# Gardley v. City of Chicago

> District Court, N.D. Illinois · October 11, 2022

URL: https://www.frixlaw.com/law-library/cases/10147757

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** October 11, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10147757

## How later opinions describe it (automated extraction)

- affirming the district court's dismissal of a Fourteenth Amendment claim that overlapped with a Fourth Amendment claim

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

WILLIE GARDLEY, )
)
Plaintiff, )
)
vs. ) Case No. 20 C 5149
)
CITY OF CHICAGO and CHICAGO )
POLICE DETECTIVE JOHN KOROLIS, )
STAR NO. 21339, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Willie Gardley has sued Chicago Police Detective John Korolis and the City of
Chicago under 42 U.S.C. § 1983 and state law. Gardley claims Korolis violated his
Fourth and Fourteenth Amendment rights and Illinois law in connection with Gardley's
arrest, indictment, and detention for the 2015 murder of Ronnie Shaw. Gardley alleges
(1) unreasonable seizure in violation of the Fourth and/or Fourteenth Amendment for
arresting him without probable cause on March 14, 2019 (count one); (2) unreasonable
detention for detaining him for eight months pre-trial without probable cause in violation
of the Fourth Amendment (count two); and (3) malicious prosecution under state law for
subjecting him to a criminal prosecution without probable cause. He has named the
City as a defendant only on his state-law claim of malicious prosecution on a theory of
respondeat superior. The defendants have moved for summary judgment on all three of
Gardley's claims, arguing that Korolis had probable cause to arrest, detain, and assist in
the prosecution of Gardley, or alternatively (with respect to the section 1983 claims
only) that he is entitled to qualified immunity. For the reasons below, the Court grants
summary judgment for the defendants on Gardley's Fourteenth Amendment claim but
otherwise denies their motion.

Background

The following facts are undisputed except where otherwise noted. On May 25,
2015, Ronnie Shaw was chased down by an assailant and shot several times at 4956
W. Erie Street, Chicago, near the northeast corner of Erie and Lavergne. Once Shaw
fell to the ground, the assailant shot him several more times at close range. Shaw was
pronounced dead at Mt. Sinai Hospital about an hour later.
Immediately after the shooting, police canvassed the area to locate and interview
witnesses. One such witness was Dareon Winston, who lived across the street from
where Shaw was killed. The contents of Winston's statements to police are heavily
disputed.
Korolis contends that Winston gave an on-scene Chicago Police Department
(CPD) detective a detailed account of the shooting and a description of the shooter,
both of which said he could see from his porch. During his 2021 deposition, however,
Winston denied ever having seen Shaw get shot or that he caught anything more than a
one second glimpse of the shooter, saying he was already inside his house when he
first heard gunshots. Winston also testified during his deposition that he told detectives
all of this on the night of the shooting and repeated the same in later conversations with
CPD officers and prosecutors from the Cook County States Attorney's Office (CCSAO).
Korolis says that Winston described the shooter as a Black male, approximately 18-19
years old, 5 feet 9 inches tall, wearing a black baseball hat, a maroon two-piece jogging
outfit, and white gym shoes. During his deposition, however, Winston testified that he
told detectives that the shooter wore his hair in braids and that he was not wearing a
hat. He also testified that he told detectives that he could not remember the shooter's

face.
On May 26, 2015, Shaw's sister Erica Goodlow met with Korolis to share second-
hand information about the assailant that she had learned since the shooting, namely:
(1) he went by the nickname "Flocka"; (2) he was a member of the Travelling Vice Lords
(TVLs) street gang; (3) he was recently released from jail; (4) he wore dreadlocks; (5)
he was from the Ferdinand/Leamington area; and (6) he was pictured on his Facebook
page under the name "LpmgFlock Rustworld." Using this information, Korolis searched
CPD's databases and found Gardley's booking photos and other information. Korolis
believed this matched information provided by Goodlow and other witnesses because it
indicated Gardley was a 5-foot, 10-inch, 20-year-old Black male who recently had been

