Nazario v. Kruger

EnterIN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Nicholas Gomez, et al., )

)

Plaintiffs, )

)

) No. 12 C 4804

)

v. ) Judge Bucklo

)

K. Kruger (Star no. 17501), et al., )

)

Defendants. )

)

)

)

MEMORANDUM OPINION AND ORDER

Plaintiffs Jesus “Mike” Castrejon (“Castrejon”), Omar Nazario (“Nazario”), Edwin

Mercado (“Mercado”), Osmar Rodriguez (“Rodriguez”), and Nicholas Gomez (“Gomez”)

have sued a group of twelve Chicago police officers (“defendants,” “the officers”) and

the City of Chicago.1 The suit arises in connection with plaintiffs’ arrest by defendants

during an altercation in Chicago’s Humboldt Park neighborhood. Plaintiffs allege several

violations of their civil rights under 42 U.S.C. § 1983, as well as various causes of action

under Illinois law. Defendants have moved for partial summary judgment with respect to

certain of the claims asserted by plaintiffs Castrejon and Nazario. For the reasons

discussed below, the motion is granted in part and denied in part.

1 The officers are Sergeants K. Kruger, W. Grassi, and J. Schachelmayer; and Officers

J. Cerda, M. Chernik, S. Corona, R. Delany, G. Frear, M. Mannott, J. Rodriguez, R.

Trotter, and J. Zambrano.

I.

On the evening of June 16, 2011, Rodriguez, Nazario, and Gomez were working

at a barbershop. Rodriguez witnessed two individuals, whom he believed to be gang

members, standing in front of the barbershop and flashing gang signs at passing cars.

He asked the gang members to leave, and when they refused, he asked one of his

fellow barbers to call the police.

Between five and ten minutes later, two Chicago police officers arrived on the

scene. Although the putative gang members soon left, other officers continued to arrive

on the scene until about thirty officers were present. Plaintiffs claim that the officers

began lining up and putting on gloves. Castrejon, one of the barbershop’s customers,

stepped outside to see what was going on. He testified that it looked like the police were

“ready for war” and that he feared for his life. Pls.’ L.R. 56(b)(3)(C) Stmt. ¶ 7. At

Rodriguez’s suggestion, Castrejon began to record the events on his cell phone.

The video, which lasts approximately fifty-three seconds, shows several police

officers standing outside of the barbershop. See Defs’. Ex. E, Castrejon Cell Phone

Recording. The officers appear to be speaking with one another and with civilians.

Castrejon can be heard commenting on events as he pans his cell phone around the

scene. During the recording, he makes several references to Rodney King, the motorist

whose beating in 1991 by Los Angeles police officers was captured on video, ultimately

leading to the criminal conviction of certain of the officers for violating King’s

constitutional rights. As discussed more fully below, the parties dispute precisely what

Castrejon said and what his references to Rodney King meant. According to plaintiffs,

Castrejon said, “It’s going to be some Rodney King.” Pls.’ Resp. Br. at 2. They claim

that Castrejon was expressing concern about impending police brutality. According to

defendants, Castrejon said, “[L]et’s see some Rodney King shit up in here!” See Defs.’

Reply Br. at 4. They contend that Castrejon was seeking to instigate a confrontation

with the police.

It is undisputed that Sergeant Karl Kruger (“Kruger”) and other officers informed

Castrejon that he did not have their permission to record them. It is also undisputed that

Castrejon nonetheless continued to record. Near the end of the video, Kruger can be

heard telling Castrejon to put the phone away. Kruger then says to Castrejon, “You put

your hands on me, motherfucker? You put your fucking hands on me?” Defs.’ Ex. E; see

also Defs.’ Ex. B, Trial Tr. at 91:17-19 (Kruger testifying that these statements were

made by him). A scuffle ensues, and the recording abruptly ends.

According to plaintiffs, Kruger at this point “launched at Castrejon and pinned him

against the window of the barbershop and smacked Castrejon’s phone while another

officer plowed Castrejon in the ribs.” Pls.’ L.R. 56.1(b)(3)(C) Stmt. ¶ 10. Defendants

deny that Kruger “launched” at Castrejon or smacked his phone, or that anyone

“plowed” Castrejon in the ribs. They say that Kruger pushed Castrejon against the

window after Castrejon grabbed Kruger’s wrist and punched Kruger in the chest. Defs.’

Resp. to Pls.’ 56. Stmt. ¶¶ 10, 35.

Once the altercation broke out between Kruger and Castrejon, a full-blown melee

ensued. Sergeant William Grassi (“Grassi”) told the officers to “Get everybody!” and the

officers converged on the barbershop and began arresting people. In addition to

Castrejon, several other plaintiffs claim that the officers used excessive force in

arresting them. As relevant here, Nazario alleges that the officers dragged him from the

foyer of the barbershop and proceeded to kick him in the face and head, strike him with

a baton on his back and neck, and shoot him twice in the buttocks with a taser gun. Pls.’

