convenient for the witnesses.”). Although the Monell-related discovery may possibly

be a costly effort, that fact alone is insufficient to require bifurcation. See Cadiz, 2007

WL 4293976 at *3. Given the likelihood that bifurcation could increase litigation costs,

the Court finds that bifurcation would not increase judicial economy.

III. Prejudice to the Non-Moving Party

Although the Court would normally only reach this stage of the inquiry if it found

that bifurcation would avoid prejudice to a party or increase judicial economy, the Court

sees it fit to explain the prejudice the Minor Plaintiffs would face if their Monell claim

was bifurcated. The Defendants moved to bifurcate the Monell claim in this case and

stay all related discovery and trial until the resolution of the claims against the

individual officers. In effect, this motion serves to prevent an adjudication of the

Monell claim’s merits regardless of the outcome of the first trial. Cadiz, 2007 WL

4293976, at *1. As the Court held in Cadiz:

The City argues that if plaintiff does not establish Section 1983 liability

against the officers, then there can be no Monell claim…. The City further

suggests that even if plaintiff does establish Section 1983 liability against

the officers, trial of the Monell claim will be unnecessary (and thus should

not proceed) because it can provide plaintiff with no additional

compensatory damages.

Id. Essentially, the Defendants are asserting the same arguments here to achieve a de

facto dismissal of the Monell claim by way of bifurcation. This would undoubtedly

prejudice the Minor Plaintiffs in their efforts to hold the City accountable for its

continued use of excessive force against young children. Echoing the holding in Cadiz,

this Court does “not believe that the City should be allowed to deprive a plaintiff of a

merits determination of a Monell claim by the expedient of agreeing to pay a judgment

against its officers that the City may be statutorily or contractually obligated to pay

anyway.” Id.

The Minor Plaintiffs have a profound interest in pursuing their claims with an

eye toward institutional reform. As the Supreme Court has avowed, “[Section 1983] is

designed to provide compensation for injuries arising from the violation of legal duties,

and thereby, of course, to deter future violations.” City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687, 727 (1999). As this District has recognized, a

judgment naming the city itself and holding it responsible for its policies may have a

greater deterrent effect than a judgment against a police officer that is paid by the city.

Medina, 100 F.Supp.2d at 896. The City should not be allowed to strip the Minor

Plaintiffs of this opportunity, and as such, must confront the merits of the Monell claim.

CONCLUSION

For the aforementioned reasons, the Court denies the Defendants’ motion to

bifurcate. It is so ordered.

Dated: 05/20/2019

Charles P. Kocoras

United States District Judge

14