Bradley v. DuPage County Sheriff's Office

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Trinia Jones, Individually and as )

Independent Administrator of the Estate of )

Trevon Johnson, a Minor, Deceased, )

)

Plaintiff, )

) Case No.: 17-cv-1076

v. )

) Honorable Joan B. Gottschall

DuPage County Sheriff’s Office, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

On the night of New Year’s Day 2017, DuPage County sheriff’s deputy and defendant

Scott Kuschell (“Kuschell”) was dispatched to a residence in unincorporated Villa Park, Illinois,

to respond to multiple 911 calls reporting a “domestic incident” that had escalated to a physical

fight between 17-year-old Trevon Johnson (“Johnson”) and his 23-year-old sister Ricquia Jones

(“Ricquia”). See Pl.’s Resp. to Defs.’ [sic] R. 56.1 Stmt. Facts & Pl.’s Stmt. Add’l Facts

(“RSOF”) ¶¶ 6-7, 10-12, ECF No. 71; R. Jones Dep. 6:1-4, ECF No. 78, Pl.’s Ex. C (Ricquia

Jones’s date of birth). As discussed below, many of the material facts surrounding what

happened that night are disputed. This much is not disputed: Kuschell entered the home, Ricquia

yelled to Kuschell that Johnson was upstairs and stated that she wanted him to be arrested, and

Kuschell called to Johnson, who was upstairs in his grandmother’s bedroom, and told him to

come downstairs. See RSOF ¶¶ 15-16, 18, 22, 24-27, 32; Def. Kuschell’s Resp. to Pl.’s R. 56.1

Stmt. Add’l Facts (“RSAF”) ¶¶ 12, 16, 20, ECF No. 98. While the exact position of Kuschell’s

body at this point is disputed, all witnesses agree that he was standing just inside the front door at

the foot of the stairs to the second floor. See RSOF ¶ 46, RSAF ¶ 25. As Johnson began to

descend the stairs, Kuschell fired his service weapon at Johnson five times, killing him. RSOF

¶ 46.

Kuschell testified at his deposition in this case that he believed that Johnson was about to

attack him with a knife. See RSOF ¶¶ 44-46. But it is undisputed that no knife matching the

description of the weapon Kuschell later gave to the Illinois State Police was found. RSAF ¶ 33.

And three witnesses testified at depositions in this case that Johnson made no threatening

gestures and was instead walking down the stairs unarmed with his hands up, palms facing

forward. See RSAF ¶ 20–26.

Johnson’s mother, plaintiff Trinia Jones (“Trinia”), brought this suit individually and in

her capacity as the independent administrator of Johnson’s estate. See 1st Am. Compl. (“FAC”)

at 1, ECF No. 21. In count III of her amended complaint, plaintiff brings a claim under

42 U.S.C. § 1983 and the Fourth Amendment alleging that Kuschell used unreasonable and

excessive force against Johnson. Counts I, II and IV, not presently at issue, assert Illinois law

claims for survival, wrongful death, and infliction of emotional distress.

For the following reasons, the court denies Kuschell’s motion for summary judgment

because genuine disputes of fact exist material to Kuschell's qualified immunity defense.

I. Summary Judgment Standard

Kuschell has filed a motion for summary judgment on plaintiff’s Fourth Amendment

claim, arguing that he is entitled to qualified immunity.1 See Mot. Summ. J. 2, ECF No. 62.

1 In his reply, Kuschell moved to strike several paragraphs of plaintiff’s Local Rule (“LR”) 56.1 response, plaintiff’s

LR 56.1(b)(3) statement of additional facts, portions of plaintiff’s response memorandum, and several of plaintiff’s

exhibits. See ECF No. 97 at 1–8. In its discretion, the court denies these motions to the extent defendants seek to

strike portions of the LR 56.1 fact statements and responses immaterial to summary judgment. For instance, the

court does not reach the motion to strike the affidavit of Andrew Scott, Pl.’s Ex. L, ECF No. 87, because it does not

rely on paragraph 35 of plaintiff’s statement of additional facts. The court also does not rely on plaintiff’s responses

to paragraphs 20 and 47. The court overrules plaintiff’s hearsay objections to certain paragraphs of Kuschell’s fact

statement infra note 7. While the court by no means encourages argument in LR 56.1(a)(3) responses, the level of

argument exhibited in the responses filed by both sides does not warrant striking the fact statements. The court also

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). At summary judgment, “the court has one task and one task only: to decide, based on the

evidence of record, whether there is any material dispute of fact that requires a trial.” Payne v.

Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d

918, 920 (7th Cir. 1994)) (brackets omitted). The court therefore considers “all of the evidence

in the record in the light most favorable to the non-moving party,” and draws “all reasonable

inferences from that evidence in favor of the party opposing summary judgment.” Donald v.

Wexford Health Sources, Inc., 982 F.3d 451, 457 (7th Cir. 2020) (citing Dunn v. Menard, Inc.,

880 F.3d 899, 905 (7th Cir. 2018)). The substantive law governing the claim or defense on

which summary judgment is sought determines whether, and which, facts are material. Lord v.

Beahm, 952 F.3d 902, 903 (7th Cir. 2020) (citing Andersen, 477 U.S. at 248). Here, the

substantive law of qualified immunity and Fourth Amendment law governing the use of force by

police officers determines what facts are material.

II. Qualified Immunity and Fourth Amendment Principles

Plaintiff’s Fourth Amendment claim arises under 42 U.S.C. § 1983, which “guarantees ‘a

federal forum for claims of unconstitutional treatment at the hands of state officials.’” Knick v.

independently determines whether each paragraph of the fact statements and responses is supported by the

evidentiary material cited. See, e.g., Cichon v. Exelon Generation Co., LLC, 401 F.3d 803, 809-810 (7th Cir. 2005);

Nucap Indus., Inc. v. Robert Bosch LLC, 273 F. Supp. 3d 986, 991-92 (N.D. Ill. 2017); Midwest Operating Eng’rs v.

Dredge, 147 F. Supp. 3d 724, 731 (N.D. Ill. 2015), aff'd sub nom. Midwest Operating Eng’rs Welfare Fund v.

Cleveland Quarry, 844 F.3d 627 (7th Cir. 2016). Moreover, plaintiff produced evidence attached to her surreply,

providing a basis for authenticating the photographs she submitted as exhibits A, F, I, J, N, O, P, Q, R, and S. See

S. Grosvenor Dep., ECF No. 112; Surreply 8, ECF No. 110. Plaintiff also represents that defendants produced these

photographs. Surreply 9. As plaintiff notes, producing a paper in discovery is an implicit act of authentication. See

United States v. Brown, 688 F.2d 1112, 1116 (7th Cir. 1982).

Twp. of Scott, 139 S. Ct. 2162, 2167 (2019). At summary judgment for a § 1983 claim, the court

“focuses on ‘(1) whether the conduct complained of was committed by a person acting under

color of state law; and (2) whether this conduct deprived a person of rights, privileges, or

immunities secured by the Constitution or laws of the United States.’” Colbert v. City of

Chicago, 851 F.3d 649, 656 (7th Cir. 2017) (quoting Armato v. Grounds, 766 F.3d 713, 719-20

(7th Cir. 2014)). Here, there is no dispute that Kuschell acted under color of state law in his

official capacity as a DuPage County sheriff’s deputy. The question therefore becomes whether

a reasonable jury could award money damages against Kuschell for violating the

Fourth Amendment. See id.

Kuschell raises the affirmative defense of qualified immunity. See Harlow v. Fitzgerald,

457 U.S. 800, 815-18 (1982); Rose ex rel. Estate of Williams v. Cline, 902 F.3d 643, 648 (7th

Cir. 2018). Once a defendant properly raises the defense of qualified immunity, the burden shifts

to the plaintiff to defeat the defense. Leiser v. Kloth, 933 F.3d 696, 701 (7th Cir. 2019) (citing

Purvis v. Oest, 614 F.3d 713, 717 (7th Cir. 2010)). To determine whether qualified immunity

applies, the court asks two questions: (1) whether Kuschell violated a constitutional right; and

(2) whether that “right was ‘clearly established’ at the time of the challenged conduct.” Rose,

902 F.3d at 648 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). “A Government

official's conduct violates clearly established law when, at the time of the challenged conduct,

‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would [have

understood] that what he is doing violates that right.’” al-Kidd, 563 U.S. at 741 (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (brackets in original). Properly applied, the

qualified immunity doctrine creates “breathing room for government officials to make

reasonable but mistaken judgments about open legal questions.” Id. at 743. Hence qualified

immunity shields “all but the plainly incompetent or those who knowingly violate the law.” Id.

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

With the qualified immunity standard in mind, the court turns to the substantive

constitutional right plaintiff claims was violated here. By its terms, the Fourth Amendment

protects “persons” from “unreasonable” searches and seizures. U.S. Const. amend. IV. A police

officer’s intentional use of deadly force constitutes a seizure for Fourth Amendment purposes.