released from prison and whose last documented address was on Leamington Avenue.
Gardley disputes that the Facebook photos that Korolis used for comparisons to
mugshots were pictures of him; he contends they were photos of his recently deceased
friend. Korolis testified during his deposition that he was not sure if the profile picture
from the Facebook account referenced by Goodlow depicted Gardley. In a video-
recorded interview following his arrest, Gardley told police that his nickname is "Flock,"
not "Flocka," and that he has never had dreadlocks.
On May 30, 2015, Korolis met with Derrick Lewis, another individual who claimed
to have information about the Shaw murder. In police reports and during his deposition,
Korolis stated that Lewis told him that on the night of the murder, he was walking
northbound on Lavergne toward Huron when he observed a Black male with
dreadlocks, known to him only as "Flocka," chase down and shoot Shaw before fleeing
on a bicycle. In police reports and during his deposition, Korolis also stated that Lewis

told him Flocka came into his barber shop several days later with crudely cut dreadlocks
and asked Lewis to clean and even out his haircut. Lewis was also shown Gardley's
photograph and identified him as the person who killed Shaw, but he refused to sign off
on his identification. During his 2021 deposition in the present case, however, Lewis
testified that he did not witness Shaw's murder, was intoxicated when he spoke to
detectives, was not shown any photos for identification, and only told detectives
information that he had learned from other people.
On June 2, 2015, detectives conducted a follow-up interview with Winston at his
home during which they asked him to identify the shooter from a photo array that
included Gardley's mugshot. In police reports and during his deposition, Korolis stated

that Winston confidently identified Gardley as the shooter but refused to sign his
identification out of fear of retaliation. Winston testified during his deposition that he
was shown photos but did not recognize anyone in them; he also testified that he told
detectives this when they interviewed him that night.
On July 14, 2015, Korolis conducted a follow-up interview with Lewis, this time
with an assistant state's attorney (ASA) present. Lewis signed a written eight-page
statement in which he identified Gardley as the shooter. Lewis testified during his
deposition that he did not know that the statement he signed said he witnessed Shaw's
murder, nor did he recall identifying Gardley as the shooter from a photo array and
signing the identification. He did, however, recall detectives suggesting that his
sentence would be reduced if he cooperated with them, and that they kept putting
Gardley's photo in front of him as they asked him repeatedly about the shooting. Lewis
further testified during his deposition that he told someone in law enforcement that he

never witnessed Shaw's murder.
Though Gardley disputes the parts of Korolis's Local Rule 56.1(a) statement of
facts that were based solely on police reports, those reports state that between
September 2015 and October 2018, CPD did not uncover any further eyewitnesses,
forensic evidence, or other substantive evidence about Shaw's murder.
In police reports and during his deposition, Korolis said that in March 2018,
Winston told him that he did not want to testify or cooperate with law enforcement out of
fear of retaliation. In October 2018, Lewis likewise refused to cooperate further with the
police, and he recanted his prior identifications and statements. The following
November, Korolis presented the Shaw murder investigation to the CCSAO.

Prosecutors then decided to issue a grand jury subpoena for Winston's testimony and
bring Lewis in for another interview, despite their stated reluctance to cooperate.
Prior to testifying before the grand jury, Winston again met with detectives, this
time with ASAs present. According to police reports and his deposition, Korolis
contends that Winston relayed the same account of the shooting that he had given
years earlier, including his identification of Gardley as the shooter. Winston testified
during his deposition, however, that he did not recognize anyone in the photographs
shown to him by detectives; he told them that; and they were trying to get him to say
things he did not want to say.
Winston testified before the grand jury on December 10, 2018. He testified that
he saw Gardley murder Shaw, and he identified Gardley from a "six-pack" photo array,
signing his name in the jurors' presence. Winston also told the grand jury that he was
reluctant to be there because he still lived in the same neighborhood and was worried

about repercussions his testimony could have on his family. During his deposition and
in his response brief, Gardley contends that Winston's reluctance resulted from feeling
pressure to make an identification despite not knowing whether he was identifying the
correct person, and pressure to say things he did not want to say. Winston testified
during his 2021 deposition that he was not sure if the person he identified before the
grand jury was the shooter and that he signed the identification despite this because he
wanted to get out of there.
On January 10, 2019, Korolis interviewed Renard Williams, another individual
who reached out to CPD to provide information relating to Shaw's murder. Williams
claimed he was in the area when the shooting occurred, and he implicated an individual

named Darius Murphy as the person who shot Shaw. Korolis testified during his
deposition, and stated in police reports, that he did not find Williams credible due to
inconsistencies and impossibilities between his account and the accounts of others.
Korolis also testified during his deposition that he did not do any follow-up investigation
regarding Murphy's possible involvement in the murder, nor did he document his doubts
about Williams's credibility. In addition, Korolis did not disclose his interview of Williams
or the information Williams provided to the CCSAO until after Gardley was indicted.
Former ASAs Laura Ayala-Gonzalez and Yvette Loizon—who reviewed the Shaw
investigation and/or were involved in Gardley's prosecution—both testified during their
depositions that they did not learn about Williams's statements regarding Murphy's
involvement in the murder until after Gardley was indicted. In Ayala-Gonzalez's case,
she did not learn about Williams's implication of Murphy until several days before her
2022 deposition.