Resp. Br. at 3; Pls.’ L.R. 56.1 Stmt. ¶¶ 14-16. Defendants deny these allegations and

claim that Nazario was arrested because he rushed at a group of officers and tried to

punch Sergeant Grassi. Defs.’ Resp. to Pls.’ L.R. 56.1 Stmt. ¶¶ 14-16.

Eventually, all of the plaintiffs were placed under arrest. All were charged with

resisting/obstructing a peace officer; and all except Castrejon were charged with mob

action. Nazario and Castrejon were additionally charged with aggravated battery; and

Castrejon was charged with violating Illinois’ eavesdropping statute based on his

recording of the officers without their consent. All of the resisting/obstructing and mob

action charges were ultimately dropped. After a preliminary hearing, a state court found

probable cause for the eavesdropping charge against Castrejon and the aggravated

battery charges against both Castrejon and Nazario. See Preliminary Hr’g Trans., Defs.’

Ex. I at 21:22. The eavesdropping charge was later dropped, and in November 2016,

Castrejon and Nazario were tried and acquitted on the aggravated-battery charges.

Plaintiffs’ complaint asserts nine causes of action. Four of these allege violations

of 42 U.S.C. § 1983: excessive force (Count I); failure to intervene (Count II); unlawful

seizure/false arrest (Count III); and illegal pretrial detention (Count IV). The remaining

claims arise under Illinois state law: assault (Count V); battery (Count VI); malicious

prosecution (Count VII); indemnification (Count VIII); and conspiracy (Count IX).2

2 The false-arrest and malicious-prosecution claims (Counts III and VII, respectively) are

asserted by all of the plaintiffs; the excessive-force, assault, and battery claims (Counts

I, V, and VI, respectively) are asserted by Castrejon, Nazario, Gomez, and Rodriguez;

and the failure-to-intervene, illegal-pretrial-detention, and conspiracy claims (Counts II,

IV, and IX, respectively) are asserted by Castrejon and Nazario.

Defendants move for summary judgment as to Castrejon’s § 1983 claims for

failure to intervene, false arrest, and illegal pretrial detention, and well as Castrejon’s

and Nazario’s conspiracy claim. The motion is granted as to Castrejon’s § 1983 claims

and denied without prejudice as to the conspiracy claim.

II.

A. Castrejon’s Claims for False Arrest, Failure to Intervene, and Illegal Pretrial

Detention

Castrejon’s claims for failure to intervene (Count II), false arrest (Count III) and

illegal pretrial detention (Count IV) are interrelated: the false-arrest claim alleges that

Castrejon was arrested without probable cause for eavesdropping; his failure-to-

intervene claim alleges that defendants failed to prevent the false arrest, 3d Am. Compl.

¶ 50; and his illegal-pretrial-detention claim alleges that he was wrongly detained based

on the false arrest, id. ¶ 57. Thus, the parties’ briefing proceeds on the assumption that

if Castrejon’s false arrest-claim fails, his failure-to-intervene and illegal-pretrial-detention

claims fail as well. See Defs.’ Br. at 7-8; Pls.’ Resp. Br. at 7 n.2.

“To prevail on a false-arrest claim under § 1983, a plaintiff must show that there

was no probable cause for his arrest.” Neita v. City of Chicago, 830 F.3d 494, 497 (7th

Cir. 2016). “Probable cause to arrest exists if the totality of the circumstances known to

the officer at the time of the arrest would warrant a reasonable person in believing that

the arrestee had committed, was committing, or was about to commit a crime.”

Gutierrez v. Kermon, 722 F.3d 1003, 1008 (7th Cir. 2013).

Defendants argue that there was probable cause to arrest Castrejon for violating

Illinois’ eavesdropping statute because it is undisputed that he knowingly recorded the

officers on his cell phone without their consent. Defendants further contend, however,

that even if probable cause for the arrest was lacking, they are entitled to summary

judgment on Castrejon’s false-arrest claim under the doctrine of qualified immunity.

While the “probable-cause standard inherently allows room for reasonable mistakes ...

qualified immunity affords an added layer of protection by shielding officers from suit for

damages if a reasonable officer could have believed the arrest to be lawful, in light of

clearly established law and the information the arresting officers possessed.” Abbott v.

Sangamon Cty., Ill., 705 F.3d 706, 714 (7th Cir. 2013) (citation, brackets, and quotation

marks omitted). “Often termed ‘arguable probable cause,’ qualified immunity in this

context protects officers who reasonably but mistakenly believe that probable cause

exists.” Id. at 714-15 (citation omitted).

The qualified immunity standard is a “demanding” one, D.C. v. Wesby, 138 S. Ct.

