Lopez v. The Sheriff of Cook County

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

FERNANDO LOPEZ, )

)

Plaintiff, ) No. 16 C 10931

)

v. )

) Judge Edmond E. Chang

THE SHERIFF OF COOK COUNTY; )

COOK COUNTY; and )

THOMAS RAINES, special representative )

for MICHAEL RAINES (deceased), )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

After Fernando Lopez accidentally bumped his car into a car that was parked

outside the Funky Buddha Lounge in Chicago, an angry group of men swarmed

around Lopez’s car. Lopez got out of the car and used a gun to frighten away the

assailants. As Lopez walked back to his car, he fired the gun twice in the direction

(though at an upward angle) of one of the assailants. By this time, however, off-duty

Cook County Sheriff’s Officer Michael Raines had arrived. Raines walked towards

Lopez and shot him (Lopez luckily survived). The shooting and its aftermath are

explored in detail below, prompted by Lopez’s civil-rights lawsuit against Cook

County, the Sheriff of Cook County, and Officer Raines (Raines has since passed

away, so formally, the named defendant is Thomas Raines, the estate’s special

representative). Lopez alleges that Raines used excessive force and conspired with

Cook County and the Sheriff to deprive Lopez of right to access the courts. He also

alleges that the municipalities are liable for causing the use of excessive force and

must indemnify Raines. R. 22, Am. Compl. ¶¶ 24-40.1 The Defendants now move for

summary judgment. R. 77, Mot. Summ. J. For the reasons discussed below, the

motion for summary judgment is granted.

I. Background

For purposes of the summary judgment motion, the facts are viewed in the

light most favorable to Lopez, the non-movant, and all reasonable inferences are

drawn in his favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574 (1986). To the extent video footage clearly contradicts Lopez, however, the Court

considers that evidence without favoring him as the non-movant. Horton v. Pobjecky,

883 F.3d 941, 944 (7th Cir. 2008). That is because the Court only views evidence in

the non-movant’s favor when there is a genuine dispute about the facts. Id. So the

Court will not “indulge stories clearly contradicted by the footage.” Id. In principle,

this is no different than applying the usual summary judgment standard: if a

reasonable jury could not view a certain piece of evidence—whether video or not—in

the non-movant’s favor, then the evidence is not viewed in the non-movant’s favor.2

On November 30, 2014, at around 3:55 a.m., Fernando Lopez was driving

westbound on Grand Avenue when he bumped into a car parked outside the Funky

1Citations to the docket are indicated by “R.” followed by the docket number and,

where necessary, a page or paragraph citation. The Court has federal-question jurisdiction

over this matter under 28 U.S.C. §§ 1331 and 1343 and supplemental jurisdiction under 28

U.S.C. § 1367.

2Citations to the parties’ Local Rule 56.1 Statements of Fact are identified as follows:

“DSOF” for the Defendants’ Statement of Facts [R. 78]; “Pl.’s Resp. DSOF” for Lopez’s

response to the Defendants’ Statement of Facts [R. 82]; “PSOF” for Lopez’s Statement of

Additional Facts [R. 82]; and “Defs.’ Resp. PSOF” for Defendants’ response to Lopez’s

Statement of Additional Facts [R. 87].

Buddha Lounge in Chicago. R. 78-4, DSOF, Exh. D, Video 3 at 3:55:43.3 That event,

and much of its aftermath, was captured on the Lounge’s security footage. DSOF ¶ 14;

R. 78-3, DSOF, Exh. C, Lopez Dep. Tr. 164:15-165:17, 184:23-185:20, 195:18-196:17.4

After the accident, some bystanders who had been standing outside the lounge

(probably including the owner of the now-damaged car and his friends) approached

Lopez’s car and started to beat Lopez. R. 81, Exh. A, Lopez Dep. Tr. 72:23-24, 74:23-

24, 75:1-3, 20-24, 76:1-3, 9-16; Video 3 at 3:55:47. One of Lopez’s passengers got out

of the back seat and waved a handgun around. R. 82, PSOF ¶ 3. As the assailants

started to scatter, Video 3 at 3:55:55, Lopez also got out of the car and took the gun

from his passenger, id. at 3:56:05. Lopez then crossed the street, holding and at times

brandishing the gun, toward the now-scattered ex-assailants. Id. at 3:56:05-16; see

also Video 2 at 3:56:05-16.5

Toward the end of Lopez’s on-street confrontation with the scattered

assailants, Raines arrived at the intersection of Grand, Milwaukee, and Halsted (this

is one of Chicago’s charming six-way intersections). Video 3 at 3:56:11. Raines was

off-duty and had been at a nearby bar. PSOF ¶ 5. As more fully depicted with

3The defense’s Exhibit D comprised four videos from the Lounge’s surveillance

cameras, which recorded four different vantage points. “Video 3” is an AVI video bearing the

filename CH07-20141130-035500-041500. For all the videos, citations to time-stamps

represent the actual time of day (rather than how much time has elapsed on a video clip). For

example, 3:55:43 is 3:55 a.m. and 43 seconds. The day-of-time stamps appear on the top of

the videos.

4Although Lopez disputes whether the video footage captures the entirety of the

events, he concedes that it captures a “significant” part of the events. PSOF ¶ 14 (“The video

captures a significant portion of the incident, but there are portions of the video that are

unclear or do not depict the plaintiff ….”).

5Video 2 is also part of the defense’s Exhibit D, R. 78-4, and has the filename CH06-

20141130-035500-041500.avi.

snapshots in the Analysis section later in the Opinion, in view of the officer (or at

least in hearing range), Lopez walked back toward his car and fired his gun—twice—

in the general direction of the assailants (though at an upward angle). Video 3 at

3:56:20. Raines started moving toward Lopez with his gun drawn, and Lopez

continued to move toward his car, which was in the general direction of Raines. Id.

at 3:56:20-24. As Lopez and Raines moved generally toward each other, Lopez waved

the gun up to shoulder level and then quickly back down. Id. at 3:56:22. Giving Lopez

the benefit of the doubt, Lopez was not pointing the gun directly at Raines, but was

just waving it up and down; Lopez might not even have realized that Raines was

there. Indeed, according to Lopez, Raines did not announce his office and did not order

Lopez to drop his gun, PSOF ¶ 8, and the Court credits that assertion at the summary

judgment stage.

