Tate v. City of Chicago

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TONI TATE, for herself and on behalf of

her minor child, CALI MCCULLER;

CHRISTOPHER HARBIN; AND CIERRA

HARBIN,

Plaintiffs, No. 19 C 7506

v. Judge Thomas M. Durkin

THE CITY OF CHICAGO; SUZANNE L.

NIEMOTH; JESSE ALVAREZ; JEREMY D.

ARRINGTON; OSCAR BENAVIDES;

ANTHONY P. BRUNO; YVETTE CARRANZA;

DANIELLE M. CUSIMANO; VICTOR J.

GUEBARA; HORST E. HEGEWALD;

BRENDAN T. MULLIGAN; SEAN RYAN;

JEFFERY A. SHAFER; MATTHEW J.

SIEBER; CURTIS L. WEATHERSBY; and

OTHER CURRENTLY UNKNOWN CHICAGO

POLICE OFFICERS,

Defendants.

MEMORANDUM OPINION AND ORDER

Toni Tate and her children allege that certain Chicago Police Officers violated

their civil rights and state law in obtaining and executing a search warrant of their

apartment. The individual officers and the City of Chicago have moved to dismiss for

failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). R. 69.

That motion is denied.

Legal Standard

A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.

Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must

provide “a short and plain statement of the claim showing that the pleader is entitled

to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of

the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

This standard “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed

factual allegations” are not required, “labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

The complaint must “contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d

362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,

the Court accepts all well-pleaded facts as true and draws all reasonable inferences

in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

The first several minutes of Defendants’ search of Plaintiffs’ apartment were

recorded by the defendant officers’ body worn cameras. Plaintiffs reference those

videos in their complaint and Defendants attached the videos to their motion.

Plaintiffs do not object to their consideration and the Seventh Circuit has held that

it is proper to consider videos that are incorporated by reference in a complaint on a

motion pursuant to Rule 12(b)(6). See Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir.

2013). So in addressing Defendants’ motion, the Court considers facts readily

apparent from the videos along with Plaintiffs’ allegations.

Background

Defendant Officers Suzanne Niemoth, Sergeant Anthony Bruno, Danielle

Cusimano, and Horst Hegewald conducted the investigation that led to the search of

Plaintiffs’ apartment. Defendant Lieutenant Jesse Alvarez signed-off on the affidavit

Officer Niemoth prepared supporting the application for a search warrant. The

affidavit states in relevant part:

On [August 4, 2019] [a confidential informant] related to

[Niemoth] that heroin was being sold by “Drako” a male

black, approximately 55-60 [years] old, at 6134 S. Vernon

Ave., 2nd floor South apartment. [The informant] related

on [August 4, 2019] he went to 6134 S Vernon Ave to the

2nd floor South apartment and asked “Drako” for two bags

of “D”, a street term for heroin. “Drako” then left [the

informant’s] sight and returned a short time later with 2

small clear ziplock bags of suspect heroin in it. [The

informant] then tendered [cash] to “Drako” who then

tendered the 2 small clear ziplock bags of suspect heroin to

[the informant].

[The informant] stated that [he] knows the contents of the

bags that [he] received from “Drako” to be heroin because

[the informant] has been using heroin for over twenty years

and is familiar with the color and consistency of the heroin

as well as the methods of packaging it. [The informant]

further related that [he] has purchased heroin from

“Drako” at 6134 S Vernon Ave, several times over the last

couple months and has each time received the same

euphoric high.

On [August 4, 2019], [Niemoth] then, accompanied by [the

informant], went to the address of 6134 S Vernon Ave

where [the informant] pointed to the 2nd floor South

apartment of a red brick multi-unit building and identified

it as the location [he] purchased the heroin from on [August

4, 2019]. [Niemoth] observed 6132-6134 clearly visible on

the front of the building and determined 6134 to be the

address of the South apartments. [Niemoth] then

conducted an ICLEAR search for “Drako” and located

Andre King . . . fitting the nickname and physical

description provided by [the informant]. [The informant]

was then shown an ICLEAR photo of Andre King . . . and

positively identified Andre King . . . as the “Drako” who [the

informant] purchased heroin from on [August 4, 2019].

Based upon the above stated facts [Neimoth] believes that

probable cause does exist to conduct a search of Andre King

. . . also known as “Drako” . . . and the 2nd floor South

apartment of the red brick 3-story multi-unit building

located at 6134 S Vernon Ave[.]

