Logan v. City Of Evanston

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KEVIN LOGAN, )

)

Plaintiff, )

)

vs. ) Case No. 20 C 1323

)

CITY OF EVANSTON and )

EVANSTON POLICE CHIEF )

DEMITROUS COOK, )

)

Defendants. )

---------------------------------------------------- )

)

JAMIR JOHNSON, KEVIN NAILS, )

JELISA NAILS, ANDRE WATKINS, )

and WILLIAM STEWART )

individually and on behalf of a )

class of similarly situated persons, )

)

Plaintiffs, )

)

vs. ) Case No. 20 C 2736

)

CITY OF EVANSTON and POLICE )

CHIEF DEMITROUS COOK, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Kevin Logan and a separate group of plaintiffs, Jamir Johnson, Kevin Nails,

Jelisa Nails, Andre Watkins, and William Stewart, have each sued the City of Evanston

and Evanston Police Chief Demitrous Cook. The Johnson suit is brought on behalf of a

class of similarly situated persons, but the Court will refer to the plaintiffs in that case as

Johnson for simplicity's sake. In both cases, the plaintiffs assert claims under 42 U.S.C

§ 1983 against the City of Evanston based on the theory of municipal liability

announced in Monell v. Department of Social Services of City of New York, 436 U.S.

658 (1978) and against Cook in his individual capacity. Logan asserts claims against

the City and Cook for violation of the Fourth and Fourteenth Amendments of the U.S.

Constitution (counts 1 and 2 against both defendants, count 9 against Cook only, and

count 10 against the City only), defamation per se (count 3), defamation (count 4),

negligent infliction of emotional distress (count 5), intentional infliction of emotional

distress (count 6), violation of the rights to privacy, due process, and individual integrity

under the Illinois Constitution (count 7), negligence (count 8), gross negligence (also

numbered count 8), willful and wanton conduct (count 11), and against the City for

indemnification of Cook (count 12). Johnson asserts claims against Cook (counts 1 and

2) and the City (count 3) for violations of the Fourteenth Amendment, and against both

for willful and wanton conduct (count 4), intentional infliction of emotional distress (also

numbered count 4), and indemnification (count 5).

The defendants have moved to dismiss all of the claims in both suits under

Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the Court

dismisses the following claims: (1) Logan and Johnson's claims for willful and wanton

conduct, (2) Logan and Johnson's state law claims against the City, (3) Logan's claim

against the defendants under the Illinois Constitution, and (4) Johnson's Fourteenth

Amendment due process claim. The Court denies the defendants' motions with respect

to all of the plaintiffs' other claims.

Background

The plaintiffs' complaints allege the following facts, which, at this stage, the Court

accepts as true. O'Boyle v. Real Time Resolutions, Inc., 910 F.3d 338, 342 (7th Cir.

2018).

On February 17, 2020, Evanston police chief Demetrious Cook published onto

his personal public Snapchat account several photographs of the plaintiffs, who were

individuals of interest in Evanston police investigations. Snapchat is a mobile social

media application that allows users to upload and share photos and videos. Cook also

published these individuals' dates of birth and last known addresses onto his public

Snapchat "story." A Snapchat story is essentially the application user's personal profile,

where he may publicly share pictures and videos. To publicly share a picture on

Snapchat, the user must first click the "Story" option and then click a confirmation button

to share the photo. Some of the individuals whose information Cook published had "in

custody" or "DOA" (dead on arrival) handwritten next to their images.

In Cook's publication of Logan's image, the words "pending" and "HIV" appeared

handwritten next to Logan's image. The image and wording appear as follows, with

Logan's image and his personally identifying information redacted out for reasons of

privacy:

RAS Missense □□□

WY

|

!

ti

||

\

Kevin Logan (Haireut)

LKA Seana

| __aa

J |

(itaale meet- iat)

aw A a} HI ie

7

Social media users who saw Cook's publication of Logan then shared the

publication on Facebook and via personal text messages, which included Logan's

image, personal information, and supposed HIV status. Logan contends that this was a

false statement in that he had never been diagnosed with HIV and was not pending a

test result. After the incident, Logan underwent an HIV test on February 22, 2020,

which was negative. Logan contends that he suffered embarrassment, ridicule, cyber-

bullying, anxiety, and emotional distress as a result of Cook's conduct.

On February 21, 2020, after Cook was informed that the pictures had been

shared by members of the public, he removed them from his Snapchat story and issued

a public statement regarding the incident. He stated that the individuals whose

information he shared were subjects previously identified in Evanston Police

Department investigations and that the photos were taken to assist him with the

investigation. He further stated that he did not realize that photos taken with the

Snapchat application could be made public with a single click.