In any event, as Raines continued moving toward Lopez with his gun drawn,

Lopez tried to open his car door with the gun still in hand. Video 3 at 3:56:26. Before

Lopez could get into the car, Raines started firing. Raines first struck Lopez at

3:56:27; Lopez dropped the gun one second later as he turned and started to run from

Raines; and Raines continued to fire for two more seconds, ending at 3:56:30, for a

total of three seconds of shots fired.6 Lopez ran to the sidewalk with Raines trailing

close behind. Id. at 3:56:28 to 3:56:34. A sidewalk struggle ensued between the pair,

6The parties do not pin-down exactly how many of the bullets that Raines fired

actually struck Lopez, other than to say “multiple” times. PSOF ¶ 2; Lopez Dep. Tr. at 222-

24.

as the officer endeavored to restrain Lopez from behind while holding his arm around

Lopez’s neck. Id. at 3:56:34.

Meanwhile, Lopez’s front-seat passenger, Mario Orta, picked up Lopez’s gun

from the street, Video 3 at 3:56:31, and then almost immediately fired a shot (or

possibly two) at Raines, Video 2 at 3:56:32-33. Orta then walked into the lounge’s

covered entrance just a few feet from where Raines and Lopez were struggling. Id. at

3:56:41. After about 13 seconds, Orta reemerged from the lounge, id. at 3:56:54, still

holding the gun, and walked off for a bit, but then approached Raines again, Video 3

at 3:57:13. Lopez came within a few feet of Raines and then aimed the gun directly at

Raines. Id. at 3:57:19. Orta then backed away several feet and eventually circled

around the sidewalk, changing the angle of approach to Raines, who in turn rotated

with Lopez so that the officer remained crouched behind Lopez. Id. at 3:58:09.

Meanwhile, Raines alternated between pointing his gun toward Lopez’s temple,

waving off persons who came too near, and pointing his gun at Orta as Lopez

continuously swatted at the officer’s gun arm, including when Raines was pointing

his gun at Orta rather than Lopez. Video 17 at 3:57:17-19 (reaches up and puts hand

on Raines’s gun); Video 3 at 3:57:20-36 (swatting at Raines’s gun around nine times);

id. at 3:57:48-3:58:05 (swatting at Raines’s gun around eight times); id. at 3:58:15

(swatting at Raines’s gun). In these few minutes, Orta pointed the gun at Raines at

least three more times. Video 2 at 3:56:55; id. at 3:59:36-43; Video 3 at 3:59:59-

7Video 1 is another video that is part of Defense Exhibit D, R. 78. The filename is

CH05-20141130-035500-041500.avi.

4:00:03. After the third time, Orta ran away just as police cars started arriving on the

scene. Video 3 at 4:00:10.

II. Standard of Review

Summary judgment must be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating

summary judgment motions, courts must view the facts and draw reasonable

inferences in the light most favorable to the non-moving party. Scott v. Harris, 550

U.S. 372, 378 (2007). The Court may not weigh conflicting evidence or make

credibility determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697,

704 (7th Cir. 2011), and must consider only evidence that can “be presented in a form

that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The party seeking

summary judgment has the initial burden of showing that there is no genuine dispute

and that they are entitled to judgment as a matter of law. Carmichael v. Village of

Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this burden

is met, the adverse party must then “set forth specific facts showing that there is a

genuine issue for trial.” Anderson, 477 U.S. at 256.

III. Analysis

The Defendants move for summary judgment on a number of grounds, arguing

that: (1) Lopez’s suit is inconsistent with his gun-crime conviction and thus barred by

Heck v. Humphrey, 512 U.S. 477 (1994); (2) Officer Raines’s use of force was not

excessive; (3) Raines is protected by qualified immunity; (4) the conspiracy claim fails

for lack of evidence; and (5) the indemnification claims must also be dismissed. R. 79,

Defs.’ Br. at 3. As discussed below, although the bar in Heck does not entirely preclude

the suit, the Court concludes that the qualified immunity shields Raines from liability

for excessive force. Lopez also failed to present evidence of a viable conspiracy claim,

so summary judgment must also be granted against that claim. And without

substantive claims remaining, the indemnification claims are dismissed.

A. Heck v. Humphrey

In Heck v. Humphrey, the Supreme Court held that a person cannot bring a 42

U.S.C. § 1983 claim for damages arising from a conviction or sentence, “or for other

harm caused by actions whose unlawfulness would render a conviction or sentence

invalid,” unless that conviction or sentence has been reversed or invalidated in some

way. 512 U.S. at 486-87. The bar in Heck prevents criminal defendants from using a

§ 1983 lawsuit as a collateral attack on an otherwise valid criminal conviction—a

federal habeas petition is the only vehicle for that sort of challenge. Id. at 487;

Thomas v. Miller, 2018 WL 1156325, at *2 (N.D. Ill. March 5, 2018). So if the civil-

rights lawsuit would “necessarily imply the invalidity of [the] conviction or sentence,”

then the claim is not cognizable under § 1983. Heck, 512 U.S. at 487 (emphasis

added).

To determine whether Heck bars a particular § 1983 claim—that is, whether

the plaintiff’s victory would necessarily imply the invalidity of the prior conviction—

courts must carefully examine the relationship between the § 1983 claim and the

conviction. McCann v. Neilsen, 466 F.3d 619, 621-22 (7th Cir. 2006). Where the

grounds for the civil-rights claim are premised on the very same facts that were the

basis for the conviction, Heck will generally bar the claim because a plaintiff typically

cannot win the civil claim without implying that he did not commit the crime.

McCann, 466 F.3d at 621. In contrast, where the facts in the civil lawsuit are distinct

from the facts that underlie the criminal conviction, Heck does not apply because a §

1983 victory would not necessarily imply the invalidity of the conviction. Helman v.