577, 589 (2018), and “the plaintiff has the burden of defeating it once the defendants

raise it,” Archer v. Chisholm, 870 F.3d 603, 613 (7th Cir. 2017). To overcome

defendants’ assertion of qualified immunity, “the plaintiff must show (1) that the

defendant violated a constitutional right, when construing the facts in the light most

favorable to the plaintiff, and (2) that the right was clearly established at the time of the

alleged violation, such that it would have been clear to a reasonable actor that her

conduct was unlawful.” Id. at 613. Courts have discretion to address the two prongs of

the qualified immunity inquiry in either order. See, e.g., Pearson v. Callahan, 555 U.S.

223, 236-37 (2009). Because plaintiffs advance the same arguments as to both prongs,

and because the second prong is dispositive here, I need only address the question of

whether defendants violated a clearly established right — or, put differently, whether,

under the circumstances in question, Sergeant Kruger had arguable probable cause to

arrest Castrejon for eavesdropping.

“A plaintiff can show that a right is ‘clearly established’ by statute or constitution

in at least two ways: (1) he can point to a clearly analogous case establishing the right

to be free from the conduct at issue; or (2) he can show that the conduct was ‘so

egregious that no reasonable person could have believed that it would not violate

established rights.’” Beaman v. Freesmeyer, 776 F.3d 500, 508–09 (7th Cir. 2015)

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

cite no case authority to show that Kruger lacked arguable probable cause to arrest

Castrejon for eavesdropping. Accordingly, plaintiffs have the burden of showing that

Castrejon’s arrest for eavesdropping was so egregious that no reasonable person could

have failed to realize that it violated clearly established rights. Plaintiffs have failed to

meet this burden.

Plaintiffs begin by arguing that Kruger could not reasonably have believed that he

had probable cause (or arguable probable cause) to arrest Castrejon for eavesdropping

because, by its plain terms, the statute applies only to the recording of “conversations.”

At the time in question, the eavesdropping law provided that a “person commits

eavesdropping when he...[k]nowingly and intentionally uses an eavesdropping device

for the purpose of hearing or recording all or any part of any conversation ... unless he

does so ... with the consent of all of the parties to such conversation.” 720 ILCS 5/14-

2(a)(1)(A).3 According to plaintiffs, Castrejon’s purpose in making the cell phone video

3 As discussed in greater detail below, the constitutionality of the eavesdropping statute

was brought into question by the Seventh Circuit decision in American Civil Liberties

Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012), and was ultimately declared

was not to record the officers’ conversations. Rather, they maintain, “[b]y filming openly

and referencing Rodney King, Castrejon expressed his objective: to capture the

Defendants’ violent crimes against him and to deter them from committing those crimes

under the threat of being caught on film.” Pls.’ Resp. Br. at 8. As evidence that Kruger

himself did not believe that Castrejon’s purpose was to record conversations, plaintiffs

point out that the criminal complaint charging Castrejon with eavesdropping makes no

reference to “conversations.” The offense description says only that Castrejon

“‘knowingly used an eavesdropping audio and video recording device to record police

officers acting within their official duties, without having their consent.’” Pls.’ Resp. Br. at

8-9 (citing Defs.’ Ex. F, Eavesdropping Criminal Complaint).4 Additionally, plaintiffs cite

Kruger’s deposition testimony that he could not remember hearing any conversations

between police officers at the time of the incident. See Pls.’ Ex. U, K. Kruger Dep. at

114:10-14.

This argument is unpersuasive. To begin with, it is irrelevant whether Kruger

himself actually believed that Castrejon’s purpose in recording the officers was to

unconstitutional by the Illinois Supreme Court in People v. Clark, 6 N.E.3d 154, 162 (Ill.

2014). As a result, the law was amended in 2014. See P.A. 99-352, § 20-155, eff. Jan.

1, 2016. For purposes of this motion, only the version in effect at the time of Castrejon’s

arrest is relevant.

4 I note although the original typewritten description of the offense includes no reference

to the recording of a conversation, portions of the description were later crossed-out and

replaced with handwritten notations that do refer to a “conversation.” When the

handwritten edits are taken into account, the description says that Castrejon “knowingly

used an eavesdropping device to record all or any part of a conversation, to wit: to

record police officers acting within their official duties, without having their consent.”

Defs.’ Ex. F. However, defendants do not mention the handwritten changes to the

document and do not dispute plaintiffs’ assertion that the eavesdropping complaint

includes no reference to conversations.

capture their conversations. The test for arguable probable cause, like the test for

ordinary probable cause, is objective. See, e.g., Ulrich v. Pope Cty., 715 F.3d 1054,

1060 (8th Cir. 2013) (“[T]he existence of probable cause or arguable probable cause

depends on the viewpoint of an objectively reasonable officer, not the viewpoint of the

particular arresting officer.”) (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). The

question is thus not whether Kruger believed that Castrejon’s purpose in making the

video was to capture the officers’ conversations; it is whether an officer in Kruger’s

position could reasonably have believed that Castrejon’s purpose was to capture the

conversations.

