Gutierrez v. City of Aurora

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GEORGE GUTIERREZ,

Plaintiff

No. 21 CV 2211

v.

Judge Jeremy C. Daniel

CITY OF AURORA, et al.,

Defendants

MEMORANDUM OPINION AND ORDER

Plaintiff George Gutierrez filed the instant lawsuit under 42 U.S.C. § 1983

against the City of Aurora and two of its police officers, Defendants Matthew Thomas

Meyers and C. McCue. (R. 6 (“Amend. Compl.).)1 Before the Court is the defendants’

motion for summary judgment. (R. 42.) For the following reasons, the motion is

granted in part and denied in part.

BACKGROUND2

“The facts are hotly disputed but” the Court “must credit [Gutierrez’] version

and draw all reasonable inferences in his favor because he is the party opposing

summary judgment.” Tolliver v. City of Chi., 820 F.3d 237, 239 (7th Cir. 2016).

At around 10:00 p.m. on April 26, 2020, Officer Meyers was on patrol duty in

his police car when he observed Gutierrez driving in his car. (R. 49, Plaintiff’s

1 For ECF filings, the Court cites to the page number(s) set forth in the document’s ECF

header unless citing to a particular paragraph or other page designation is more appropriate.

2 The Court takes the following facts from the parties’ Local Rule 56.1 submissions, the

materials cited therein, and other aspects of the record in this case. All facts are genuinely

undisputed unless otherwise noted. Any fact not properly controverted is admitted. N.D. Ill.

Local R. 56.1(e)(3).

Response to Defendants’ Local Rule 56.1 Statement of Material Facts (“Pl.’s Resp. to

Defs.’ SOF”) ¶ 1; R. 53, Defendants’ Response to Plaintiff’s Local Rule 56.1(b)(3)(C)

Statement of Additional Facts (“Defs.’ Resp. to Pl.’s SOAF”) ¶ 1; R. 48-2, Ex. 2

(“Meyers Dep.”) at 22:4–7.) Officer Meyers briefly followed Gutierrez until he

observed him fail to timely signal before turning onto the street where he lived. (Pl.’s

Resp. to Defs.’ SOF ¶ 1; Defs.’ Resp. to Pl.’s SOAF ¶ 1; Meyers Dep. at 26:13–19, 28:2–

20.)

Officer Meyers signaled for Gutierrez to pull over. (Pl.’s Resp. to Defs.’ SOF ¶

1.) Gutierrez complied, pulling into the driveway of his home, where his sister and

niece were inside. (Defs.’ Resp. to Pl.’s SOAF ¶¶ 3, 24.) Officer Meyers exited his car,

walked along the driver’s side of Gutierrez’ car toward him, and observed that the car

had tinted windows. (Id. ¶ 3; Pl.’s Resp. to Defs.’ SOF ¶ 2.) The parties dispute

whether Gutierrez was behaving nervously when Officer Meyers approached him.

(See Pl.’s Resp. to Defs.’ SOF ¶ 2; Defs.’ Resp. to Pl.’s SOAF ¶¶ 9, 10, 13.) The parties

also disagree whether the tint on Gutierrez’ car windows obstructed the view inside.

(See Pl.’s Resp. to Defs.’ SOF ¶ 8.) At some point, Gutierrez’ niece and sister exited

the home, and Gutierrez’ niece began recording footage of the incident. (Defs.’ Resp.

to Pl.’s SOAF ¶ 24; R. 48-3 at 1, Ex. 3 (“Bystander Video”).) The footage shows Officer

Meyers using a flashlight to look into Gutierrez’ car and the street being lit by

streetlights and the lights of squad cars. (Defs.’ Resp. to Pl.’s SOAF ¶ 24; R. 48-3 at

1, Ex. 3 (“Bystander Video”).)

Officer Meyers next told Gutierrez, who had rolled down his window, that he

stopped Gutierrez for insufficiently signaling before turning and asked Gutierrez for

his license, which he provided. (Pl.’s Resp. to Defs.’ SOF ¶ 3; Defs.’ Resp. to Pl.’s SOAF

¶ 3; R. 48-1, Ex. 1 (“Dash-Cam”) at 1:12–1:17.) Officer Meyers took Gutierrez’ license

to his police car and checked the police database for outstanding cautions or warrants.

