Doe v. City of Naperville

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHN DOE,* )

)

Plaintiff, )

) Case No. 17 CV 2956

Vv. )

) Judge Robert W. Gettleman

CITY OF NAPERVILLE, )

DESIREE FARR, )

JAMES KOUKAL, and )

ROBERT CARLSON, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff John Doe, a minor, alleges that on the night of Halloween 2014, a police officer

ordered him into the backseat of a police car, allowed a drunk woman to enter, and did nothing

while the woman kissed him, licked his neck, and ran her hand across his genitals. In his third

amended complaint, plaintiff sues four defendants: (1) Desiree Farr, the woman who allegedly

molested him; (2) James Koukal, the police officer who allegedly ordered him into the backseat;

(3) Robert Carlson, the other police officer on the scene; and (4) the City of Naperville, Koukal

and Carlson’s employer.

Earlier that evening, plaintiff went to his aunt’s house to get an extra pillowcase for

storing trick-or-treating candy. Farr, a neighbor, called the Naperville Police Department and said

that plaintiff had broken into the house through a window. Koukal and Carlson responded. After

they investigated and after they talked to plaintiff, they did not suspect that plaintiff had

* John Doe is a pseudonym.

committed a crime. Plaintiff alleges that: Carlson nonetheless called his aunt to pick him up;

Koukal ordered him to stay in backseat of his police car until plaintiff’s aunt arrived; Farr asked

Koukal if she could enter the backseat to comfort plaintiff; Koukal agreed; Farr entered; Farr

molested him; and Koukal did nothing to protect him.

Plaintiff claims that Carlson and Koukal deprived him of his constitutional rights, 42

U.S.C. § 1983, because they: (1) unreasonably seized him; and (2) failed to protect him from a

danger that they created when they let Farr into the backseat. Carlson and Koukal move for

summary judgment on both claims. Plaintiff moves for summary judgment on his state-created

danger claim.

Carlson is entitled to summary judgment on plaintiff’s unreasonable seizure claim. He

only asked plaintiff for his aunt’s name and phone number—he did not tell plaintiff that he was

in trouble, that plaintiff had to wait for his aunt to come pick him up, or that plaintiff had to wait

in the police car. His questions would not have made a reasonable twelve-year-old, African

American child feel that he could not leave. It was not Carlson, but Koukal who stopped plaintiff

from trick-or-treating, and Koukal who asked plaintiff to get into his police car.

Carlson is also entitled to summary judgment on plaintiff’s state-created danger claim.

After plaintiff got into Koukal’s car, Farr asked Carlson if she could talk to plaintiff; Carlson told

her to ask Koukal. Telling Farr that she would have to ask Koukal for permission did not create a

danger or worsen a danger to which plaintiff was already exposed.

Koukal is not entitled to summary judgment on plaintiff’s unreasonable seizure claim. He

stopped plaintiff from trick-or-treating, separated plaintiff from his friends, questioned plaintiff

about whether he was “trying to get into” his aunt’s house, and told plaintiff, “Sit in the car while

we call your guardian.” A reasonable jury could find that under these circumstances, a reasonable

twelve-year-old, African American child would not have felt free to leave.

Neither Koukal nor plaintiff are entitled to summary judgment on plaintiff’s state-created

danger claim. Genuinely disputed issues of material fact preclude summary judgment for both

parties—a reasonable jury could find, or not find, that Koukal knew Farr was drunk and that

Koukal consciously disregarded an obvious risk that she would molest plaintiff. Koukal is not

entitled to qualified immunity: when a police officer confines a child to the backseat of a police

car and lets in a drunk and hostile adult, the child has a clearly established right to the same level

of physical safety that the child would have had if the officer had done nothing.

BACKGROUND

The facts below are not genuinely disputed unless otherwise stated. On Halloween 2014,

in the early evening, plaintiff—a twelve-year-old, African American boy—was trick-or-treating

with three friends. They went to plaintiff’s mother’s house so that plaintiff could get an extra

pillowcase for storing candy. While plaintiff was inside or around the house, Desiree Farr—an

adult woman, and one of plaintiff’s mother’s neighbors—called the police, saying that plaintiff

had broken into the house through a window.