The deeper problem with plaintiffs’ argument, however, is that it construes the

term “conversation” far too narrowly. Although plaintiffs are not entirely clear on this

point, they appear to interpret “conversation” in the everyday sense as a discussion

between two or more people about some topic or other. See, e.g., Conversation,

Cambridge Dictionary (defining “conversation” as “an informal, usually private, talk in

which two or more people exchange thoughts, feelings, or ideas, or in which news or

information is given or discussed”), https://

dictionary.cambridge.org/us/dictionary/english/conversation. Plaintiffs offer no basis for

such an interpretation, however, and indeed they ignore the definition provided in the

statute itself. Section 5/14-1(d) of the eavesdropping law defines “conversation” as “any

oral communication between 2 or more persons regardless of whether one or more of

the parties intended their communication to be of a private nature under circumstances

justifying that expectation.” 720 Ill. Comp. Stat. Ann. 5/14-1(d) (emphasis added). Given

the breadth of this definition, plaintiffs have failed to explain why Kruger could not

reasonably have believed that Castrejon was recording “conversations” within the

meaning of the statute. Castrejon’s video plainly captured “oral communications” by

Kruger and other officers at the scene.

That the eavesdropping statute’s definition of “conversation” should be

understood broadly – or at any rate, broadly enough to encompass Castrejon’s

recording – draws additional support from the Seventh Circuit’s decision in American

Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012). In Alvarez, the

Illinois ACLU sought a preliminary injunction to prevent the Cook County State’s

Attorney from prosecuting participants in its “police accountability program” under the

eavesdropping statute. A key part of the program was to “openly make audiovisual

recordings of police officers performing their duties in public places and speaking at a

volume audible to bystanders.” Id. at 586. The ACLU claimed that application of the

eavesdropping statute to criminalize their recordings would violate the First

Amendment.

The Seventh Circuit held that the preliminary injunction was warranted,

concluding that the ACLU had shown a likelihood of success on the merits of its first

amendment challenge to the eavesdropping law. In reaching this conclusion, the court

emphasized the wide range of communications covered by the law. The court noted, for

example, that, “[u]nlike the federal wiretapping statute and the eavesdropping laws of

most other states, the gravamen of the Illinois eavesdropping offense is not the secret

interception or surreptitious recording of a private communication.” Id. at 595. “Instead,”

the court explained, “the statute sweeps much more broadly, banning all audio

recording of any oral communication absent consent of the parties regardless of

whether the communication is or was intended to be private.” Id.; see also id. at 586-87

(“Illinois has criminalized the nonconsensual recording of most any oral communication,

including recordings of public officials doing the public’s business in public and

regardless of whether the recording is open or surreptitious.”). Under the court’s

interpretation in Alvarez, the communications captured by Castrejon’s recording can

reasonably be regarded as “conversations” within the meaning of the eavesdropping

statute.

I pause here to note that Alvarez’s holding regarding the eavesdropping statute’s

unconstitutionality does not negate the existence of probable cause (or arguable

probable cause) for Castrejon’s arrest. Nor is defendants’ qualified immunity argument

defeated by the fact that several Illinois state courts, including the Illinois Supreme

Court, have declared the statute unconstitutional. See People v. Clark, 6 N.E.3d 154,

156 (Ill. 2014); People v. Melongo, 6 N.E.3d 120 (Ill. App. Ct. 2014); People v. Drew,

No. 10–cr–46 (Cook Cnty., Ill., Cir. Ct. Mar. 7, 2012); People v. Allison, No. 2009–CF–

50 (Crawford Cnty., Ill. Cir. Ct. Ill., Cir. Ct. Sept. 5, 2011). As an initial matter, plaintiffs

themselves do not advance this argument – despite the defendants’ anticipation of the

issue in their opening brief. Accordingly, plaintiffs have forfeited any argument based on

the statute’s unconstitutionality. See, e.g., Salas v. Wisconsin Dep’t of Corr., 493 F.3d

913, 924 (7th Cir. 2007) (party forfeits any argument it fails to raise in response to

summary judgment). In any case, an arrest based on a good-faith reliance on a law

remains valid even if that law is later declared invalid. See, e.g., United States v.

Charles, 801 F.3d 855, 861 (7th Cir. 2015) (“It’s true that Chicago’s handgun ban was

later invalidated, as was the Illinois concealed-carry law. But the ‘[p]olice are charged to

enforce laws until and unless they are declared unconstitutional,’ so a search based on

a violation of a law later declared unconstitutional does not necessarily violate the

Fourth Amendment.”) (quoting Michigan v. DeFillippo, 443 U.S. 31, 38 (1979)) (citations

omitted); Thayer v. Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012) (“[A]n arrest made in

good-faith reliance on an ordinance is valid regardless of a subsequent judicial

determination of its unconstitutionality.”) (citations omitted).

