Hill v. City of Harvey

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EZRA HILL, )

)

Plaintiff, )

)

v. ) 17 C 4699

)

CITY OF HARVEY, et al., )

)

Defendants. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

Before the Court are Defendants City of Harvey, Gregory Thomas (“Thomas”),

and Jason Banks (“Banks”) (collectively, “Harvey Defendants”) and Defendants Cook

County, Illinois (“Cook County”), Liam Reardon (“Reardon”), and Ed Murillo

(“Murillo”) (collectively, “County Defendants”) motions for summary judgment under

Federal Rule of Civil Procedure 56. For the following reasons, the Court will deny the

Harvey Defendants’ motion and grant the County Defendants’ motion in part.

BACKGROUND

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

otherwise noted.

Plaintiff Ezra Hill (“Hill”) is a resident of Harvey, Illinois. At the time of the

alleged incidents, Hill was twenty-seven-years-old and worked as a truck driver. At

some time prior to being a truck driver, Hill worked as a booking officer for the Harvey

Police Department (“HPD”).

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

of Illinois. Defendant Thomas was employed by the City of Harvey as a detective with

HPD. Defendant Banks was the Deputy Chief of HPD.

Defendant Cook County is a governmental entity operating within the State of

Illinois. The Cook County State’s Attorney’s Office (“CCSAO”) is part of the Cook

County government. Defendants Reardon and Murillo were Assistant State’s Attorneys

(“ASA”) with the CCSAO.

On March 12, 2014, at approximately 10:31 a.m., Eric Bond (“Bond”) was

driving a stolen Honda Civic with Alquan McReynolds (“McReynolds”) and Ahmad

Thornton (“Thornton”) on Center Avenue north of East 146th Street in Harvey, Illinois.

Multiple occupants in an Oldsmobile Intrigue owned by Hill drove up behind the Civic.

Due to a pre-existing conflict, the occupants exited the vehicle and shot at Bond,

McReynolds, and Thornton. Bond drove off and crashed a block away and was

subsequently apprehended by HPD. The occupants of the Oldsmobile proceeded to a

nearby McDonalds.

The exact occupants of the Oldsmobile are contested by the parties. All parties

agree that Andrew “Chicky” White (“White”) and Antonio “Shady” Johnson

(“Johnson”) were in the car. Defendants argue that the vehicle was also occupied by

Hill. However, Hill says that statements identifying him at the scene were coerced and

fabricated and that there is no other evidence to place him at the scene.

Thomas and Banks were the first to respond to the calls of the shooting. They

learned of the description of the Oldsmobile at the scene and proceeded to White’s

home at 146th and Des Plaines. Thomas and Banks arrived at White’s home between

10:45 and 11:00. They found White and Johnson sitting in the Oldsmobile. After

arresting White and Johnson, Thomas and Banks searched the Oldsmobile and found a

revolver, a pistol, and a Benelli M4 semi-automatic shotgun (“the shotgun”) in the

trunk. The shotgun was fully loaded with six live rounds.

After the search, White and Johnson were transported to the HPD station. There

they participated in an identification lineup and were subsequently separated. Johnson

was placed in a cell and White was taken to an interrogation room. Hill alleges Thomas,

Banks, and Reardon then concocted their scheme to fabricate the case against Hill.

McReynolds was the first person to be questioned by Thomas and Reardon at

approximately 5:03 p.m. on the evening of March 12. McReynolds identified Johnson

and White in a lineup. He also identified Hill in a photo array. Thomas’s interview

report says that McReynolds placed Hill at the scene. However, Hill argues that

McReynolds’s signed statement given that night does not explicitly place Hill at the

scene. McReynolds’s statement says:

Alquan states that he was also shown a photo array containing 6

photographs. Alquan states that he knew one of the individuals in the

photo array by the nickname “E.” Alquan states that he now knows E to

be Ezra Hill. Alquan states that he has seen Hill on two previous

occasions.”

1:17-cv-4699, Dkt. # 159-9, pg. 3. Additionally, Hill says that Thomas and Reardon

both conceded at their depositions that McReynolds’s statement did not place Hill at

the scene. Further, McReynolds testified that he did not see Hill at the scene and that

he was instructed to identify Hill in the photo array.

