# Rogers v. City Of Harvey

> District Court, N.D. Illinois · April 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10148753

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** April 27, 2023
- **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/10148753

## Opinion text

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

TRUMAN ROGERS,

Plaintiff,

v. Court No.: 16-cv-5871

CITY OF HARVEY, a Municipal Honorable Martha M. Pacold
Corporation; Mayor of Harvey ERIC J.
KELLOGG; Harvey Police Chief DENARD Magistrate Judge Mary M. Rowland
EAVES; UNKNOWN HARVEY POLICE
OFFICERS, individually and as agents of
City of Harvey; and OFFICER J.
WINSTON,

Defendants.

DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW

I. INTRODUCTION

Defendant OFFICER JUSTIN WINSTON (“Defendant”) moves for judgment as a matter
of law pursuant to Federal Rule of Civil Procedure 50(a).1 Plaintiff asserts causes of action for
false arrest and excessive force pursuant to 42 U.S.C. § 1983. (Dkt. 1, 100). Given the
undisputed evidence presented during trial, Defendant is entitled to judgment as a matter of law
as to all of Plaintiff’s claims.
II. LEGAL AUTHORITY
“If a party has been fully heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that
issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment
as a matter of law against the party on a claim or defense that, under the controlling law, can be
maintained or defeated only with a favorable finding on that issue.” Rule 50(a)(1).

1 All “Rule” references are to the Federal Rules of Civil Procedure, unless otherwise noted.
“A motion for judgment as a matter of law may be made at any time before the case is
submitted to the jury. The motion must specify the judgment sought and the law and facts that
entitle the movant to the judgment.” Rule 50(a)(2).
III. ARGUMENT

A. Defendant is entitled to judgment as a matter of law on Plaintiff’s false arrest
claim because the undisputed evidence presented at trial establishes that
probable cause supported Plaintiff’s arrest.

To prevail on his false arrest claim, Plaintiff bears the burden of proving by a
preponderance of the evidence that “Defendant did not have probable cause to arrest Plaintiff.”
Seventh Circuit Pattern Civil Jury Instruction 7.07. The undisputed evidence shows that, as a
matter of law, Defendant had probable cause to arrest Plaintiff for leaving the scene of an
accident and driving too fast for prevailing or traffic conditions. It is well-established that “[i]f an
officer has probable cause to believe that an individual has committed even a very minor
criminal offense,” even a very minor traffic violation, the officer may arrest that individual.
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001); Jackson v. Parker, 627 F.3d 634, 639
(7th Cir. 2010). “Probable cause exists if an officer reasonably believes, in light of the facts
known to [him] at the time, that a suspect committed or was committing an offense.” Jackson,
supra, 627 F.3d at 638 (internal quotation and citation omitted). “A probable cause determination
relies on the common-sense judgment of the officers based on the totality of the circumstances.”
Ibid. (internal quotation and citation omitted).
For instance, in Harris v. City of Harvey, the court found as a matter of law that the
arresting officer had probable cause to arrest the plaintiff for leaving the scene of an accident.
2000 U.S. Dist. LEXIS 14543, * 30, 31, 35 (N.D.Ill.). There, the court found summary judgment
for the defendant officer was proper where it was undisputed that the plaintiff left the scene of
the accident, as the officer had probable cause to arrest the plaintiff for doing just that. Ibid.
Further, the court found that the plaintiff’s legitimate excuse for leaving the scene, to call 9-1-1
to get emergency help, did not negate the existence of probable cause. Id., *35. The court
explained that the inquiry for probable cause is what the officer knew at the time of the arrest,
not what was uncovered after the fact. Ibid.

In Illinois, “[t]he driver of any vehicle which collides with or is involved in a motor
vehicle accident with any vehicle which is unattended, or other property, resulting in any damage
to such other vehicle or property shall immediately stop and shall then and there either locate and
notify the operator or owner of such vehicle or other property of the driver’s name, address,
registration number and owner of the vehicle the driver was operating or shall attach securely in
a conspicuous place on or in the vehicle or other property struck a written notice giving the
driver’s name, address, registration number and owner of the vehicle the driver was driving and
shall without unnecessary delay notify the nearest office of a duly authorized police authority
and shall make a written report of such accident.” 625 ILCS 5/11-404(a).