Responding to Farr’s call, the Naperville Police Department sent two patrol officers:

Robert Carlson and James Koukal. Carlson was a Naperville Police Department veteran with 26

years of service; Koukal was a relative newcomer with less than two years. Before Koukal joined

the Naperville Police Department, however, he had been with the Naperville Park District Police

for two years and with the United States Army Reserve for about ten years.

Koukal arrived first. As he approached the house, he was stopped by Farr, who said that

she was the caller. Koukal confirmed her name. Carlson arrived next. After he and Koukal

cleared the house and saw nothing, they went back to their police cars. As Koukal walked to his

car, plaintiff’s three friends were across the street. Koukal went to talk to them. Plaintiff was

either with his three friends, or he came out of the house soon after. A neighbor told Koukal,

“That’s John over there.” Koukal, understanding the neighbor to mean that plaintiff lived in the

house, told the other boys to go home. Koukal did not suspect that they or plaintiff were involved

in criminal activity.

Koukal asked plaintiff who he lived at the house with. Plaintiff said that he sometimes

stayed at the house with his mom but lives with his aunt. Koukal believed that plaintiff was either

in eighth grade or a freshman in high school. Carlson joined the conversation and asked plaintiff

for his aunt’s name and phone number. After plaintiff complied, Carlson called plaintiff’s aunt,

Gwendolyn Upshaw, to tell her where plaintiff was. Upshaw told Carlson that plaintiff was

allowed to be at her house. The parties dispute Carlson’s response: plaintiff alleges that Carlson

commanded Upshaw to come and get plaintiff; Koukal and Carlson allege that Upshaw

volunteered to come pick him up. Carlson told Koukal that plaintiff’s aunt was coming.

Koukal either ordered plaintiff to sit in the police car or suggested that plaintiff do so.

Koukal opened the back door and plaintiff got in. Plaintiff did not complain and was not

handcuffed. Koukal walked to the driver’s seat and opened the prisoner screen, which was metal

on the bottom and plexiglass on top. Even with the prisoner screen open, he could not see below

the chest of backseat occupants. The screen stayed open while plaintiff was in Koukal’s car.

Koukal told plaintiff that he was not in trouble, that he was not under arrest, and that they were

waiting for his aunt to pick him up. Koukal did not, however, tell plaintiff that he could leave.

A few minutes after plaintiff got into Koukal’s car, Farr went to Carlson’s car, which was

across the street. Farr asked Carlson if she could speak to plaintiff. Carlson said that plaintiff was

in Koukal’s car, so she would have to ask him. Carlson did not know how Koukal would deal

with Farr but had seen plaintiff getting into Koukal’s car. Carlson then left for five minutes to use

the bathroom at a nearby Walgreens.

Farr went to Koukal’s car. She told Koukal that she was the one who placed the call and

said, “I know who this is. This is John.” She asked if she could wait with plaintiff because he

looked upset. Koukal told Farr that it would be okay. He opened the backseat door for her.

Koukal had never met Farr and had not asked plaintiff or his aunt if they knew Farr. He had not

asked Farr for her identification and had not checked if she had any outstanding warrants. He

also had not asked plaintiff or his aunt for their consent to Farr entering the backseat. He knew,

however, that Farr was not related to plaintiff. The parties dispute whether Farr smelled of

alcohol—plaintiff testified that she did; Koukal testified that she did not.

Plaintiff did not tell Koukal that he did not want Farr in the car. Once Farr entered,

however, plaintiff started crying. Farr placed her arm around plaintiff and used his sweatshirt to

wipe his tears. Plaintiff kept crying. Farr placed plaintiff’s arm around her, hugged him, and

talked to him. Although all this and the rest of Farr’s interactions with plaintiff were captured on

a videotape facing the backseat, the parties genuinely dispute the following: Koukal and

Carlson’s lawyers contend that Farr “tickled plaintiff by pinching the top of his knee”; plaintiff

testified that Farr did more than that—she “licked me on my neck, kissed me, and she started

rubbing on my private part, like she rubbed her hand across it.” The 38-minute videotape is black

and white, low-resolution, and obscured at times by Farr’s body when she hugs or touches

plaintiff. It neither proves nor disproves any party’s account of what happened. Plaintiff testified

that he was shocked and could not believe that Farr was inappropriately touching him while they

were in a police car. He did not, however, tell Farr to leave him alone or tell Koukal that he felt

uncomfortable with Farr touching him. Nor did he ask Farr to leave the car or try to leave before

his aunt arrived.