After interviewing McReynolds, Thomas and Reardon questioned Thornton

around 5:17 p.m. Thornton also identified White and Johnson in the lineup and Hill in

a photo array. Thomas’s report also states that Thornton placed Hill at the scene.

Again, however, Hill contends that Thornton’s statement, which is identical to

McReynolds’s, does not explicitly identify Hill at the scene. Further, Thornton testified

before the grand jury investigating the shooting that he never identified Hill as being at

the scene.

Following their interview with Thornton, Thomas and Reardon questioned Bond.

Bond admitted that he gave a fake name to the officer that arrested him because he had

an outstanding warrant. When Bond was arrested, he was found with seven small bags

each containing marijuana and a sock filled with ammunition. Thomas’s report of the

interview states that Bond saw Hill with “a large gun which bond describes as a bump.”

Thomas also noted that Bond said all three suspects were firing guns. Bond was the

only occupant of the Civic to sign a statement explicitly placing Hill at the scene. He

claimed that Hill exited the driver’s side back seat of the Oldsmobile and fired shots

from behind Johnson.

However, Hill says Bond was coerced into signing the statement placing him at

the scene. Hill says that Bond, who was sixteen years old at the time, was never charged

for possession of the ammunition or marijuana, driving a stolen vehicle, or resisting

arrest in exchange for his statement. Reardon testified at his deposition that the charges

“may have” come up during the interview.

White was the next person to implicate Hill. White, who was fifteen years old

at the time, was held in the interview room for thirteen hours before signing a statement

at 12:22 a.m. Thomas spent “quite a bit of time” with White during the thirteen-hour

period but did not document his interviews with White like he did with Bond, Thornton,

and McReynolds. In his signed statement, White’s said that he, Hill, and Johnson were

returning to Harvey after shoveling snow in a nearby town when they saw Bond driving

a car with three other individuals. White stated that they got out of the Oldsmobile and

shot at Bond’s car. White says he fired six shots with a .38 Smith and Wesson Long

Nose Revolver, Johnson fired 6 shots with a black .38 caliber Snub Nose Revolver, and

Hill fired 4 shots from the shotgun. White’s mother, Elizabeth Kellogg (“Kellogg”),

was present at the time of the statement, but was not with White for the majority of the

thirteen-hour detention.

Hill again argues that White’s statement was coerced. Hill says White was

particularly vulnerable because White was only fifteen and was held for thirteen hours.

Hill says that Reardon, Thomas, and Banks threatened White that he would be charged

as an adult if he did not cooperate. Further, White testified at his deposition that Banks

instructed him to say that Hill was present and fired the shotgun despite telling Thomas

that Hill was not present. Hill argues that there is no evidence that the shotgun was ever

shot; it was recovered fully loaded and there were no holes in the Civic created by

shotgun pellets.

An arrest warrant for Hill was denied on March 12 and again denied on March

17. HPD requested the McDonald’s surveillance video from March 12 and received it

on March 20. HPD then provided the McDonald’s video to the CCSAO. Thomas

informed the CCSAO that he identified Hill in the McDonald’s video on March 20.

Murillo then reviewed the McDonald’s video and approved an arrest warrant for

attempted murder for Hill on March 20.

However, Hill contends that he is not in the McDonald’s video. Murillo was

unable to identify Hill in the video at his deposition. Thomas and Murillo eventually

identified Hill in the video later in this litigation. Hill, though, argues that the timestamp

on the video indicates that the people Thomas and Murillo identify as Hill, White, and

Johnson, were present in the McDonald’s at 11:14 a.m. Hill points out that White and

Johnson were arrested by Thomas and Banks at White’s home between 10:45 and 11:00

a.m. and, therefore, could not have been present in the McDonald’s at 11:14. The

McDonald’s video was not used at Hill’s criminal trial.

On March 25, Thornton testified before the grand jury investigating the shooting.

Thornton’s testimony did not place Hill at the shooting; instead he stated that only

White and Johnson were present. McReynolds testified before the grand jury on the

same day. McReynolds also testified that he did not see Hill at the scene. During his

grand jury testimony, McReynolds signed the photograph he originally identified as

Hill in the photo array indicating that he did not see Hill at the scene. Bond testified

before the grand jury on April 8. Consistent with his statement to HPD, Bond testified

that Hill was present at the shooting. No indictment was sought by the CCSAO after

any of their testimony.

