Jordan v. Bonano

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVUAN JORDAN, )

)

Plaintiff, )

) No. 22 C 725

v. )

) Judge Sara L. Ellis

ILLINOIS STATE TROOPER )

E. BONANO (#6930) )

& C. SMITH-JOE (#6824), )

)

Defendants. )

OPINION AND ORDER

Illinois State Troopers E. Bonano and C. Smith (collectively, the “Troopers”) arrested

Plaintiff Davuan Jordan for aggravated unlawful use of a weapon in violation of 720 Ill. Comp.

Stat. 5.0/24-1.6. After a judge dismissed the charges against him, Jordan filed this civil rights

suit against the Troopers pursuant to 42 U.S.C. § 1983, alleging unreasonable seizure against

Bonano (Count I), false arrest (Count II), and conspiracy (Count III). Jordan also brings two

claims under Illinois state law: intentional infliction of emotional distress (“IIED”) (Count IV)

and malicious prosecution (Count V). The Troopers have moved to dismiss all counts. Because

Jordan has sufficiently alleged that the Troopers lacked reasonable suspicion and probable cause

to seize and subsequently arrest him (Counts I and II), and because the Court cannot conclude at

this stage that the Troopers are shielded by either qualified or sovereign immunity (Counts III–

V), the Court denies the Troopers’ motion to dismiss.

BACKGROUND1

On August 22, 2021, Jordan traveled from his home in Indiana through Illinois, planning

to drive to Wisconsin. While on I-88, Trooper Bonano stopped Jordan’s car. Jordan had not

committed any traffic violations. Jordan informed Bonano that he had a weapon in the car, at

which point Bonano ordered Jordan out of the car and secured the weapon. Jordan provided

Bonano with his valid Indiana Identification Card (“ID Card”) and Indiana Conceal Carry

License (“CCL”). He also informed Bonano that he was traveling from Indiana to Wisconsin.

Trooper Smith-Joe eventually arrived on scene to assist Bonano and the Troopers arrested Jordan

for aggravated unlawful use of a weapon in violation of 720 Ill. Comp. Stat. 5.0/24-1.6.

Prosecutors ultimately indicted Jordan. The Troopers failed to inform the prosecutors

that Jordan complied with Illinois law when he possessed a firearm along with a valid Indiana

CCL. Bonano falsely testified that Jordan did not possess a CCL that allowed him to carry a

firearm. On November 1, 2021, Jordan moved to dismiss the criminal indictment. On December

6, 2021, the trial court granted Jordan’s motion.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not

its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.

1990). In considering a Rule 12(b)(6) motion, the Court accepts as true all well-pleaded facts in

the plaintiff’s complaint and draws all reasonable inferences from those facts in the plaintiff’s

favor. Kubiak v. City of Chicago, 810 F.3d 476, 480–81 (7th Cir. 2016). To survive a Rule

12(b)(6) motion, the complaint must assert a facially plausible claim and provide fair notice to

1 The Court takes the facts in the background section from Jordan’s complaint and presumes them to be

true for the purpose of resolving the motions to dismiss. See Phillips v. Prudential Ins. Co. of Am., 714

F.3d 1017, 1019–20 (7th Cir. 2013).

the defendant of the claim’s basis. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v.

Twombly, 550 U.S. 544, (2007); Adams v. City of Indianapolis, 742 F.3d 720, 728–29 (7th Cir.

2014). A claim is facially plausible “when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678.

ANALYSIS

I. Unlawful Seizure (Count I)

The Fourth Amendment, made applicable to the states by the Fourteenth Amendment,

protects against unreasonable searches and seizures. U.S. Const. amend. IV. A brief detention

to investigate a traffic violation constitutes a seizure under the Fourth Amendment and therefore,

the detention must be reasonable. Whren v. United States, 517 U.S. 806, 809–10 (1996); United

States v. Wilbourn, 799 F.3d 900, 908 (7th Cir. 2015). “If an officer reasonably thinks he sees a

driver commit a traffic violation, that is sufficient grounds to pull him over without offending the

Constitution.” United States v. Lewis, 920 F. 3d 483, 489 (7th Cir. 2019) (citation omitted).