Koukal sometimes looked through the prisoner screen to see what Farr was doing with

plaintiff. Because Koukal could not see below their chests, he did not see Farr touch plaintiff’s

legs. He later testified that he thought plaintiff calmed down after Farr started telling jokes.

When Carlson came back from the bathroom, he parked in roughly the same place as he

had before. At some point, he might have gotten into Koukal’s car—if so, he went back to his

own car before plaintiff’s aunt arrived. When plaintiff’s aunt arrived, Koukal walked plaintiff

over to Carlson’s car, at which time Farr also left the car. Carlson confirmed the aunt’s identity

and released plaintiff to her.

Carlson testified that police “generally don’t let people walk up on our driver’s windows

because it’s a safety issue,” and that Farr “had no business in the call.” He also testified that if he

had a juvenile in the backseat of his car, he would not place another person in the backseat

without running that person’s background.

About a month after the incident, the Will County State’s Attorney’s Office declined to

prosecute Farr for criminal sexual abuse. The Naperville Police Department, after an internal

investigation, gave Koukal a written reprimand for violating Policy 26.4.2, Attention to Duty:

“Employees shall be properly equipped and attentive to their duties at all times and shall perform

all duties assigned to them.” Other possible policy violations were considered, but whether the

Naperville Police Department ever charged Koukal for violating those policies is unclear. One of

those policies was Policy 70.3.4, Separation by Age and Gender: “Juvenile detainees will not be

transported together in any vehicle with detainee 17 years of age or older. Detainees of the

opposite sex will not be transported in the same passenger compartment.”

DISCUSSION

Plaintiff claims that Officers Carlson and Koukal are liable because each of them:

(1) seized him unreasonably; and (2) failed to protect him from a danger that they created.

Carlson and Koukal move for summary judgment on both claims; plaintiff moves for summary

judgment on his state-created danger claim. Summary judgment is proper when no material fact

is genuinely disputed and the moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a). A material fact is genuinely disputed if the evidence would allow a reasonable jury

to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). Once the moving party meets its burden, the non-moving party must go beyond the

pleadings and set forth specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The court draws all justifiable inferences in

favor of the non-moving party. Anderson, 477 U.S. at 255.

1 Carlson

Carlson moves for summary judgment on plaintiff’s unreasonable seizure and state-

created danger claims; plaintiff moves for summary judgment on his state-created danger claim.

Carlson’s motion is granted and plaintiff’s motion is denied.

1.1 Unreasonable seizure

The undisputed facts entitle Carlson to summary judgment on plaintiff’s unreasonable

seizure claim. Under the Fourth Amendment, Carlson is liable if he unreasonably seized plaintiff,

and plaintiff was seized if a reasonable twelve-year-old, African American child in his situation

would not have felt free to leave. United States v. Mendenhall, 446 U.S. 544, 554 (1980)

(holding that the seizure inquiry includes “all the circumstances”); Doe v. Heck, 327 F.3d 492,

510 (7th Cir. 2003) (considering age as a circumstance); United States v. Smith, 794 F.3d 681,

687–88 (7th Cir. 2015) (considering race as a circumstance, in dicta).

Carlson’s acts would not have made a reasonable twelve-year-old, African American

child feel that he could not leave. Plaintiff agrees that it was Koukal who called plaintiff over and

that Carlson joined the conversation later. In that conversation, Carlson asked plaintiff for his

aunt’s name and phone number. Carlson did not tell plaintiff that he was in trouble, that plaintiff

had to wait for his aunt to come pick him up, or that plaintiff had to wait in the police car. A

reasonable twelve-year-old, African American child would not have felt that he could not leave

simply because a police officer had asked for his aunt’s name and phone number.

Although the parties leave unclear where Carlson went or what he did after he called

plaintiff’s aunt, they agree that Carlson went elsewhere and left plaintiff alone with Koukal.

Carlson is not liable for whatever may have happened next. See, e.g., Wolf-Lillie v. Sonquist,

699 F.2d 864, 869 (7th Cir. 1983) (“An individual cannot be held liable in a § 1983 action unless

he caused or participated in an alleged constitutional deprivation.”) (emphasis in original).