Plaintiffs allege that the Evanston Police Department has policies in place that

prohibit, among other things, the following activities:

a. Making personal copies of recordings created while on duty or while acting in

their official capacity;

b. Retaining recordings of activities or information obtained while on-duty, whether

the recording was created with department-issued or personally owned recording

devices;

c. Duplicating or distributing such recordings;

d. Using such recordings for the purpose of embarrassment, intimidation, or

ridicule;

e. Sharing of any law enforcement information via social media; and

f. Releasing protected information.

Discussion

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

plaintiff must allege facts sufficient "to state a claim to relief that is plausible on its face."

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inferences that the defendant is liable for the misconduct alleged." Sloan v. Am. Brain

Tumor Ass'n, 901 F.3d 891, 894 (7th Cir. 2018) (quoting Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)). The law does not impose a highly exacting standard on the plaintiffs at this

stage, however: "[t]he plausibility standard is not akin to a 'probability requirement.'"

Iqbal, 556 U.S. at 678. A plaintiff's burden on a motion to dismiss is limited to alleging

"enough details about the subject-matter of the case to present a story that holds

together." Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).

A. Federal constitutional claims

1. Fourth Amendment claim

In count 1 of his complaint, Logan contends that, in violation of his Fourth

Amendment rights, Cook knowingly obtained and disclosed to the public purported

medical information regarding Logan, indicated by the handwritten notation "HIV." The

defendants do not challenge the sufficiency of the Fourth Amendment claim in their

opening briefs. Though they make some mention of the Fourth Amendment in their

replies, that was too late; they forfeited any challenge to the legal sufficiency of the

claim by failing to make the argument in their opening briefs. See, e.g., Wedemeyer v.

CSX Transp., Inc., 850 F.3d 889, 897 (7th Cir. 2017).

2. Due process claims

The defendants have moved to dismiss both Logan and Johnson's substantive

due process claims under the Fourteenth Amendment (Logan Am. Compl., count 2;

Johnson Compl., count 1).

i. Johnson

Johnson alleges that the defendants violated his substantive due process rights

under the Fourteenth Amendment. Specifically, he contends that Cook's public sharing

of the plaintiffs' home addresses and suggesting that they were involved in a criminal

investigation created a danger to the plaintiffs that did not otherwise exist.

Johnson's claim is based on the theory of a "state-created danger exception,"

which is an exception to the general rule that a "State's failure to protect an individual

against private violence simply does not constitute a violation of the Due Process

Clause" of the Fourteenth Amendment. Buchanan-Moore v. County of Milwaukee, 570

F.3d 824, 827 (7th Cir. 2009); see also DeShaney v. Winnebago Cty. Dep't of Soc.

Servs., 489 U.S. 189, 197 (1989).

Under the state-created danger exception of the Due Process Clause of the

Fourteenth Amendment, "liability exists when the state affirmatively places a particular

individual in a position of danger the individual would not otherwise [have] faced."

Buchanan-Moore, 570 F.3d at 827. To state a claim on this basis, a plaintiff must allege

facts permitting a plausible inference that: (1) the state, by its affirmative acts, created

an increased danger to the plaintiff, (2) the state's failure to protect the plaintiff from this

danger proximately cause an injury to the plaintiff, and (3) the state's failure to protect

the plaintiff shocks the conscience. King ex rel. King v. E. St. Louis Sch. Dist. 189, 496

F.3d 812, 817-18 (7th Cir. 2007).

The defendants argue that Johnson has failed to sufficiently allege an injury or

conduct that shocks the conscience. The Court agrees with Cook regarding the issue of

injury and thus need not address the second point. Johnson's complaint fails to allege

any facts identifying that he suffered any actual injury as a result of Cook's conduct.

See Flint v. City of Belvidere, 791 F.3d 764, 770 (7th Cir. 2015). Johnson cites Munn v.

City of Aurora, No. 17 C 5369, 2018 WL 1124424, at *3 (N.D. Ill. Mar. 1, 2018), for the

proposition that the state-created danger exception applies "[i]f the government throws

an individual into a snake pit, and the individual is not harmed by the snakes, but hurts

himself escaping the pit.” Munn, 2018 WL 1124424, at *3. The Court in Munn

concluded that under these circumstances, “the government has still placed the

individual in danger that has caused the individual harm." Id. Perhaps so, but Johnson

has not alleged that he suffered any actual injury at all, whether by someone else or

self-inflicted in the course of avoid the danger allegedly created by the defendants. An

allegation that the defendant’s conduct created a risk of harm is insufficient. an actual

injury must result from the defendant’s conduct. Estate of Her v. Hoeppner, 939 F.3d

872, 876 (7th Cir. 2019) ("A due-process claim of this kind requires proof … [that] "the

government's failure to protect against the danger caused the plaintiff's injury). For this

reason, the Court dismisses Johnson's substantive due process claim (Johnson Compl.,

count 1).

ii. Logan

Logan also asserts alleging that the defendants violated his right to privacy under

the Fourteenth Amendment by disclosing alleged medical information about him to the

public. See Logan Am. Compl. ¶ 80. The defendants argue that Logan has failed to

state a viable substantive due process claim under the Fourteenth Amendment. The

Court disagrees.