See Tennessee v. Garner, 471 U.S. 1, 7 (1985); Estate of Williams v. Ind. State Police Dep't,

797 F.3d 468, 472 (7th Cir. 2015) (citing Graham v. Connor, 490 U.S. 386, 395 (1989).

The Fourth Amendment reasonableness standard makes allowances for the realities

police officers confront in their work: “[P]olice officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount

of force that is necessary in a particular situation.” Graham, 490 U.S. at 397. The objective

inquiry thus entails consideration of the “totality of the circumstances” surrounding the incident.

Id. (citing Garner, 471 U.S. at 8–9); Marion v. City of Corydon, 559 F.3d 700, 705 (7th

Cir. 2009). “As applied to a Fourth Amendment excessive-force claim, the qualified-immunity

doctrine gives ‘enhanced deference to officers’ on-scene judgments about the level of necessary

force.’” Dockery v. Blackburn, 911 F.3d 458, 466 (7th Cir. 2018) (citing Abbott v. Sangamon

County, 705 F.3d 706, 725 (7th Cir. 2013)). The Fourth Amendment reasonableness inquiry is

objective in the sense that the officer’s “underlying intent or motivation,” good or bad, does not

matter. Graham, 490 U.S. at 397 (citation omitted). Instead, the defendant’s use of force must

be evaluated from the point of view of “a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Id. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)).

III. Analysis

Under Seventh Circuit and Supreme Court law, “it is reasonable for a law enforcement

officer to use deadly force if an objectively reasonable officer in the same circumstances would

conclude that the suspect posed a threat of death or serious physical injury to the officer or to

others.” Brosseau v. Haugen, 543 U.S. 194, 197-98 (2004) (per curiam) (brackets omitted)

(quoting Garner, 471 U.S. at 11); accord. Estate of Williams, 797 F.3d at 473 (citing Marion,

559 F.3d at 705); Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th Cir. 2002) (citing

Garner, 471 U.S. at 11-12). Consistent with Garner, “[c]ourts within the Seventh Circuit have

regularly granted and affirmed summary judgment on excessive force claims where the suspect

threatened an officer with a weapon or where the officer reasonably believed that the suspect had

a weapon.” Roos v. Patterson, 2013 WL 3899966, at *8 (C.D. Ill. July 29, 2013) (collecting

cases). Conversely, the Supreme Court held in Garner, and has since reiterated, that “it is

unreasonable for an officer to ‘seize an unarmed, nondangerous suspect by shooting him dead.’”

Brosseau, 543 U.S. at 197 (quoting Garner, 471 U.S. at 11); see also Scott v. Harris, 550 U.S.

372, 382-83 (2007) (distinguishing Garner).

Thus, “[w]hat is important is the amount and quality of the information known to the

officer at the time he fired the weapon when determining whether the officer used an appropriate

level of force.” Muhammed, 316 F.3d at 683 (citing Sherrod v. Berry, 856 F.2d 802, 804-05 (7th

Cir. 1988)). The proper question is whether “the officers’ actions are ‘objectively reasonable’ in

light of the facts and circumstances confronting them, without regard to their underlying intent or

motivation.” Graham, 490 U.S. at 397 (quoting Scott v. United States, 436 U.S. 128, 137-139

(1978)). In this sense, the officer can turn out to be wrong about the facts that appeared to justify

the use of force, but if the officer’s view of the facts was objectively reasonable at the time, the

Fourth Amendment deems the use of force reasonable. See Sherrod, 856 F.2d at 807 (“It is not

necessary that the danger which gave rise to the belief actually existed; it is sufficient that the

person resorting to self-defense at the time involved reasonably believed in the existence of such

a danger . . . . In forming such reasonable belief a person may act upon appearances.”

(emphasis in Sherrod) (quoting Davis v. Freels, 583 F.2d 337, 341 (7th Cir. 1978))). Therefore,

evidence tending to show whether the things Kuschell claims to have observed in fact happened

is material because applying the objective test requires the fact finder to determine what

information he had and whether any factual mistakes he made were reasonable. See Graham,

490 U.S. at 396-97.

Certain facts in the summary judgment record here do not factor into the

Fourth Amendment reasonableness analysis because there is no evidence that Kuschell was

aware of them. For example, the record shows that Johnson had recently returned from a church

service before he was shot, and the dispute between Johnson and Ricquia began as a spat over a

can of soda pop. RSAF ¶¶ 1, 34 (undisputed). No party points to evidence that anyone

communicated those facts to Kuschell before he fired at Johnson, see id., so neither fact affects

the Fourth Amendment analysis. See Graham, 490 U.S. at 397; Horton v. Pobjecky, 883 F.3d

941, 951 (7th Cir. 2018).

