# Gutierrez v. City of Aurora

> District Court, N.D. Illinois · July 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10645344

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** July 1, 2024
- **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/10645344

## How later opinions describe it (automated extraction)

- rejecting the notion that “once a person resists law enforcement” the police may “inflict any reaction or retribution they choose”
- holding that claims not addressed in a summary judgment opposition brief are deemed abandoned

## Opinion text

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

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10645344. Public record. Not legal advice.