The Supreme Court has recognized a right to privacy under the Fourteenth

Amendment that includes the right "not to have his private affairs made public by the

government." Whalen v. Roe, 429 U.S. 589, 599 n.24 (1977). The Seventh Circuit has

read Whalen to "recognize a constitutional right to the privacy of medical, sexual,

financial, and perhaps other categories of highly personal information" under the

Fourteenth Amendment. Wolfe v. Schaefer, 619 F.3d 782, 785 (7th Cir. 2010). "A

number of cases in the lower federal courts, including our own, building on Whalen and

Nixon, recognize a qualified constitutional right to the confidentiality of medical records

and medical communications." Anderson v. Romero, 72 F.3d 518, 522 (7th Cir. 1995);

see also Big Ridge, Inc. v. Fed. Mine Safety & Health Review Comm'n, 715 F.3d 631,

648 (7th Cir. 2013) (discussing privacy protection for medical records in the context of

the Fourth Amendment).

Circuit precedent supports the proposition that constitutional protection extends

to medical "information that most people are reluctant to disclose to strangers." Wolfe,

619 F.3d at 785. The court has stated that “medical information may be a form of

protected confidential information because of its intimate and personal nature.” Denius

v. Dunlap, 209 F.3d 944, 957 (7th Cir. 2000).

The defendants cite Whalen v. Roe for the proposition that "the concept of a

constitutional right to privacy still remains largely undefined." Whalen, 428 U.S. at 599

n. 24. But even if the contours of the right are unclear, the Seventh Circuit has stated

that the Fourteenth Amendment confers a fundamental "right to the privacy of medical,

sexual, financial, and perhaps other categories of highly personal information." Wolfe,

619 F.3d at 875 (this right to privacy is "defeasible only upon proof of a strong public

interest in access to or dissemination of the information").

The Court concludes that Logan has sufficiently alleged a Fourteenth

Amendment substantive due process claim based on Cook's public disclosure of his

purported HIV status on Snapchat without his permission. His allegations contain

enough factual content to make out a claim for governmental violation of his medical

privacy. See Grimes v. County of Cook, --- F. Supp. 3d ---, 2020 WL 1954149, at *3

(N.D. Ill. Apr. 23, 2020) (denying motion to dismiss Fourteenth Amendment substantive

due process claim alleging violation of the "right to medical privacy"); see also Denius,

209 F.3d at 956 (upholding Fourteenth Amendment substantive due process claim; "this

Circuit has outlined a clearly established substantial right in the confidentiality of

medical information that can only be overcome by a sufficiently strong state interest");

Anderson, 72 F.3d at 522; Schaill v. Tippecanoe Cty. Sch. Corp., 864 F.2d 1309, 1322

n.19 (7th Cir. 1989) (explaining that there is “a substantial privacy interest in the

confidentiality of medical information”).

Finally, Logan need not allege that the defendants' conduct shocks the

conscience to state a viable claim for violation of his medical privacy. See Denius, 209

F.3d at 956-57 (allowing medical privacy claim to proceed without allegation that

conduct "shock[ed] the conscience").

3. Equal protection claims

Johnson and Logan both allege that the defendants violated the Equal Protection

Clause of the Fourteenth Amendment by discriminating against them based on race

(Logan Am. Compl., count. 9; Johnson Compl., count 2). To state a claim for violation

of equal protection, the plaintiff must allege that (1) he is a member of a protected class;

(2) he was similarly situated to individuals who are not in the protected class; (3) he was

treated differently from those persons; and (4) the defendant acted with discriminatory

intent. Swearingen-El v. Cook County Sheriff's Dep't, 416 F. Supp. 2d 612, 617 (N.D.

Ill. 2006); Johnson v. City of Fort Wayne, 91 F.3d 922, 944 (7th Cir. 1996).

i. Johnson

Johnson alleges that Cook treated "minority civilians and Caucasian civilians in . .

. a different manner" with respect to posting their photographs and thereby "violated

Plaintiffs' rights under the Fourteenth Amendment to Equal Protection." Johnson

Compl. ¶ 39. More specifically, Johnson alleges that Cook "did not publicly share

booking photographs and personal information of white civilians" even though "white

individuals have committed criminal acts in the City of Evanston." Id. ¶¶ 37, 38.