Duhaime, 742 F.3d 760, 762 (7th Cir. 2014); Evans v. Poskon, 603 F.3d 362, 363-364

(7th Cir. 2010). The Supreme Court has emphasized that it was “careful in Heck to

stress the importance of the term ‘necessarily.’” Nelson v. Campbell, 541 U.S. 637,

647 (2004). “To hold otherwise would have cut off potentially valid damages actions

as to which a plaintiff might never obtain favorable termination—suits that could

otherwise have gone forward had the plaintiff not been convicted.” Id.

A prime example of the care with which federal courts examine Heck is the

relationship between convictions for resisting arrest and a follow-up lawsuit for

excessive force during the course of the same arrest. It would be easy—as it turns

out, too easy—to simply say that if an arrestee is convicted for resisting arrest, then

a later suit that alleges excessive force during that arrest must be barred by Heck.

After all, if the arrestee resisted an officer’s attempt to make an arrest, then wasn’t

the officer entitled to use force? But no: even if an arrestee resists, it is not necessarily

the case that the officer may use any intensity of force in completing the arrest.

Consider an arrestee who resists arrest by taking a step back away from the officer.

The officer could not then shoot the arrestee and later invoke Heck to bar an

excessive-force claim. McCann, 466 F.3d at 621 (“A contrary conclusion … would

imply that once a person resists law enforcement, he has invited the police to inflict

any reaction or retribution they choose, while forfeiting the right to sue for

damages.”).

At the same time, however, even if a civil-rights claim is theoretically

compatible with prior conviction, it is still possible for a civil-rights plaintiff to run

head-long into the Heck bar by pleading or by pursuing the claim based on facts that

do necessarily imply the invalidity of the conviction. McCann, 466 F.3d at 621-22. For

example, in Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003), a plaintiff alleged

that officers had illegally seized gems from his home. Id. An illegal-seizure claim in

theory can be compatible with a prior conviction, because a conviction does not

necessarily say anything about the legality of seized evidence. Id. But in that

particular civil-rights case, the plaintiff had been convicted of heroin possession and

yet he explicitly premised the illegal-seizure claim on the argument that he had been

framed; there was no heroin, only gems. Id. That version of the facts steered the

plaintiff right into the bar in Heck: if he won on that theory, then the victory would

necessarily imply the invalidity of the heroin conviction. Id.

In Lopez’s case, although there are several facts that have been established by

the criminal conviction, a close examination of the conviction and excessive-force

claim—or at least a narrower version of his claim—shows that Heck does not bar the

suit. To start, both sides agree that the charge to which he pled guilty was aggravated

discharge of a firearm, and a specific form of it, namely, 720 ILCS 5/24-1.2(a)(2).

DSOF ¶ 1 (citing § 24-1.2(a)(2)); Pl.’s Resp. DSOF ¶ 1 (“Plaintiff admits to pleading

guilty to the statute cited ….”). Section 24-1.2(a)(2) defines aggravated discharge of a

firearm as knowingly or intentionally firing in the “direction” of another person or a

car with a person inside it:

(a) A person commits aggravated discharge of a firearm when he or she

knowingly or intentionally …

(2) Discharges a firearm in the direction of another person or in the

direction of a vehicle he or she knows or reasonably should know to be

occupied by a person.

720 ILCS 5/24-1.2(a)(2). The specific charge to which Lopez pled guilty alleged that

Lopez “knowingly discharged a firearm in the direction of another, to wit, Terrence

Hudson.” R. 87-1, Plea Tr. at 3-4.8

8There was some confusion at the plea colloquy on the number of the count,

specifically, whether it was Count 5 or Count 11. Plea. Tr. at 2-3. On the certified statement

of conviction, the indictment’s Count 5 appears to the be the correct number of the charge to

which Lopez pled. R. 78-1 (Count 5 cites § 24-1.2(a)(2), whereas Count 11 cites § 24-1.6(a)(2)).

But whatever the number the state judge described the pertinent charge to Lopez, and then

Lopez pled to that charge. Plea Tr. at 3-4.

In the abstract, one would think that an officer could use deadly force against

someone who has just fired in the “direction” of another person. After all, as detailed

in the Opinion’s next section, the Fourth Amendment authorizes an officer to use

deadly force when there is probable cause to believe that a suspect poses a threat of

serious harm to others. Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). But it turns

out that, under Illinois law, firing in the “direction” of another person does not require

that the shooting pose a “threat of serious harm.” People v. Ellis, 929 N.E.2d 1245,

1248-49 (Ill. App. Ct. 2010) (“We find that the threat of serious harm is not an

inherent element of the offense of aggravated discharge of a firearm, which only

requires that a defendant fire in the direction of a person or occupied car.”). As

interpreted by Illinois courts, “not every aggravated discharge of a firearm threatens

the same amount of harm,” id. at 1249, nor (to repeat) is a threat of serious harm an

element of the crime. So—as menacing as the crime of aggravated discharge of a

firearm sounds on its surface—there is actually no necessary inconsistency between

prevailing on the excessive-force claim and the prior conviction.9

9Having said that, it is worth pointing out that, had this case gone to trial, Lopez

almost surely would have to own the facts to which he pled guilty. Issue preclusion (still

sometimes called “collateral estoppel”) prevents a litigant from relitigating a legal or factual

issue that has been conclusively determined in a prior case, and that was necessary to resolve

in arriving at the prior judgment. Wells v. Coker, 707 F.3d 756, 761 (7th Cir. 2013). Although

courts must confirm that the issue was strictly necessary to the judgment, id. at 761-62

(alternative grounds for guilty plea rendered each ground unnecessary to the judgment), here

Lopez pled guilty to “knowingly discharg[ing] a firearm in the direction of another, to wit,

Terrence Hudson.” Plea Tr. at 3-4. The definition of “direction” for that crime would have

required some explanation to the jury, but Lopez would likely have been stuck with that fact.

What’s more, by pleading guilty to the crime, Lopez necessarily could not assert that he acted

in self-defense under Illinois law, that is, he fired the gun because it was purportedly

“necessary to defend himself or another against such other’s imminent use of unlawful force.”