To be sure, probable cause cannot be based on a law that is “so grossly and

flagrantly unconstitutional that any person of reasonable prudence would be bound to

see its flaws.” DeFillippo, 443 U.S. at 36. But the eavesdropping statute does not meet

that standard. Notably, Judge Posner filed a dissent in Alvarez defending the

eavesdropping law’s constitutionality. See Am. Civil Liberties Union of Illinois v. Alvarez,

679 F.3d 583, 608 (7th Cir. 2012) (Posner, J., dissenting). Given that the Alvarez panel

itself was divided over the question, it is difficult to conclude that the law’s

unconstitutionality should have been obvious to “any person of reasonable prudence.”5

In addition, prior to Alvarez, several individuals had been prosecuted under the

5 I note that other circuits have reached different conclusions regarding whether the

constitutionality vel non of other state eavesdropping statutes was clearly established

for qualified immunity purposes. Compare Kelly v. Borough of Carlisle, 622 F.3d 248,

262 (3d Cir. 2010) (“[W]e conclude there was insufficient case law establishing a right to

videotape police officers during a traffic stop to put a reasonably competent officer on

‘fair notice’ that seizing a camera or arresting an individual for videotaping police during

the stop would violate the First Amendment.”); and Szymecki v. Houck, 353 F. App’x

852, 853 (4th Cir. 2009 (affirming district court’s conclusion that the “First Amendment

right to record police activities on public property was not clearly established in this

circuit at the time of the alleged conduct”), with Glik v. Cunniffe, 655 F.3d 78, 88 (1st

Cir. 2011) (no arguable probable cause to arrest for violating state eavesdropping law

where plaintiff “was openly recording the police officers and that they were aware of his

surveillance”).

eavesdropping statute for recording police officers in the course of their official duties.

See Alvarez, 679 F.3d at 593 n.2 (collecting cases). This, too, militates against the

notion that the law’s unconstitutionality should have been obvious. See, e.g., Frobe v.

Vill. of Lindenhurst, No. 11 C 1722, 2014 WL 902878, at *5 (N.D. Ill. Mar. 7, 2014)

(citing prior prosecutions under the eavesdropping statute in rejecting plaintiff’s

contention that Illinois’ eavesdropping law was so grossly unconstitutional that it could

not have provided probable cause for his arrest).

I am unconvinced, then, by plaintiffs’ argument that Kruger lacked arguable

probable cause to arrest Castrejon because Castrejon’s cell phone recording did not

record “conversations” within the meaning of the eavesdropping law. Even assuming

that the officers’ communications were not in fact “conversations” for purposes of the

statute, it would not have been unreasonable for Kruger to have believed that they

were. Indeed, given that the probable-cause standard allows for reasonable mistakes of

law, Kruger may well have had ordinary probable cause for the arrest. See, e.g.,

Gutierrez, 722 F.3d at 1008 (“Based as it is on probabilities rather than hard certainties,

the probable-cause standard inherently allows room for reasonable mistakes.”) (citing

Brinegar v. United States, 338 U.S. 160, 176 (1949)); Wilbon v. Plovanich, No. 12 C

1132, 2015 WL 4080169, at *4 (N.D. Ill. July 6, 2015) (“Police officers, of course,

sometimes make mistakes. If the mistake (whether of law or of fact) is objectively

reasonable, an officer acting in error has not violated the Constitution.”) (citing Heien v.

North Carolina, 135 S. Ct. 530, 532–33, 536 (2014)).

Plaintiffs go on to argue, however, that even if Castrejon recorded the officers’

conversations for purposes of the eavesdropping law, the recording was nonetheless

lawful by virtue of a specific exception in the statute. In particular, plaintiffs invoke the

statute’s so-called “fear of crime” exemption, which permits the “[r]ecording of a

conversation made by or at the request of a person ... who is a party to the

conversation, under reasonable suspicion that another party to the conversation is

committing, is about to commit, or has committed a criminal offense” and where “there

is reason to believe that evidence of the criminal offense may be obtained by the

recording.” 720 ILCS 5/14-3(i). According to plaintiffs, Castrejon reasonably suspected

at the time he recorded the video that the officers were about to engage in criminal

activity (i.e., another “Rodney King” incident) and wanted to obtain evidence of the

crime.

This argument is no more persuasive than the first. To defeat defendants’

qualified immunity defense on this ground, plaintiffs must show that, at the time of

Castrejon’s arrest, it was clearly established that his recording fell within the

eavesdropping statute’s fear-of-crime exception. To make this showing, plaintiffs must

either cite a clearly analogous case on point or demonstrate that Kruger’s conduct was

so egregious that no reasonable person could have failed to see that it violated

Castrejon’s rights. See, e.g., Beaman, 776 F.3d at 508–09. Once again, plaintiffs opt for

the second tack. Their argument is based on Castrejon’s references to Rodney King

during the recording. According to plaintiffs, Castrejon’s remarks leave no doubt that he

was recording the officers because he feared they were about to turn violent.