In addition, “[n]o vehicle may be driven upon any highway of this State at a speed which
is greater than is reasonable and proper with regard to traffic conditions and the use of the
highway, or endangers the safety of any person or property.” 625 ILCS 5/11-601(a). For
instance, in Imes v. Koenig, 227 Ill.App.3d 77 (3d Dist. 1992), the appellate court upheld
judgment notwithstanding the verdict in favor of the defendant because “[i]t [was] clear from the
evidence adduced at trial that the plaintiff did not operate his automobile with due regard for the
weather conditions at the time of the collision.” Id., at 80. The court explained that “[d]rivers in
this state are under an obligation to avoid colliding with other vehicles and to operate their
automobiles in a reasonable manner, with due regard for the weather conditions prevailing at the
time of driving.” Ibid. The court found a verdict in favor of defendant was proper because “[i]f
visibility at the time of the collision was so poor that the plaintiff did not notice the truck until
his passenger screamed, it is clear that the plaintiff was driving too fast for the weather
conditions.” Ibid. Further, “a person can be driving under the speed limit and still be driving too
fast for conditions.” Masotti v. Console, 195 Ill.App.3d 838, 844 (2d Dist. 1990) (citation

omitted).
Per the evidence presented at trial, it is undisputed that Plaintiff did not attempt to find
the owner of the tree to inform the owner of his information, did not post a note on the tree
containing his information, and did not report the accident to police. In fact, when police arrived,
even per Plaintiff’s own testimony, he refused to speak with them, including Defendant,
regarding the accident, indicating it was “between me and the tree.” Thus, it is undisputed that
Plaintiff violated 625 ILCS 5/11-404(a). Defendant testified that when he arrived to the scene, he
saw Plaintiff leaving his vehicle to go into the store. Given the undisputed facts, as a matter of
law, Defendant “reasonably believed, in light of the facts known to [him] at the time, that

[Plaintiff] committed or was committing [the] offense” of leaving the scene of the accident.
Jackson, supra, 627 F.3d at 638 (internal quotation and citation omitted).
Defendant also had probable cause to arrest Plaintiff for driving too fast for prevailing
conditions. Per the evidence presented at trial, it is undisputed that Plaintiff’s car ran off the road
and struck a tree head-on. Plaintiff testified it was “cold and icy.” It is undisputed that Plaintiff
never told Defendant that another car cut him off or forced him off the road or caused the
accident; Defendant did not have that information at the time of the arrest. As Defendant
testified, he reasonably believed that, for whatever reason, Plaintiff lost control of his vehicle
causing it to leave the roadway and hit the tree, given the accident itself, as no one would
reasonably drive off the road and hit a tree head-on intentionally. Thus, Defendant had probable
cause, as a matter of law, to arrest Plaintiff for driving too fast for prevailing conditions, given
the undisputed evidence presented at trial.
B. Defendant is entitled to judgment as a matter of law on Plaintiff’s excessive
force claim because the undisputed evidence presented at trial establishes
that Defendant’s use of force was objectively reasonable.

To prevail on his excessive force claim, Plaintiff bears the burden of proving by a
preponderance of the evidence that “Defendant used unreasonable force against Plaintiff.”
Seventh Circuit Pattern Civil Jury Instruction 7.09. Plaintiff claims that Defendant’s use of the
arm bar take down was excessive. However, Defendant’s use of this force to gain Plaintiff’s
compliance and take him into custody was reasonable, given Plaintiff’s failure to follow legal
orders. “[A]ll claims that law enforcement officers have used excessive force … in the course of
an arrest … should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”
Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original). “In determining whether a
particular seizure was reasonable, a court should carefully consider the facts and circumstances
of each particular case, including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.” Lawrence, supra, 391 F.3d at 843 (internal quotation and
citation omitted). “The officer’s behavior will be evaluated for objective reasonableness based
upon the information the officers had when the conduct occurred.” Ibid., (internal quotation and
citation omitted). “The assessment of reasonableness must embody allowance for the fact that
police 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.” Ibid., (internal quotation and citation omitted). Further, the Seventh Circuit “has
described ‘arm bar’ and ‘wrist lock’ techniques as ‘minimally forceful techniques designed to
subdue non-compliant subjects and prevent escalation.’” Price v. Wrencher, 2016 U.S. Dist.
LEXIS 66357, *9-10 (N.D.Ill.), quoting Fitzgerald v. Santoro, 707 F.3d 725, 734 (7th Cir.
2013).
For instance, in Lawrence, supra, the court found the officer’s use of an arm bar take