R. 69-1 at 3-4. The warrant application also states that the informant “was brought

before” the judge who issued the warrant, “sworn to the contents of the complaint and

made available for questioning.” Id. at 4. The document also states that the

informant’s “criminal history, including possible pending investigations if any, has

been presented and made available to the undersigned judge.” Id.1

The investigating officers (except for Alvarez), along with the other named

defendants, executed the warrant shortly before 10 p.m. on August 5, 2019, one day

after the informant claimed to have bought drugs there. As the officers walked

towards the building’s entrance, plaintiffs Cierra Harbin (22-years-old) and

Christopher Harbin (18-years-old) were seated on the balcony over-looking the

1 In a footnote in their brief, Defendants mention that defendant Officers Cusimano

and Hegewald, under Sergeant Bruno’s supervision, used the informant to conduct a

controlled buy at Plaintiffs’ residence. See R. 69 at 11 n.10. Notably, the officers did

not see fit to include this information in the affidavit supporting the warrant

application. In any case, while this information is relevant, it is a factual contention

outside the complaint and the Court will not consider it on this motion to dismiss.

entrance. Plaintiffs allege that Cierra called down to the officers and offered to let

them in the building. R. 60 ¶ 62. The officers looked at her but did not respond. Id.

The officers’ body camera videos show that the officers broke through the glass

entrance door and entered the apartment building’s entryway. After they broke the

glass door they verbally announced the presence of the Chicago Police Department as

they entered the vestibule. The officers walked up the stairs with their guns drawn

and announced the presence of the Chicago Police Department outside Plaintiffs’

apartment door. The videos show that about five seconds after the announcement,

Defendants broke through Plaintiffs’ apartment door.

The videos also show that upon Defendants’ entrance into the apartment,

Plaintiffs were fully compliant with the officers’ commands. Defendants ordered

plaintiff Christopher Harbin to the floor at gunpoint and handcuffed him. Defendants

also handcuffed Tate. Plaintiff Cierra Harbin ran into a bedroom to gather and

protect her 11-week-old sister, plaintiff Cali McCuller. Plaintiffs allege that the

officers pointed their guns at Cierra as she held Cali, but the videos do not clearly

show this. The videos do show that the officers had their guns in hand as they initially

secured the apartment. The family was soon led to the living room where they were

seated for the duration of the search. The videos show that several minutes into the

search the officers were ordered to turn off their cameras, so the remainder of the

search was not recorded.

Plaintiffs allege that the search lasted nearly two hours. R 60 ¶ 92. They allege

that they remained handcuffed the entire time, except that Cierra and then Tate were

permitted to hold baby Cali, one at a time. Plaintiffs allege that Defendants destroyed

various property in Christopher’s and Cierra’s bedrooms during the course of their

search. Defendants found nothing in the apartment that would corroborate the

confidential informant’s statement that provided the basis for the warrant.

Plaintiffs make their claims in the following eleven counts:

Count I by Plaintiff Cali for unnecessary force against the City of

Chicago, alleging individual defendant officers pointed their guns at her;

Count II by all Plaintiffs for an unlawful search, alleging an invalid

warrant, against defendants Niemoth, Cusimano, Hegewald, Bruno,

and Alvarez;

Count III by all Plaintiffs for an unlawful search, alleging unreasonable

manner of entry and search, against all individual defendants except

Alvarez;

Count IV by all Plaintiffs for false arrest and imprisonment against

defendants Weathersby, Miranda, Benavides, Niemoth, Cusimano, and

Bruno;

Count V by Christopher and Cierra Harbin for unconstitutional seizure

of property, against all individual defendants except Alvarez;

Count VI by all Plaintiffs for assault in violation of state law against

Weathersby, Miranda, Niemoth, Cusimano, Bruno, Arrington,

Carranza, Mulligan, and Sieber;

Count VII by all Plaintiffs for false arrest and false imprisonment in

violation of state law against Weathersby, Miranda, Benavides,

Niemoth, Cusimano, and Bruno;

Count VIII by all Plaintiffs for intentional infliction of emotional distress

in violation of state law against all individual defendants except

Alvarez;

Count IX by all Plaintiffs for trespass in violation of state law against

all individual defendants except Alvarez;

Count X by all Plaintiffs for respondeat superior liability against the

City of Chicago for the individual defendants’ state law violations; and

Count XI by all Plaintiffs for indemnification by the City of Chicago

under state law.