720 ILCS 5/7-1(a).

B. Excessive Force

1. Qualified Immunity Standard

With the Heck bar cleared, it is time to consider the excessive-force claim. The

defense argues that the undisputed facts establish that Officer Raines’s use of force

was justified, or that, at worst, he is entitled to qualified immunity. Defs.’ Br. at 7-

13. As explained in detail below, qualified immunity does apply, so the Court need

not answer the straight-out merits question. “Qualified immunity balances two

important interests—the need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S.

223, 231 (2009). Under qualified immunity, government officials are shielded from

civil liability so long as “their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.”

Zimmerman v. Doran, 807 F.3d 178 (7th Cir. 2015) (cleaned up).10 To defeat qualified

immunity, a plaintiff must establish both that (1) the defendant violated a

constitutional right and (2) the right was “clearly established,” Pearson, 555 U.S. at

232, both “at the time and under the circumstances presented,” Bianchi v. McQueen,

818 F.3d 309, 319 (7th Cir. 2016). A right is “clearly established” if the conduct is so

clearly prohibited that every “reasonable official would [have understood] that what

he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

10This Opinion uses (cleaned up) to indicate that internal quotation marks,

alterations, and citations have been omitted from quotations. See Jack Metzler, Cleaning Up

Quotations, 18 Journal of Appellate Practice and Process 143 (2017).

Courts are permitted “to exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed first ....” Pearson, 555

U.S. at 236. Here, because there is no bright-line, recurring legal issue at stake, the

Court chooses to address first (and actually last) whether what Officer Raines did

violated a clearly established right.

2. Fourth Amendment Limits on the Use of Force

Keeping in mind that qualified immunity asks about the specific conduct in

each particular case, Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (whether a

right was “clearly established” at the time of an official action must be assessed in a

“particularized” sense, rather than “at a high level of generality”) (cleaned up), still

it is important to set forth the general standard for the use of force and, somewhat

more specifically, the use of deadly force. Whether the force used by an officer

complies with the Fourth Amendment turns on whether “the officer’s actions are

objectively reasonable in light of the facts and circumstances confronting them,

without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S.

386, 397 (1989). That assessment is made from the “perspective of a reasonable officer

on the scene, including what the officer knew at the time, not with the 20/20 vision of

hindsight.” Burton v. City of Zion, 901 F.3d 772, 777 (7th Cir. 2018). Courts must pay

“careful attention to the facts and circumstances of each particular case, including

the severity of the crime at issue, whether the suspect poses an immediate threat to

safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018).

On deadly force, as mentioned earlier, the Fourth Amendment authorizes an officer

to use deadly force when there is probable cause to believe that a suspect poses a

threat of serious harm to others. Garner, 471 U.S. at 11-12. When an officer

reasonably believes that a suspect’s actions place the officer or others “in the

immediate vicinity in imminent danger of death or serious bodily injury, the officer

can reasonably exercise the use of deadly force.” Horton, 883 F.3d at 949. In most

circumstances, an officer may use deadly force when the officer reasonably believes

that a suspect “committed a felony involving the threat of deadly force, was armed

with a deadly weapon, and was likely to pose a danger or serious harm to others if

not immediately apprehended.” Id.

3. The Shooting

Against those substantive standards, it is finally time to turn to the facts of

this case, as viewed through the lens of giving reasonable inferences to Lopez. It

makes sense to divide the analysis of the excessive-force claim into two general

categories of conduct: (1) when Raines shot Lopez; and (2) when Raines put a gun to

Lopez’s temple and used Lopez as what Lopez calls a “human shield” as protection

against the shots fired by Lopez’s accomplice, Mario Orta.

First up is the shooting. Lopez argues that Raines had no reason to shoot Lopez

at all (let alone more than once) because, according to Lopez, all that Raines knew

was that Lopez was holding a gun. Pl.’s Resp. Br. at 7-8, 14. To Lopez’s way of

thinking, Raines “never witnessed” Lopez firing or waving his gun at bystanders, and

Raines’s contention (made during investigative interviews before Raines passed

away) that “Lopez turned and pointed his gun at him” was “a fabrication.” Id. at 8.

What’s more, Lopez asserts, Raines failed to announce himself as an officer and did

not even command Lopez to drop the gun before shooting. Id. Again, Raines told

investigators that he did announce he was an officer and did order Lopez to drop the

gun. R. 81-6, Pl.’s Resp. Br., Exh. F, SAO Lopez 602.

Viewing the evidence in Lopez’s favor, it must be taken as true that Lopez did

not point the gun at Raines; Raines did not announce his authority; and Raines did

not order Lopez to drop the gun. There simply is no indisputable evidence to the

contrary, and Lopez can testify from personal knowledge on those facts—and he must

be credited at this summary judgment stage. But Lopez’s contention on a crucial point

must be rejected. Specifically, based on the video recording, Raines certainly did

arrive on the scene in time to see and to hear Lopez firing his gun. At 3:56:11 (that

is, 3:56 a.m. and 11 seconds) on the video, Raines runs into the intersection. Video 3

at 3:56:11. In this snapshot, Raines is the person circled in red at the top center of

the screen, and Lopez is circled in blue; he has yet to begin crossing back toward his

car and has not yet fired the gun:

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At this point, Raines starts to move across the intersection; at the same time, Lopez

starts moving back toward his car. Jd. at 3:56:11-16. At 3:56:20, Lopez fires into the

air in the direction of the victim (Terrance Hudson) two times. This next snapshot

captures the moment when Lopez fires the second shot (the video itself shows the

bullets firing out of the gun), with Lopez again circled in blue and Raines, who has

moved further into the street, in red:

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Based on the video evidence, no reasonable jury could find that Raines did not see—

or at least hear—Lopez firing the shots. At the very most, Raines is two street lanes

and three car lengths away from Lopez when he fired the two shots. On what evidence

would a juror premise a finding that Raines did not see or at least hear Lopez firing

those shots?