As previously noted, the parties hold sharply different views regarding how

Castrejon’s statements are to be understood, and indeed about what Castrejon actually

said. Plaintiffs claim that Castrejon said, “It’s going to be some Rodney King.” Pls.’

Resp. Br. at 2. Defendants claim that Castrejon said, “[L]et’s see some Rodney King

shit up in here!” See Defs.’ Reply Br. at 4. Because factual disputes in the summary

judgment context are to be resolved in the nonmoving party’s favor, I might ordinarily be

required simply to accept plaintiffs’ account of Castrejon’s statements. As the Supreme

Court has explained, however, only genuine factual disputes must be resolved in favor

of the nonmoving party. See, e.g., Scott v. Harris, 550 U.S. 372, 380 (2007) (“At the

summary judgment stage, facts must be viewed in the light most favorable to the

nonmoving party only if there is a ‘genuine’ dispute as to those facts.”) (quoting Fed.

Rule Civ. Proc. 56(c)). Thus, the Court has held that “[w]hen opposing parties tell two

different stories, one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that version of the facts for

purposes of ruling on a motion for summary judgment.” Id.; see also Williams v. Brooks,

809 F.3d 936, 942 (7th Cir. 2016) (“When the evidence includes a videotape of the

relevant events, the Court should not adopt the nonmoving party’s version of the events

when that version is blatantly contradicted by the videotape.”).

Here, there can be no genuine dispute over what Castrejon actually said:

plaintiffs’ account of Castrejon’s statements is flatly contradicted by the video. At about

four seconds into the recording, Castrejon unmistakably says, “Right, right .... Let’s see

some Rod-- Let’s see some Rodney King shit up in this mother. Some Rodney King shit

up in this mother.” Ex. E. Later, at about twenty seconds into the recording, he says,

“Rodney King, baby. Yeah, yeah, yeah.” Id. Still later, Castrejon can be heard making

derogatory remarks about the police in Spanish.6 Significantly, plaintiffs do not support

their characterization of Castrejon’s remarks by citing to the recording itself. Instead,

they rely entirely on Castrejon’s deposition testimony regarding what he said.

Given this discrepancy, I may rely on the recording rather than plaintiffs’ account

of Castrejon’s statements. I may do so, however, only if there is no reason to doubt the

recording’s accuracy. See Scott, 550 U.S. at 378 (relying on video instead of plaintiff’s

version of events was because “[t]here [we]re no allegations or indications that this

videotape was doctored or altered in any way, nor any contention that what it depicts

differs from what actually happened”). Here, a potential problem arises: during his

deposition, Castrejon questioned the accuracy of the recording. After viewing the video

at his deposition, Castrejon acknowledged that the statement heard on the recording

was, “Right, right. Let’s see some Rodney King shit up in here,” Defs.’ Ex. C at 57:3-7.

Nevertheless, he insisted that what he had actually said was, “Right, right. It’s going to

be some Rodney King shit.” Id. at 57:1-2. When asked to explain the inconsistency,

Castrejon speculated that the recording had been tampered with. Id. at 57:12-19 (“Q. So

is it your testimony that this audio is somehow different [from what you said]? A. Yes. Q.

Or doctored? A. Yes. Q. It’s your claim that that is not what you were saying on the

audio? A. Yes.”); see also id. at 58:7-10 (“Q. Do you have any explanation as to why the

audio would say something different than you claim you said? A. Manufacturing the

6 See Defs.’ Ex. C, Castrejon Dep. at 61:1-17 (“Q. Okay. We hear a sentence or

whatever in Spanish? A. Yes. Q. And is that you? A. Yes. Q. Okay. And what were you

saying? A. ... These guys are getting stupid or I say pendejo. There’s different meanings

to that. These guys are getting ignorant. Q. There’s one meaning of pendejo that means

assholes, true? A. Yeah. Q. And is that the meaning that you were using for that word?

A. Yes.”).

audio.”); id. at 127:7-9 (“Q. Okay. And it’s your testimony that you were not trying to

incite people or rile people by walking around with your cell phone and making Rodney

King type comments? A Yeah. No, I was saying it’s going to be some - you know, not

see some. Like I said, it was manufactured, you know.”). Indeed, Castrejon adhered to

this theory even after admitting that the video played during his deposition was the

same one that had been played, apparently without objection, at his criminal trial. Id. at

58:4-6.

However, while Castrejon’s testimony might otherwise raise a factual dispute

regarding the recording’s accuracy, that is not the case here. Significantly, nowhere in

their opposition to the summary judgment motion do plaintiffs make any reference to

Castrejon’s suggestion that the recording might have been altered. On the contrary,

plaintiffs appear to have taken great pains when citing Castrejon’s deposition to avoid

his remarks on this point. Nor do plaintiffs’ response brief or Local Rule 56.1 statement

contain any hint of the notion that the recording might be less than veridical.

