Haligas v. City Of Chicago

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Melissa Haligas, )

)

Plaintiff, )

)

)

v. ) No. 22 C 313

)

)

City of Chicago, Richard )

McCallum, and Juan Delgado, )

)

Defendants. )

Memorandum Opinion and Order

Chicago Police Officers Richard McCallum and Juan Delgado

(the “Officers”) were called to Melissa Haligas’ apartment

building by her ex-boyfriend, who claimed she was violating a court

order by failing to hand over their son. After speaking with the

ex-boyfriend and cursorily reviewing a copy of the order on his

phone, the Officers proceeded to Haligas’ apartment, where they

ultimately arrested her. Haligas was not charged with any crime

and was released the same day. She sued the Officers under 42

U.S.C. § 1983 for false arrest, excessive force, and failure to

intervene, and sued the City of Chicago under state law for

indemnification and under § 1983 for failure to train and for its

alleged policy of escalating police encounters with non-

threatening suspects. Defendants now move for summary judgment.

For the reasons explained below, the motion is granted in part and

denied in part.

I.

The following facts are described as favorably to Haligas as

the record and Federal Rule of Civil Procedure 56 permit. On

January 31, 2020, the Officers responded to a call from Haligas’

ex-boyfriend Kevin Howard at Haligas’ apartment building. Pl.’s

Resp. to Defs.’ Statement of Material Facts (“Pl.’s Resp. to

DSMF”), ECF 109 ¶ 7. Both Officers were wearing body-worn cameras

(“BWCs”). Id. ¶ 9. Howard told the Officers that Haligas was

violating a court order by failing to bring down their son to go

with Howard for the weekend. Id. ¶ 8. Howard showed the Officers

a copy of the court order on his phone. Id. ¶ 10.

Officer McCallum briefly scrolled through the document and,

based on his review, understood that multiple orders governed

Haligas’ and Howard’s co-parenting relationship. Id. ¶ 11; Defs.’

Resp. to Pl.’s Add’l Statement of Material Facts (“Defs.’ Resp. to

PSAMF”), ECF 118 ¶ 4. He noted the order contemplated Friday

pickups “no earlier than 3 p.m.” McCallum BWC, ECF 96-8 at 2:30–

2:38. He further stated, while reviewing the document, “This is a

confusing . . .,” before trailing off. Id. at 3:08–3:10; Defs.’

Resp. to PSAMF ¶ 8 (Officer McCallum testified at his deposition

that he found aspects of the court order he reviewed confusing).

Officer McCallum also reviewed messages between Haligas and Howard

before giving Howard his phone and going up to Haligas’ apartment

with Officer Delgado. Pl.’s Resp. to DSMF ¶¶ 13–14. Officer Delgado

did not review the court order. Defs.’ Resp. to PSAMF ¶ 5.

The Officers knocked on Haligas’ door, and she invited them

into her apartment. Pl.’s Resp. to DSMF ¶ 16. Shortly after walking

in, Officer McCallum demanded, “Why aren’t you handing over your

son?” Id. ¶ 19. Haligas explained that her son was sick and asleep,

and she was waiting for him to wake up. Id. She showed the Officers

that her son’s things were packed and ready to go as soon as he

woke up. Defs.’ Resp. to PSAMF ¶ 20.

Haligas explained the court order simply said that Howard was

not allowed to pick up their son before 3:00 p.m., the implication

being that it does not necessarily say that Howard is entitled to

pick him up at any point starting at 3:00 p.m. Pl.’s Resp. to DSMF

¶ 21. She told them they did not understand the court order and

offered to pull it up for them. McCallum BWC at 8:28–8:31; Defs.’

Resp. to PSAMF ¶ 14. But Officer McCallum declined her offer,

saying he had just looked at it. Pl.’s Resp. to DSMF ¶ 24; Defs.’

Resp. to PSAMF ¶ 15. Haligas reiterated: “The court order says he

cannot get him before 3 p.m.,” McCallum BWC at 8:32–8:36, again

apparently trying to emphasize the distinction between a

prohibition on picking their son up before 3:00 p.m. and a

requirement that as soon as the clock strikes three, Haligas was

required to hand him over. The disagreement continued:

Officer McCallum: You violate the order.