Plaintiff also makes a series of arguments to the effect that Johnson’s death could have

been avoided if Kuschell had waited for backup before going into the home and calling out to

Johnson to come downstairs. See, e.g., Pl.’s Mem. Opp to Def.’s Mot. Summ. J. 4, 14, ECF

No. 73; RSAF ¶¶ 14-15, 35. It is undisputed that Kuschell was aware that other officers had

been dispatched to the scene, but he did not wait for backup before he went into the home and

called to Johnson to come downstairs. RSAF ¶¶ 9, 10, 15, 35. Plaintiff asserts that by not

waiting for backup, Kuschell violated DuPage County Sheriff’s Office procedures, as well as

generally accepted police procedures. See id.

The Seventh Circuit has repeatedly held that police department procedures and best

practices are not the sine qua non of the Fourth Amendment reasonableness standard. See, e.g.,

Turner v. City of Champaign, 979 F.3d 563, 568-69 (7th Cir. 2020); United States v. Brown,

871 F.3d 532, 536-37 (7th Cir. 2017). Indeed, the opinion in Brown holds unequivocally that

“[t]he excessive-force inquiry is governed by constitutional principles, not police-department

regulations,” and so “a police officer’s violation of departmental policy is ‘completely

immaterial [on] the question ... whether a violation of the federal constitution has been

established.’” Brown, 871 F.3d at 536-37 (citing Scott v. Edinburg, 346 F.3d 752, 760-61 (7th

Cir. 2003), for the first quotation and Thompson v. City of Chicago, 472 F.3d 444, 454 (7th

Cir. 2006), for the second quotation). Furthermore, “the availability of less severe alternatives

does not necessarily render the use of deadly force unconstitutional. The Fourth Amendment

does not require ‘the use of the least or even a less deadly alternative so long as the use of deadly

force is reasonable under’” Garner and Graham. Horton, 883 F.3d at 950. Applying these rules,

plaintiff’s arguments about any alleged deviations from police procedures or best practices do

not by themselves create a genuine dispute of material fact. Binding precedent forecloses these

arguments. See Turner, 979 F.3d at 568. As in Turner, waiting for backup may “[w]ith the

benefit of hindsight . . . have saved [Johnson’s] life. But police training policies and best

practices, while relevant, do not define what is reasonable under the Fourth Amendment.” 2 Id.

(citing Brown, 871 F.3d at 536-37).

2 Plaintiff does not argue that Kuschell’s conduct prior to firing at Johnson separately violated the

Fourth Amendment. The Supreme Court held in County of Los Angeles v. Mendez, 137 S. Ct. 1539, 1547 & n.*

(2017), that “once a use of force is deemed reasonable under Graham, it may not be found unreasonable by

reference to some separate constitutional violation.”

Having sifted out the immaterial facts, the court turns to the outcome determinative

question: whether, based on the information he had at the moment he fired, Kuschell reasonably

believed that Johnson posed an imminent threat of death or serious bodily injury. See County of

Los Angeles v. Mendez, 137 S. Ct. 1539, 1546-47 (2017); Horton, 883 F.3d at 949-50. The

Seventh Circuit has “recognized that summary judgment is often inappropriate in excessive-

force cases because the evidence surrounding the officer’s use of force is often susceptible of

different interpretations.” Cyrus v. Town of Mukwonago, 624 F.3d 856, 862 (7th Cir. 2010)

(citing Catlin v. City of Wheaton, 574 F.3d 361, 367 (7th Cir. 2009)); see also Abdullahi v. City of

Madison, 423 F.3d 763, 773 (7th Cir. 2005) (“we have held on many occasions that summary

judgment or judgment as a matter of law in excessive force cases should be granted sparingly”).

Kuschell contends that the material facts are largely undisputed. Def.’s Mem. Supp. Mot.

Summ. J. 16, ECF No. 63. He relies almost exclusively on his own deposition testimony to

establish those facts. See id. at 11-12 (citing Def.’s LR 56.1(a)(3) Stmt. of Undisputed Material

Facts ¶¶ 6, 7, 12, 14, 15, 18, 19, 24, 25, 26, 27, 28, 30, 34, 38, 40, 42, 43, 44, 45; ECF No. 64).