(Pl.’s Resp. to Defs.’ SOF ¶ 4.) At this point, Officer McCue arrived on scene and joined

Officer Meyers. (Pl.’s Resp. to Defs.’ SOF ¶ 6; Dash-Cam at 5:14–15.)

Dispatch reported that Gutierrez was a registered violent offender and former

gang member. (Pl.’s Resp. to Defs.’ SOF ¶ 5; Defs.’ Resp. to Pl.’s SOAF ¶¶ 1, 3.) Officer

Meyers’ dash camera footage shows that he next said he would “just talk to

[Gutierrez] . . . He’s cool.” (Defs.’ Resp. to Pl.’s SOAF ¶ 6; Dash-Cam at 5:15–23.)

Officer Meyers then returned to Gutierrez’ car and ordered him to step out. (Pl.’s

Resp. to Defs.’ SOF ¶ 9; Defs.’ Resp. to Pl.’s SOAF ¶ 9; Dash-Cam at 6:21–23.)

Gutierrez refused, and over a span of about five minutes, asked Officer Meyers to call

his supervisor to the scene eleven times, explaining that he did not trust Officer

Meyers and was afraid for his safety. (Pl.’s Resp. to Defs.’ SOF ¶ 13; Dash-Cam at

6:42–12:19.) Officer Meyers’ dash camera footage shows that he continued ordering

Gutierrez to exit his car for about seven minutes. (See Dash-Cam 6:21–13:00.)

The parties dispute what followed. (See Pl.’s Resp. to Defs.’ SOF ¶ 15; Defs.’

Resp. to Pl.’s SOAF ¶ 17.) The recording from Gutierrez’ niece’s phone shows that

Gutierrez rolled up his window from halfway open to nearly closed, leaving a one-to-

two-inch gap, and that Officer Meyers reached inside the window. (Bystander Video

at 00:00:31–00:00:33.) Officer Meyers then pulled the driver’s side window out of its

frame. (Id. at 00:00:35–00:00:37.) Gutierrez next raised both hands while remaining

in the car as Officer Meyers continued ordering him to exit. (Defs.’ Resp. to Pl.’s SOAF

¶ 19; Bystander Video at 00:00:44.) Officer Meyers then opened Gutierrez’ car door

and Officer McCue pulled Gutierrez out of the car. (Defs.’ Resp. to Pl.’s SOAF ¶ 20;

Bystander Video at 00:00:37–00:00:54.) In doing so, the officers pushed Gutierrez

against a nearby parked van, and Gutierrez testified that Officer McCue, with his

hand on the back of Gutierrez’ head, slammed Gutierrez’ head against the van. (Defs.’

Resp. to Pl.’s SOAF ¶ 21; Dash-Cam at 13:37–54; Bystander Video at 00:00:54–

00:00:56.) Officer Meyers then arrested Gutierrez for obstruction. (Meyers Dep. at

74:1–7; Dash-Cam at 38:43–47.) Gutierrez was diagnosed with a concussion four days

later. (Defs.’ Resp. to Pl.’s SOAF ¶ 22.)

Gutierrez was subsequently convicted of three Illinois misdemeanors:

displaying a turn signal within insufficient distance of an intersection, having illegal

tint on his windows, and obstructing Officer Meyers’ lawful order by refusing to exit

the car. (Id. ¶ 38; Pl.’s Resp. to Defs.’ SOF ¶¶ 30–32.)3 To find Gutierrez guilty of

obstruction, the jury needed to conclude that he knowingly “obstruct[ed] the

performance by one known to the person to be a peace officer . . . of any authorized

act within his or her official capacity . . . .” 720 ILCS 5/31-1(a)(2). The Illinois Second

District Appellate Court dismissed Gutierrez’ appeal. (Pl.’s Resp. to Defs.’ SOF ¶ 35.)

The time period for challenging this decision has expired. See ILL. SUP. CT. R. 367(a).