down reasonable where the officer approached plaintiff while directing traffic and the plaintiff
failed to give the officer his driver’s license. Lawrence, supra, 391 F.3d at 843. There, the officer
was helping direct traffic at a concert when he noticed plaintiff’s vehicle turning into the path of
another car. Id., at 840. The officer approached plaintiff’s vehicle, the two had an exchange, the
officer asked the plaintiff for his driver’s license, and the officer opened the plaintiff’s door and
grabbed the plaintiff’s arm to get the plaintiff out of his car, when the plaintiff failed to comply
with the officer’s request for his license. Id., at 840-41. Ultimately, once out of the car, the
officer used an arm bar take down to get the plaintiff into custody. Id., at 841. There, the court
found that as a matter of law the force used by the officer was not excessive and was reasonable.

Id., at 843. The court explained that because the plaintiff refused to produce his driver’s license
when asked, the plaintiff was combative and angry, and a reasonable officer in the arresting
officer’s position could have believed the plaintiff was attempting to evade arrest, the use of
force was reasonable. Ibid. See also, Fitzgerald, supra, 707 F.3d at 728, 734 (use of arm bar and
wrist lock by police as against plaintiff making suicidal threats held reasonable); Price, supra,
2016 U.S. Dist. LEXIS 66357, ** 2, 5, 6, 9 (summary judgment granted for defendant police
officers, use of force found reasonable where officers used arm bar take down to arrest the
plaintiff who was talking to herself, swinging a belt, and who walked away from officers when
they attempted to speak with her).
Here, the reasoning and holdings of Lawrence and Price should apply. It is undisputed
that when Defendant approached Plaintiff in the convenience store, Plaintiff had just committed
the crime of leaving the scene of the accident and driving too fast for prevailing conditions.
When Defendant approached Plaintiff in the convenience store, Defendant was initially
attempting to investigate the accident. Even by Plaintiff’s own testimony, Plaintiff refused to

speak with officers, and when Defendant tried to talk to Plaintiff about the accident, Plaintiff
refused to speak with him. Even by Plaintiff’s own testimony, Plaintiff turned away from
Defendant. At that time, by Plaintiff’s own testimony, Plaintiff was obstructing Defendant’s
ability to investigate the accident, which he was required to do. Defendant attempted to ask
Plaintiff questions about the accident, which Plaintiff refused to answer. Rather, Plaintiff tried to
leave after Defendant told him he was not free to leave. Despite Defendant’s orders that Plaintiff
was not free to leave, Plaintiff continued to try to leave the store, and Defendant reasonably
believed that Plaintiff was failing to comply, was attempting to leave, and was resisting arrest, at
which point Defendant utilized the arm bar takedown to get Plaintiff into custody.

Like the officers in Price, Defendant utilized the arm bar take down, “an objectively
reasonable use of force meant to induce cooperation.” Price, supra, 2016 U.S. Dist. LEXIS
66357, *10. Like the plaintiff in Price who refused to speak to officers, Plaintiff here refused to
speak to officers, including Defendant, regarding the accident. And, like the officers in Price,
Defendant simply used the arm bar takedown to get Plaintiff into custody; Defendant did not
“attempt to strike or beat Plaintiff.” Price, supra, 2016 U.S. Dist. LEXIS 66357, *10. Given the
holdings and reasoning of Price and Lawrence, and based on the undisputed evidence presented
at trial, Defendant’s use of force was reasonable and does not constitute a constitutional
violation. As such, judgment as a matter of law should be entered in favor of Defendant.
C. Defendant is entitled to qualified immunity based on such evidence and legal
authority.

Police officers enjoy immunity from liability as long as their conduct does not violate a
clearly established right at the time of the officers’ actions. Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). The qualified immunity inquiry involves the determination of two factors: whether
the officer’s conduct violated a constitutional right, and whether the right was clearly established
at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 200-01 (2010). The Court
may address either factor first. Hernandez v. Sheahan, 711 F.3d 816, 917 (7th Cir. 2013).
Reasonable Use of Force
While the Seventh Circuit has indicated that because an objective analysis is used to
determine the merits of an excessive force claim, qualified immunity would likely be foreclosed
or unnecessary in an excessive force case. See, e.g., Lanigan v. Village of E. Hazel Crest, 110
F.3d 467, 476-77 (7th Cir. 1997). Here, however, Defendant would still be entitled to qualified
immunity, thereby precluding Plaintiff’s excessive force claim, based on the undisputed evidence
and legal authority described more thoroughly above. Plaintiff bears the burden of proving that
Defendant’s “use of force violated a clearly established constitutional right.” Id., at 476 (citation
omitted). Plaintiff “could do this either (1) by showing a clearly analogous case that established a
right to be free from the type of force [Defendant] used against him or (2) by showing that the
force was so plainly excessive that, as an objective matter, [Defendant] would have been on
notice that he was violating the Fourth Amendment.” Ibid. (citation omitted).