The defendants argue that Johnson's claim is deficient because he fails to

identify similarly-situated non-Black individuals who were treated differently. But as

Johnson contends, he is not required to do this to state a claim. A plaintiff asserting an

equal protection claim "does not need to specifically identify similarly situated

individuals" in his complaint. See Swearingen-El, 416 F. Supp. 2d at 617.

Rather, he only "needs to assert that the police discriminated against [him and the rest

of the class] because of [their] race." Kim v. Ritter, 493 F. App'x 787, 789 (7th Cir.

2012); see also Brown v. Cook County, No. 17 C 8085, 2018 WL 3122174, at *15 (N.D.

Ill. June 26, 2018) (Kennelly, J.) ("[the plaintiff] is not required to specifically identify

similarly situated individuals [to establish an equal protection violation]"); cf. Carlson v.

CSX Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014) (a plaintiff in a Title VII case need

not "include allegations—such as the existence of a similarly situated comparator—that

would establish a prima facie case of discrimination" to survive a motion to dismiss).

Johnson's allegations that the plaintiffs were "subjected to unequal treatment because

of [their] race" are "sufficient to state an equal protection claim." See Swearingen-El,

416 F. Supp. 2d at 617.

Cook argues that Johnson’s claim fails to sufficiently plead the "similarly situated"

element because he has not alleged that "white Evanston citizens who were subjects

previously identified in Evanston Police Department investigations were treated

differently." Def. Cook's Reply (dkt. no. 29) at 4. The Court disagrees; giving Johnson's

complaint a fair reading, he alleges just that in paragraph 37.

For these reasons, the defendants are not entitled to dismissal of Johnson's

equal protection claim (Johnson Compl., count 2).

ii. Logan

Logan also asserts an equal protection claim against the defendants (Logan Am.

Compl., count 9). He alleges that even though "white individuals have committed

criminal acts in the City of Evanston," Cook "did not publicly share booking photographs

and personal information of white civilians." Logan Am. Compl. ¶ 164. Logan also

alleges that all of those whose pictures and personal information Cook shared were

African American. Id. ¶ 163.

The defendants argue that Logan has failed to allege sufficient facts "showing

white civilians were persons of interest in Cook's investigation" or facts showing that

"the picture posted [by Cook] was because of his race." Def. City's Mem. of Law in

Supp. of Mot. to Dismiss (dkt. no. 23) at 10.1 The first point is a non-starter. Logan has

sufficiently alleged that Cook did not post white arrestees' photographs.

Second, Logan has sufficiently alleged that Cook acted with discriminatory intent.

The defendants contend that Logan's claim fails because his complaint references

Cook's public statement following the incident that he published Logan's photograph

accidentally. This argument lacks merit. Logan's reference to Cook's statement does

not mean that he has adopted it or conceded its accuracy. And at this point in this

lawsuit, Logan is not required to prove that Cook acted intentionally; he need only allege

it. See Fed. R. Civ. P. 9(b) ("Malice, intent, knowledge, and other conditions of a

person's mind may be alleged generally."). Logan has plausibly alleged that Cook

acted with discriminatory intent when he published Logan's image on Snapchat.

For these reasons, the Court denies the defendants' motion to dismiss Logan's

equal protection claim (Logan Am. Compl., count 9).

B. Section 1983 claims against City

Based on the discussion in the previous section, Logan and Johnson have

asserted viable claims under section 1983 against Cook in his individual capacity. The

Court next assesses whether the plaintiffs have made out viable section 1983 claims

1 The defendants also contend that Logan failed to state a "class-of-one" equal

protection claim, but Logan has asserted a race discrimination claim, not a class-of-one

claim.

against the City. In this regard, the Court notes that the plaintiffs' "official capacity"

claims against Cook are, in effect, claims against the City. Holloway v. Del. Cty. Sheriff,

700 F.3d 1063, 1071 (7th Cir. 2012).

The plaintiffs seek to impose liability on the City under Monell v. Department of

Social Services of City of New York, 436 U.S. 658 (1978). Under Monell, "[a] village or

other municipality may be found liable under § 1983 when it violates constitutional rights

via an official policy or custom." Wragg v. Village of Thornton, 604 F.3d 464, 467 (7th

Cir. 2010). "To establish an official policy or custom, a plaintiff must show that his

constitutional injury was caused by (1) the enforcement of an express policy of the

[municipality], (2) a widespread practice that is so permanent and well settled as to

constitute a custom or usage with the force of law, or (3) a person with final

policymaking authority." Id. "Final policymaking authority may be granted directly by

statute or delegated or ratified by an official having policymaking authority." Kujawski v.

Bd. of Comm'rs of Bartholomew Cty., 183 F.3d 734, 737 (7th Cir. 1999). The plaintiffs

contend that Monell liability exists because Cook, as the Evanston police chief, had final

"policymaking authority" that he exercised, causing the plaintiffs' constitutional injuries.