Analysis

Defendants seek dismissal of all claims. They make five primary arguments:

(1) the videos contradict Plaintiffs’ claim that the officers pointed their guns at Cali;

(2) Cali was not sufficiently aware that guns were pointed at her, so she could not

have been “seized” for purposes of the Fourth Amendment and subjected to excessive

force; (3) the individual officers are entitled to qualified immunity for reliance on the

warrant; (4) the individual officers are entitled to qualified immunity for their

manner of entry and search; and (5) Plaintiffs have not alleged that Cali suffered

damages.

I. Excessive Force (Count I)

A. Plausibility

Plaintiffs claim that the City is liable for excessive force because the individual

officers pointed their guns at Cali. Defendants concede that a police officer pointing

a gun at a person who poses no threat can constitute excessive force. See Baird v.

Renbarger, 576 F.3d 340, 345 (7th Cir. 2009). But Plaintiffs do not dispute

Defendants’ contention that the videos do not show any of the individual officers

pointing their guns at Cali. For this reason, Defendants argue that the videos

“incontrovertibly contradict” Plaintiffs’ allegation that Cali had a gun pointed at her,

and so the excessive force claim should be dismissed. See Bogie, 705 F.3d at 609

(holding that a video which “incontrovertibly contradicts” allegations is a sufficient

basis to dismiss claims that based on those allegations.)

Yet, Defendants also concede that the video leaves room for the “logical

possibility” that the officers pointed their guns at Cali. See R. 89 at 5. This concession

acknowledges that the videos only provide a few narrow visual perspectives of the

incident. None of the videos is trained on Cali for the entire relevant time period.

Indeed, Cali appears in only relatively small portions of the videos, much of which is

after the moments when a gun was allegedly pointed at her. And even when Cali

appears on a video, it is not always possible to discern whether a gun is being pointed

at her. For instance, the videos often do not reveal what the officer wearing the

camera is doing with their gun because the officer’s hands are out of the frame.

Additionally, the officers were moving quickly, and the cameras did not linger on

other officers for extended periods of time. Consequently, there appear to be multiple

gaps in the perspectives captured by the cameras. At bottom, if—as Defendants

concede—the videos leave open the possibility that a gun was pointed at Cali, then

the videos do not “incontrovertibly contradict” the allegations.

Defendants argue, however, that a “possible” allegation is insufficient to state

a claim because allegations must be plausible. See Iqbal, 556 U.S. at 678 (the

“plausibility standard . . . asks for more than a sheer possibility that a defendant has

acted unlawfully”). But just because Defendants have conceded that it is possible that

a gun was pointed at Cali, does not mean that the allegation must be characterized

as merely possible. Plaintiffs were present during the incident. They have personal

knowledge of what happened. And they allege that officers pointed their guns at Cali.

The allegation that officers who broke into an apartment with guns drawn also

pointed those guns at the occupants they encountered is entirely plausible. Indeed,

the videos clearly show that the officers pointed their guns at Christopher. See Ex. M

(video) QH000011 at 04:03. Defendants argue that Plaintiffs “cannot show” that the

officers pointed their guns at Cali. R. 89 at 7 (emphasis added). But even though the

videos do not clearly show a gun pointed at Cali, Plaintiffs do not have a burden to

show or prove facts at this stage of the case. And the facts that are readily apparent

from the videos do not undermine the plausibility of Plaintiffs’ allegation that a gun

was pointed at Cali. Therefore, the Court rejects Defendants’ argument that Count I

should be dismissed based on the videos.

B. Seizure

Defendants also argue that Count I should be dismissed because Plaintiffs do

not plausibly allege that Cali was seized. Excessive force is a form of unreasonable

seizure in violation of the Fourth Amendment. See Baird, 576 F.3d at 344. Generally,

the physical injury suffered by a victim of excessive force also constitutes the “seizure”

required to state the claim. However, use of force can also be excessive without

physical injury, such as when an officer points a gun at a person who poses no threat.

Id. A seizure also occurs in such circumstances because a reasonable person held at

gunpoint would not believe they were “free to leave” under the circumstances. See

Jacobs v. City of Chicago, 215 F.3d 758, 772 (7th Cir. 2000).