Haligas: I didn’t violate anything.

. . .

Officer McCallum: Listen, you’re not going to change my

opinion of this. You’re violating the order. You either-

Haligas: I’m not violating anything.

Officer McCallum: If you refuse to give over your son

. . . .

McCallum BWC 9:18–9:36.

Haligas said she was not going to wake up her son, to which

Officer McCallum responded that she would go to jail for “unlawful

violation of visitation.” Pl.’s Resp. to DSMF ¶ 28. Haligas

repeated that Officer McCallum did not know what was in the court

order and offered to call their child advocate. Id. ¶ 29. Officer

McCallum again insisted that he had already looked at the order.

McCallum BWC 9:48–9:50. Haligas walked toward the kitchen area of

her apartment to get her phone, presumably to call the child

advocate. Id. at 9:50–9:55. As she did, Officer McCallum said,

“You’re gonna be going to jail.” Id.

Haligas then asked the Officers to leave her apartment, but

they refused. Pl.’s Resp. to DSMF ¶¶ 31–32. Haligas said she was

going to call 9-1-1, at which point Officer McCallum said, “That’s

it,” attempted to snatch the phone out of her hand, and told her

she would be arrested if she did not calm down. Defs.’ Resp. to

PSAMF ¶ 33; McCallum BWC at 10:08–10:17. He advanced on Haligas as

she backed up into her kitchen. Id. at 10:18–10:24. In a panicked

voice, Haligas said, “Excuse me,” and tried to get past Officer

McCallum, but he physically rebuffed her. Id. at 10:25–10:30.

Officer McCallum told her to turn around and put her hands

behind her back. Pl.’s Resp. to DSMF ¶ 47. Haligas, who was backed

up against the wall, screamed, brought her arms in toward her body,

and fell to the floor. McCallum BWC at 10:30–10:44. She claims the

Officers pulled her to the floor and then pulled her up again.

Defs.’ Resp. to PSAMF ¶ 23. She continued to scream as the Officers

physically restrained her, including exclamations about her

wrists. McCallum BWC at 10:30–11:05; Pl.’s Resp. to DSMF ¶ 55. In

the minutes that followed, Haligas continued to express that she

was in pain. See McCallum BWC at 11:27–13:10 (repeatedly drawing

attention to her wrist and saying “ow” as she whimpered). In

response to some of these complaints, the Officers said things

like “stop it” and “we know.” Id.

While the Officers waited for other law enforcement to arrive,

Haligas sat handcuffed on the floor of her kitchen, offering once

more to call the child advocate and to pull the order up; McCallum

replied, again, that he had already read the order. Id. at 14:35–

14:40, 16:58–17:03. Haligas was eventually escorted to a police

vehicle in handcuffs. Pl.’s Resp. to DSMF ¶ 66. That evening, she

was taken to Northwestern Memorial Hospital, but did not receive

treatment there at that time. Id. ¶¶ 71–72. The next day, she went

to Northwestern Immediate Care for examination of her right wrist;

her records show she presented with pain, swelling, and a

contusion. Id. ¶ 73; Defs.’ Resp. to PSAMF ¶ 40.

II.

If the Officers had probable cause to arrest Haligas, her

false arrest claim is barred. Stokes v. Bd. of Educ. of the City

of Chi., 599 F.3d 617, 622 (7th Cir. 2010) (citation omitted). “An

officer has probable cause to arrest if ‘at the time of the arrest,

the facts and circumstances within the officer’s knowledge . . .

are sufficient to warrant a prudent person, or one of reasonable

caution, in believing, in the circumstances shown, that the suspect

has committed, is committing, or is about to commit an offense.’”

Neita v. City of Chicago, 830 F.3d 494, 497 (7th Cir. 2016)

(quoting Thayer v. Chiczewski, 705 F.3d 237, 246 (7th Cir. 2012)).

It is an objective inquiry that turns on how a reasonable officer

under the circumstances would assess the situation, without regard

to the officer’s subjective state of mind. Abbott v. Sangamon

County, 705 F.3d 706, 714 (7th Cir. 2013).