The defendants argue that Cook lacked policymaking authority with respect to

the matters at issue because the Evanston City Code only authorizes him to administer

and enforce the City's affairs and policies. The defendants' second argument is that like

the Chicago superintendent of police in Auriemma v. City of Chicago, 957 F.3d 397 (7th

Cir. 1992), Cook "violated rather than implemented the policy" of the municipality when

he published the plaintiffs' information. Id. at 401.

The Court disagrees. First, the plaintiffs have alleged sufficient facts to make it

plausible that Cook, unlike the Chicago police superintendent in Auriemma, "retains

complete authority over how criminal investigations are conducted" and that he is

therefore a "final policymaker." Pl. Johnson's Resp. (dkt. no. 28) at 6. At this point it is

too early to say definitively whether Cook qualifies in this regard, because the answer

"may turn on" factual questions regarding the extent of Cook's policymaking authority.

See FKFJ, Inc. v. Village of Worth, No. 18 C 2828, 2019 WL 277723, at *3 (N.D. Ill. Jan.

22, 2019). But the plaintiffs' allegations are sufficient to clear the plausibility threshold.

The Court notes, in this regard, that there is no question that a chief of police may be a

final policymaker in appropriate circumstances. See Manos v. Caira, 162 F. Supp. 2d

979, 993 (N.D. Ill. 2001).

The defendants also contend that Cook's actions cannot be characterized as the

policy of the City of Evanston because he violated the City's policies prohibiting, among

other things, making personal copies of recordings created while on duty or while acting

in one's official capacity, duplicating or distributing such recordings, sharing law

enforcement information via social media, and releasing protected information.

In Auriemma, the Seventh Circuit explained that "[l]iability for unauthorized acts is

personal; to hold the municipality liable, Monell tells us, the agent's actions must

implement rather than frustrate the government's policy." Auriemma, 957 F.2d at 400.

Defendants' reliance on Auriemma is unavailing, at least at the motion to dismiss

stage. In Auriemma, the Seventh Circuit found that city ordinances banned race

discrimination in the Chicago police department and therefore expressly banned the

superintendent's discriminatory conduct. See id. at 401. In this case, the defendants

have not pointed to any Evanston ordinance that limits Cook's authority in conducting

police investigations. Although Cook's conduct may have violated the Evanston City

Code, a statement issued by Cook himself indicated that his actions occurred "during

the course of a criminal investigation," which is "within the realm of the authority granted

to the police chief." Pl.'s Johnson's Resp. at 4.

Finally, Judge Ripple's concurrence in Auriemma indicates that the Seventh

Circuit's opinion did not foreclose the possibility that the superintendent in that case

could have been considered a policymaker on other facts. See Auriemma, 957 F.2d at

401 (Ripple, J., concurring); see, e.g., McAllister v. Town of Burns Harbor, No. 07 C

141, 2011 WL 2792466, at *4 (N.D. Ind. July 14, 2011) ("In [Auriemma] the plaintiffs

alleged that Rice, the Chicago superintendent of police, made discriminatory promotions

and demotions . . . the Seventh Circuit held that he was not a final policymaker with

respect to the actions because ordinances applicable to the police department

unequivocally banned racial and political discrimination.") (emphasis added). In this

case, the plaintiffs plausibly allege that "no ordinance constrained [Cook]" as it

pertained to his alleged role as a policymaker in Evanston police investigations. Vodak

v. City of Chicago, 639 F.3d 738, 748-49 (7th Cir. 2011).

For these reasons, the City of Evanston is not entitled to dismissal of the

plaintiffs' Monell claims under Rule 12(b)(6) (Logan Am. Compl., counts 1,2, and 10;

Johnson Compl., count 3).

C. Qualified immunity

The defendants contend that the individual-capacity section 1983 claims against

Cook should be dismissed because he is entitled to qualified immunity.2 Qualified

immunity "protects government officials from civil liability when performing discretionary

functions so long as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known." Alvarado v.

Litscher, 267 F.3d 648, 652 (7th Cir. 2001). In assessing a defense of qualified

immunity, the Court considers "(1) whether the plaintiff's allegations make out a

deprivation of a constitutional right, and (2) whether the right at issue was clearly

established at the time of the defendant's alleged misconduct." Siliven v. Ind. Dep't of

Child Servs., 635 F.3d 921, 925-26 (7th Cir. 2011).

The defendants' opening briefs are insufficient to invoke qualified immunity as a

basis for dismissal under Rule 12(b)(6). In his opening brief in Johnson, Cook does not

even mention qualified immunity. Nor does the City's opening brief in that case do so.