Next, the video also indisputably shows Lopez continuing to walk towards his

car, which is in the general direction of Raines—because Raines, too, is starting to

walk toward Lopez. Video 3 at 3:56:20-24. As Lopez and Raines move generally

toward each other, Lopez waves the gun up to shoulder level and then back down. Id.

at 3:56:22. The Court must credit, for summary judgment purposes, Lopez’s assertion

that he was not aiming at Raines, and a reasonable jury could find that Lopez was

waving the gun up and down, as in brandishing it, rather than pointing it directly at

Raines, and that Lopez did not even register in his mind that Raines was there. But

even Lopez admits (as he must) that he was holding the gun, and there is no evidence

to refute that Raines saw Lopez holding it.

On those facts, even viewing the evidence in the light most favorable to Lopez,

it was not clearly established that Raines’s decision to shoot Lopez was objectively

unreasonable. At the very least, Raines heard two gunshots11 and then immediately

saw Lopez holding a gun (if he had not already seen Lopez holding it), giving Raines

11There is an irony here: it might be that the evidence in the light most favorable to

Lopez would be to say that Raines actually saw Lopez fire the shots, because at least those

shots were fired at an upward angle (though not straight up into the air) rather than directly

at someone. Just hearing the shots, in the context of a shots fired near pedestrians in a city

street, likely would give probable cause (at least for qualified-immunity purposes) that the

shooter was firing directly at people.

well more than probable cause to suspect that Lopez had just squeezed off two rounds

in the middle of a city street. No case clearly established that Raines would know that

the shooter did not pose an imminent threat of serious danger to others. Yes, it was

3:56 a.m. in the late night (or early morning), but several pedestrians were on the

street and the sidewalks, and at least two cars drove around the area after Raines

arrived on the scene, Video 3 at 3:56:12-13, 3:56:19-21, and just seconds before, even

more car traffic was in the area and drove by Raines as he approached the

intersection, id. at 3:56:6-11. Not to mention that Raines himself was in imminent

danger under those circumstances.

The same lack of clarity applies to the issue of whether Raines acted

unreasonably by not giving a warning of some sort (like announcing his authority or

ordering Lopez to drop the gun). Of course, a warning is generally preferred; but it is

required only “where feasible,” not under all circumstances. Garner, 471 U.S. at 11-

12; Horton, 883 F.3d at 952. Lopez points to no case law that would have alerted a

reasonable officer that the officer was required to give a warning before firing on a

suspect in these circumstances. Raines and Lopez were moving toward each other

and already were very close (as noted earlier, at most two street lanes and three car

lengths apart), and a warning might very well have given the advantage to Lopez—

who had just fired the gun twice all of seven seconds ago—to fire at Raines. It is

perhaps true that other officers, maybe even many other officers, in that situation

would have announced their authority and given a warning before firing. But no case

clearly established that a warning was required.

Lopez also argues that Raines used excessive force by continuing to shoot

Lopez beyond the moment when Lopez dropped his gun. Pl.’s Resp. Br. at 8-9.

Although the defense disputes that Raines saw Lopez’s gun drop, R. 88, Defs.’ Reply

Br. at 9-10, viewed in the light most favorable to Lopez, the Court takes as true that

Raines did see Lopez drop the gun. Again, however, no clearly established law would

have alerted a reasonable officer that, in these blink-of-an-eye circumstances, the

dropping of the gun eliminated the danger posed by Lopez. The video shows that

Raines first struck Lopez at 3:56:27; Lopez drops the gun one second later at 3:56:28

as he turns and starts to run from Raines; and Raines continues to fire for two more

seconds, ending at 3:56:30. Video 3 at 3:56:27-30. In the quiet of chambers (or, in

these pandemic days, part of a basement doubling as a home office), it is all too easy

to slow down a video and pick it apart to question why Raines kept firing. But courts

must “allow[] for the fact that police officers are often forced to make split-second

judgments.” Graham, 490 U.S. at 397. Lopez had not surrendered, he was still mobile

and moving, and he did just fire two shots on a city street a few seconds ago. Even

without the gun, a reasonable officer would not necessarily know that the Fourth

Amendment forbids continuing to fire under these circumstances. Lopez certainly

cites no case that dictates that result. Qualified immunity applies to the shooting

itself.

4. On the Sidewalk

Turning next to what Raines did to Lopez on the sidewalk, Lopez argues that

Raines used excessive force when he put Lopez in a chokehold, pointed a gun at

Lopez’s temple, and threatened to kill Lopez. Pl.’s Resp. Br. at 14. Lopez asserts that

he was compliant with Raines’s attempt to arrest him and there was no reason for

that use of force. Id. at 11. In essence, Lopez contends, Raines used Lopez as a “human

shield” from the danger posed (and actual shots fired) by Lopez’s cohort, Mario Orta.

Id. at 14. This is a very, very close call, but again the Court concludes that qualified

immunity applies to what Raines did.

As a threshold matter, it is true that pointing a gun at a person at all (let alone

at someone’s head) is certainly an act of force. Jacobs v. City of Chicago, 215 F.3d 758,

773-74 (7th Cir. 2000). And a police officer cannot continue to use force against a

suspect who is subdued and complying with an officer’s orders. Johnson v. Scott, 576

F.3d 658, 660 (7th Cir. 2009). There are myriad cases holding that pointing a gun at

a non-violent or non-threatening suspect is objectively unreasonable. See, e.g., Baird

v. Renbarger, 576 F.3d 340, 344 (7th Cir. 2009) (unreasonable for officer to detain

suspects with a 9-milimeter submachine gun for a non-violent crime); Jacobs, 215

F.3d at 573-74 (unreasonable for officer to point gun at head of elderly man who was

not a suspect, presented no resistance, and did not engage in threatening conduct);

McDonald v. Haskins, 966 F.2d 292, 294 (7th Cir. 1992) (unreasonable for police to

hold gun to a boy’s head and to threaten to pull the trigger where child was not a

suspect, not evading officers, and posed no threat); Wilkins v. May, 872 F.2d 190, 194

(7th Cir. 1989) (denying qualified immunity where officer held gun to the head of an

arrestee who was unarmed, handcuffed, and cooperating).