Citing no authority, Defendants argue that Tate cannot state a claim for

excessive force on Cali’s behalf because an 11-week-old child is incapable of having a

reasonable belief about her freedom to leave. See R. 69 at 9. But the standard

addresses not what a particular plaintiff actually believed, but what a “reasonable

person” would believe under the circumstances. And the Seventh Circuit has found

that children, including infants, can state claims for illegal seizures, even though

their individual ability to comprehend the circumstances is not certain. See

Hernandez v. Foster, 657 F.3d 463, 474 (7th Cir. 2011) (15-month-old); Doe v. Heck,

327 F.3d 492, 510 (7th Cir. 2003) (11-year-old); see also Hernandez v. Foster, 2009 WL

1952777, at *4 (N.D. Ill. July 6, 2009) (“In this case, a 15-month-old child was

physically removed from his home at the direction of DCFS and separated from his

parents. Under these circumstances, no reasonable child would have felt free to

leave.”). Defendants cite no authority to the contrary. Therefore, the Court rejects

Defendants’ argument that Tate has not plausibly alleged that Cali was seized.

C. Qualified Immunity

Defendants also argue that even if they did point their guns at Cali, they

reasonably believed that they were permitted to do so as part of an initial security

sweep, so they are entitled to qualified immunity. Defendants support their argument

by citing courts from outside the Seventh Circuit that found that momentarily

pointing guns at non-threatening individuals is permissible in the initial stages of

securing a space. See R. 69 at 7-8 (citing cases). However, even if this Court were to

find those cases persuasive, Defendants’ qualified immunity argument fails on the

pleadings for much the same reason the Court rejected Defendants’ argument that

the video contradicted Plaintiffs’ allegations. There are simply too many gaps in

perspectives captured by the videos for the Court to find that the officers’ actions were

reasonable as a matter of law. “Too little is known about the circumstances in this

case to determine if, by pointing their weapons at the plaintiffs, the officers violated

the plaintiffs’ clearly established rights.” Atkins v. Hasan, 2015 WL 3862724, at *7

(N.D. Ill. June 22, 2015). “Even if, when first entering [the apartment] it was

reasonable for the officers to point their weapons . . . it does not necessarily follow

that any continued gun-pointing was appropriate.” Id. Discovery is necessary to fill

in the gaps in the videos, to determine both whether any individual officer pointed

their gun at Cali, and if so, whether that action was sufficiently unreasonable to deny

qualified immunity.

II. The Search

A. The Warrant (Counts II and IX)

Plaintiffs claim that the officers procured the warrant without probable cause.

To survive a motion to dismiss such a claim, a plaintiff must allege that “reasonably

well-trained officers in their positions should have known that the testimony or

affidavits they provided in support of the warrants would have failed to establish

probable cause, so that they should not have applied for the warrants in the first

place.” Beauchamp v. City of Noblesville, 320 F.3d 733, 743 (7th Cir. 2003). This

means that the officers “knowingly or intentionally or with a reckless disregard for

the truth, made false statements to the judicial officer, and that the false statements

were necessary to the judicial officers’ determinations that probable cause existed for

the arrests.” Id. A ‘reckless disregard for the truth’ is demonstrated by showing that

the officers entertained serious doubts as to the truth of their statements, had obvious

reasons to doubt the accuracy of the information reported, or failed to inform the

judicial officer of facts they knew would negate probable cause.” Id. at 743.

Here, Plaintiffs have plausibly alleged that the officers had reason to doubt the

informant’s statement. This is because Plaintiffs allege that the informant’s

information turned out to be entirely wrong. This was not a case of an incorrect

address. Defendants searched the address and apartment the informant identified.

But “Drako” was not selling drugs out of it. A completely erroneous statement permits

the plausible inference that the officers should have known the statement was at least

not entirely correct. It is possible that the informant was simply mistaken or lying,

or that the officers had no reason to doubt the informant’s statement. But the

allegation that the informant was entirely wrong implies that there must have been

some obvious hole in the informant’s story that the officers should have noticed.

Discovery is necessary to determine whether that is true.

Plaintiffs do not directly allege that the officers had a reason to believe the

informant’s statement was false, but that is not surprising. Plaintiffs are not privy to

all of the officers’ communications with the informant. Although the affidavit that

was part of the warrant application is part of the pleadings here (because Plaintiffs

reference it in their complaint, and Defendants attached it to their motion), the

affidavit does not describe the officers’ relationship with the informant. The affidavit

only provides what the officers told the judge the informant stated about the suspect

and his location. It does not relate what the officers knew about the informant, and

whether the information the officers knew about the informant should have caused

them to question the informant’s veracity. And conversely, it does not provide

whether the informant had proven reliable in the past. Without this knowledge,

Plaintiffs cannot directly allege that the officers should have known the informant’s

statement was insufficient to establish probable cause. Instead, Plaintiffs must rely

on inference from the alleged complete falsity of the informant’s statement.