Here, Plaintiff cannot prove that Defendant’s use of force violated a clearly established
constitutional right. Plaintiff cannot show a clearly analogous case that established that Plaintiff
had a right to be free from the arm bar takedown used by Defendant against him, particularly
given the holdings and reasoning of cases like Lawrence, supra, 391 F.3d at 841, 843,
Fitzgerald, supra, 707 F.3d at 728, 734, and Price, supra, 2016 U.S. Dist. LEXIS 66357, ** 2, 5,
6, 9, where the use of an arm bar takedown was specifically held to constitute a reasonable use of
force given similar facts and circumstances. Likewise, given this legal authority, and the fact that
officers utilize arm bar takedowns routinely in taking suspects into custody, Plaintiff cannot
show that the force used by Defendant was so plainly excessive that objectively Defendant

would have been on notice that he was violating the Fourth Amendment. As such, Defendant is
entitled to qualified immunity, which precludes Plaintiff’s excessive force claim.
Existence of Probable Cause to Support Arrest
“An officer is entitled to qualified immunity if ‘a reasonable officer could have
mistakenly believed that probable cause existed.’” Burritt v. Ditlefsen, 807 F.3d 239, 250 (7th
Cir. 2015), quoting Fleming v. Livingston Co., Ill., 647 F.3d 874, 880 (7th Cir. 2012). Even in a
case where a court may find probable cause lacking, qualified immunity applies if it is a close
call. McComas v. Brickley, 673 F.3d 722, 725 (7th Cir. 2011). As such, if there is any question as
to whether probable cause existed to support the actions of an officer, and there is any reasonable

basis to conclude that probable cause did in fact exist, the case should not be permitted to go to
trial. Humphrey v. Staszak, 148 F.3d 719, 727 (7th Cir. 1998).
As referenced above, the facts known to Defendant at the time of Plaintiff’s arrest, which
are undisputed given the evidence presented during trial, led Defendant to reasonably believe
that Plaintiff committed the offenses of leaving the scene of the accident and driving too fast for
prevailing conditions. 625 ILCS 5/11-404(a); 625 ILCS 5/11-601(a); Harris, supra, 2000 U.S.
Dist. LEXIS 14543, * 30, 31, 35 (N.D.Ill.); Imes, supra, 227 Ill.App.3d at 80. Given the
undisputed facts established by the evidence presented during trial, and the legal authority
presented above, Defendant is entitled to qualified immunity as to Plaintiff’s false arrest claim.
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion for judgment as a matter of law should be
granted.
Respectfully submitted,

OFFICER JUSTIN WINSTON

By: /s/ Kathleen M. Kunkle
One of the Attorneys for Defendant

Kathleen M. Kunkle (ARDC #6281796)
Pedro Fregoso, Jr. (ARDC #6284815)
ANCEL GLINK, P.C.
140 South Dearborn Street, Sixth Floor
Chicago, Illinois 60603
Telephone: 312-782-7606
Fax: 312-782-0943
kkunkle@ancelglink.com
pfregoso@ancelglink.com
CERTIFICATE OF SERVICE

I hereby certify that on April 27, 2023, I electronically filed the foregoing
DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW with the Clerk of
the Court using the CM/ECF system, which will send notification of such filing to:
Michael G. Kelly mkelly@chadwicklakerdas.com

/s/ Kathleen M. Kunkle
KATHLEEN M. KUNKLE / ARDC# 6281796
One of the Attorneys for Defendants

ANCEL GLINK, P.C.
140 South Dearborn Street, Sixth Floor
Chicago, Illinois 60603
Telephone: (312) 782-7606
Direct: (312) 604-9123
Facsimile: (312) 782-0943
E-Mail: kkunkle@ancelglink.com

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10148753. Public record. Not legal advice.