(Defendants, for their part, are likewise silent on the matter). Accordingly, plaintiffs have

forfeited any argument concerning the recording’s accuracy, see, e.g., Salas v.

Wisconsin Dep’t of Corr., 493 F.3d 913, 924 (7th Cir. 2007), and for purposes of this

motion, I confine myself to the position advanced in plaintiffs’ brief and Local Rule 56.1

Statement, see, e.g., Bilal v. Rotec Indus., Inc., 326 F. App’x 949, 956 (7th Cir. 2009)

(observing that “district courts are not obliged to go beyond parties’ Rule 56.1

statements by conducting their own investigation of the record” and that courts have the

“discretion to limit their consideration to parties’ Local Rule 56.1 submissions”). Thus,

because plaintiffs’ characterization of Castrejon’s statements is inconsistent with the

recording, I rely on the recording. See, e.g., Scott, 550 U.S. at 380; Williams, 809 F.3d

at 942.

Based on Castrejon’s comments as they are documented in the video, Kruger

could reasonably have believed that Castrejon was recording the officers for reasons

other than his fear for his safety and his desire to capture evidence of police

misconduct. In fact, an officer in Sergeant Kruger’s position could reasonably have

arrived at precisely the opposite conclusion: that Castrejon began recording in an

attempt to provoke a confrontation with the police. In both tone and substance,

Castrejon’s comment, “Let’s see some ... Rodney King shit up in this mother,” can

naturally be understood as encouraging the officers to respond aggressively to the

situation. His statement, “Rodney King, baby. Yeah, yeah, yeah,” could likewise

reasonably have been viewed as an attempt to goad the officers into violence. This is

not to say that it would be impossible for any reasonable person to conclude based on

the recording that the fear of crime exception applied in this instance – i.e., that

Castrejon made the recording to document another potential “Rodney King incident.”

For purposes of the qualified immunity inquiry, however, the question is merely whether

a person could reasonably (even if perhaps mistakenly) conclude that the exception did

not apply and that probable cause therefore existed. The answer to that question is yes.

In sum, plaintiffs have failed to show that Sergeant Kruger lacked arguable

probable cause to arrest Castrejon for violating the eavesdropping statute. On this

record, Kruger could reasonably have believed that the oral communications recorded

by Castrejon constituted “conversations” for purposes of the statute. Kruger could

likewise reasonably have believed that the recording did not fall within the statute’s fear-

of-crime exception. It follows that defendants are entitled to qualified immunity with

respect to Castrejon’s false-arrest claim. And, as already explained, the same

conclusion follows a fortiori for Castrejon’s failure-to-intervene claim and his illegal-

pretrial-detention claim. Thus, defendants’ motion for summary judgment as to these

claims is granted.

B. Castrejon’s and Nazario’s Claim for Conspiracy

In Count IX, Castrejon and Nazario assert a claim for civil conspiracy under

Illinois law. “Civil conspiracy is defined as ‘a combination of two or more persons for the

purpose of accomplishing by concerted action either an unlawful purpose or a lawful

purpose by unlawful means.’” McClure v. Owens Corning Fiberglas Corp., 720 N.E.2d

242, 258 (Ill. 1999) (quoting Buckner v. Atlantic Plant Maintenance, Inc., 694 N.E.2d

565 (Ill. 1998)). Thus, “to state a claim for civil conspiracy, a plaintiff must allege an

agreement and a tortious act committed in furtherance of that agreement.” Id. (citing

Adcock v. Brakegate, Ltd., 645 N.E.2d 888 (Ill. 1994)).

Plaintiffs allege that the officers conspired to maliciously prosecute Castrejon and

Nazario. (Although the complaint alleges malicious prosecution on behalf of all of the

plaintiffs, the alleged conspiracy to engage in malicious prosecution is asserted only by

Castrejon and Nazario). According to plaintiffs, the purpose of the conspiracy was to

cover up the officers’ use of excessive force in arresting the plaintiffs. See Pls.’ Resp.

Br. at 12 n.5 (contending that the “unlawful purpose of maliciously prosecuting Plaintiffs

was to cover-up Defendants’ use of excessive force,” and the “tortious act in furtherance

of the conspiracy, was the malicious prosecution itself”).