Defendants offer up two possible crimes for which there was

probable cause to arrest Haligas. The first is unlawful visitation

interference under 720 Ill. Comp. Stat. 5/10-5.5(b). That statute

provides:

Every person who, in violation of the visitation,

parenting time, or custody time provisions of a court

order relating to child custody, detains or conceals a

child with the intent to deprive another person of his

or her rights to visitation, parenting time, or custody

time commits the offense of unlawful visitation or

parenting time interference.

Id.

Defendants maintain that Howard’s allegation that Haligas was

unlawfully withholding their son, plus Officer McCallum’s review

of the child custody order on Howard’s phone, gave them probable

cause to arrest Haligas for this crime. It is true that “[o]nce a

reasonably credible witness informs an officer that a suspect has

committed a crime, the police have probable cause to arrest the

suspect.” Mustafa v. City of Chicago, 442 F.3d 544, 548 (7th Cir.

2006) (citations omitted). But Howard’s credibility is

questionable, given the adverse relationship one might expect

between separated parents in general and which Howard’s resort to

police intervention suggests was present here in particular. Nor

is it clear that the document on Howard’s phone was enough to

overcome concerns about Howard’s reliability. The BWC footage

shows Officer McCallum quickly scrolling through the child custody

order and expressing he found the document “confusing.” He also

understood that it was not the only order that spoke to the

conditions of custody between Haligas and Howard. Yet any

uncertainty on Officer McCallum’s part apparently dissolved when

he entered Haligas’ apartment, as he steadfastly maintained that

he had reviewed the court order and knew what it required. Even

Haligas’ repeated assertions that she was not violating the order

and her offers to get a copy for him did not shake him from his

position that he had seen all he needed to. In response to one of

these offers by Haligas, Officer McCallum was explicit that it

would not change his opinion.

While the Officers had no “free-standing affirmative duty” to

“pursue all avenues of investigation before arrest,” Jump v. Vill.

of Shorewood, 42 F.4th 782, 791 (7th Cir. 2022), further

investigation is sometimes warranted. Whether that is so depends

on factors such as “the information available to the officer, the

gravity of the alleged crime, the danger of its imminent

repetition, and the amount of time that has passed since the

alleged crime.” Stokes, 599 F.3d at 625; see also BeVier v. Hucal,

806 F.2d 123, 127 (7th Cir. 1986) (“Under Seventh Circuit

precedent, . . . probable cause is a function of information and

exigency.” (footnote omitted)). Here, the circumstances did not

require quick action on the Officers’ part, as no serious crime

was underway. Further investigation, moreover, was well within

reach: Haligas offered to give the Officers a court order--whether

the same order Officer McCallum had already viewed or a different

one, we do not know--she claimed would show she was in compliance.

And there is sufficient evidence to conclude that a reasonable

officer would hesitate to rely too heavily on the information

Officer McCallum had received so far, from a potentially biased

witness and a single, incomplete, court order that he found

confusing. Under these circumstances, the Officers are not

entitled to summary judgment on whether there was probable cause

to arrest Haligas for violation of the unlawful visitation

interference statute. See Zitzka v. Vill. of Westmont, 743 F. Supp.

2d 887, 908 (N.D. Ill. 2010) (“[I]f the victim’s or witness’s

information would lead a reasonable officer to be suspicious, the

officer has a duty to pursue reasonable avenues of investigation

and may not close his or her eyes to facts that would clarify the

situation.” (citing McBride v. Grice, 576 F.3d 703, 707 (7th Cir.

2009); Beauchamp v. City of Noblesville, 320 F.3d 733, 743 (7th

Cir. 2003))).

Defendants argue that they had probable cause to arrest

Haligas for the separate offense of resisting arrest. See 720 Ill.

Comp. Stat. 5/31-1(a). That statute provides:

(a) A person who knowingly:

(1) resists arrest, or

(2) obstructs the performance by one known to the

person to be a peace officer . . . of any authorized

act within his or her official capacity commits a

Class A misdemeanor.

Id. Illinois courts interpret “resisting” or “resistance” to mean

“withstanding the force or effect of or the exertion of oneself to

counteract or defeat.” People v. Agnew-Downs, 936 N.E.2d 166, 173

(Ill. App. Ct. 2010) (citation omitted).