Here, Jordan alleges that he “had not committed any traffic violations” that would

support the Troopers pulling him over. Doc. 1 ¶ 8. The Troopers, however, argue that Jordan’s

allegations are conclusory and speculative, particularly in light of the traffic citations that the

Troopers issued to Jordan. The Troopers assert that these traffic citations, attached as an exhibit

to their motion, demonstrate that they had a valid reason to stop Jordan. Although the Court

normally cannot consider extrinsic evidence without converting a motion to dismiss into one for

summary judgment, Jackson v. Curry, 888 F.3d 259, 263 (7th Cir. 2018), the Court may take

notice of public records, Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074,

1080–81 (7th Cir. 1997). But while the Court can take judicial notice of the existence of the

traffic citations, the Court will not consider the content of the traffic citations given Jordan’s

allegations calling their accuracy into question. See Tobey v. Chibucos, 890 F.3d 634, 647–48

(7th Cir. 2018) (“Although a court may generally take judicial notice of public records, under

Federal Rule of Evidence 201, a court may judicially notice only a fact that is not subject to

reasonable dispute.”); cf. Lietzow v. Vill. of Huntley, No. 17 C 5291, 2018 WL 6248911, at *2

(N.D. Ill. Nov. 29, 2018) (“But while the Court may recognize a prior judicial act, it cannot rely

on the facts in a court record for the truth of the matter asserted. . . . This is especially so when

the findings of fact directly contradict the facts asserted in [plaintiff’s complaint.]” (citation

omitted) (internal quotation marks omitted)). Jordan has alleged that he did “not commit[] any

traffic violations” prior to the traffic stop. Doc. 1 ¶ 8. The Court accepts this allegation as true,

as it must, see Kubiak, 810 F.3d at 480–81, and will not resolve a factual dispute in the Troopers’

favor or make a credibility determination on a motion to dismiss. See Tobey, 890 F.3d at 641

(resolving conflicts in the plaintiff’s favor); see also Chriswell v. Vill. of Oak Lawn, No. 11 C

00547, 2013 WL 5903417, at *1 (N.D. Ill. Nov. 4, 2013) (unreasonable seizure claim survived

motion to dismiss because “claim involve[d] a fact dispute and credibility determination that

[could not] be made on a motion pursuant to 12(b)”), aff’d sub nom. Chriswell v. O’Brien, 570 F.

App’x 617 (7th Cir. 2014).

The Troopers also assert that Jordan failed to allege sufficient details surrounding his

treatment of the citations—for example, whether he pleaded guilty or whether the citations were

invalidated. In support of their argument, the Troopers rely heavily on Chriswell, 2013 WL

5903417, and Heck v. Humphrey, 512 U.S. 477 (1994). Heck bars a plaintiff from pursuing a

civil rights claim where “a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence.” 512 U.S. at 487. But Heck “define[s] an affirmative

defense,” James v. Pfister, 708 F. App’x. 876, 878–79 (7th Cir. 2017), that will only serve as

grounds for dismissal if a complaint clearly forecloses relief, Johnson v. Vanzant, No. 3:21-CV-

39-MAB, 2021 WL 4864323, at *2 (S.D. Ill. Oct. 19, 2021) (citing James, 708 F. App’x. at 878–

79) (allowing plaintiff’s § 1983 claim to proceed because it was “not apparent from the face of

the complaint that [p]laintiff’s claim [was] Heck-barred”). As the Troopers point out, the

Chriswell court—relying on Heck—dismissed one of the plaintiff’s unreasonable seizure claims

based on a traffic stop where the plaintiff admitted that she paid the resulting traffic ticket,

thereby indicating her guilt. 2013 WL 5903417, at *6. But the court expressly distinguished that

claim from one that survived the defendants’ motion to dismiss:

Chriswell’s assertion that “there was no legal cause” to stop her

borders on conclusory, but it is a plausible inference from the facts

she alleges (assuming they are true) that she had not committed

any violation at the time Officer O’Brien pulled her over. While

the defendants may eventually be able to prove that Chriswell pled

guilty to and paid her ticket for her failure to wear a seatbelt or

another violation that would trigger the Heck bar, they have not at

this point identified any such evidence that the Court can presently

consider. Unless and until they do, this claim involves a fact

dispute and credibility determination that cannot be made on a

motion pursuant to Rule 12(b).