Rather than directly alleging that the officers knew or should have known the

informant’s statement was false, Plaintiffs claim that the officers had an obligation

to independently corroborate the informant’s statement. As discussed, this is a

plausible claim in light of the complete inaccuracy of the informant’s statement.

Defendants argue, however, that the Seventh Circuit has not required police to

perform such independent corroboration to establish probable cause. This is true.

When an informant risks implicating himself in criminal activity and appears before

the judge issuing the warrant, the Seventh Circuit has affirmed warrants issued

without independent corroboration but confirmed only by the police traveling with

the informant to verify the target address. See Edwards v. Jolliff-Blake, 907 F.3d

1052, 1057 (7th Cir. 2018); United States v. Lloyd, 71 F.3d 1256, 1259-60 (7th Cir.

1995). The same can be said of the facts in the affidavit in this case, so the warrant

in this case was sufficient to establish probable cause.

But that is not the relevant question at this point in the proceedings. Rather,

the question is whether Plaintiffs’ allegations plausibly allege that the officers had

reason to doubt the informant’s statement. The answer to that question requires

discovery into what the officers knew “at the time they applied for the warrant.” See

Edwards, 907 F.3d at 1061. And as discussed, the fact that the informant’s statement

was allegedly entirely inaccurate permits the plausible inference that the officers

knew information about the informant that should have caused them to doubt the

informant’s veracity. And with reason to doubt the informant’s veracity, the officers

should have undertaken independent verification of the informant’s statement, which

is what Plaintiffs claim.

A corollary to the rule that probable cause must be assessed according to “what

the officer knew at the time he sought the warrant” is that it is not relevant “how

things turned out in hindsight.” See Beauchamp, 320 F.3d at 743. Although Plaintiffs’

claim is based on allegation of “how things turned out”—i.e., the informant was

wrong—the Court’s reasoning is not properly characterized as “hindsight.” Hindsight

would be second-guessing the probable cause finding based on the facts as the officers

represented them at the time. That is not what is happening here. Rather, the totality

of the allegations permits the plausible inference that the facts were not as the

officers represented them at the time. Subsequent facts cannot be used to undermine

a probable cause finding based on what was known at the time, but subsequent facts

can be used to infer that the facts at the time were not what they seemed.

Lastly, Defendants argue that case law affirming probable cause findings

based on informant statements with minimal corroboration establishes that the

officers who procured the warrant are entitled to qualified immunity. But again, the

relevant question here is not whether the affidavit established probable cause. It is

whether the officers knew the affidavit was false or had additional information not

reflected in the affidavit that would have undermined the probable cause

determination. In either circumstance, it is clearly established that procuring a

warrant in reckless disregard of that truth violates the Fourth Amendment. See

Beauchamp, 320 F.3d at 742-43 (citing Franks v. Delaware, 438 U.S. 154, 155-56

(1978)). Therefore, dismissal based on qualified immunity is not appropriate at this

point in the proceedings, and Defendants motion to dismiss Counts II (procuring

warrant without probable cause) and IX (trespass) is denied.2

B. Manner of Entry & Search

Plaintiffs also claim that Defendants’ manner of entry and search violated the

Fourth Amendment. The Fourth Amendment requires that officers act reasonably in

seeking entry to a home, in detaining the people in the home once they enter, and in

conducting the search. Plaintiffs claim that: (1) Defendants failed to wait enough time

after knocking before entering; (2) Defendants unreasonably used handcuffs and guns

in securing the scene; and (3) Defendants unreasonably damaged property during the

search.

2 Plaintiffs’ trespass claim is based on their allegation of unlawful entry with a

warrant issued without probable cause. Because that issue requires discovery, the

same is true for the trespass claim.