Plaintiff testified that: (1) he was told to get in the car by one officer; (2) that same officer opened

the door for him to get in; (3) no other officer was standing there; (4) a second officer pulled up

to the car; and (5) the second officer drove off. The undisputed facts make clear that the first

officer was Koukal and that the second was Carlson; plaintiff alleges, and Carlson and Koukal do

not dispute, that “Officer Carlson observed Plaintiff getting into Officer Koukal’s car.” Because

Carlson was elsewhere when Koukal told plaintiff to get in the car, and because Carlson’s earlier

questions would not have made a reasonable twelve-year-old, African American child feel that he

could not leave, Carlson is entitled to summary judgment.

1.2 State-created danger

Carlson is also entitled to summary judgment on plaintiff’s state-created danger claim.

Plaintiff’s state-created danger claim arises under the Fourteenth Amendment’s Due Process

Clause. Because the Due Process Clause “imposes upon the state a duty to protect individuals

against dangers the state itself creates,” King v. East St. Louis School District 189, 496 F.3d 812,

817 (7th Cir. 2007), “people propelled into danger by public employees have a good claim under

the Constitution.” Paine v. Cason, 678 F.3d 500, 510 (7th Cir. 2012). Under this theory of state-

created danger, Carlson is liable if: (1) his affirmative acts increased the likelihood that plaintiff

would be molested; (2) his failure to protect plaintiff proximately caused plaintiff to be molested;

and (3) his failure to protect plaintiff shocks the conscience. King, 496 F.3d at 817–18.

No reasonable jury could find that Carlson affirmatively increased the likelihood that

plaintiff would be molested. After plaintiff got into Koukal’s car, Farr approached Carlson’s

car—which was across the street from Koukal’s—and asked Carlson if she could talk to plaintiff.

Carlson said that she would have to ask Koukal because plaintiff was in Koukal’s car. By telling

Farr that she would have to ask Koukal if she could talk to plaintiff, Carlson did not “turn[] a

potential danger into an actual one,” Sandage v. Board of Commissioners of Vanderburgh

County, 548 F.3d 595, 600 (7th Cir. 2008), or “make worse any danger [plaintiff] already faced.”

Windle v. City of Marion, 321 F.3d 658, 662 (7th Cir. 2003). Plaintiff was exposed to no danger

until Koukal opened the backseat of his police car and gave Farr access to plaintiff.

Nor did Carlson worsen the danger that plaintiff already faced even if, as plaintiff

testified, Carlson got into the car while plaintiff was being molested. Because Carlson did not

increase the danger that Farr posed to plaintiff in the first place, Carlson had no duty to protect

plaintiff. To turn a blind eye while Farr molested plaintiff would be contemptible, yet

constitutional. See, e.g., Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993) (“[T]he police

have no affirmative obligation to protect citizens from drunk drivers. Taken to an extreme, police

officers could watch drunk drivers stumble to their cars and drive off, weaving across the road,

without incurring section 1983 liability.”).

Because a reasonable jury could not find that Carlson affirmatively increased the danger

to plaintiff, the court need not decide whether Carlson proximately caused plaintiff’s injuries,

whether his acts shock the conscience, or whether he is entitled to qualified immunity.

2 Koukal

Against Koukal, plaintiff brings the same two claims: unreasonable seizure and state-

created danger. Koukal moves for summary judgment on both claims; plaintiff moves for

summary judgment on his state-created danger claim. Both motions are denied.

2.1 Unreasonable seizure

Koukal is liable under the Fourth Amendment if he: (1) seized plaintiff; and (2) did so

unreasonably. Doe, 327 F.3d at 510. Koukal concedes that he did not consider plaintiff a criminal

suspect and does not dispute that seizing plaintiff would be unreasonable. He argues, however,

that he is entitled to summary judgment because no reasonable jury could find that he seized

plaintiff at all. The court disagrees because a jury could find that a reasonable twelve-year-old

African American child in plaintiff’s situation would not have felt free to leave.

Plaintiff testified that on that Halloween evening, he went with three other boys to his

mother’s house to get another pillowcase for candy. Seeing that the front and back doors were

locked, plaintiff walked back to the sidewalk to rejoin his friends and saw them talking with

Koukal and Carlson. It was getting dark. Either Koukal or Carlson asked plaintiff, “Are you

trying to get into the house? Is this your house?” He said yes. Carlson asked him for his aunt’s

name and number. He complied. Koukal told the other boys to go home. Then Koukal told

plaintiff, “Sit in the car while we call your guardian,” and opened the car door. Plaintiff got in.