They do not reference the point in their reply briefs in Johnson either. In Logan, Cook's

opening brief says nothing about qualified immunity or, for that matter, any other issue;

Cook simply adopted the City's brief. The opening brief filed by the City in Logan does

address qualified immunity. That is incongruous to say the least; as indicated earlier, a

municipality cannot claim qualified immunity. See n.2 supra. But even assuming the

City can appropriately assert the defense on Cook's behalf, its opening brief does not do

so sufficiently. The City's entire discussion of the point consists of three paragraphs.

See Def. City's Mem. of Law in Supp. of Mot. to Dismiss (dkt. no. 23) at 10-11. The first

two simply state the law of qualified immunity. The only substantive discussion of the

2 Municipalities do not enjoy qualified immunity in section 1983 lawsuits. See Owen v.

City of Independence, 445 U.S. 622, 657 (1980).

point by the City consists of a three-sentence paragraph:

In this case, the right Plaintiff's Complaint purports to assert is not clearly

established. There is no statute, nor common law "factually similar to the

one under review" that clearly establishes the publication of Plaintiff's

photograph, date of birth, address and the words "pending HIV" would be

an obvious violation of his constitutional right. Accordingly, Plaintiff's

Complaint must be dismissed.

Id. at 11. The argument is unsupported and entirely conclusory. The defendants have

forfeited the point for purposes of the motions to dismiss. See, e.g., United States v.

Barr, 960 F.3d 906, 916 (7th Cir. 2020).

That aside, the qualified immunity defense lacks merit at this stage of the case.

The Seventh Circuit has made it clear that "[b]ecause an immunity defense usually

depends on the facts of the case, dismissal at the pleading stage is inappropriate."

Alvarado, 267 F.3d at 651. As the Court has explained, the plaintiffs have alleged

sufficient facts to make out claims for deprivation of their constitutional right to equal

protection: they have sufficiently alleged that Cook made public postings of private

information about them; that he did so intentionally; and that he acted on the basis of

their race. At this stage, the Court must take these allegations as true. The defendants

have made no effort to explain—likely because they could not do so credibly—how the

prohibition against racial discrimination in law enforcement was not clearly established

at the relevant time. And as indicated, in the Logan case the defendants have not even

addressed the merits of the Fourth Amendment claim.

For these reasons, Cook is not entitled to dismissal under Rule 12(b)(6) on the

basis of qualified immunity.

D. State tort claims

The plaintiffs assert several state-law claims against the defendants, which the

defendants have moved to dismiss on various grounds.

1. Willful and wanton conduct claim

Logan and Johnson each assert claims for willful and wanton conduct. As the

defendants correctly assert, however, there is "no separate, independent tort of willful

and wanton conduct" under Illinois law. Jane Doe-3 v. McLean Cty. Unit Dist. No. 5 Bd.

of Dirs., 2012 IL 112479, ¶ 19, 973 N.E.2d 880, 887 (to recover damages based on

willful and wanton conduct, a plaintiff must plead the basic elements of negligence).

An allegation of willful and wanton conduct may preserve a negligence claim

against dismissal because section 2-202 of the Illinois Government and Governmental

Employees Tort Immunity Act, which the plaintiffs have invoked, "does not immunize

willful and wanton conduct." See Mack Inds., Ltd. v. Village of Dolton, 2015 IL App (1st)

133620, ¶ 40, 30 N.E.3d 518, 532; see also United States v. County of Cook, No. 05 C

5490, 2008 WL 4345224, at *5 (N.D. Ill. Mar. 24, 2008). The Court therefore dismisses

the separate claims of willful and wanton conduct in both plaintiffs' complaints (Logan

Am. Compl., count 11; Johnson Compl., count 4) but will consider the allegations of

willful and wanton conduct, if applicable, in addressing the plaintiffs' other state tort

claims.

2. Tort Immunity Act

The defendants contend that the plaintiffs' remaining common law claims are

barred by the Tort Immunity Act. The Court agrees, with the exception of Logan's

defamation claims against Cook individually.

First, the City is immune from liability with regard to Logan's defamation per se

and defamation claims (Logan Am. Compl., counts 3 and 4) under section 2-107 of the

Tort Immunity Act. Under section 2-107, "[a] local public entity is not liable for injury

caused by any action of its employees that is libelous or slanderous or for the provision

of information either orally, in writing, by computer or any other electronic transmission,

or in a book or other form of library material." 745 Ill. Comp. Stat. 10/2-107. This

provision, on its face, immunizes the City from liability in defamation suits. See Ramos

v. City of Peru, 333 Ill. App. 3d 75, 80, 775 N.E.2d 184, 188-89 (2002) (dismissing

defamation, false light invasion of privacy, and personal injury claims against a city

because they were barred by section 2-107).