1. Knock and Announce (Count III)

“[O]fficers must wait a reasonable amount of time after announcing their

intention to serve a search warrant before attempting a forcible entry.” United States

v. Gillaum, 372 F.3d 848, 854 (7th Cir. 2004). “Whether police officers paused long

enough before admitting themselves into a home . . . entails a highly contextual

analysis, requiring examination of all the circumstances of the case.” United States

v. Leonard, 2000 WL 266489, at *2 (7th Cir. Mar. 8, 2000); see also Florek v. Village

of Mundelein, 649 F.3d 594, 603 n.2 (7th Cir. 2011) (“What is reasonable must be

determined under the particular factual situation presented.”). “[T]here is no bright-

line rule delineating the boundary between a reasonable and unreasonable amount

of time for officers to wait.” United States v. Espinoza, 256 F.3d 718, 722 (7th Cir.

2001). But in the case of a search warrant related to drug activity, “the Supreme

Court has suggested that the police need not hold off for more than 15 or 20 seconds.”

United States v. Collins, 510 F.3d 697, 699 (7th Cir. 2007) (citing United States v.

Banks, 540 U.S. 31, 37-38 and n. 5 (2003)). However, “the officers nonetheless may

simply ‘go straight in’ if the circumstances support a reasonable suspicion of

exigency.” Banks, 540 U.S. at 36.

Defendants contend that the videos show they waited six seconds after

knocking on Plaintiffs’ door before they broke in. Plaintiffs contend it was two

seconds. The Court’s count is somewhere in between. In any case, it was a much

shorter amount of time than is generally found to be reasonable.

Defendants argue that exigent circumstances were present because

Christopher and Cierra had spotted the police from the balcony of the apartment the

police intended to search. But that argument is undermined by Plaintiffs’ allegation

that they offered to let the police into the building. If Plaintiffs were permitting the

police entry, there was no reason for forcible entry.3

Besides being spotted from the balcony, the pleadings reveal no other reason

for Defendants to believe that exigent circumstances existed. Although discovery may

reveal that Defendants had reason to execute the search in accordance with the belief

that weapons would be present in the apartment, the informant’s statement gave no

such indication. Additionally, Plaintiffs argue that having failed to independently

corroborate the informant’s statements, Defendants should have executed the search

in accordance with the possibility that the informant was wrong. Plaintiffs were at

least entitled to a reasonable opportunity to: (1) “comply with the law and peaceably

permit officers to enter the residence”; (2) “avoid[] the destruction of property

occasioned by forcible entry”; and (3) “prepare themselves for entry by law

enforcement officers by, for example, pulling on clothes or getting out of bed.”

Espinoza, 256 F.3d at 723 (citing Richards, 520 U.S. at 393 n. 5; and Wilson, 514 U.S.

at 930-32).

3 Defendants do not argue that their entry into the building’s vestibule constituted

an “announcement” such that the time it took them to walk up the stairs should be

included in the time Plaintiffs were afforded in warning. This makes sense since

Plaintiffs have no expectation of privacy in the entryway area. See United States v.

Espinoza, 256 F.3d 718, 723 (7th Cir. 2001). And until the police knock on a specific

door, Plaintiffs could not know whether their apartment was the target of the search

and that they should be expected to open the door.

According to Plaintiffs’ allegations and what is apparent from the video,

Defendants deprived Plaintiffs of these opportunities. Defendants broke down the

door as Tate was on her way to open it. Tate was still in her nightgown. Christopher

was forced to the floor at gunpoint. Cierra allegedly had guns pointed at her while

Cali was in her arms. Plaintiffs allege that these traumatic experiences could have

been avoided had Defendants been more patient and acted with due regard for the

possibility that they had the wrong apartment (which Plaintiffs allege is not an

uncommon occurrence when the Chicago Police execute search warrants) or for the

possibility that the occupants of the apartment would cooperate. Perhaps discovery

will reveal facts that justify Defendants’ conduct. But Plaintiffs have stated a claim

that Defendants’ manner of entry into the apartment was unreasonable and violated

the Fourth Amendment, and there is nothing on the videos clearly showing otherwise.

Defendants argue that they are entitled to qualified immunity for the manner

of their entry into the apartment. But as discussed, case law clearly establishes

Plaintiffs right to more time to answer the door under the circumstances as pled and

as depicted in the videos. A grant of qualified immunity on Plaintiffs’ claim that

Defendants manner of entry was unreasonable is not appropriate on the pleadings.