3 See generally Dash-Cam at 38:43–47 (Officer Meyers telling Gutierrez that the basis for

his arrest was “because [he] failed to step out of the vehicle when [he was] given an order”).)

Gutierrez brings the instant § 1983 suit alleging Officers Meyers and McCue

violated his Fourth Amendment rights by unlawfully seizing him for the traffic stop,

Count I, arresting him for obstruction, Count II, using excessive force during his

arrest, Count III, and failing to intervene, Count IV. (Amend. Compl. ¶¶ 33–60.)4 He

also asserts a battery claim against the officers, Count V, and seeks indemnification

by the City of Aurora for their actions, Count VI. (Id. ¶¶ 61–72.) The defendants filed

a Rule 56 motion for summary judgment. (R. 42.)

LEGAL STANDARD

“Summary judgment is appropriate when there are no genuine disputes of

material fact and the movant is entitled to judgment as a matter of law.” Tolliver, 820

F.3d at 241. “A material fact is one that ‘might affect the outcome of the suit . . . .’”

Williams v. Brooks, 809 F.3d 936, 941–42 (7th Cir. 2016) (citation omitted).

ANALYSIS

I. § 1983 CLAIMS5

The defendants argue that Gutierrez’ § 1983 claims are barred by Heck v.

Humphrey, 512 U.S. 477 (1994). (R. 54.) “In Heck, the Supreme Court held that a

plaintiff alleging that his conviction or sentence was unconstitutional does not state

a claim under § 1983 unless the conviction or sentence has been set aside.” Courtney

v. Butler, 66 F.4th 1043, 1049 (7th Cir. 2023). “The rule is intended to prevent

‘collateral attack on [a] conviction through the vehicle of a civil suit.’” VanGilder v.

4 The complaint seemingly contains a clerical error as it sets forth two Count IIs. (See

(Amend. Compl.) For clarity, ¶¶ 33–40 are referred to as Count I and ¶¶ 40–45 are referred

to as Count II.

5 Jurisdiction over Counts I-IV is proper under 28 U.S.C. § 1331.

Baker, 435 F.3d 689, 691 (7th Cir. 2006) (quoting Heck, 512 U.S. at 484). “[A] plaintiff

who has been convicted of resisting arrest . . . during the course of an arrest is not per

se Heck-barred from maintaining a [§] 1983 action for excessive force stemming from

the same confrontation.” McCann v. Nielsen, 466 F.3d 619, 621 (7th Cir. 2006).

“Therefore, in considering whether Heck requires dismissal,” the Court “must

consider the factual basis” of Gutierrez’ excessive force claim “and determine whether

it necessarily implies the invalidity of [his] conviction.” Helman v. Duhaime, 742 F.3d

760, 762 (7th Cir. 2014). “To the extent that factual allegations do not do so,”

Gutierrez “may proceed under 1983.” Id.

A. Counts I, II, and IV

Gutierrez did not respond to the defendants’ argument that Heck requires

judgment in their favor on Counts I, II, and IV, and has thus waived any argument

to the contrary. (See R. 47); Palmer v. Marion Cnty., 327 F.3d 588, 597–98 (7th Cir.

2003) (holding that claims not addressed in a summary judgment opposition brief are

deemed abandoned). Even so, the Court agrees that these claims are Heck-barred.

Count I alleges that Officer Meyers lacked probable cause to stop Gutierrez’

car and wrongly prolonged the stop upon learning Gutierrez was a registered violent

offender and former gang member. (Amend. Compl. ¶¶ 35–37.) Because such

allegations deny that Gutierrez failed to sufficiently signal his turn, they necessarily

imply the invalidity of Gutierrez’ conviction for failing to display a turn signal within

one hundred feet of an intersection. (See id. ¶ 37.) Similarly, Count II’s allegation

that the police lacked probable cause to arrest Gutierrez for “any offense, traffic or

otherwise,” (id. ¶ 42) impermissibly implies the invalidity of his obstruction

conviction. See 720 ILCS 5/31-1(a)(2).