Id. at *7. Here, Jordan plausibly alleges that he had not committed any traffic violations before

the Troopers pulled him over and the complaint includes no allegations as to the resolution of the

traffic citations. See Johnson, 2021 WL 4864323, at *2 (“[L]ike other affirmative defenses,

[p]laintiff was not required to anticipate and preemptively plead around the Heck bar.”). The

Troopers may be able to demonstrate that they had reasonable suspicion to stop Jordan on a more

complete record, but at this stage, Jordan’s allegations allow his unlawful seizure claim to

proceed.

II. False Arrest (Count II)

The Troopers move to dismiss Jordan’s false arrest claim on the basis that he has not

properly alleged that they lacked probable cause to arrest him for aggravated unlawful use of a

weapon in violation of 720 Ill. Comp. Stat. 5.0/24-1.6. The existence of probable cause bars a

false arrest claim. See Stokes v. Bd. of Educ., 599 F.3d 617, 622 (7th Cir. 2010). “A police

officer has probable cause to arrest an individual when the facts and circumstances that are

known to him reasonably support a belief” that the individual has committed or is about to

commit a crime. See Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 679 (7th Cir. 2007).

Though a police officer need not engage in further investigation once he has established probable

cause, he “cannot consciously disregard information that would bring clarity to a confusing

situation.” Dean v. City of Chicago, 896 F. Supp. 2d 699, 704 (N.D. Ill. 2012) (quoting Mahnke

v. Garrigan, 428 F. App’x 630, 635 (7th Cir. 2011)).

To evaluate probable cause, the Court makes an objective examination of the facts and

determines what conclusions an arresting officer might have reasonably drawn from those facts.

Holmes, 511 F.3d at 679. Probable cause “requires more than bare suspicion but need not be

based on evidence sufficient to support a conviction, nor even a showing that the officer’s belief

is more likely true than false.” Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir. 2000)

(citation omitted) (internal quotation marks omitted).

720 Ill. Comp. Stat. 5.0/24-1.6 makes it an offense to, among other things, knowingly

carry or possess a firearm in any vehicle upon public lands where the firearm is uncased, loaded,

and immediately accessible and the person possessing the firearm has not been issued a currently

valid license under the Illinois Firearm Concealed Carry Act. 720 Ill. Comp. Stat. 5.0/24-

1.6(a)(3)(A-5).2 The Illinois Firearm Concealed Carry Act in turn permits a non-resident to

transport a firearm within their vehicle in Illinois so long as the firearm remains in the vehicle,

they have a valid CCL from their resident state, and they are not prohibited from carrying a

firearm under federal law. 430 Ill. Comp. Stat. 66/40(e).

The Troopers argue that Jordan’s complaint establishes that they had probable cause to

arrest him because he admits to traveling on I-88 with a gun in his vehicle and does not allege

that he had a valid Illinois CCL. The Troopers also point to the traffic citations that they issued

to Jordan, which purport to demonstrate that Jordan presented as an Illinois resident. As

explained supra, while the Court may take notice of public records, Gen. Elec. Capital Corp.,

128 F.3d at 1080–81, it will not take notice of facts that are subject to dispute, Tobey, 890 F.3d at

647–48. Here, because Jordan has alleged that the Troopers knew he was traveling from Indiana

to Wisconsin, was not a resident of Illinois, and possessed a valid CCL from his state of

residence (Indiana), see Doc. 1 ¶ 12–15, 18, at this stage, the Court will not consider Illinois to

be Jordan’s residence merely because the traffic citations suggest as much.