He did not ask why and did not protest. He “just cooperate[d].”

Taking plaintiff’s testimony as true, a reasonable child in his situation would not have felt

free to leave. When a twelve-year-old African American child is stopped from trick-or-treating,

separated from his friends, questioned about whether he was “trying to get into” a house, and

told by a police officer, “Sit in the car while we call your guardian,” he might reasonably think

that cooperation is his only option. Koukal, of course, tells a different, kinder story: he testified

that before he opened his car door, he merely suggested to plaintiff, “[W]hy don’t we keep warm.

You can sit in my squad car.” Koukal and plaintiff “come to this case with their own perceptions,

recollections, and even potential biases,” and “[i]t is in part for that reason that genuine disputes

are generally resolved by juries in our adversarial system.” Tolan v. Cotton, 572 U.S. 650, 657

(2014) (vacating summary judgment for a police officer on an excessive force claim because the

court of appeals, in granting qualified immunity, “improperly weighed the evidence and resolved

disputed issues in favor of the moving party”) (citation, alteration, and quotation marks omitted).

Whether Koukal seized plaintiff depends on genuinely disputed facts that a jury must decide.

2.2 State-created danger

Plaintiff also claims that Koukal is liable under a theory of state-created danger. Because

Koukal does not dispute that he affirmatively increased the likelihood that plaintiff would be

molested, the merits of Koukal and plaintiff’s summary judgment motions turn on: (1) whether a

reasonable jury could find that Koukal proximately caused plaintiff’s injuries; (2) whether a

reasonable jury could find that Koukal’s failure to protect plaintiff shocks the conscience; and

(3) whether Koukal is entitled to qualified immunity because plaintiff’s Fourteenth Amendment

right to due process was not clearly established. King, 496 F.3d at 817–18.

Neither Koukal nor plaintiff are entitled to summary judgment. A reasonable jury could

find—or not find—that Koukal’s failure to protect plaintiff proximately caused plaintiff’s injuries

and that his failure to protect shocks the conscience. Koukal is not entitled to qualified immunity:

when a police officer confines a child to the backseat of a police car and lets in a drunk and

hostile adult, the child has a clearly established right to the same level of physical safety that the

child would have had if the officer had done nothing.

Proximate cause. Plaintiff and Koukal first dispute whether a reasonable jury could find

that Koukal proximately caused plaintiff’s injuries. Proximate cause depends on whether a

plaintiff was a “foreseeable victim” of Koukal’s acts. Buchanan-Moore v. County of Milwaukee,

570 F.3d 824, 828 (7th Cir. 2009). Whether plaintiff was a foreseeable victim depends on

whether the dangers that Koukal created: (1) were “familiar and specific”; and (2) had “a limited

range and duration.” Reed, 986 F.2d at 1127.

A reasonable jury could find that Koukal proximately caused plaintiff’s injuries. By

giving Farr access to the back seat, Koukal created dangers that were familiar and specific: Farr

had just called the police on plaintiff, and drawing all justifiable inferences in plaintiff’s favor,

Koukal smelled alcohol on Farr’s breath and thus knew or suspected that she was drunk. Koukal

had not asked Farr for her identification, had not checked if she had outstanding warrants, and

had not determined the nature of her relationship with plaintiff. Letting a drunk and unidentified

woman into a confined space—a space that Koukal could not fully observe because his view was

obstructed by the prisoner screen—with a boy to whom that woman had just been hostile

exposes that boy to the familiar and specific dangers of physical and sexual abuse. A jury could

find that such dangers are obvious to a reasonable police officer. Cf. L.R. v. School District of

Philadelphia, 836 F.3d 235, 245 (3d Cir. 2016) (denying a teacher summary judgment on a state-

created danger claim and holding that “many apparent risks of harm”—including the risk of

“sexual assault”—made it “foreseeable that releasing a young child to a stranger could result in

harm to the child”).

The dangers that Koukal created were also limited in range and duration. Farr endangered

not the “public at large,” but plaintiff alone. Buchanan-Moore, 570 F.3d at 828. The dangers she

posed were not “indefinite,” but limited to the 34 minutes that she spent in the backseat of

Koukal’s car. Id. at 829. Letting Farr in thus exposed plaintiff to a “zone of danger” that was

neither “generalized” nor “amorphous,” id. at 828, but limited in time, place, and victim.