With regard to Cook, the Tort Immunity Act has no provision expressly

immunizing governmental employees from liability for defamation. Section 2-210, which

is more or less parallel to section 2-107, states that "[a] public employee acting in the

scope of his employment is not liable for an injury caused by his negligent

misrepresentation or the provision of information either orally, in writing, by computer or

any other electronic transmission, or in a book or other form of library material." 745 Ill.

Comp. Stat. 10/2-210. The Court agrees with Judge Joan Gottschall's decision in

Robinson v. Robertson v. Lofton, No. 13 C 3205, 2013 WL 5796780 (N.D. Ill. Oct. 25,

2013), in which she ruled that section 2-210, although it precludes claims arising from

"provision of information," does not bar claims for knowing defamatory statements in

light of the express limitation of immunity to claims of negligent misrepresentation. Id. at

*8.

All of the plaintiffs' remaining state-law claims against both defendants are,

however, barred by sections 2-107 and 2-210. Specifically, Logan's claims for negligent

infliction of emotional distress (count 5), intentional infliction of emotional distress (count

6), negligence (count 8), and gross negligence (also numbered count 8), and Johnson's

claim for intentional infliction of emotional distress (his second count 4) all arise from the

"provision of information" and are barred by these provisions of the Tort Immunity Act.

See Ramos, 333 Ill. App. 3d at 80, 775 N.E.2d at 188-89 (affirming dismissal of

defamation, false light, and personal injury claims under section 2-107). The plaintiffs'

claims here, like those of the plaintiff in Ramos, "arose from the publication of a

photograph" by a city official. See id.; see also Kurkowski-Alicea v. Village of

Bolingbrook, No. 10 C 1792, 2010 WL 3721477, at *2-3 (N.D. Ill. Sept. 15, 2010).

These claims are not saved by the plaintiffs' contention that Cook acted willfully

and wantonly. The Illinois Appellate Court has ruled, persuasively, that the term

"negligent" is not read into section 2-210's immunity for claims arising from "the

provision of information." See Goldberg v. Brooks, 409 Ill. App. 3d 106, 111, 948

N.E.2d 1108, 1114 (2011). In other words, that particular immunity applies even if the

conduct was intentional. It does not contain an exception for "willful and wanton"

conduct. "[W]here a provision of the Tort immunity Act contains no exception for willful

and wanton conduct, we will not read one in." Jane Doe-3 v. McLean County Unit Dist.

No. 5 Bd. of Directors, 2012 IL 112479, ¶ 44, 973 N.E.2d 880, 893 (citing Ries v. City of

Chicago, 242 Ill. 2d 205, 222, 950 NE.2d 631, 641 (2011)).

3. Defamation per se and defamation claims

The defendants also contend that Logan's claims of defamation and defamation

per se against the City and Cook (Logan Am. Compl., counts 3 and 4) fail to state a

claim.

"A statement is defamatory under Illinois law if it 'tends to harm a person's

reputation to the extent that it lowers that person in the eyes of the community or deters

others from associating with that person.'" Huon v. Denton, 841 F.3d 733, 738 (7th Cir.

2016) (quoting Tuite v. Corbitt, 224 Ill. 2d 490, 501, 866 N.E.2d 114, 121 (2006)). "The

per se designation applies if the defamatory character is obvious and apparent on its

face and injury to the plaintiff's reputation may be presumed." Huon, 841 F.3d at 738.

Statements that impute "infection with a loathsome communicable disease" are

considered defamatory per se. Tuite, 224 Ill. 2d at 501, 866 N.E.2d at 121. Logan

alleges that Cook's statement imputes that he is infected with a "loathsome

communicable disease."

The defendants argue that Cook's statement—posting Logan's photograph, date

of birth, and alleged address with the words "pending" handwritten next to his name and

contact information and "HIV" handwritten next to his photograph—is "reasonably

capable of an innocent construction." Id. at 502, 866 N.E.2d at 121. The "innocent

construction" rule requires courts to give "the defendant's words their natural and

obvious meaning, after having considered both the substance of defendant's alleged

statements and the context in which they allegedly were made." Huon, 841 F.3d at 738.

"If a statement is capable of two reasonable constructions, one defamatory and one

innocent, the innocent one will prevail." Muzikowski v. Paramount Pictures Corp., 322

F.3d 918, 925 (7th Cir. 2003).

The Court rejects defendants' argument, at least for purposes of the present

motion. To qualify for protection under the innocent construction rule, the innocent

interpretation "must be reasonable." Giant Screen Sports v. Canadian Imperial Bank of

Commerce, 553 F.3d 527, 533 (7th Cir. 2009). "The rule does not require courts to

strain to find an unnatural innocent meaning for a statement when a defamatory

meaning is far more reasonable." Id. (citing Tuite, 224 Ill. 2d at 504-05, 866 N.E.2d at

123). Application of the rule is a question of law. Id.