The Troopers may ultimately be able to demonstrate that they had probable cause

because Jordan “did not present . . . as an Indiana resident.” Doc. 10-1 at 6. But for now, the

Court must accept Jordan’s allegations that the Troopers knew he was a non-resident of Illinois;

that he possessed a valid CCL from Indiana, his state of residence; and that he was traveling

from Indiana to Wisconsin. Doc 1. ¶ 12–15, 18. These facts, taken as true, suggest that he

complied with 430 Ill. Comp. Stat. 66/40(e). Thus, Jordan has plausibly alleged facts that

2 The briefing does not make clear which section or sections of the Illinois statute Jordan allegedly

violated. The complaint references 720 Ill. Comp. Stat. 5.0/24-1.6-A-2. Doc. 1 ¶ 16. The Troopers’

memorandum in support of their motion lays out 720 Ill. Comp. Stat. 5.0/24-1.6(a)(1), (a)(2), (a)(3)(A)

and (a)(3)(A-5). Doc. 10-1 at 5–6. The Court considers probable cause in light of the parties’ arguments,

which focus on the presence of a firearm and whether Jordan had a valid CCL.

suggest the Troopers “consciously disregard[ed] information” that would have clarified the

situation and negated probable cause—specifically, Jordan’s Indiana ID Card and CCL. See

Dean, 896 F. Supp. 2d at 704 (denying defendant’s motion for summary judgment where “a

reasonable jury could conclude . . . [that defendant] . . . clos[ed] his eyes to readily available

information that would negate probable cause” (internal quotation marks omitted)). “[T]he

highly fact-based nature of these arguments is more amenable to resolution at a later stage after

discovery has allowed for a clearer picture of the events.” Romando v. City of Naperville, No. 20

C 2701, 2021 WL 1853304, at *3 (N.D. Ill. May 10, 2021) (finding it “too early to determine the

issue” of probable cause, despite the defendants’ “well-reasoned arguments[,]” where plaintiff

alleged that she did not commit any of the alleged crimes or acts). Therefore, Jordan’s false

arrest claim survives the Troopers’ motion.

III. Conspiracy (Count III)

Jordan also claims that the Troopers conspired to violate his constitutional rights. To

support conspiracy liability under 42 U.S.C. § 1983, Jordan must allege “(1) the individuals

reached an agreement to deprive him of his constitutional rights, and (2) overt acts in furtherance

actually deprived him of those rights.” Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir.

2015). The Troopers do not challenge the sufficiency of Jordan’s conspiracy claim; rather, they

argue that qualified immunity bars the claim because caselaw does not clearly establish whether

the intracorporate conspiracy doctrine applies to § 1983 conspiracy claims.

“Qualified immunity attaches when an official’s conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

White v. Pauly, 137 S. Ct. 548, 551 (2017) (citation omitted) (internal quotation marks omitted).

“In other words, qualified immunity shields from liability police officers who act in ways they

reasonably believe to be lawful.” Ewell v. Toney, 853 F.3d 911, 919 (7th Cir. 2017) (quoting

Jewett v. Anders, 521 F.3d 818, 822 (7th Cir. 2008)) (internal quotation marks omitted). At this

stage, to overcome an assertion of qualified immunity, Jordan must allege a violation of a

statutory or constitutional right that was clearly established at the time of the violation so that a

reasonable officer would have known of the unlawfulness of his conduct. Hanson v. LeVan, 967

F.3d 584, 592 (7th Cir. 2020).

The Troopers focus on the applicability of the intracorporate conspiracy doctrine to

Jordan’s conspiracy claim. The intracorporate conspiracy doctrine, derived from corporate and

antitrust settings, provides that “an agreement between or among agents of the same legal entity,

when the agents act in their official capacities, is not an unlawful conspiracy.” Ziglar v. Abbasi,

137 S. Ct. 1843, 1867 (2017). The Seventh Circuit has extended the intracorporate conspiracy

doctrine to claims under § 1985. See Wright v. Ill. Dep’t of Child. & Fam. Servs., 40 F.3d 1492,

1508 (7th Cir. 1994); Travis v. Gary Cmty. Mental Health Ctr., Inc., 921 F.2d 108, 110 (7th Cir.