As an initial matter, I must “pinpoint the moment” at which

Officer McCallum “arrested or attempted to arrest” Haligas, “which

is necessary to determine whether her actions constituted

resisting arrest.” Abbott, 705 F.3d at 719 (citing Agnew-Downs,

936 N.E.2d at 173–74). The relevant moment is “‘when a reasonable

person in the suspect’s position would have understood the

situation to constitute a restraint on freedom of movement of the

degree which the law associates with formal arrest.’” Abbott, 705

F.3d at 719 (quoting Ochana v. Flores, 347 F.3d 266, 270 (7th Cir.

2003)). The first arguable mention of arrest during the encounter

came when Officer McCallum said, “Well then you’re going to jail”

and “You’re gonna be going to jail.” McCallum BWC at 9:37–9:40,

9:52–9:54. When he said these things, however, he does not appear

to have moved toward Haligas or to have otherwise indicated to her

that this was anything other than a possible, but not inevitable,

outcome. Further, immediately after he tried grabbing Haligas’

phone from her hand, he said “Calm down, or you’re gonna be

arrested,” id. at 10:14–10:17, and had drawn his handcuffs, Delgado

BWC, ECF 96-9 at 12:11–12:14.1 One could reasonably infer from this

statement that Haligas was not yet under arrest, but that she might

be if she did not calm down. It was not until Officer McCallum

1 Defendants maintain that Officer McCallum was reaching for

Haligas’ wrist in order to handcuff her. The video evidence viewed

in the light most favorable to Haligas does not support this as

the only reasonable interpretation.

said, “Alright, turn around and put your hands behind your back,”

and reached for her, McCallum BWC at 10:30–32, that I can conclude

as a matter of law a reasonable person would have understood that

her freedom of movement was being restrained.

In determining whether Haligas resisted arrest, her conduct

after that moment is what counts. Abbott, 705 F.3d at 720 (conduct

prior to being under arrest is not resisting).2 She was backed up

against the wall, brought her arms in close to her body, and

eventually landed on the ground. Defendants assert that Haligas

resisted by dropping her body to the ground, but Haligas’ version

of how she ended up on the ground--that the Officers pulled her

down--finds enough support in the video evidence and Haligas’

deposition testimony. Defendants also assert that Haligas’

movements after she was on the ground constituted resistance, but

again a reasonable jury could believe Haligas that these movements

were caused by force applied by the Officers.

Haligas pulling her arms in close to her body after being

told to turn around and put her hands behind her back presents a

closer question. Still, it is not unambiguous from the evidence

that she was resisting. In Brooks v. City of Aurora, 653 F.3d 478,

484 (7th Cir. 2011), though the court ultimately found qualified

2 That means her backing up into her kitchen and trying to get

around Officer McCallum cannot constitute resisting arrest,

despite defendants’ contentions to the contrary.

immunity applied, it observed that there may be a question of fact

as to the existence of probable cause to arrest a suspect for

violation of Illinois’ resistance statute when he “backpedaled

away, escaped [the officer’s] attempt to grab his wrist and raised

his arms to his shoulders.” Here, too, there is a dispute of

material fact as to the nature of Haligas’ movement and, thus,

whether that movement was enough to supply probable cause.

Accordingly, summary judgment on the question of whether there was

probable cause to arrest Haligas for resisting arrest is

unavailable.

Even absent probable cause, however, qualified immunity might

shield the Officers from liability. Qualified immunity “protects

public officials from liability for damages if their actions did

not violate clearly established rights of which a reasonable person

would have known.” Fleming v. Livingston County, 674 F.3d 874, 879

(7th Cir. 2012) (citation and internal quotation marks omitted).

Once raised by defendants, as it has been here, it is the

plaintiff’s burden to demonstrate that it does not apply. Wheeler

v. Lawson, 539 F.3d 629, 639 (7th Cir. 2008). Its application

depends on 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.”

Williams v. City of Chicago, 733 F.3d 749, 758 (7th Cir. 2013)

(citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The first

question is resolved above: viewing the facts most favorably to

Haligas, her Fourth Amendment right to be free from unlawful

seizure was violated. The second question “is similar to but

distinct from the first,” and asks in the false arrest context

“‘whether a reasonable officer could have mistakenly believed that

probable cause existed.’” Id. at 758 (quoting Fleming, 674 F.3d at

878). In other words, the question is whether the Officers had

“arguable probable cause.” Id.