Plaintiff counters by pointing chiefly to the deposition testimony of four of Johnson’s family

members, all of whom were present in the home at the time of the shooting: plaintiff

Trinia Jones, Johnson’s mother; Ricquia Jones, Johnson’s older sister; Robert Pelts (“Pelts”),

Johnson’s older brother (age 25 or 26 on the date of the shooting); and Willie Bradley

(“Bradley”), Johnson’s grandfather. See RSAF ¶¶ 11–28; R. Pelts Dep. 3:19-20, ECF No. 79,

Pl.’s Ex. D (Robert Pelts’s age). Three of the witnesses—Trinia Jones, Ricquia Jones, and

Willie Bradley—testified that they saw the shooting take place, while Robert Pelts testified that

he heard the shooting. See, e.g.,T. Jones Dep. 53:1-16, ECF No. 82, Pl.’s Ex. G; R. Jones

Dep. 60:4-61:15; W. Bradley Dep. 77:6-78:22, ECF No. 76, Pl.’s Ex. B; R. Pelts Dep. 57:12-19.

As discussed below, the witnesses’ testimony creates several genuine factual questions material

to what information Kuschell had been given and what he actually observed leading up to the

shooting.

Beginning with undisputed facts about the information Kuschell had, dispatchers

informed Kuschell that there was a possible “domestic” dispute occurring in which “a male

subject, approximately six feet six inches, was threatening [other people] with a knife.”3 RSOF

¶ 7. One or more of the 911 callers gave Johnson’s name to dispatchers who in turn relayed it to

Kuschell. See RSOF ¶ 16. The witnesses agree that Kuschell eventually went inside the home.

The witnesses also agree that Bradley and Ricquia were the only two people on the first

floor of the home when Kuschell entered. See RSOF ¶¶ 21-22. Ricquia “became very

animated” when she saw Kuschell. RSOF ¶ 26. She was yelling that Johnson had hurt her and

that she wanted him to be arrested. RSOF ¶¶ 24, 26. Ricquia showed Kuschell her head—

whether there was blood is disputed—and her braid on the floor, stating that “he [Johnson] did

this to me.” See RSOF ¶¶ 26–27.

It is also undisputed that Johnson’s brother, Pelts, came downstairs at some point before

Johnson. See RSAF ¶ 18-19. Pelts informed Kuschell that he was not Johnson and kept his

hands on the stair railing as he descended. Id. ¶¶ 17-19. A reasonable jury could find from

Pelts’s testimony that Kuschell was pointing his gun up the stairs as Pelts descended them. See

id. ¶ 18.

3 Plaintiff disagrees that the dispatcher used the term “violent domestic” as stated in Kuschell’s LR 56.1(a)(3)

statement of undisputed material facts. See RSOF ¶ 7. The record contains transcripts of the 911 calls placed by

Trinia and Racquia on the night of the shooting. ECF Nos. 84, 91. The record does not contain a transcript of the

audio recording of police radio traffic filed as plaintiff’s exhibit A, ECF No. 87, but contains only the audio

recording. The court has listened to the recording, and the phrase “violent domestic” is not used.

Plaintiff has not created a genuine dispute as to Kuschell’s testimony that there was

yelling coming from the home’s second story. See RSOF ¶¶ 20, 23, 35. Plaintiff points to

Bradley’s testimony that “everything had calmed down” and fighting had stopped by the time

Kuschell arrived. See id. (citing in response W. Bradley Dep. 95:15-24, 96:1, 96:9-12. In

context, however, Bradley’s deposition testimony applies to the time of Kuschell’s arrival; it

does not preclude the possibility that the argument restarted after Kuschell’s arrival. See

W. Bradley Dep. 95:10–97:10.

A genuine dispute does exist, however, over whether Bradley and Ricquia told Kuschell

that Johnson was no longer armed.4 According to his deposition, Kuschell, at different times,

asked Bradley and Ricquia similar compound questions of the form: Is Johnson upstairs, and

does he have a knife.5 See RSOF ¶ 19, 28. Kuschell testified that both replied, “Yes,” and

Bradley kept pointing upstairs. Id. A simple yes or no answer to a “two-pronged question [like

Kuschell’s] could be viewed as ambiguous.” See United States ex rel. Henne v. Fike, 563 F.2d

809, 814 (7th Cir. 1977) (per curiam). On Kuschell's version of these exchanges, a reasonable

jury could find that an officer in Kuschell’s position could not be reasonably certain as to

whether Johnson was, or was not, armed.6

4 Kuschell testified that he asked Pelts whether Johnson was still upstairs and armed with a knife. RSOF ¶ 40. Like

Ricquia, Pelts directly contradicts Kuschell’s testimony. See R. Pelts Dep. 49:18-50:3, 74:14-21. Furthermore,

Kuschell’s compound question suffers from the same ambiguity as his questions to Bradley and Ricquia.