1990). And the Sixth Circuit has concluded that the rationale for applying the doctrine to § 1985

applies equally to § 1983 conspiracy claims. Jackson v. City of Cleveland, 925 F.3d 793, 819

(6th Cir. 2019). As the Troopers acknowledge, however, the Seventh Circuit has not held that

the intracorporate conspiracy doctrine bars § 1983 claims against police officers who conspire to

violate an individual’s constitutional rights. In an unpublished opinion discussing a § 1983

conspiracy claim, the Seventh Circuit stated in dicta that “a conspiracy claim has no role to play”

where all the defendants are public employees, relying on caselaw under § 1985(3). Scott v. City

of Chicago, 619 F. App’x 548 (Mem) (7th Cir. 2015).

Courts in this district are split as to the doctrine’s applicability in police misconduct

cases. See Salaita v. Kennedy, 118 F. Supp. 3d 1068, 1085 (N.D. Ill. 2015) (comparing cases

addressing the doctrine’s application to § 1983 claims). Compare Liggins v. City of Chicago,

No. 1:20-CV-04085, 2021 WL 2894167, at *5 (N.D. Ill. July 9, 2021) (collecting cases to

demonstrate that “district courts have overwhelmingly declined to dismiss conspiracy claims

against police officers pursuant to the intracorporate conspiracy doctrine”), Haliw v. City of S.

Elgin, No. 19 C 01515, 2020 WL 1304697, at *4 (N.D. Ill. Mar. 18, 2020) (“There is reason to

doubt, however, that this corporate-based and antitrust-based doctrine should apply to civil-rights

conspiracy claims under § 1983.”), and Piercy v. Warkins, No. 14 CV 7398, 2017 WL 1477959,

at *19–20 (N.D. Ill. Apr. 25, 2017) (collecting cases that did not apply the intracorporate

conspiracy doctrine to § 1983 conspiracy claims), with Strauss v. City of Chicago, 346 F. Supp.

3d 1193, 1210 & n.6 (N.D. Ill. 2018) (collecting cases and applying doctrine to § 1983

conspiracy claim). The Troopers argue that this shows that the law is not clearly established on

the issue of whether police officers can conspire amongst themselves, meaning that qualified

immunity bars Jordan’s claim. See Haliw, 2020 WL 1304697, at *4 (“Liability is not clearly

established for conspiracies amongst police officers of a single municipality because the law is

unsettled on whether the intracorporate conspiracy doctrine applies to § 1983 claims.”).3

The Court need not consider whether the intracorporate conspiracy can ever apply in a

§ 1983 action because it does not apply here on the facts alleged. The intracorporate conspiracy

doctrine “applies only when the agents of a corporation or government entity act within the

scope of their employment in joint pursuit of the entity’s lawful business.” Gray v. City of

Chicago, No. 18 C 2624, 2022 WL 910601, at *14 (N.D. Ill. Mar. 29, 2022) (citation omitted);

Harris v. City of Chicago, No. 20 CV 4521, 2020 WL 7059445, at *5 (N.D. Ill. Dec. 2, 2020)

3 The Haliw court raised the qualified immunity implications of the intracorporate conspiracy doctrine sua

sponte and so did not have the benefit of adversarial presentation in reaching its conclusion. 2020 WL

1304697, at *5.

(similar). Here, the doctrine does not apply because the alleged illegal conduct—including

falsely arresting Jordan—is “not the product of routine police department decision-making.”