But Lopez was not a non-violent, compliant arrestee. And the circumstances—

with Mario Orta armed and firing shots at Raines—were anything but safe. First, as

detailed above, Lopez had fired two gunshots on a city street, so the danger that

Raines faced right before apprehending Lopez on the sidewalk was serious. That

Lopez had fired those shots is important context for the entire encounter. Next, Orta

picked up Lopez’s dropped gun, Video 3 at 3:56:31, and then fired a shot at Raines

almost immediately, Video 2 at 3:56:32-33.

So the stage is set now: Raines is trying to arrest someone who just fired two

shots on a city street. He is on his own with no backup, and suddenly someone else

(Orta) fires a shot at him. A reasonable officer in that position also would reasonably

believe, even if not be 100% certain, that the new shooter is the suspect’s associate

(why else get involved?). On that stage, the drama continues: Orta goes in, but then

soon comes back out of, a covered building entrance. Video 3 at 3:56:41 (going in); id.

at 3:56:54 (comes back out). Orta is still holding the gun, and walks off for a bit, but

then approaches again. Id. at 3:57:13. He comes within a few feet of Raines and then

aims the gun directly at Raines. Id. at 3:57:19. Orta then backs away several feet. At

this point, the video footage contradicts Lopez’s generalized contention that Lopez

was completely compliant and subdued. When Raines pointed his gun at Orta—who

had just aimed right at Raines—Lopez repeatedly swatted at Raines’s gun arm,

including when Raines was pointing his gun at Orta. Video 1 at 3:57:17-19 (reaches

up and puts hand on Raines’s gun); Video 3 at 3:57:20-36 (swatting at Raines’s gun

around nine times); id. at 3:57:48-3:58:05 (swatting at Raines’s gun around eight

times); id. at 3:58:15 (swatting at Raines’s gun). In these few minutes, Orta points

the gun at Raines at least three more times. Video 2 at 3:56:55; id. at 3:59:36-43;

Video 3 at 3:59:59-4:00:03. So when Lopez swatted at Raines’s gun arm, a reasonable

officer could have believed that Lopez was preventing Raines from protecting himself

from Orta’s deadly threat. Johnson, 576 F.3d at 659 (“[n]ot all surrenders … are

genuine, and the police are entitled to err on the side of caution when faced with an

uncertain or threatening situation”).

True, as the Court acknowledged at the outset, this is a very, very close case

and tests the outer boundaries of qualified immunity. As Lopez argues, Raines did

maneuver Lopez’s body to sit in between Raines and Orta, and, at various times,

Raines did hold a gun to Lopez’s temple. So yes, a reasonable jury could find that

Raines in effect used Lopez to shield himself and to deter Orta. But deter Orta from

what? From killing Raines. Remember that Orta had already fired a shot at Raines

before Lopez was used as a shield. And Raines had every reason to believe that Orta

was somehow associated with Lopez and would avoid harming Lopez. With the mortal

threat posed by Orta, a reasonable officer would not know that putting Lopez between

himself and Orta and then threatening to shoot Lopez would cross the line into

excessive force. Raines would have been an open target for someone who had just

fired at him and who was associated with the suspect. On these unique facts, Lopez

has not “identif[ied] a closely analogous case,” nor was “the conduct [] so egregious

and unreasonable that … no reasonable officer could have thought he was acting

lawfully.” Abbott v. Sangamon Cty., 705 F.3d 706, 723-24 (7th Cir. 2013). What

Raines did on that sidewalk—as alarming as it was—did not violate a clearly

established constitutional right. Qualified immunity applies. The excessive-force

claim must be dismissed.

C. Conspiracy

The defense also asks for summary judgment against Lopez’s conspiracy claim,

arguing that Lopez has presented no evidence and cannot identify “who was involved,

when they met, or what their goals were.” Defs.’ Br. at 17. Even if there were a

conspiracy, the Defendants argue, then it did not cause any injury. Id. In response,

Lopez counters that the conspiracy was between “the County, the Sherriff, and

Raines” to impede Lopez’s due process rights by engaging in a “cover up.” Pl.’s Resp.

Br. at 17-18. Specifically, Lopez alleges that the Defendants failed to meaningfully

investigate the shooting, to assess whether each bullet Officer Raines fired was

reasonable, and to test the officer for drugs or alcohol. Id. at 18-19. Lopez also claims

that the investigators ratified “false statements” by Raines, specifically, the

statement that Lopez pointed his gun at the officer. Id. at 18.

In briefing this conspiracy claim, Lopez has some difficulty fitting it into a

specific constitutional right. The point-hearing in the brief says that the Defendants

“deprived Plaintiff of equal protection of the law.” Pl.’s Resp. Br. at 17. But then the

substantive presentation relies on the right of access to the courts, id. at 17-18, which

is actually a right premised on the Due Process Clause and the First Amendment.

Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984), overruled on other

grounds, Russ v. Watts, 414 F.3d 783, 788 (7th Cir. 2005). In any event, generally

speaking, “[i]nterference with the right of court access by state agents who

intentionally conceal the true facts about a crime may be actionable as a deprivation

of constitutional rights under § 1983.” Rossi v. City of Chicago, 790 F.3d 729, 734 (7th

Cir. 2015) (citing Bounds v. Smith, 430 U.S. 817, 822 (1977)). For instance, “when

police officers conceal or obscure important facts about a crime from its victims

rendering hollow the right to seek redress, constitutional rights are undoubtedly

abridged.” Vasquez v. Hernandez, 60 F.3d 325, 328 (7th Cir. 1995). But the Seventh

Circuit has also noted that a “cover-up” by police “is merely one, albeit important,

factor in determining whether a denial of judicial access occurred; the plaintiff must

also show that the police’s actions harmed [the plaintiff’s] ability to obtain

appropriate relief. This will depend on factors such as whether the plaintiff was able

to discover the facts on his own, whether a proper investigation was later conducted,

and whether the true facts are disclosed prior to the expiration of the limitations

period.” Rossi, 790 F.3d at 736. So, “the operative question is not whether [the

plaintiff’s] case would have been better had the police conducted a worthy

investigation, but whether their failure to do so limited his ability to obtain legal

redress to such degree that it constituted a denial of judicial access.” Id. at 735.