Murphy himself took responsibility for Shaw's murder in a recorded statement
with a cooperating witness. The parties dispute whether the CCSAO agreed with
Korolis's belief that both Williams and Murphy lacked credibility. Some deposition
testimony suggests that ASAs agreed with Korolis's assessment, and other testimony
suggests the opposite. For example, ASA Jane Sack—who took over Gardley's
prosecution in October 2019 and who ultimately decided to dismiss the charges—
testified that three different people provided statements that corroborated Williams'
statement. ASA Loizon testified, however, that in the past Murphy had taken credit for
many murders that he did not in fact commit. Loizon acknowledged during her
deposition, however, that Williams's statement constituted potentially exculpatory

information.
On March 14, 2019, Derrick Lewis recanted his statement and identification of
Gardley as the shooter, stating that everything he had told police and prosecutors was a
lie that he had told in order to help himself. Later that day, Gardley was taken into
custody.
On March 15, 2019—the day after Gardley's arrest—Korolis asked the Illinois
Department of Corrections (IDOC) to provide copies of its most recent photographs of
Gardley in order to see the length of his hair prior to the murder, and particularly to see
if he had dreadlocks as witnesses had described. Korolis received an e-mail with
photos from the IDOC which showed that, as of seven days before the murder of
Ronnie Shaw, Gardley did not have dreadlocks. Though Korolis testified during his
deposition that he is confident he presented the photos to the CCSAO, Loizon testified
in hers that she did not become aware of the photos until sometime after Gardley's

indictment. About ten hours after Korolis received the photos—and after Gardley was
already in custody—Ayala-Gonzalez approved the charges against Gardley.
Korolis admits for purposes of the summary judgment motion that he knew that
the CCSAO was relying upon him to provide accurate information and not to withhold
information related to the investigation of Shaw's murder. He also knew he was the
CCSAO's primary source of information for what police learned during the investigation.
Once ASA Sack took over Gardley's case in October 2019, she learned that: (1)
there were statements from three individuals corroborating Williams's account that
Murphy (not Gardley) was the person who killed Shaw; (2) Murphy was known to law
enforcement for committing other gang-related murders; and (3) he had been recorded

taking responsibility for Shaw's murder. ASA Sack concluded that prosecutors could
not meet their burden of proving beyond a reasonable doubt that Gardley killed Shaw,
and she later recommended dismissing the charges against him. Sack authored a
memo on December 13, 2019 explaining her decision. She described Gardley's
prosecution as a "single finger identification case by a witness who no longer wishes to
cooperate," and she stated that "more witnesses are naming Murphy as the shooter
than are naming our defendant." Def. Ex. 20.
On December 27, 2019, the CCSAO dismissed all charges against Gardley.
Gardley filed this lawsuit in September 2020, alleging that Korolis violated his Fourth
Amendment right to be free from unreasonable seizure and unlawful detention and
engaged in malicious prosecution. As indicated, Gardley also names the City of
Chicago as a vicarious liability defendant on the malicious prosecution claim. The
defendants have moved for summary judgment.

Discussion

A party is entitled to summary judgment "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). On a motion for summary
judgment, the Court views the evidence and draws all reasonable inferences in the light
most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The
Court may not make credibility determinations, weigh the evidence, or decide which
inference to draw from the facts; those are jobs for a factfinder. Payne v. Pauley, 337
F.3d 767, 770 (7th Cir. 2003). A court may not grant summary judgment if a reasonable
jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986).
A. Constitutional claims
1. Fourth Amendment
Gardley brings his federal claims against Korolis under 42 U.S.C. § 1983. To
succeed on a claim under section 1983, a plaintiff must show that the defendant, acting
under color of state law, deprived him of a right secured by the Constitution or federal
law. Thurman v. Village of Homewood, 446 F.3d 682, 687 (7th Cir. 2006). Gardley
contends that the defendants violated his Fourth Amendment right to be free from
unreasonable seizure by arresting and then unlawfully detaining him without probable
cause to believe that he had murdered Shaw. The Fourth Amendment guarantees that
"the right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants

shall issue, but upon probable cause." U.S. Const. Amend. IV. To succeed on either
claim, Gardley must show that he was arrested and detained without probable cause.
Brooks v. City of Chicago, 564 F.3d 830, 832 (7th Cir. 2009). The Court will therefore
consider counts one and two together.
Probable cause exists when the facts and circumstances known to the arresting
officer would lead a prudent person to believe a person had committed or was
committing an offense. See, e.g., United States v. Mounts, 248 F.3d 712, 715 (7th Cir.
2001). Police officers have probable cause to arrest and detain a person when "the
facts and circumstances within their knowledge and of which they have reasonably
trustworthy information are sufficient to warrant a prudent person in believing that the

[person] had committed an offense." Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th
Cir. 2006). Though probable cause for arrest is measured at the time of arrest, an
officer's initial determination of probable cause is reviewable following a suspect's arrest
and during his prolonged detention. Gerstein v. Pugh, 420 U.S. 103, 111-116 (1975).
The existence of probable cause is typically a jury question, but summary judgment is
appropriate if there is "no room for a difference of opinion concerning the facts" or the
"reasonable inference to be drawn from them." Lanigan v. Village of East Hazel Crest,
110 F.3d 467, 473 (7th Cir. 1997).
The Court finds that there are genuine factual and inferential disputes that
preclude entry of summary judgment on the question of probable cause. Korolis
contends he had probable cause to arrest and detain Gardley based on Winston's
eyewitness testimony identifying Gardley as the person who killed Shaw. The record,
however, includes evidence sufficient to permit a reasonable jury to find that Korolis

knew Winston could not actually identify the shooter and/or that the person Winston
supposedly identified, Gardley, was unlikely the shooter. Both Winston and Lewis have
testified that the reports documenting their statements to police do not reflect what they
actually told police. Winston further testified that his grand jury testimony about Shaw's
murder was not an accurate reflection of his knowledge about the murder and that he
was pressured by police (which a jury reasonably could infer includes Korolis) into
making an identification. A reasonable jury could find this testimony is credible and
could, as a result of this and other evidence, find enough basis to doubt that Gardley
was involved and thus that Korolis lacked probable cause to arrest and charge him with
Shaw's murder.

Even if Winston and Lewis's 2021 deposition testimony does not create a
genuine factual dispute over the existence of probable cause, other evidence in the
record most certainly does. For example, Korolis knew prior to Gardley's arrest that
Murphy—who had been charged with other gang-related murders—had taken
responsibility for Shaw's murder and that Williams had attributed the murder to Murphy
as well. A jury could find that a reasonably prudent officer in Korolis's position would
have understood this to undermine his basis for probable cause. The record shows that
after speaking with Williams just once, Korolis made an independent determination
about Williams's credibility and completely stopped exploring Murphy as a suspect. Nor
did Korolis revisit the possibility of Murphy as a suspect after hearing Murphy's own
recorded statement to an informant taking responsibility for the murder. Though the
Seventh Circuit does not impose a duty to investigate on an officer once he learns
sufficient trustworthy information establishing probable cause, see, e.g., Beauchamp v.

City of Noblesville, 320 F.3d 733, 744 (7th Cir. 2003), the evidence in Korolis's
possession undercutting the identification of Gardley would permit a reasonable jury to
find that he lacked "sufficient trustworthy information" establishing probable cause with
respect to Gardley.1
The record also shows that before Gardley was formally charged, Korolis
received photos from IDOC which answered the very question that caused him to
request the photos in the first place: did Gardley have dreadlocks when he was
released from prison a week before Shaw's murder, as Goodlow and Lewis described
the shooter as having? The photos Korolis received pictured Gardley with short hair.
Gardley contends that this destroys one of Korolis's main bases for probable cause, as

his guiding description of the shooter which he carried throughout the investigation
included dreadlocks. Korolis contends that the IDOC photos were immaterial to his
basis for probable cause, because dreadlocks could have been sewn onto Gardley's
short hair sometime in the week between his release and the shooting. There is also