5 According to his deposition, Kuschell first asked Bradley whether “[h]e was Trevon.” RSOF ¶ 18 (undisputed).

Bradley responded that “he lived there and that he’s upstairs.” Id. Kuschell followed up, according to his

deposition testimony, with a compound question: “if by ‘he’ he meant Trevon and did he have a knife?” Id. ¶ 19.

Bradley replied, “yes,” and continued pointing upstairs. Id. Kuschell testified that he similarly asked Ricquia “if

Trevon was upstairs and does he have a knife?” Id. ¶ 28; S. Kuschell Dep. 58:18-21, ECF No. 64-2, Def.’s Ex. 2.

She responded, “He’s upstairs, yes,” according to Kuschell. RSOF ¶ 28; S. Kuschell Dep 58:22.

6 Plaintiff objects to paragraphs 19, 31, 37, and 40 of Kuschell’s fact statement on hearsay grounds. See Resp. to

SOF ¶ 19, 31, 37, 40. In each of these paragraphs, Kuschell cites his deposition testimony that after he entered the

home, Bradley and Ricquia told him, or indicated through conduct, that Johnson was upstairs and had a knife. See

id.

Furthermore, Ricquia’s deposition testimony directly conflicts with Kuschell’s on this

point. Ricquia testified that Kuschell asked, “Where is he [(Johnson)]? Is he armed?” R. Jones

Dep. 96:8-9. “I said, ‘No, he’s upstairs with my grandmother.’” Id. at 96:9-10. Ricquia’s

version of her answer specifically told Kuschell that Johnson was upstairs and unarmed.

Despite putatively being informed that Johnson was unarmed, Kuschell did not

necessarily have to treat Johnson as a non-threat. Kuschell had also been shown evidence from

which he could have reasonably concluded that Johnson had ripped out Ricquia’s braid and

broken a small glass table. “[T]he police are entitled to err on the side of caution when faced

with an uncertain or threatening situation.” Horton, 883 F.3d at 951 (citing Johnson v. Scott,

576 F.3d 658, 659 (7th Cir. 2009)). Nonetheless, although an “officer may in one moment

confront circumstances in which he could constitutionally use deadly force, that does not

necessarily mean he may still constitutionally use deadly force the next moment. The

circumstances might materially change.” Id. (citing Ellis v. Wynalda, 999 F.2d 243, 247 (7th

Cir. 1993), discussed in detail below). In the case at hand, a reasonable jury could find that, to

the extent deadly force may have been an option prior to Kuschell calling for Johnson to come

downstairs, the circumstances changed in two important ways.

The court overrules plaintiff’s hearsay objections to paragraphs 19, 31, 37, and 40. “[H]earsay is inadmissible in

summary judgment proceedings to the same extent that it is inadmissible in a trial.” Eisenstadt v. Centel Corp.,

113 F.3d 738, 742 (7th Cir. 1997) (other citations omitted). To be hearsay, a statement made outside of court must

be offered “in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c)(2). Kuschell does not use

Bradley and Ricquia’s alleged statements in order to prove that Johnson had a knife. Rather, these statements are

used to explain Kuschell’s thinking at the time and what motivated his actions, regardless of whether Johnson was in

fact armed. See RSOF ¶¶ 19, 31, 37, 40. “A witness's statement is not hearsay if the witness is reporting what he

heard someone else tell him for the purpose of explaining what the witness was thinking, at the time or what

motivated him to do something.” Simpson v. Beaver Dam Cmty. Hosps., Inc., 780 F.3d 784, 796 (7th Cir. 2015)

(quoting United States v. Leonard–Allen, 739 F.3d 948, 954 (7th Cir. 2013)) (affirming decision to overrule hearsay

objection at summary judgment); accord United States v. Hanson, 994 F.2d 403, 406 (7th Cir. 1993). Thus, so long

as the statements in paragraphs 19, 31, 37, and 40 of Kuschell’s fact statement are used to prove their effect on

Kuschell’s thinking, the rule against hearsay is not a barrier to their admission.