The defendants argue that Cook's statement is reasonably construed as

indicating that "the results of an HIV test were pending, not that Plaintiff was, in fact, HIV

positive." Def. City's Mem. of Law in Supp. of Mot. to Dismiss (dkt. no. 23) at 13. The

Court finds this argument unpersuasive, though it is not at this point rejecting the claim

of innocent construction with finality. Specifically, the configuration of the handwritten

notations next to Logan's photograph does not appear to indicate that HIV test results

are pending. Rather, the notation "pending" is written horizontally next to Logan's

contact and arrest information (i.e., his date of birth, address, and "I.R." (individual

record) number); the notation HIV is written vertically, in much larger letters, lower on

the page, next to Logan's photograph. Any connection between the words "pending"

and "HIV" is not apparent. With this in mind, there is a solid basis for a contention that

Cook's use of the term HIV, given its configuration on the page, "clearly indicates or

leads a reasonable person to believe Plaintiff is HIV positive" or is, at least, suspected

of being HIV positive by the Evanston police. Pl. Logan's Resp. at 9. Cook's statement

does not make any reference to HIV testing. "[T]he context of a statement is critical in

determining its meaning," Tuite, 224 Ill. 2d at 512, 866 N.E.2d at 127, and here the

context does not suggest that Cook was merely saying that Logan had HIV test results

pending. The Court overrules defendants' innocent construction argument, at least for

purposes of their motion to dismiss Logan's defamation claim under Rule 12(b)(6).

4. Illinois constitutional claim

In count 7 of his amended complaint, Logan asserts claims for violation of his

state constitutional rights to privacy, due process, and individual integrity. Ill. Const.

1970, art. I, §§ 2, 6, 20. The Seventh Circuit has stated that it does not appear that

there is a private right of action for violation of section 2, Williams v. Dart, 967 F.3d 625,

637 n.1 (7th Cir. 2020); other judges in this district have ruled similarly with regard to

section 6's due process clause, see, e.g., Jones v. Bd. of Ed. of City of Chi., No. 20 C

4884, 2020 WL 5422857, at *2 n.4 (N.D. Ill. Sept. 10, 2020); and the Illinois Appellate

Court has said the same with regard to the right to privacy established in section 20.

AIDA v. Time Warner Entm't Co., L.P., 332 Ill. App. 3d 154, 162, 772 N.E.2d 953, 961

(2002) ("the language of article I, section 20, is hortatory and does not create a cause of

action"). The defendants are entitled to dismissal of this claim.

5. Indemnification claims

Logan and Johnson each assert an indemnification claim under 745 Ill. Comp.

Stat. 10/9-102 (Logan Am. Compl., count 12; Johnson Compl., count 5). Cook argues

that the Court should dismiss these claims because the City is not required to indemnify

employees absent misconduct, which he has not yet been found to have committed. It

is a bit odd for a defendant to seek dismissal of a claim that asserts that someone else

must indemnify that defendant, but that aside, Cook's argument lacks merit.

"Although a city is not required to pay indemnity while its employee's liability is

disputed, it does not follow that a plaintiff must wait to file an indemnification claim under

the Act until final judgment against a city employee." Perkins v. O'Shaughnessy, No. 10

C 5574, 2011 WL 579333, at *3 (N.D. Ill. Feb. 9, 2011); see Wilson v. City of Chicago,

120 F.3d 681, 685 (7th Cir. 1997) (allowing a plaintiff to bring an indemnification claim

before any judgment against the defendant officer). Furthermore, the City does not

contend that Cook acted outside the scope of his employment. Def. City's Mem. of Law

in Supp. of Mot. to Dismiss (dkt. no. 23) at 14.n.5. Thus the City is not entitled to

dismissal of the plaintiffs' indemnification claims.

Conclusion

For the foregoing reasons, the Court dismisses Johnson's claims for violation of

due process, willful and wanton conduct, and intentional infliction of emotional distress

(Johnson Compl., counts 1, 4, and 5) but declines to dismiss his claims for violation of

equal protection against Cook and the City and his indemnification claim (counts 2, 3,

and 6). The Court dismisses Logan's claims for defamation against the City, as well as

his claims of negligent infliction of emotional distress, intentional infliction of emotional

distress, violation of his Illinois constitutional rights, negligence, gross negligence, and

willful and wanton conduct (Logan Am. Compl., counts 3 and 4 as to the City; counts 5,

6, 7, 8 (both counts numbered 8), and 11) but declines to dismiss his claims against

both the City and Cook for violation of his Fourth Amendment, due process, and equal

protection rights, his defamation claims against Cook, and his indemnification claim

(counts 1, 2, 9,10, and 12, and counts 3 and 4 as to Cook).

The defendants are directed to answer the remaining claims in both complaints

by no later than November 3, 2020.

United States District Judge

Date: October 12, 2020

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