A reasonable officer could have mistakenly believed that

probable cause existed to arrest Haligas for resisting arrest

because when Officer McCallum instructed Haligas to put her hands

behind her back, she shouted “No!” and brought her arms in toward

her body. These actions arguably could have appeared to a

reasonable officer in Officer McCallum’s shoes to “impede[]” or

“hinder[]” his attempt to arrest her, which has been held to run

afoul of section 5/31-1(a). Agnew-Downs, 936 N.E.2d at 173; see

id. (holding that even going limp can be a form of resistance). So

even if the Officers were mistaken about whether Haligas pulling

her arms toward her body supplied probable cause to arrest her for

resisting arrest, or about whether she was resisting arrest based

on her conduct, that mistake was not unreasonable. See Pearson,

555 U.S. at 231 (“The protection of qualified immunity applies

regardless of whether the government official’s error is a mistake

of law, a mistake of fact, or a mistake based on mixed questions

of law and fact.” (citation and internal quotation marks omitted)).

Haligas fails to overcome the Officers’ invocation of

qualified immunity on the issue of probable cause to arrest for

resisting arrest, which she can do “by ‘point[ing] to a clearly

analogous case establishing a right to be free from the specific

conduct at issue’ or by showing that ‘the conduct [at issue] is so

egregious that no reasonable person could have believed that it

would not violate clearly established rights.’” Wheeler, 539 F.3d

at 639 (quoting Smith v. City of Chicago, 242 F.3d 737, 742 (7th

Cir. 2001)). Given that Haligas does neither, and that Officer

McCallum was not unreasonable in thinking Haligas was resisting

arrest, the Officers are entitled to summary judgment on her false

arrest claim. That is so even if the Officers were dead wrong to

attempt to arrest her for unlawful visitation interference,

because “Illinois law is clear that a person violates section 5/31-

1(a) if he or she resists or obstructs even an unlawful arrest

made by a known peace officer.” Abbott, 705 F.3d at 720 (citations

omitted).

III.

Haligas bases her suit not only on the fact of the arrest

itself, but also on how that arrest was carried out--namely, the

force the Officers used in handcuffing her. Whether a particular

use of force violates the Fourth Amendment depends on “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.”

Graham v. Connor, 490 U.S. 386, 396 (1989) (citing Tennessee v.

Garner, 471 U.S. 1, 8–9 (1985)). As with the probable cause

inquiry, “[t]he ‘reasonableness’ of a particular use of force must

be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Id. (citing

Terry v. Ohio, 392 U.S. 1, 20–22 (1968)).

The first and second Graham factors weigh heavily in Haligas’

favor. The crimes at issue were relatively minor when viewing the

evidence most favorably to her. Haligas had explained to the

Officers that she was going to hand over her son as soon as he

woke up from his nap, and she even showed them that his bags were

packed and ready to go. At the time force was applied, Haligas,

weighing about 125 pounds and wearing nothing other than a

nightgown, was unarmed and cornered in her kitchen. So while the

alleged crime of resisting arrest certainly can be serious, the

circumstances here do not suggest that significant force was

warranted. Haligas posed virtually no threat, serious or

otherwise, to the Officers’ or others’ safety.

The parties’ most substantive dispute centers on the third

Graham factor--whether Haligas was actively resisting arrest. The

Officers characterize her as “flailing about while refusing to be

handcuffed,” “pull[ing] her arms in to avoid being placed into

handcuffs,” and continuing to struggle while the Officers

attempted to handcuff her. Mem., ECF 97 at 21–22.3 A jury could

reasonably conclude, however, that she was not flailing about or

struggling, but that the chaotic movement seen in the video is the

result of the Officers imposing force on her. Her refusal to put

her hands behind her back and instead keeping them in front of

her, moreover, could be viewed as merely passive resistance, which

would justify only “the minimal use of force.” Phillips v. Cmty.

Ins. Corp., 678 F.3d 513, 525 (7th Cir. 2012); see Cyrus v. Town

of Mukwonago, 624 F.3d 856, 863 (7th Cir. 2010) (finding jury might

find only passive resistance where suspect “refused to release his

arms for handcuffing” and officer “knew that [the suspect] was

unarmed and there was little risk [the suspect] could access a

weapon”).