Hill was arrested on September 4, 2014, in Dyer, Indiana, and subsequently

extradited to Illinois. Thomas then testified before the grand jury on September 16.

Thomas testified that Hill fired the shotgun into the vehicle that Bond, McReynolds,

and Thornton were in. Hill was indicted by the grand jury on September 16, 2014. 31

months later, Hill was tried for attempted murder and was acquitted after a one-day trial

and 30-minute jury deliberation.

Based on these events, Hill filed his amended complaint on June 18, 2019,

alleging unlawful pretrial detention in violation of the Fourth and Fourteenth

Amendments under 42 U.S.C. § 1983, conspiracy to deprive constitutional rights under

Section 1983, a municipal liability claim under Monell v. Department of Social Services

of the City of New York, 436 U.S. 658 (1978) against the City of Harvey, and state law

claims of malicious prosecution and civil conspiracy. On May 26, 2020, the County

Defendants moved for summary judgment under Rule 56. That same day, the Harvey

Defendants also moved for summary judgment under Rule 56.

LEGAL STANDARD

Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)

(citation omitted). “A genuine dispute as to any material fact exists if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Kvapil v.

Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014) (citation and internal quotation marks

omitted).

In deciding a motion for summary judgment, the Court's sole function is “to

determine whether there is a genuine issue for trial.” Tolan v. Cotton, 572 U.S. 650

(2014). The Court cannot weigh conflicting evidence, assess the credibility of

witnesses, or determine the ultimate truth of the matter, as these are functions of the

jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Omnicare, Inc. v.

UnitedHealth Grp., Inc., 629 F.3d 697, 704–05 (7th Cir. 2011).

DISCUSSION

The County Defendants argue that they are entitled to summary judgment

because the undisputed evidence shows that Hill cannot prove his constitutional,

malicious prosecution, and conspiracy claims, and that Murillo and Reardon are entitled

to absolute immunity. Similarly, the Harvey Defendants argue that they are entitled to

summary judgment because the undisputed facts show that Hill cannot prove his

constitutional, malicious prosecution, conspiracy, and Monell claims, and that Thomas

and Banks are entitled to qualified immunity and immunity under the Illinois Local

Government and Government Employees Tort Immunity Act, 745 ILCS § 10/2-202

(“Immunity Act”). We address each argument in turn.1

I. Fourth Amendment and Malicious Prosecution Claims

Defendants argue that Hill cannot succeed on his Fourth Amendment or

malicious prosecution claims because of the existence of probable cause. Hill argues

that a reasonable jury could find that there was no probable cause to arrest or prosecute

Hill. We agree with Hill.

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons . . . against unreasonable . . . seizures.” U.S. Const. amend. IV. “A person is

‘seized’ whenever an official ‘restrains his freedom of movement’ such that he is ‘not

free to leave.’” Lewis v. City of Chicago, 914 F.3d 472, 476 (7th Cir. 2019) (quoting

Brendlin v. California, 551 U.S. 249, 254–55 (2007)). “The general rule is that Fourth

Amendment seizures are ‘reasonable’ only if based on probable cause to believe that

the individual has committed a crime.” Id. (quoting Bailed v. United States, 568 U.S.

186, 192 (2013)) (internal alterations omitted).

1 Hill concedes that he no longer has a due process claim under the Fourteenth Amendment after the Seventh

Circuit’s ruling in Lewis v. City of Chicago, 914 F.3d 472 (7th Cir. 2019). Therefore, his claims for

unlawful pretrial detention rest exclusively on the Fourth Amendment. Id. at 478.

To establish a claim of malicious prosecution under Illinois law, Hill must prove

five elements: “(1) the commencement or continuance of an original criminal or civil

judicial proceeding by the defendant; (2) the termination of the proceeding in favor of

the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of

malice; and (5) damages resulting to the plaintiff.” Beaman v. Freesmeyer, 2019 IL

122654, ¶ 26.