2. Use of Guns and Handcuffs (Counts IV, VI, VII, and VIII)

Plaintiffs also claim that Defendants use of guns and handcuffs was

unreasonable. On the basis of this allegation, Plaintiffs make claims for: (1)

unreasonable search and seizure in violation of the Fourth Amendment; (2) false

arrest under state law; (3) assault under state law; and (4) intentional infliction of

emotional distress under state law. Plaintiffs must plausibly allege unreasonable use

of guns or handcuffs to state these claims.

Defendants cite case law holding that it is reasonable to use guns to secure the

premises to be searched and to handcuff the occupants during the search. See R. 69

at 13-14; R. 89 at 15-17. But as Plaintiffs point out, use of handcuffs and guns—like

the time required to wait for entry—is analyzed for reasonableness under the

circumstances. See R. 83 at 25-27. Plaintiffs have plausibly alleged that they posed

no real threat to the officers and immediately indicated their willingness to comply

with the search. Whether Defendants use of guns and handcuffs in these

circumstances was reasonable is a fact intensive analysis not amenable to decision

prior to discovery. Qualified immunity is not appropriate for the same reason. Thus,

Defendants motions to dismiss Counts III (Fourth Amendment unreasonable search),

IV (Fourth Amendment false arrest and imprisonment), VI (assault), VII (state law

false arrest and imprisonment), and VIII (intentional infliction of emotional distress)

are denied.

3. Property Destruction (Count V)

“[T]he Fourth and Fourteenth Amendments provide a remedy when a citizen’s

property is unreasonably damaged during a search.” Heft v. Moore, 351 F.3d 278, 282

(7th Cir. 2003) (“Excessive or unnecessary destruction of property in the course of a

search may violate the Fourth Amendment, even though the entry itself is lawful and

the fruits of the search are not subject to suppression.” (citing United States v.

Ramirez, 523 U.S. 65, 71 (1998))). The Supreme Court has held that “it is generally

left to the discretion of the executing officers to determine the details of how best to

proceed with the performance of a search authorized by warrant.” Dalia v. United

States, 441 U.S. 238, 257 (1979). Yet “the manner in which a warrant is executed is

subject to later judicial review as to its reasonableness.” Id. at 258.

As discussed, Plaintiffs have plausibly alleged that it was unreasonable for

Defendants to break down the door. Plaintiffs also allege that the officers broke a flat

screen television by knocking it to the floor and ruined clothing by throwing it on the

floor and spilling liquids on it. It is well-settled that the mess and damage that can

result from a search for narcotics is generally reasonable. See Dalia, 441 U.S. at 258

(“officers executing search warrants on occasion must damage property in order to

perform their duty”); see also Weeks v. City of Chicago, 2014 WL 3865852, at *6 (N.D.

Ill. Aug. 6, 2014) (“The fact that the contents of the room were left in a pile and some

cereal spilled on the counter does not demonstrate that [the officers’] intrusion went

beyond what was necessary.”). And officers are entitled to open drawers and other

containers and even cut open walls and cushions when searching for drugs. See

Washington v. Godinez, 1996 WL 599055, at *2 (N.D. Ill. Oct. 17, 1996) (officer acted

reasonably when he removed ceiling tiles, tore insulation out of the ceiling, and

removed and destroyed frozen food from a freezer in search of drugs). But it is not

clear that ruining the television and clothing was necessary to execute the search.

Again, the reasonableness of those actions will have to be judged in light of facts

learned in discovery. Therefore, Defendants motion to dismiss Count V is denied.

III. Cali’s Damages

Defendants characterize Plaintiffs’ claim that Cali suffered emotional damages

as “blatant speculation regarding an eleven-week old infant’s psychological and

emotional state fails to meet the pleading requirements” for Rule 12(b)(6). See R. 69.

at 15. Maybe it is true that an 11-week-old infant cannot suffer legally cognizable

emotional damages. But Plaintiffs have alleged that she did. See R. 60 44 109, 112,

118, 121-123. Whether or not these allegations are true is a factual question that

requires discovery.

Conclusion

Therefore, Defendants’ motion to dismiss [69] is denied.4 The parties should

meet and confer regarding a discovery schedule in advance of the status hearing set

for November 20, 2020.

ENTERED:

Honorable Thomas M. Durkin

United States District Judge

Dated: November 16, 2020

4 Defendants make a number of arguments that certain individual defendants should

be dismissed from certain Counts regarding the reasonableness of the search because

they did not participate in all aspects of the search. All individual defendants,

however, participated in the entry into the apartment and will remain in the case for

that reason. Who did what during the search will be sorted out on summary judgment

if necessary.

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