Compare id. at 828–29 (affirming the dismissal of a state-created danger claim involving a

municipality that released a mentally-ill man without psychiatric medication, reasoning that the

man’s “propensity for criminal acts” was “without temporal boundaries,” and that “[t]he danger

posed to [the plaintiff] . . . was shared by the thousands of others who lived in that section of

town”), with Reed, 986 F.2d at 1126–27 (reversing the dismissal of a state-created danger claim

involving police officers who arrested a sober driver and left a drunk driver with the keys,

reasoning that “[d]espite the two hour time lapse and the distance between the place of [the]

arrest and the car accident, the events are not sufficiently attenuated to relieve the defendants of

section 1983 liability”).

Although a closer call, a reasonable jury could also come to the opposite conclusion and

find that Koukal did not proximately cause plaintiff’s injuries. A jury could credit Koukal’s

testimony that Farr did not smell of alcohol and find that Farr was not drunk. The jury could also

find that Farr, by the time she approached Koukal, had recognized plaintiff and that her hostility

had visibly abated. And the jury could from those findings conclude that a reasonable police

officer could not have foreseen that a sober, ostensibly friendly person might so brazenly molest

a child with a police officer sitting so near.

Conscience-shocking. The parties also dispute whether a reasonable jury could find that

Koukal’s acts shock the conscience. Koukal’s acts shock the conscience if he was deliberately

indifferent to plaintiff’s Fourteenth Amendment right to due process. King, 496 F.3d at 818–19.

Koukal was deliberately indifferent if he consciously disregarded dangers that were known or

obvious. Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1998).

Because a reasonable jury could find that Koukal consciously disregarded the known or

obvious dangers of letting a drunk woman into a confined space with a boy—a boy to whom the

woman had just been hostile—a reasonable jury could find that Koukal’s acts shock the

conscience. A jury presented with plaintiff’s evidence could infer that:

• Koukal knew that Farr had reported to the police that plaintiff broke into the house;

• Koukal believed that plaintiff was in either eighth or ninth grade;

• Koukal knew that Farr was drunk;

• Koukal knew that Farr was not a relative of plaintiff;

• Koukal knew that Farr claimed to know plaintiff;

• Koukal knew nothing else about Farr’s relationship with plaintiff;

• Koukal did not ask plaintiff if he knew Farr;

• Koukal did not ask plaintiff’s aunt if she knew Farr;

• Koukal did not ask plaintiff for his consent to Farr getting in the backseat;

• Koukal did not ask plaintiff’s aunt for her consent to Farr getting in the backseat;

• Koukal—from his common sense, his many years of police and military experience,

and his police department’s policy to separate, (1) juvenile detainees from adult

detainees, and (2) male detainees from female detainees—knew that placing a drunk

and hostile woman with an eighth or ninth grade boy was dangerous;

• Koukal nonetheless opened the backseat door to let Farr in;

• Koukal could not see below plaintiff’s chest because his view was partially obstructed

by the prisoner screen;

• Koukal noticed that plaintiff started crying when Farr got in the backseat;

• Farr molested plaintiff; and

• Koukal did nothing to protect him.

Drawing those inferences, a reasonable jury could find that Koukal either knew that Farr

was molesting plaintiff or consciously disregarded the obvious risk that she would do so. Despite

Farr’s purported good intentions, a competent police officer in Koukal’s shoes would have

recognized the possibility that Farr bore plaintiff ill-will or otherwise intended to act

inappropriately. A jury could find that for Koukal to open the backseat door, thus giving Farr

access to plaintiff—without plaintiff’s consent, and knowing that Farr’s judgment was impaired

by alcohol—ran the obvious risk that Farr would harm plaintiff. Cf. L.R., 836 F.3d at 245 (“We

think the risk of harm in releasing a five-year-old child to a complete stranger was obvious.”);

Whitted v. Dart, No. 12 C 2461, Doc. 125, at 14–15, 2014 WL 2819004, at *7 (N.D. Ill. June 23,

2014) (denying summary judgment on a state-created danger claim and holding that a reasonable

jury could find deliberate indifference because “the Sheriff had the opportunity to prevent the

foreseeable, dangerous consequences of placing a juvenile in custody with adults”). A reasonable

jury could thus find that Koukal was deliberately indifferent to plaintiff’s right to due process

under the Fourteenth Amendment.