Salaita, 118 F. Supp. 3d at 1085 (quoting Newsome v. James, No. 96 C 7680, 2000 WL 528475,

at *15 (N.D. Ill. Apr. 26, 2000)); see also Ochoa v. Lopez, No. 20-CV-02977, 2021 WL

4439426, at *9 (N.D. Ill. Sept. 28, 2021) (holding that the intracorporate conspiracy doctrine did

not apply to the plaintiff’s § 1983 conspiracy claim because the plaintiff “alleged the deprivation

of numerous civil rights, and that cannot be the goal of the City or its police department”).

Moreover, in order to obtain the protection of qualified immunity, an official must not

violate a clearly established right. The Court agrees with others in this district that have

articulated that the relevant right is the underlying constitutional right, not “the availability of a

defense to conspiracy liability.” Liggins, 2021 WL 2894167, at *6 (“The Court believes what

must be clearly established is limited to the underlying constitutional right that the Defendants

conspired to violate.”); Walker v. White, No. 16 CV 7024, 2021 WL 1058096, at *16 n.16 (N.D.

Ill. Mar. 19, 2021) (“[T]he § 1983 conspiracy is not unlawful, the constitutional tort is the

unlawful act. So long as it is properly understood that conspiratorial responsibility is simply a

method of proof for an officer’s personal involvement in a constitutional tort under § 1983 and

so long as the underlying constitutional right is clearly established, qualified immunity does not

apply.”). The Troopers “have not argued that the constitutional rights actually at issue . . . were

not clearly established for purposes of qualified immunity.” Liggins, 2021 WL 2894167, at *6.

The Court therefore rejects the Troopers’ qualified immunity defense at this stage,

allowing Jordan’s conspiracy claim to proceed.

IV. State Law Claims (Counts IV and V)

In addition to his claims under 42 U.S.C. § 1983, Jordan brings claims under Illinois state

law alleging IIED and malicious prosecution. The Troopers do not challenge the sufficiency of

Jordan’s state law claims. Instead, they argue that sovereign immunity bars the claims.

Under the Illinois State Lawsuit Immunity Act, 745 Ill. Comp. Stat. 5/1, the State of

Illinois is generally immune from suit in any court except the Illinois Court of Claims. Richman

v. Sheahan, 270 F.3d 430, 441 (7th Cir. 2001). Jordan’s state law claims against the Troopers

are considered claims against the State and must be dismissed if “there are (1) no allegations that

an agent or employee of the State acted beyond the scope of his authority through wrongful acts;

(2) the duty alleged to have been breached was not owed to the public generally independent of

the fact of State employment; and (3) where the complained-of actions involve matters ordinarily

within that employee’s normal and official functions of the State.” Murphy v. Smith, 844 F.3d

653, 658 (7th Cir. 2016) (quoting Healy v. Vaupel, 133 Ill. 2d 295, 309 (1990)), aff’d, 138 S. Ct.

784 (2018). But “[i]f the plaintiff alleges that state officials or employees violated statutory or

constitutional law, sovereign immunity affords no protection.” Id. at 658–59 (citation omitted)

(internal quotation marks omitted).

Here, Jordan’s state law claims are based on constitutional and statutory violations. He

alleges that the Troopers violated his Fourth Amendment rights when they unlawfully seized and

falsely arrested him and that they violated state law by, among other things, fabricating police

reports, misleading prosecutors, and falsely charging him. These actions ground Jordan’s

malicious prosecution claim, see, e.g., Doc. 1 ¶ 50 (“Defendant[]s . . . arrested Plaintiff without

probable cause, fabricated police reports, misled prosecutors and placed false charges upon

Plaintiff”), and can be reasonably understood to ground his IIED claim as well.4 The Troopers’

authority as state troopers does not extend to these unlawful acts. See Peirick v. Dudek, No. 20

CV 3013, 2020 WL 6682891, at *2 (N.D. Ill. Nov. 12, 2020) (“[Defendant’s] authority as a state

trooper did not extend to the unlawful act of falsifying evidence and testimony to maintain a

prosecution that lacked probable cause.”). Therefore, at least at this stage, sovereign immunity

does not bar Jordan’s state law claims against the Troopers. Mitchell v. Vill. of Matteson, No. 20

CV 990, 2020 WL 3035965, at *5 (N.D. Ill. June 5, 2020) (refusing to dismiss state law claims

based on constitutional violations); Peirick, 2020 WL 6682891, at *2 (allowing plaintiff to

proceed on his malicious prosecution claim where he alleged that defendant fabricated evidence,

police reports, and testimony); Serio v. Rauner, No. 15 C 6262, 2018 WL 4409389, at *5 (N.D.