Gutierrez’ failure to intervene claim, Count IV, also contains factual

allegations that necessarily imply the invalidity of Gutierrez’ convictions. For

instance, Gutierrez’ allegation that the officers “failed to stop the unreasonable

violations,” impermissibly implies that the police acted unreasonably in stopping

Guiterrez for failing to properly signal and arresting him for obstruction. (Amend.

Compl. ¶ 56.) Accordingly, the Court grants the defendants’ judgment on Counts I,

II, and IV.

B. Count III

Regarding Count III, Gutierrez argues that “[a] finding that Officer Meyers

used excessive force would not necessarily negate his [obstruction] conviction[.]” (R.

57 at 1.) The Court agrees. This case is comparable to VanGilder, where Heck did not

apply because the plaintiff did not “deny that he resisted [the officer’s] order to comply

with the blood draw,” but rather, “claim[ed] that he suffered unnecessary injuries

because [the officer’s] response to his resistance—a beating to the face that resulted

in bruises and broken bones—was not, under the law governing excessive use of force,

objectively reasonable.” 435 F.3d at 692. Gutierrez’ excessive force allegations,

similarly, do not require an inference that he did not obstruct, only that the force used

to remove him from the car, which resulted in a concussion, was unreasonable. Thus,

“to uphold the application of Heck in this case . . . would imply that once a person

resists law enforcement, he has invited the police to inflict any reaction or retribution

they choose, while forfeiting the right to sue for damages.” Id. at 693.6

And contrary to the defendants’ argument, a reasonable jury could conclude

that after Gutierrez refused Officer Meyers’ order to exit from his car the officers used

excessive force to arrest him. (See R. 44 at 7–9.) “An officer who has the right to arrest

an individual also has the right to use some degree of physical force or threat of force

to effectuate the arrest[.]” Williams, 809 F.3d at 944. “That right is circumscribed by

the Fourth Amendment’s reasonableness standard,” however. Id. “Factors relevant

to the reasonableness inquiry include ‘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.’” Id. (quoting

Graham v. Connor, 490 U.S. 386, 396 (1989). These factors are considered in totality

“from the perspective of a reasonable officer on the scene.” Bayon v. Berkebile, 29

F.4th 850, 854 (7th Cir. 2022). Further, this analysis “is fact intensive,” which “often

makes summary judgment in these cases inappropriate.” Id.

Here, the parties dispute Gutierrez’ demeanor, (Pl.’s Resp. to Defs.’ SOF ¶ 2;

Defs.’ Resp. to Pl.’s SOAF ¶¶ 10, 13, 38); whether Gutierrez’ criminal history, the tint

on his car, the presence of Gutierrez’ niece and sister, or the late hour created an

immediate threat to the officers’ safety, (Pl.’s Resp. to Defs.’ SOF ¶¶ 2, 5, 8–9; Defs.’

6 At this juncture, the Court takes note of the defendants’ factual objections to Plaintiff’s

Response to Defendant’s Local Rule 56.1 Statement of Material Facts based on their view

that certain allegations are Heck-barred. (See, e.g., Def’s Resp. to Pl.’s SOAF ¶ 10.) Under

Heck, it is proper for the Court examine the factual basis of Gutierrez’ claims to determine

whether a certain claim for relief is barred. Helman, 742 F.3d at 762.

Resp. to Pl.’s SOAF ¶¶ 6, 12, 25–26; see Dash-Cam at 4:38–5:15, 5:15–23); and

whether Gutierrez was actively evading arrest or threatening the officers when they

pulled him out of the car. (Pl.’s Resp. to Defs.’ SOF ¶ 21.) All of “[t]hese issues present

the ‘uncertainties and unresolved material questions of fact’ that must be resolved by

a factfinder before liability can be assessed.” Bayon, 29 F.4th at 856 (quoting Chelios

v. Heavener, 520 F.3d 678, 692 (7th Cir. 2008)).