Of course, a jury could instead resolve the disputed facts in Koukal’s favor—a jury could,

for example, find that Koukal did not know that Farr was drunk, and that despite his training and

experience, the risks were not obvious to him—and could thus conclude that Koukal was not

deliberately indifferent. The point is that Koukal’s knowledge and mental state are quintessential

questions for the jury. See, e.g., Lac Du Flambeau Band of Lake Superior Chippewa Indians v.

Stop Treaty Abuse-Wisconsin, Inc., 991 F.2d 1249, 1258, 1263–64 (7th Cir. 1993) (collecting

cases) (reversing summary judgment for a Native American tribe on a race discrimination claim

even though “the stench of racism is unmistakable,” commenting that, “Due to the difficulty of

proving a subjective state of mind, cases involving motivation and intent are usually not

appropriate for summary judgment.”); Townsend v. Fuchs, 522 F.3d 765, 774–75 (7th Cir. 2008)

(reversing summary judgment for a prison guard on a prison conditions claim, reasoning that,

“[T]he dispute over whether Allen knew about Townsend’s cell conditions comes down to a

good old-fashioned swearing contest that can be resolved only by assessing the credibility of the

two men.”).

Qualified immunity. Although a reasonable jury could find that Koukal violated

plaintiff’s right to due process, Koukal is nonetheless immune from trial unless plaintiff’s right

was clearly established at the time of the violation. Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). The right must be framed in “the specific context of the case, not as a broad general

proposition,” Saucier v. Katz, 533 U.S. 194, 201 (2001), and its “contours must be sufficiently

clear that a reasonable official would understand that what he is doing violates that right.” Hope

v. Pelzer, 536 U.S. 730, 739 (2002) (citation and quotation marks omitted). A right can be clearly

established without a case directly on point: “[A] general constitutional rule already identified in

the decisional law may apply with obvious clarity to the specific conduct in question,” thus

giving Koukal “fair warning” that his acts were unconstitutional. Id. at 741 (citation and

quotation marks omitted).

Koukal is not entitled to qualified immunity. When a police officer confines a child to the

backseat of his police car and lets in a drunk and hostile adult, that child has a clearly established

right to the same level of physical safety that the child would have had if the officer had done

nothing. That clearly established right to physical safety is an obvious application of the general

rule that public officials must provide protection when they needlessly increase a person’s risk of

harm. See White v. Rochford, 592 F.2d 381, 382 (7th Cir. 1979) (“[T]he unjustified and arbitrary

refusal of police officers to lend aid to children endangered by the performance of official duty

. . . indisputably breaches the Due Process Clause.”); Bowers v. DeVito, 686 F.2d 616, 618 (7th

Cir. 1982) (“If the state puts a man in a position of danger from private persons and then fails to

protect him . . . it is as much an active tortfeasor as if it had thrown him into a snake pit.”);

Archie v. City of Racine, 847 F.2d 1211, 1223 (7th Cir. 1988) (“When the state puts a person in

danger, the Due Process Clause requires the state to protect him to the extent of ameliorating the

incremental risk.”); Reed, 986 F.2d at 1127 (7th Cir. 1993) (“[O]fficers may be subject to suit . . .

if they knowingly and affirmatively create a dangerous situation for the public and fail to take

reasonable preventative steps to diffuse that danger.”); Monfils v. Taylor, 165 F.3d 511, 518 (7th

Cir. 1998) (“[Taylor] created a danger Monfils would not otherwise have faced. Taylor is not and

never was entitled to qualified immunity . . . .”); Paine, 678 F.3d at 510 (7th Cir. 2012) (“It is

clearly established that state actors who, without justification, increase a person’s risk of harm

violate the Constitution.”). These cases placed plaintiff’s due process right to physical safety

“beyond debate,” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011), and thus put Koukal on notice

that his acts were unconstitutional even if the “factual circumstances” were “novel.” Hope, 536

U.S. at 741.

CONCLUSION

Defendant Robert Carlson’s motion for summary judgment (Doc. 69) is granted.

Defendant James Koukal’s motion for summary judgment (Doc. 69) is denied. Plaintiff John

Doe’s motion for partial summary judgment (Doc. 56) is denied. This matter is set for a report on

status on June 13, 2019, at 9:00 a.m.

ENTER: June 5, 2019

[ oe W. Gettleman

United States District Judge

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