1 The Court also notes that in Beauchamp, the Seventh Circuit left open the possibility
that an officer would have to undertake further investigation to establish probable cause
if there was a "solid claim"—for example, an alibi establishing a suspect's whereabouts
example—casting doubt on the existing evidence. Beauchamp, 320 F.3d at 744. In
that case, the Court rejected an alibi defense as triggering a duty to investigate "in the
face of a reasonably believable witness and readily observable events." Id. The
evidence Gardley cites, by contrast, was arguably known to Korolis and undermines the
believability of the witnesses he claims to have relied upon to support probable cause to
arrest and charge Gardley.
conflicting deposition testimony about whether, and when, Korolis shared these photos
with the CCSAO.
In short, there are several genuine factual disputes over the bases asserted as
probable cause for Gardley's arrest and detention. Summary judgment is therefore

inappropriate.
2. Fourteenth Amendment
In his complaint, Gardley also alleges that his wrongful arrest and detention
violated the Fourteenth Amendment. The Supreme Court has determined that claims
alleging substantive due process violations often are more appropriately analyzed under
the more specific guarantees of the various provisions of the Bill of Rights. Graham v.
Connor, 490 U.S. 386, 395 (1989). If a constitutional amendment "provides an explicit
textual source of constitutional protection" against a particular kind of government
behavior, "that Amendment, not the more generalized notion of 'substantive due
process,' must be the guide for analyzing these claims." Id. For example, when "the

nature of the allegations fall clearly within the ambit of those activities regulated by the
Fourth Amendment," there is no need for the Court to further analyze the case under
the Fourteenth Amendment. Kernats v. O'Sullivan, 35 F.3d 1171, 1182 (7th Cir. 1994)
(affirming the district court's dismissal of a Fourteenth Amendment claim that
overlapped with a Fourth Amendment claim). The clear textual source of constitutional
protection regarding the wrongdoing that Gardley alleges Korolis committed—unlawful
arrest without probable cause—is the Fourth Amendment. Thus there would not appear
to be any basis for a separate Fourteenth Amendment claim. Gardley has essentially
conceded this point by using "and/or" in his complaint regarding which Amendment he
claims was violated by his unlawful arrest, and by not offering any arguments regarding
due process in his response to the motion for summary judgment. For this reason, the
Court grants summary judgment on Gardley's Fourteenth Amendment claim.
B. Qualified immunity

Korolis argues in the alternative that he is entitled to qualified immunity. The
doctrine of qualified immunity shields a government official from liability for civil
damages to the extent that his conduct does not violate "clearly established statutory or
constitutional rights of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). In evaluating qualified immunity, the court asks
two questions: (1) whether the facts, taken in the light most favorable to the plaintiff,
make out a violation of a constitutional right, and (2) whether that constitutional right
was clearly established at the time of the alleged violation. See, e.g., Pearson v.
Callahan, 555 U.S. 223, 232 (2009). There is no doubt that the right Gardley claims
was violated was a clearly established right of which Korolis would have known. So the

question of qualified immunity turns on whether there are facts showing that Korolis
violated those rights by arresting and detaining Gardley on what a jury could find was
less than probable cause.
Under the doctrine of qualified immunity, an officer who mistakenly believed there
was probable cause may be shielded from liability "if a reasonable officer could have
believed the [arrest] to be lawful, in light of clearly established law and the information
the [arresting] officers possessed." Abbott v. Sangamon County, 705 F.3d 706, 714
(7th Cir. 2013). Referred to as "arguable probable cause," this inquiry is separate from
the probable cause inquiry, in that it concerns "whether it would be clear to a reasonable
official that his or her conduct was unlawful in the situation." McComas v. Brinkley, 673
F.3d 722, 725 (7th Cir. 2012).
Korolis is not entitled to summary judgment on the basis of qualified immunity
due to the same factual conflicts that preclude entry of summary judgment on the

question of probable cause. For example, the same direct factual contradiction
between Winston's 2018 grand jury testimony and Winston's 2021 deposition testimony
that prevents the Court from determining, on summary judgment, that there was
probable cause to arrest and detain Gardley for the murder also precludes the Court
from determining, on summary judgment, that there was arguable probable cause. See
Williams v. City of Chicago, 733 F.3d 749, 757, 761 (7th Cir. 2013) (plaintiff was entitled
to benefit of conflicting testimony including reasonable inference Chicago police officers
were lying). Moreover, evidence tending to show that Korolis withheld exculpatory
evidence from prosecutors regarding an alternate suspect and photos of Gardley with
short hair (after witnesses described the shooter as having dreadlocks) similarly