In support of the conspiracy claim, plaintiffs point to evidence of various ways in

which the officers worked together to advance Castrejon’s and Nazario’s prosecution on

the various offenses they were charged with. For example, they point to testimony by

one of the officers that he conferred with other officers at the police station following

plaintiffs’ arrest, so that he “could, you know, know the story and know the probable

cause to complete the arrest reports.” Pls.’ Ex. R, R. Delany Dep. at 25:7-9. Plaintiffs

also cite the fact that many of the criminal complaints filed by the officers contained

identical or almost identical language. Additionally, plaintiffs point to testimony by

various officers that they met as a group with attorneys (including prosecutors from the

State’s Attorney’s Office) to discuss the case against Castrejon and Nazario. Above all,

plaintiffs contend, the conspiracy is demonstrated by the fact that the defendants’

charges against Castrejon, Nazario, and the other plaintiffs were false. If none of the

plaintiffs committed any offenses, they argue, the fact that they were nonetheless

charged with crimes, and the fact that so many officers were involved, is difficult to

explain without a conspiratorial agreement of some kind.

Defendants’ argument for summary judgment on the conspiracy claim is

exceedingly narrow: they challenge the sufficiency of the foregoing evidence only as to

the agreement element of the claim. It is impractical, however, if not impossible, to

assess the “agreement” element of the claim in isolation from its other elements. It

makes little sense, for example, to ask whether defendants reached an “agreement” in

the abstract. The officers may have agreed about any number of things in connection

with Castrejon’s and Nazario’s arrests. For example, they may have reached an

agreement regarding who would transport them to the police station or who would

process them once they arrived. Obviously, defendants’ agreement about issues of this

sort is irrelevant to the conspiracy claim. For purposes of establishing a conspiracy, the

question is whether defendants agreed specifically to maliciously prosecute Castrejon

and Nazario.

That issue cannot meaningfully be addressed without addressing the merits of

plaintiffs’ underlying malicious-prosecution claim. If plaintiffs were not in fact maliciously

prosecuted, their conspiracy claim fails as a matter of law. See, e.g., Indeck N. Am.

Power Fund, L.P. v. Norweb PLC, 735 N.E.2d 649, 662 (Ill. App. Ct. 2000) (“[A]

conspiracy is not an independent tort. Where ... a plaintiff fails to state an independent

cause of action underlying its conspiracy allegations, the claim for a conspiracy also

fails.”) (citing Adcock, 645 N.E.2d at 888). On the other hand, as already noted, if

Castrejon and Nazario were maliciously prosecuted, the number of officers involved in

bringing the false charges against them (and the other plaintiffs) is suggestive of a

conspiracy. Plaintiffs’ conspiracy claim similarly implicates the merits of their excessive-

force claim, given plaintiffs’ theory that the officers hatched the conspiracy to cover up

their use of excessive force.

Further, even if it might be conceptually feasible to address the agreement

element of the conspiracy claim apart from the claim’s other elements – and the

conspiracy claim apart from the malicious-prosecution and excessive-force claims –

defendants have offered no particular reason for doing so. For example, there is no

reason to believe that deciding the conspiracy claim at this juncture will lead to more

efficient resolution of the case. Regardless of the conspiracy claim’s disposition, a trial

will be necessary to adjudicate the merits of plaintiffs’ remaining claims. While

defendants have won summary judgment as to Castrejon’s claims for false arrest,

failure to intervene, and illegal pretrial detention, those claims remain in play as to other

plaintiffs. And Castrejon’s and other plaintiffs’ claims for excessive force, malicious

prosecution, assault, and battery will go forward as well. Given defendants’ assertion of

qualified immunity, there was an important reason for deciding the summary judgment

motion as to Castrejon’s federal claims in Counts II, III, and IV. See, e.g., Currie v.

Chhabra, 728 F.3d 626, 629 (7th Cir. 2013) (“[I]deally an immunity defense should be

resolved at the earliest stage possible.”). But this reason does not apply to the

conspiracy claim, which is asserted under state law and which is not subject to the

qualified immunity defense.

In short, under these circumstances, adjudication of the conspiracy claim is best

deferred until it can be addressed in tandem with plaintiffs’ malicious-prosecution and

excessive-force claims. Cf. Jacob v. Killian, 437 F. App’x 460, 467 (6th Cir. 2011)

(“[T]he court may decline to decide a specific factual issue ... because the court ‘may

conclude that it is better to leave open for trial facts and issues that may be better

illuminated by the trial of related facts that must be tried in any event.’”) (quoting Fed. R.

Civ. P. 56 Advisory Committee Notes); 11 Moore’s Federal Practice - Civil § 56.07

(2019) (noting that “[h]istorically ... courts have had some discretion to deny an

otherwise proper summary judgment motion on the grounds that ... [f]urther pretrial

activity or trial adjudication will sharpen the facts and law at issue and lead to a more

accurate or just decision.”).

In sum, I decline to address defendants’ motion for summary judgment as to

Count IX and accordingly deny the motion as to that count.

III.

For the reasons discussed above, defendants’ motion for summary judgment is

granted as to Counts Il, Ill, and IV, insofar as they are asserted by Castrejon. | decline

to address the conspiracy claim asserted by Castrejon and Nazario and therefore deny

the motion as to Count IX.

Elaine E. Bucklo

United States District Judge

Dated: July 24, 2019

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