To pursue a viable claim of this type, the Seventh Circuit has set a high bar,

repeatedly holding that where a plaintiff was personally involved in the events giving

rise to a legal claim and thus knows all the facts of their case, access to the courts is

generally not impaired by the fabrication of evidence by law enforcement. In Rossi,

for instance, the plaintiff was assaulted by several people, including an off-duty police

officer. 790 F.3d at 732-33. When Rossi went so far as to report the name and address

of the off-duty officer to the police, the investigating officer did nothing but file a false

report with the wrong name and assert that he could not find the name in the police

roster. Id. at 733. As a result, the investigation stalled for years and material evidence

was lost. Id. But the Seventh Circuit concluded that Rossi’s court-access right had

not been violated because he “knew all of the relevant facts of his case and was free

to pursue legal redress at all times.” Id. at 736.

Similarly, in Thompson, police had used excessive force on the plaintiff, then

falsely omitted that fact from the police report of the incident. Thompson v. Boggs, 33

F.3d 847 (7th Cir. 1994). Again, though, there was no court-access violation because

“the facts known to [the plaintiff] concerning the arrest were sufficient to enable him

to promptly file the instant lawsuit[.]” Id. at 852. That is, the plaintiff could fully

bring an excessive-force civil claim regardless of the content of the police report. And

in Vasquez, the allegations went even farther; there, the police covered up the

accidental shooting of a child, and the responsible officer was not identified until six

months later, when an independent task force took over the investigation. Vasquez,

60 F. 3d at 329. Despite all that, the court again held that the family’s access to the

courts had not been impeded; even though it took six months, they were eventually

able to uncover the relevant facts of the case. Id. In contrast, the Seventh Circuit did

find that the right to court-access had been violated in Bell. But in that case, police

had covered up a fatal police shooting by planting a knife in the victim’s hand and

then convincing the victim’s family that the victim was actually the assailant, which

ultimately prevented the family from “learn[ing] the facts of [the] case” and “rendered

hollow” the family’s attempt to pursue a wrongful death suit against the city. Bell,

746 F.2d at 1261. But the plaintiffs in Bell did not have personal knowledge of the

actual facts. See also Rainey v. City of Chicago, 2013 WL 941968, at *12 (N.D. Ill.

Mar. 11, 2013) (court-access right deprived because police report failed to identify the

officer involved in an excessive-force claim, and plaintiff could not know the officer’s

identity because the plaintiff’s eyes were closed).

Lopez’s case is much closer to Thompson, Vazquez, and Rossi, where there was

no violation of the court-access right, than to Bell. To the extent that Lopez relies on

the investigators’ ratification of Raines’s story that Lopez pointed the gun at him,

Lopez of course has personal knowledge of his version of the facts, that is, that he

never pointed the gun at Raines. Lopez’s personal knowledge fatally undermines the

claim of denial of court access. To the extent that Lopez targets the investigators’

alleged failings in pursuing the investigation of the shooting, the conspiracy claim

must fail because there is no generalized constitutional right to have the police

investigate one’s case, and “still less to one’s satisfaction.” Rossi, 790 F.3d at 734.

Again, “the operative question is not whether [Lopez’s] case would have been better

had the police conducted a worthy investigation, but whether their failure to do so

limited his ability to obtain legal redress to such degree that it constituted a denial

of judicial redress.” Id. Here, that simply is not the case. With the availability of both

the video footage and Lopez’s own memory, Lopez had ample access to the facts (and

has presented them in this case). No reasonable jury could find a denial of the right

to access the courts.

D. Municipal Liability

On the Monell claims, a municipality—like Cook County—may be held liable

for the constitutional injuries inflicted by its agents only if the injury was caused by

the municipality’s policy or custom. Monell v. Dept. of Social Services of City of New

York, 436 U.S. 658, 694 (1978). So a civil-rights plaintiff cannot simply rely on

respondeat superior. Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986). To

prevail on a municipal-liability claim, the plaintiff must show that the injury was

caused by “(1) an express policy that would cause a constitutional deprivation if

enforced; (2) a common practice that is so widespread and well settled as to constitute

a custom or usage with the force of law even though it is not authorized by written

law or express policy; or (3) an allegation that a person with final policy-making

authority caused the constitutional injury.” Lawrence v. Kenosha Cnty., 391 F.3d 837,

844 (7th Cir. 2004). Importantly, in most cases, if there is no underlying

constitutional violation, then there is no municipal liability. Horton, 883 F.3d at 954.

Here, much of Lopez’s Monell claim is premised on his conspiracy allegations,

namely, that he suffered a “constitutional injury caused by the cover up, ratification,

omissions, and fabricated reports ratified by the County Sheriff and the County along

with a custom of tolerance of federal rights violations.” Pl.’s Resp. Br. at 19. Without

a viable conspiracy claim for denial of court access, there is no corresponding Monell

liability. The catch-all point Lopez raises—an alleged “custom of tolerance of federal

rights violations”—is inadequately supported, either by legal or factual development.

At the summary judgment stage, the moving party may discharge its burden by

“pointing out to the district court … that there is an absence of evidence to support

the nonmoving party’s case.” Celotex, 477 U.S. at 325. The nonmoving party “must

then make a showing sufficient to establish the existence of an element essential to

that party’s case.” Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (cleaned

up). To meet this burden, the nonmovant must “go beyond the pleadings … to

demonstrate that there is evidence upon which a jury could properly proceed to find

a verdict in [his] favor.” Id. at 1169. Here, other than making the bare-bones

allegation of a “custom of tolerance of federal rights violations,” Lopez has provided

zero evidence to advance that theory of liability. So the defense is also entitled to

summary judgment on this claim, too.12

E. Motion to Strike Stavropoulos Affidavit

The final issue is whether to strike the affidavit of eyewitness Nector

Stavropoulos, which Lopez offered in response to the defense’s summary judgment

motion. The problem for Lopez is that he did not properly describe to the defense the

subjects of the discoverable information that Stavropoulos knew.