First, Pelts came downstairs before Johnson, either with his hands on the railing (his

testimony) or with his hands up (Kuschell’s testimony). See RSAF ¶¶ 18–19; RSOF ¶¶ 35, 37-

38. The exact details of Pelts’s descent are disputed. See RSOF ¶ 35-38. What matters for the

objective Fourth Amendment analysis is that a reasonable jury could find that Kuschell could see

Pelts well enough to determine where his hands were and that he was unarmed as he came down

the stairs. See id. A jury viewing these facts favorably to plaintiff could further infer that

Kuschell had an equally clear view of Johnson and his hands as he came downstairs a short time

later.

Second and most importantly, a reasonable jury could find that Johnson came downstairs

slowly, that he made no threatening gestures, that he had his hands up, palms facing forward, and

that he had nothing in his hands that could be reasonably mistaken for a weapon. With only

modest inferences favorable to plaintiff, Trinia, Ricquia, and Bradley testified consistently on

each of those points. See RSAF ¶¶ 20-26 (collecting testimony; no contrary evidence cited). A

reasonable jury could also find the fact that Johnson’s body was found at the top of the stairs

with his head facing the top of the stairs and his feet facing Kuschell as corroborating this

testimony. RSAF ¶ 33 (undisputed). And a jury could also view the Illinois State Police

investigative report as corroborative. Kuschell told the Illinois State Police investigators that he

thought Johnson “had a 3 to 4 inch long, ½ to ¾ inch wide, dull gray, knifelike object in his

hand,” and that it could have been a “knife, ice pick, wood chisel, or a box cutter.”7 See Illinois

State Police Investigative Summary at 2, ECF No. 80, Pl.’s Ex. E. It is undisputed that “no knife

or other weapon [was] found in Trevon’s possession, or anywhere near him.” RSAF ¶ 33

(undisputed); see also RSAF ¶ 32.

7 At his deposition, Kuschell described the object as being “light gray in color” and “three to five inches long by half

to slightly larger than half inch in width.” S. Kuschell Dep. 135:5-7; see also RSAF ¶ 30.

Kuschell told a very different story at his deposition. See RSOF ¶¶ 41–46. In Kuschell’s

deposition, he testified that he heard a loud bang upstairs followed by the sound of running feet

and a “guttural growl” he compared to a person about to make a football tackle. Id. ¶ 42.

Kuschell then saw Johnson come around the corner with an object in his hand that Kuschell

believed was a knife. See id. ¶¶ 43-45. He fired five shots in under one second, according to his

testimony. Id. ¶ 46.

As legions of cases teach, making “[c]redibility determinations, weighing of evidence,

and drawing of legitimate inferences from the facts are jury functions, not those of a judge . . .

[at] summary judgment.” Anderson, supra, 477 U.S. at 255. That is, “summary judgment

cannot be used to resolve swearing contests between litigants.” Payne v. Pauley, 337 F.3d 767,

770 (7th Cir. 2003) (citations omitted). To determine whether a trial is needed, this court must

adopt the version of the facts supported by the summary judgment record that is most favorable

to the party resisting summary judgment, here the plaintiff. See id.

On the version of the facts the court must adopt at summary judgment, Kuschell had been

informed by Ricquia that Johnson was no longer armed. As with Pelts, Kuschell could see where

Johnson’s hands were and whether he had anything in them as he descended the stairs. See

RSAF ¶¶ 18-19. And as a matter of objective fact, a jury could find that Kuschell saw Johnson

walking slowly down the stairs, making no threatening gestures, with his empty hands up, palms

facing forward. Id. ¶¶ 20-26. As discussed in the following paragraphs, if a jury finds these

facts, Kuschell can be held liable for violating clearly established law.

Kuschell contends that the Seventh Circuit’s decision in Mason-Funk v. City of Neenah,

895 F.3d 504 (7th Cir. 2018), is controlling. Reply 12-13, ECF No. 97. Mason-Funk is a

“tragic” case of an officer reasonably misidentifying an escaping hostage as the hostage taker.