These factual disputes also preclude this Court from deciding whether Officers

Meyers and McCue are entitled to qualified immunity at this time. “Whether

qualified immunity applies turns on two questions: first, whether the facts presented,

taken in the light most favorable to the plaintiff, describe a violation of a

constitutional right; and second, whether the federal right at issue was clearly

established at the time of the alleged violation.” Smith v. Finkley, 10 F.4th 725, 737

(7th Cir. 2021). Regarding the first question, the defendants’ claim that the officers

used appropriate force in light of Gutierrez’ criminal history and non-compliance with

their orders views the facts in a light most favorable to them, which the Court cannot

do at summary judgment. (See R. 44 at 11–12.) Rather, the remaining factual

disputes “bear[ing] on the objective reasonableness of the force used to arrest”

requires trial “before a determination can be made as to whether [the officers are]

entitled to qualified immunity.” Bayon, 29 F.4th at 856.

Moreover, on the second question, the right to be free from excessive force

during an arrest is clearly established. See Jones by Jones v. Webb, 45 F.3d 178, 184

(7th Cir. 1995) (“It of course was clearly established in June 1992 that a police officer’s

use of excessive force . . . in the course of an arrest would violate the Fourth

Amendment.”). VanGilder, decided fourteen years before Gutierrez’ arrest, also

shows that it was clearly established that a resisting arrestee maintains a right to be

arrested without excessive force. 435 F.3d at 693 (rejecting the notion that “once a

person resists law enforcement” the police may “inflict any reaction or retribution

they choose”); Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 528 (7th Cir. 2012) (“[P]rior

cases may give an officer reasonable warning that his conduct is unlawful.”).

In considering “whether clearly established law prohibited the officers from

stopping and taking down a man in these circumstances,” City of Escondido, Cal. v.

Emmons, 586 U.S. 38, 435 (2019), the Court notes again that Gutierrez relies upon

the evidence that, when Officers Meyers and McCue removed him from his car, his

hands were raised—in his view—in surrender. (See Pl.’s Resp. to Defs.’ SOF ¶ 21.) It

is “clearly established that only minimal force is warranted where the accused is

passively resisting.” Becker v. Elfreich, 821 F.3d 920, 928–29 (7th Cir. 2016).

Additionally, it is clearly established “that officers could not repeatedly use an impact

weapon to beat into submission a person who was not resisting or,” (as Guterriez

characterizes himself) a person “merely passively resisting officers’ orders.” Id. at 929

(quoting Abbott v. Sangamon Cnty., Ill., 705 F.3d 706, 724 (7th Cir. 2013)). The Court

thus concludes that it was clearly established that it violated the Fourth Amendment

for Officers Meyers and McCue to use force causing a concussion where the arrestee

was immobile and surrendering. The defendants’ motion for summary judgment on

Count III is therefore denied.

II. STATE LAW CLAIMS7

A. Count V

Count V asserts a battery claim against Officers Meyers and McCue. (Amend.

Compl. ¶¶ 61–68.) In Illinois, “[a] person commits battery if he intentionally or

knowingly without legal justification and by any means, (1) causes bodily harm to an

individual or (2) makes physical contact of an insulting or provoking nature with an

individual.” 720 ILCS 5/12-3. The defendants argue that summary judgment is

warranted because the officers had probable cause Gutierrez had committed

obstruction, and so they were authorized to handcuff and arrest Gutierrez. (R. 44 at

9.) This argument misses that “even when an officer has probable cause to arrest, the

Fourth Amendment prohibits him from employing ‘greater force than [is] reasonably

necessary to make the arrest.’” Abbott, 705 F.3d at 724 (citations omitted). Because

disputed questions remain about whether the police used appropriate force, summary

judgment on Count V is denied.

B. Count VI

The defendants’ argument for judgment on Count VI is that they are entitled

to judgment on Counts I–V. (R. 44 at 12.) Because Counts III and V must be decided

by a jury, Gutierrez’ indemnification claim against the City survives.

CONCLUSION

The defendants’ motion for summary judgment [42] on Counts I, II, and VI is

granted and denied for Counts III, V, and VI. On or before July 12, 2024, the parties

7 The Court may exercise supplemental jurisdiction over Counts V and VI pursuant to 28

U.S.C.§ 1367.

shall submit a joint status report that addresses the anticipated length of trial and

lists any trial conflicts in November 2024, January 2025, and April 2025.

Date: July 1, 2024 ( S

JEREMY C. DANIEL

United States District Judge

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