precludes a finding of arguable probable cause at summary judgment.
Witness identifications that are the product of coercion or manipulation cannot
create probable cause or arguable probable cause. See Hart v. Mannina, 798 F.3d
578, 588 (7th Cir. 2015). Winston's testimony provides evidence that would permit a
reasonable jury to conclude that Korolis pressured him to provide the grand jury with an
identification that Korolis knew was unreliable. Further, Korolis testified during his
deposition and argued in his opening brief that Winston's testimony was the basis for his
finding of probable cause. If Winston's identification was the product of coercion and is
therefore removed as a basis for probable cause, then the record shows few, if any,
facts known to Korolis that could collectively add up to probable cause. See, e.g., Kuri
v. Folino, 409 F. Supp. 3d 626, 647 (N.D. Ill. 2019).
Korolis argues that Gardley is attempting to avoid summary judgement by
creating a "sham issue of fact" through Winston's deposition testimony. Bank of Illinois

v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1169 (7th Cir. 1996). Bank of
Illinois, however, dealt with the more common issue of a party submitting an affidavit to
clean up the party's own earlier, unfavorable deposition testimony given in the same
lawsuit. That's not the situation here. This isn't a situation where Winston is trying to
repair damaging testimony he gave in this case; rather he's saying that pre-lawsuit
statements and testimony that he gave—which is among the key evidence in the case—
were false. The other authority used by Korolis to argue this point is Gray v. Ameritech
Corp., 937 F. Supp. 762 (N.D. Ill. 1996). Gray is also distinguishable. In Gray, a
plaintiff alleging disability discrimination gave deposition testimony that jeopardized her
claim that she was disabled. The deposition recessed and then resumed several days

later. Under examination by her own attorney, Gray recanted her unfavorable prior
answers. In her response to Ameritech's motion for summary judgement, Gray included
an affidavit in which she doubled down on the revision of her initial deposition testimony.
The facts and posture of Gray are materially distinguishable from this case in
several ways. First, the conflicting testimony at issue here was not from consecutive
days of the deposition of a plaintiff or another witness. Nor was the conflicting
testimony presented in the form of a Hail Mary affidavit from a party who regretted
testimony she gave in her deposition. Rather, the contradicting testimony here is from a
non-party witness approximately three years after he testified before the grand jury; and
he's saying that testimony was both false and coerced. The record is clear that Winston
was reluctant to give his testimony on both occasions. In addition, Korolis's repeated
characterization of Winston's grand jury testimony as "unequivocal" misses the point.
There is no rule of law that bars a witness from recanting testimony given on an earlier

occasion. There may be reason for a jury to view the recantation with suspicion, but
there's no rule that authorizes wiping the recantation from the record for summary
judgment purposes. Moreover, there is nothing to suggest that Winston changed his
story to gain some legal advantage, which is what the plaintiffs in the cases cited by
Korolis did. In short, Korolis's argument that Winston is essentially bound to his grand
jury testimony for all time lacks merit. Gardley may rely on Winston's deposition
testimony to show the existence of a genuine factual dispute.
Aside from Winston's testimony, there are other genuine factual disputes—such
those arising from Murphy's possible role in the shooting and the IDOC photos of
Gardley without dreadlocks—that bear on the objective reasonableness of Korolis's

determination of probable cause. For all of these reasons, he is not entitled to summary
judgment on the basis of qualified immunity. Chelios v. Heavener, 520 F.3d 678, 692
(7th Cir. 2008). Korolis's arguments regarding qualified immunity are premised on his
version of the facts, which are both genuinely disputed and not rendered by him in the
light most favorable to Gardley. See Bayon v. Berkebile, 29 F.4th 850, 854–55 (7th Cir.
2022) (officers cannot assume the acceptance of their version of numerous disputed
facts when arguing for qualified immunity).
C. Malicious prosecution