Disputed evidence precludes summary judgment. For example, Hill’s arrest was

predicated on the statements of White, Thornton, McReynolds, and Bond and the

McDonald’s video. However, the circumstances surrounding this evidence call doubt

upon their reliability. Several of the witnesses recanted their statements and testified

that they were instructed by Defendants to implicate Hill. Hill proffers evidence

regarding Bond’s statements that may indicate that he was coerced into implicating Hill.

Further, Hill raises questions regarding the McDonald’s video that ultimately led to the

approval of his arrest warrant.

Thus, a jury must weigh the evidence and determine witness credibility to

determine whether probable cause to arrest and detain Hill existed at the time of his

arrest. A reasonable jury could find that the Defendants could not reasonably rely on

the evidence and therefore there was no probable cause to arrest and prosecute Hill.

Accordingly, Defendants are not entitled to summary judgment on Hill’s Fourth

Amendment or malicious prosecution claims.

II. Conspiracy and Monell Claims

Defendants argue that Hill’s conspiracy and Monell claims fail because he cannot

establish an underlying constitutional violation. We disagree.

To prevail on a conspiracy to deprive constitutional rights under Section 1983,

Hill must show: (1) the individuals reached an agreement to deprive him of his

constitutional rights, and (2) overt acts in furtherance actually deprived him of those

rights. Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015). Under Illinois law,

Hill must show (1) the existence of an agreement between two or more persons (2) to

participate in an unlawful act or a lawful act in an unlawful manner, (3) that an overt

act was performed by one of the parties pursuant to and in furtherance of a common

scheme, and (4) an injury caused by the unlawful overt act. Lewis v. Lead Indus. Ass'n,

2020 IL 124107, ¶ 20.

A government entity can be held liable under Section 1983 when the execution

of a government policy or custom inflicts an injury on a plaintiff. Monell, 436 U.S. at

694. However, a municipality cannot be held liable solely on the grounds of respondeat

superior. Id at 691. “The Supreme Court has recognized three particular grounds on

which a municipality can be held liable under § 1983. There must be: (1) an express

policy that would cause a constitutional deprivation if enforced; (2) a common practice

that is so widespread and well-settled that it constitutes 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 a constitutional

injury.” Rossi v. City of Chicago, 790 F.3d 729, 737 (7th Cir. 2015).

The disputed facts present in Hill’s Fourth Amendment claim also prevent

summary judgment on Hill’s conspiracy and Monell claims. As discussed above, there

are disputed facts regarding the existence of probable cause to arrest and detain Hill.

Thus, a reasonable jury could find that Defendants deprived Hill of his constitutional

rights under the Fourth Amendment. Further, a jury could find that Defendants

fabricated evidence or coerced statements from the co-defendants and witnesses in

furtherance of an agreement to ultimately get Hill convicted for the shootings.

Additionally, the jury could find that the constitutional violation was performed by

Banks, a Deputy Chief of the HPD. Accordingly, Defendants are not entitled to

summary judgment on Hill’s conspiracy or Monell claims.

III. Immunity

The County Defendants argue they are entitled to absolute prosecutorial

immunity. The Harvey Defendants argue they are entitled to qualified immunity and

immunity under the Immunity Act. We address each in turn.

a. County Defendants

Reardon and Murillo argue that the undisputed facts show that they are entitled

to absolute immunity as prosecutors. Specifically, Reardon argues that he is entitled to

absolute immunity because he acted as a prosecutor and not an investigator, and that

White’s testimony that he never told Reardon that Hill was present at the shooting

should be rejected as a matter of law. Murillo argues that he is entitled to absolute

immunity because he did not conduct an independent investigation, but only reviewed

evidence provided to him by HPD. In response, Hill argues that there is evidence

showing that Murillo and Reardon were acting as investigators and not prosecutors. We

agree with Hill that the evidence is not undisputed that Reardon was acting only as a

prosecutor. However, we agree with Murillo that he is entitled to immunity.

Prosecutors have absolute immunity for their core prosecutorial actions, but the

degree of immunity that prosecutors are afforded depends on their activity in a

particular case. Lewis v. Mills, 677 F.3d 324, 330 (7th Cir. 2012). Absolute immunity

is afforded to prosecutors only for the acts they commit within the scope of their

employment as prosecutors. Fields v. Wharrie, 740 F.3d 1107, 1110 (7th Cir. 2014).