Ill. Sept. 17, 2018) (allowing plaintiff to proceed on IIED claim where the same conduct gave

rise to IIED claim and alleged constitutional violation).

But this does not end the Court’s consideration of the issue because, in their reply, the

Troopers contend that the exception allowing suits to proceed where the defendant allegedly

violated statutory or constitutional law only allows a plaintiff to seek injunctive relief. The

Troopers characterize this as the “officer suit exception,” and assert that even if the Troopers

acted “erroneously,” Jordan cannot seek damages because the officer suit exception does not

cover claims for damages based on past wrongs. Doc. 18 at 7 (citing Parmar v. Madigan, 2018

IL 122265, ¶ 26 (“[A] complaint seeking damages for a past wrong does not fall within the

officer suit exception to sovereign immunity.”)).

4 Though Jordan does not specify which conduct underlies his IIED claim, he incorporates all of his

complaint’s factual allegations—which include allegations of constitutional violations, false testimony,

and misleading prosecutors—into his IIED claim. Doc. 1 ¶ 43.

Courts in this district have addressed Parmar and variations of the Troopers’ argument in

different ways. See T.S. v. Cnty. of Cook, 568 F. Supp. 3d 940, 942 (N.D. Ill. 2021) (comparing

cases interpreting Parmar); Bernard v. Baldwin, No. 20-CV-5368, 2022 WL 847628, at *10

(N.D. Ill. Mar. 22, 2022) (same). Compare Peirick, 2020 WL 6682891, at *3 (rejecting

defendant’s invocation of Parmar because sovereign immunity, and therefore the officer suit

exception, did not apply because plaintiff’s claims were not against the state; “the duty not to

make false accusations of criminal conduct is a general duty imposed on the public as a whole”),

and Mitchell v. Dumais, No. 20 CV 990, 2021 WL 860359, at *3 (N.D. Ill. Mar. 8, 2021)

(“Parmar doesn't change the sovereign immunity test.”), with Marshall v. Fries, No. 19 C 55,

2019 WL 4062549, at *6 (N.D. Ill. Aug. 28, 2019) (“[Officer suit] exception applies where a

plaintiff seeks to prospectively enjoin unlawful conduct, and not where plaintiff only seeks

damages for a past wrong[.]”). In light of these conflicting interpretations, a court in this district

certified for interlocutory appeal the question of “whether, under Illinois law, the officer suit

exception to sovereign immunity applies only if a plaintiff seeks to enjoin a continuing violation

of statutory or constitutional law.” T.S., 568 F. Supp. 3d at 942.

Given this uncertainty and the potential for clarification from the Seventh Circuit, the

Court declines to dismiss Jordan’s state law claims on immunity grounds.5 See Bernard, 2022

WL 847628, at *10 (citing Bentz v. Ghosh, 718 F. App’x. 413, 419 (7th Cir. 2017) (state

sovereign immunity does “not apply to state-law claims against state officials who allegedly

violate statutory or constitutional law”)); Murphy, 844 F.3d at 658 n.2 (noting that the “Illinois

exception for illegal acts by state officials” has “broader effects” than the federal rule because it

“allows suits for damages against state employees in their individual capacities”)).

5 Discovery on all of Jordan’s claims should be coextensive; therefore, allowing his state law claims to

proceed should not impose an additional burden, even if Parmar precludes these claims.

CONCLUSION

For the foregoing reasons, the Court denies the Troopers’ motion to dismiss [10].

Dated: October 24, 2022 ( ire

SARA L. ELLIS

United States District Judge

15