Gardley's second claim is a state law claim for malicious prosecution. Under
Illinois law, to succeed on this claim, Gardley must prove: "(1) the commencement or
continuance of an original criminal or civil judicial proceeding by the defendant; (2) the
termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause
for such proceeding; (4) the presence of malice; and (5) damages resulting to the

plaintiff." Ritchey v. Maksin, 71 Ill. 2d 470, 475, 376 N.E.2d 991, 993 (1978).
Korolis contends that there is no genuine factual dispute regarding any of these
requirements. The Court disagrees. Gardley has offered evidence that Korolis may
have lied, pressured witnesses, and/or withheld evidence from prosecutors, causing
them to wrongfully charge Gardley with Shaw's murder. Gardley has also offered
evidence that would permit a jury to find Korolis maliciously prosecuted him without
probable cause and that he suffered damages as a result of Korolis's actions. This
evidence would permit a reasonable jury to find each the elements of malicious
prosecution under Illinois law.

1. Commencement of a proceeding
Korolis argues that he did not "commence" or "continue" Gardley's prosecution,
as it was pursued by independent prosecutors. This argument that only prosecutors,
and not police, can engage in malicious prosecution fails. The Seventh Circuit has
consistently recognized malicious prosecution claims against police officers, particularly
when there has been an allegation of misconduct on the part of the police. Reed v. City
of Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996). See also Jones v. City of Chicago, 856
F.2d 985, 994 (7th Cir. 1988) ("a prosecutor's decision to charge, a grand jury's decision
to indict, a prosecutor's decision not to drop charges but to proceed to trial—none of
these decisions will shield a police officer who deliberately supplied misleading
information that influenced the decision" from liability for constitutional or state-law
violations). Gardley has presented evidence sufficient for a reasonable jury to find that
Korolis failed to provide potentially exculpatory evidence to the CCSAO and/or that he
pressured witnesses to give false identifications. There is therefore a genuine factual

dispute regarding Korolis's commencement or continuation of the proceedings against
Gardley.
2. Favorable termination
Gardley argues that Korolis is not entitled to summary judgment because a
reasonable trier of fact could find that the proceedings against Gardley were terminated
in his favor. "[A] malicious prosecution cannot be predicated on underlying criminal
proceedings which were terminated in a manner not indicative of the innocence of the
accused." Swick v. Liautaud, 169 Ill. 2d 504, 512, 662 N.E.2d 1238, 1242 (1996). This
is determined not by reference to "the form or title given to the disposition of the prior
proceeding, but by the circumstances under which that disposition is obtained." Cult

Awareness Network v. Church of Scientology Int'l, 177 Ill. 2d 267, 276, 685 N.E.2d
1347, 1352-53 (1997).
Korolis argues that the CCSAO dismissed the charges against Gardley only
because of its inability to prove his guilt beyond a reasonable doubt, not because he
was innocent. But a dismissal based on an inability to prove guilt cannot reasonably be
characterized as "not indicative of the innocence of the accused." That aside, a
reasonable juror could find that the CCSAO's inability to prove guilt is indicative of
Gardley's innocence because the evidence prosecutors had against him was both thin
and fraught with problems. As discussed above, the parties present conflicting
accounts of what various witnesses did or did not see, who was able to make a clear
identification of the shooter, and what that shooter looked like. Gardley has also offered
evidence that both police and prosecutors involved in case were aware of an alternate
suspect, albeit at different points in the proceeding. Again, ASA Sack herself described

Gardley's prosecution as a "single finger identification case by a witness who no longer
wishes to cooperate" and stated that "more witnesses are naming Murphy as the
shooter than are naming our defendant." Sack Memo, CCSAO 000944. A jury could
reasonably infer that prosecutors dropped the case because information they had made
it very possible that Gardley was not the shooter. As such, a genuine issue of fact
exists concerning whether the CCSAO's entering of the nolle prosequi satisfies the
favorable termination requirement.
3. Absence of probable cause
Korolis argues, as he did on Gardley's constitutional claim and on the issue of
qualified immunity, that he had probable cause to arrest and detain Gardley. Probable

cause for purposes of an Illinois malicious prosecution claim is defined in essentially the
same way as it is for Gardley's Fourth Amendment claims. See, e.g., Fabiano v. City of
Palos Hills, 336 Ill. App. 3d 635, 642, 784 N.E.2d 258, 266 (2002) ("Probable cause is a
state of facts that would lead a person of ordinary care and prudence to believe or to
entertain an honest and sound suspicion the accused committed the offense charged.").
In fact, the Seventh Circuit has squarely rejected a contention that probable cause
should be defined in a different way for malicious prosecution claims than for false
arrest claims. See Johnson v. Saville, 575 F.3d 656, 662 (7th Cir. 2009). The Court's
earlier discussion of probable cause and the existence of genuine factual disputes is
thus equally applicable here.
Korolis argues that the fact that a grand jury indicted Gardley for the Shaw
murder is prima facie evidence of probable cause. Wade v. Collier, 783 F.3d 1081,
1085 (7th Cir. 2015). Gardley rightly points out, however, that the return of an