However, a prosecutor’s duties often go beyond strictly prosecutorial work to include

investigation, and when they do non-prosecutorial work, they lose their absolute

immunity and receive only qualified immunity.2 Id. at 1111.

The facts are disputed as to whether Reardon was acting as a prosecutor or an

investigator. First, we do not believe that White’s testimony is such that “no reasonable

person would believe it” as Reardon suggests. See Seshadri v. Kasraian, 130 F.3d 798,

802 (7th Cir. 1997) (“testimony can and should be rejected without a trial if, in the

circumstances, no reasonable person would believe it.”). Given that the disputed facts

2 The County Defendants do not argue that they are entitled to qualified immunity.

suggest that witnesses, such as Bond, may have been influenced by Reardon into

implicating Hill, it is not wholly unreasonable for a jury to believe White’s testimony.

Additionally, the disputed facts suggest that Reardon may have been involved in the

investigation of the shooting while he was at the HPD station. Determining whether

Reardon acted as a prosecutor or investigator, therefore, requires determining witness

credibility and weighing evidence, which are jobs best left to the jury. Accordingly,

Reardon is not entitled to summary judgment based on immunity.

However, the undisputed facts indicate that Murillo is entitled to prosecutorial

immunity. Murillo’s only involvement was that he approved the charges against Hill

based on the evidence that was provided to him by Thomas. This action is squarely

within his role as a prosecutor within the Felony Review Unit of the CCSAO. There is

no evidence that Murillo either knew the evidence was possibly falsified or that

participated in any alleged falsification of evidence. Further, there is no evidence that

Murillo acted as an investigator. Accordingly, Murillo is entitled to summary judgment

based on absolute prosecutorial immunity.

b. Harvey Defendants

The Harvey Defendants argue that they are entitled to immunity from Hill’s state

law claims under the Immunity Act because the presence of probable cause prevents

any finding of willful and wanton conduct. The Harvey Defendants also argue they are

entitled to qualified immunity for Hill’s federal claims because Hill cannot make out a

violation of a constitutional right. Hill argues that the Harvey Defendants are not

immune under the Immunity Act because they acted willfully and wantonly to

manufacture probable cause. Hill further argues that a reasonable jury could find that

his Fourth Amendment rights were violated. We agree with Hill.

The Immunity Act provides that “[a] public employee is not liable for his act or

omission in the execution or enforcement of any law unless such act or omission

constitutes willful and wanton conduct.” 745 ILCS 10/2-202. “[S]ection 2-202

immunity is a limited immunity” and its dimensions “are narrower than the scope of a

police officer’s employment of his performance of official functions and duties.”

Aikens v. Morris, 145 Ill. 2d 273, 281 (1991). “[A] public employee is not afforded

section 2-202 immunity for all activities in the performance of his or her duties.” Id. at

278. For the reasons previously discussed, disputed facts exist with Hill’s underlying

Fourth Amendment claim. Thus, a reasonable jury could find that the Harvey

Defendants acted willfully and wantonly to manufacture evidence implicating Hill in

the shootings.

“The doctrine of qualified immunity protects government officials ‘from liability

for civil damages insofar as their conduct does not violate clearly established statutory

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

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). This requires the Court to make a two-step inquiry: (1) whether the facts make

out a violation of a constitutional right; and (2) whether the right was clearly established

at the time of the alleged misconduct. Id. at 232. For the reasons set forth above, we

believe that a reasonable jury could find that Hill’s right to not be held in pretrial

detention without probable cause based on the fabrication of evidence under the Fourth

Amendment was violated. This right has been clearly established since 1978. Lewis v.

City of Chicago, 914 F.3d 472, 477 (7th Cir. 2019) (‘It has been clear since at least

Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), that falsifying

the factual basis for a judicial probable-cause determination violates the Fourth

Amendment.”). Accordingly, the Harvey Defendants are not entitled to summary

judgment based on immunity.

CONCLUSION

For the reasons mentioned above, the Court denies the Harvey Defendants’

motion for summary judgment (Dkt. # 154) and grants the County Defendants’ motion

in part (Dkt. # 149). Status is set for 10/22/2020 at 9:50 a.m. It is so ordered.

Dated: 09/29/2020 ale P Leeta

CharlesP.Kocoras

United States District Judge

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