By way of background, on October 24, 2017, Defendants made their initial Rule

26(a)(1) disclosures to Lopez. R. 89-1, Exh. A. The defense disclosure listed Nector

Stavropoulos as a person likely to have discoverable information. Id. at 2 ¶ A(11). The

12It was not very clear whether Lopez had sued the Sheriff of Cook County individually

or in his official capacity, but as explained above, neither form of liability is supported by

sufficient evidence.

way the defense described the subject matter of his knowledge was as follows,

referring to a Bates-label for an interview report: Stavropoulos “would be expected to

testify in accordance with his statement recorded at SAO Lopez 140-152.” Id. The

defense disclosure also reported “unknown” for Stavropoulos’s address and phone

number. For his part, Lopez made Rule 26(a)(1) initial disclosures to the Defendants

on November 8, 2017—but he did not mention Stavropoulos. R. 89-2, Exh. B.

On January 22, 2018, Lopez provided answers to the Defendants’

interrogatories, and one of the responses listed Stavropoulos as someone who “has, or

claims to have, knowledge of the facts.” R. 89-3, Exh. C at 2 ¶ 2. Lopez’s disclosure

reported Stavropoulos’s address, but no phone number. Id. A short time later, on

February 2, 2018, the defense supplemented their initial disclosures, again describing

Stavropoulos’s phone number and address as “unknown” and stating that

Stavropoulos would be expected to testify in accordance with his comments in the

police reports. R. 89-4, Exh. D at 2 ¶ A(11). Lopez never supplemented his initial

disclosures.

On February 12, 2018, the Court extended the five-month fact-discovery period

to end on a new deadline, April 25, 2018, and instructed the parties to file a Joint

Deposition Status Report with confirmed dates for the remaining depositions,

warning that any persons not on the Report “will presumptively not be deposed unless

there is good cause shown (e.g., genuine surprise).” R. 34. The parties’ joint report did

not include Stavropoulos as a person to be deposed. R. 35. Lopez then changed counsel

and canceled the remaining scheduled depositions, at which point the Court extended

fact discovery to July 11, 2018 for the “sole purpose” of taking the previously

scheduled depositions. R. 41. Stavropoulos was not deposed by either party. R. 89,

Mot. Strike at 3.

On this record, the disclosure of Stavropoulos by Lopez came much too late.

Under Federal Rule of Civil Procedure 26(a)(1)(A)(i), parties must disclose to one

another the name and “if known, the address and telephone number of each

individual likely to have discoverable information—along with the subjects of that

information—that the disclosing party may use to support its claims or defenses … .”

Fed. R. Civ. P. 26(a)(1)(A)(i) (emphasis added). If the initial disclosures are

incomplete, then the parties must supplement the disclosures “in a timely manner.”

Fed. R. Civ. P. 26(e). Also, a failure to properly identify witnesses as required by Rule

26(a)(1) precludes a party from using the witness “to supply evidence on a motion, at

a hearing, or at a trial, unless the failure was substantially justified or is harmless.”

Fed. R. Civ. P. 37(c)(1). In deciding whether an incomplete disclosure is harmless,

federal courts consider things like “(1) the prejudice or surprise to the party against

whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the

likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in

not disclosing the evidence at an earlier date.” Tribble v. Evangelides, 670 F.3d 753,

760 (7th Cir. 2012).

Here, Lopez failed to properly disclose the subject matter of Stavropoulos’s

knowledge. Yes, Lopez listed Stavropoulos’s name in one of the responses to the

defense’s interrogatories. Exh. C at 2 ¶ 2. But Lopez did not disclose the “subjects,”

Fed. R. Civ. P. 26(a)(1)(A)(i), of the discoverable information that Stavropoulos knew,

xh. C at 2 ¶ 2. This omission was particularly important because the defense also had

disclosed Stavropoulos, but described him as someone who would testify consistent

with his prior interview. Exh. D at 2 ¶ A(11). Stavropoulos’s affidavit is inconsistent

with the prior interview on a number of fronts. Yet, almost one year after discovery

closed, Lopez offered Stavropoulos’s affidavit out of the blue as part of the response

to the summary judgment motion. Lopez never supplemented his initial disclosures,

as required by Rule 26(e), nor had he updated the interrogatory response that

reported that he had not taken any person’s statement, Exh. C at 3.

Although a failure to describe a witness’s subject-matter knowledge does not

automatically require exclusion of the witness, Lopez advanced no argument that the

failure did no harm. Indeed, given that the Stavropoulos affidavit was filed almost

one year after discovery concluded, the defense could not depose Stavropoulos to

investigate his averments. And, as the defense points out, Lopez attached the

affidavit to his response specifically because it is harmful to Defendant’s case. While

the police reports memorialized Stavropoulos as having said only that he possessed

security footage of the incident, the Stavropoulos affidavit provides several additional

facts, including that Lopez never fired shots at anyone, Stavropoulos Aff. ¶ 9; Raines

never identified himself as an officer before shooting Lopez, id. ¶ 6; and the officers

who took Stavropoulos’s statement called him a liar and recorded him inaccurately,

id. ¶¶ 11, 16. Of course the defense would have followed-up in investigating and

almost surely deposing Stavropoulos if Lopez had properly disclosed the subject-

matter of Stavropoulos’s knowledge. The motion to strike the affidavit is granted.

For what it is worth, as explained earlier, even if the affidavit had been

properly disclosed, the outcome of the summary judgment motion would be the same.

Stavropoulos’s assertions about the shooting conspiracy were either already accepted

as true (Raines did not announce his office); contradicted by the guilty plea and

ultimately not material to the excessive-force claim (Lopez did not shoot at anyone);

or still would not establish the conspiracy claim (officers did not record him

accurately) because Lopez had sufficient personal knowledge of the facts and nothing

prevented him from interviewing Stavropoulos.

IV. Conclusion

Even when viewed in the light most favorable to him, Lopez’s claims do not

survive summary judgment. Qualified immunity applies against the excessive-force

claims, and there is no viable conspiracy or Monell claim. Without any substantive

claims remaining, the indemnification claims against the County and the Sheriff also

must fail. The defense’s motion for summary judgment is granted. The Court will

enter final judgment. The status hearing of April 28, 2020 is vacated.

ENTERED:

s/Edmond E. Chang

Honorable Edmond E. Chang

United States District Judge

DATE: March 31, 2020