indictment is not conclusive evidence of probable cause. Freides v. Sani-Mode Mfg.
Co., 33 Ill. 2d 291, 295-96, 211 N.E.2d 286, 288-89 (1965). It may be rebutted by other
evidence such as proof that the indictment was obtained by false or fraudulent
testimony before the grand jury, or by failing to make a full or complete statement of
facts, or by other improper or fraudulent means. Id.; see also Dominguez v. Hendley,
545 F.3d 585, 590 (7th Cir. 2008) (whether police misled prosecutors about facts
supporting a prosecution by providing false information and withholding exculpatory
evidence was a jury question).
Gardley contends Winston's allegedly false grand jury testimony and false
identification were material and contributed to the decision to charge him. If the jury

agrees, Gardley's contention that Winston testified falsely would rebut the presumption
that the indictment is evidence of probable cause and would support his malicious
prosecution claim. In this situation, a factfinder simply sets aside the perjured testimony
and examines whether the remaining evidence adds up to probable cause. See
Cervantes v. Jones, 188 F.3d 805, 811 n.7, 814 (7th Cir. 1999) (stating that indictment
obtained by allegedly perjured testimony would not be considered, but still finding
probable cause to prosecute based on remaining evidence). The same analysis is used
for summary judgment purposes when some of the information relied on for probable
cause is disputed: a court looks at the remaining, undisputed information, and if it is
sufficient to establish probable cause, the existence of a factual dispute regarding other
information does not prevent entry of summary judgment. See Johnson, 575 F.3d at
662; Logan v. Caterpillar, 246 F.3d 912, 926 (7th Cir. 2001). But in light of Korolis's
admission that Winston's eyewitness testimony is the primary basis for probable cause

and the fact that Gardley has offered evidence that would indicate that Winston's grand
jury testimony was false and the product of police pressure, there is insufficient
undisputed information left to establish probable cause.
4. Malice
Both parties make essentially the same arguments regarding malice as they do
regarding the indictment-based presumption of probable cause issue just discussed.
Korolis argues that probable cause proves an absence of malice. Johnson v. Target
Stores, Inc., 341 Ill. App. 3d 56, 76-77, 791 N.E.2d 1206, 1222-1223 (2003). Gardley,
by contrast, contends that malice may be inferred from a lack of probable cause when
the circumstances are inconsistent with good faith, as he alleges is the case here.

Reynolds v. Menard, Inc., 365 Ill. App. 3d 812, 821, 850 N.E.2d 831, 839 (2006);
Williams, 733 F.3d 749, 759-60 (7th Cir. 2013) (sufficient evidence of malice where
Chicago police "concocted" charge and lied about witnessing crime); Bianchi v.
McQueen, 2016 IL App (2d) 150646, ¶ 80, 58 N.E.3d 680, 699 (intentionally fabricating
evidence and concealing exculpatory evidence is sufficient evidence of malice). The
same genuine issues of fact that defeat summary judgment on the other points
addressed above defeat it here as well. Gardley has presented evidence, in the form of
multiple individuals' deposition testimony, from which a reasonable trier of fact could find
malice on Korolis's part.
5. Damages
Defendants do not contend that Gardley cannot show damages caused by
malicious prosecution, so the Court need not address that point.

For the reasons stated above, defendants are not entitled to summary judgment
on Gardley's claim for malicious prosecution.
Conclusion
For the foregoing reasons, the Court denies defendants’ motion for summary
judgment [dkt. nos. 79, 83, 86] on all but plaintiffs Fourteenth Amendment claim. The
Fourteenth Amendment claim (part of count one) is dismissed. The case is set for a
telephonic status hearing on October 25, 2022 at 8:50 a.m. for the purpose of setting a
trial date and discussing the possibility of settlement. The following call-in number will
be used: 888-684-8852, access code 746-1053.

United States District Judge
Date: October 11, 2022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10147757. Public record. Not legal advice.