See Mason-Funk, 895 F.3d. at 505. In Mason-Funk, Brian Flatoff (“Flatoff”) walked into a

motorcycle shop with a gun and took four people hostage, including Michael Funk (“Funk”), the

person eventually misidentified by police. Id. at 505-06. Officer Sean Ross (“Ross”) was part of

a SWAT team that formed a perimeter around the shop. Id. at 506. He learned from dispatchers

that three hostages had been taken, that the suspect had a gun, and that he was a long-haired

white male wearing a plaid jacket. Id. Four officers attempted to enter the shop from the alley

behind it, but Flatoff repelled them in a hail of gunfire. See id. Funk subsequently managed to

escape out the shop’s back door as Flatoff was shooting at him. See id. at 506-07. The officers

had mere seconds to react, and they saw Funk retrieve a handgun from the waistband of his pants

and run across the alley. See id. at 507. Believing Funk to be the suspect, Ross opened fire,

killing Funk. Id. The Seventh Circuit pointed to the case’s unique facts to hold that no clearly

established law warned the officer that shooting “an armed individual, without warning in a

dangerous and chaotic hostage situation, violated any clearly established right.” Id. at 509.

The facts as the jury could find them here are a far cry from the “distinct,” violent,

rapidly developing hostage situation in Mason-Funk. Id. at 509. The court in Mason-Funk

distinguished several cases in which “individuals armed with guns did not pose an imminent

threat to the officers based on the context of those confrontations.” See id. The Mason-Funk

court described the cases it was distinguishing as holding that it is “clearly established that

deadly force could not be used when an armed individual posed no threat to the officers, made no

sudden movements, and ignored no commands.” Id. at 509 (citing Cooper v. Sheehan, 735 F.3d

153, 159-60 (4th Cir. 2013)).

Contrary to Kuschell’s position, the Mason-Funk court’s description of clearly

established law supports denying summary judgment here. As already discussed, a reasonable

jury could find that Johnson was making no sudden movements, he posed no threat, and was

complying with Kuschell’s commands. See RSAF ¶¶ 20-26.

The primary case on which plaintiff relies, Ellis v. Wynalda, 999 F.2d 243 (7th

Cir. 1993), further demonstrates that a reasonable jury could find that Kuschell violated clearly

established law. In Ellis, the Seventh Circuit denied qualified immunity to an officer who shot a

burglary suspect after the suspect had thrown a lightweight bag he was carrying to the ground

and fled from the officer. 999 F.2d at 245. The Seventh Circuit noted that, as is the case with

Kuschell on this summary judgment record, the officer could see the suspect and determine that

he was no longer armed as he ran. Id. at 247. Although the officer may have had a reasonable

fear that the suspect posed an imminent danger when he held the bag at the beginning of the

encounter, once the suspect tossed it away and ran with no weapon, the officer’s reasonable fear

that the suspect posed an imminent danger dissipated, and he could not reasonably use deadly

force. Id.

Similarly, a reasonable jury in this case could find that Kuschell’s fear of imminent

danger dissipated when Johnson started to come down the stairs with his hands up. Kuschell

attempts to distinguish Ellis by asking the court to credit his version of the facts instead of

plaintiff’s. See Reply 14. But as already discussed, the facts must be viewed in the light most

favorable to the plaintiff at summary judgment.

The court does not rest its qualified immunity holding on Ellis and Mason-Funk alone,

however. Both cases accord with clearly established law holding that an officer cannot,

consistent with the Fourth Amendment, “seize an unarmed, nondangerous suspect by shooting

him dead.” Brosseau, supra, 543 U.S. at 197 (quoting Garner, 471 U.S. at 11); see Strand v.

Minchuk, 910 F.3d 909, 918 (7th Cir. 2018) (discussing “the clearly established law that the use

of deadly force against a person posing no risk of imminent harm is unreasonable”); Becker v.

Elfreich, 821 F.3d 920, 929 (7th Cir. 2016) (affirming denial of qualified immunity to an officer

who used excessive force against a person who held his hands above his head, stating the officer

“should have recognized that [the arrestee] was not hiding in the house but was in the process of

surrendering”); Weinmann v. McClone, 787 F.3d 444, 450 (7th Cir. 2015) (holding on qualified

immunity analysis that “Graham and Garner stand for the proposition that a person has a

constitutional right not to be shot unless an officer reasonably believes that he poses a threat to

the officer or someone else”); see also Abbott, supra, 705 F.3d at 732 (it is “well-established in

this circuit that police officers could not use significant force on nonresisting or passively

resisting suspects”); Miller v. Gonzalez, 761 F.3d 822, 829 (7th Cir. 2014) (same as to passive

resistance).

IV. Conclusion

For the reasons stated, genuine disputes of material fact require a trial on defendant

Scott Kuschell’s claim of qualified immunity for violating the Fourth Amendment. Accordingly,

Kuschell’s motion for summary judgment is denied.

Dated: March 29, 2021 /s/

Joan B. Gottschall

United States District Judge