Further, the record supports Haligas’ contention that the

handcuffing was rough. She screamed that her wrists hurt

immediately upon being handcuffed and continued to express pain

and discomfort afterward. Her cries were loud enough that the

3 Defendants also discuss Haligas’ backing up into her kitchen and

her attempt to get around Officer McCallum. But as explained above,

those actions happened before the Officers had probable cause to

arrest her, so they do not bear on whether she was actively

resisting arrest.

Officers must have heard them, and in fact they verbally responded

to her complaints on at least two occasions, saying “stop it” and

“we know.” Haligas went to a medical provider the following day

for pain, swelling, and a contusion. Taken together, that is enough

to proceed with her claim that the Officers applied the handcuffs

too tightly or too roughly and that they were made aware of the

pain Haligas was in. See Rooni v. Biser, 742 F.3d 737, 742 (7th

Cir. 2014) (“A person has the right to be free from an officer’s

knowing use of handcuffs in a way that would inflict unnecessary

pain or injury, if that person presents little or no risk of flight

or threat of injury.” (citations omitted)); Garcia v. City of

Chicago, No. 09 C 5598, 2012 WL 601844, at *8 (N.D. Ill. Feb. 23,

2012) (“[A]n excessive force claim based on handcuffing can survive

summary judgment where the plaintiff adduces evidence of

significant pain resulting from handcuffing under circumstances

where the need for restraint was light.” (citations omitted)).

Many of defendants’ cases in support of their argument for

summary judgment on the excessive force claim involved (1) suspects

who were unambiguously actively resisting arrest or (2)

handcuffing-specific cases in which the officers were not

sufficiently made aware that the handcuffs were causing pain. Those

cases are distinguishable from this one for the reasons explained

above: (1) it is not clear Haligas was actively resisting, and (2)

she made the Officers aware of the pain caused by her handcuffs.

I agree with defendants, however, that the excessive force

claim cannot proceed against Officer Delgado. The only evidence

Haligas points to in support of maintaining this claim against him

is the BWC footage, which she claims leaves a jury question as to

Officer Delgado’s role in the handcuffing. The footage clearly

shows, however, that although Officer Delgado assisted restraining

Haligas while Officer McCallum handcuffed her, he did not do the

handcuffing--and it is the handcuffing that forms the basis of

Haligas’ claim. See McCallum BWC at 10:40–11:05. Insofar as Haligas

seeks to hold Officer Delgado accountable for failing to stop

Officer McCallum from using excessive force, that goes to her

failure to intervene claim.

The Officers again raise the defense of qualified immunity,

which Haligas can defeat by “establish[ing] that it was objectively

unreasonable for the [Officers] to believe that the force was

lawful--i.e., [she] must demonstrate that the right to be free

from the particular use of force under the relevant circumstances

was ‘clearly established.’” Abbott, 705 F.3d at 725 (citing

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). As before, to show

that the right was “clearly established,” she must show that

“existing precedent must have placed the statutory or

constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.

Material factual disputes prevent the Officers from

prevailing on their qualified immunity defense at this point. If

a jury concludes that Haligas’ resistance was merely passive and

that the force imposed via handcuffing was substantial, then the

Officers have run afoul of Haligas’ clearly established right to

be free from excessive force. That is because precedent has settled

that disproportionate force, in the form of unnecessarily rough or

tight handcuffing, cannot be imposed upon a non-resisting or

passively resisting, non-threatening suspect where a reasonable

Officer would have been aware that the handcuffs were too tight.

See Rooni, 742 F.3d at 742; see also Payne v. Pauley, 337 F.3d

767, 780 (7th Cir. 2003) (“[I]t was unlawful to use excessively

tight handcuffs and violently yank the arms of arrestees who were

not resisting arrest, did not disobey the orders of a police

officer, did not pose a threat to the safety of others, and were

suspected of committing only minor crimes.”).

IV.

Defendants argue that Haligas’ claim against Officer Delgado

for failure to intervene fails because there were no underlying

constitutional violations. But because Haligas’ excessive force

claim may proceed, this argument fails.

Relying on nothing more than a concurring opinion, defendants

also contend that failure to intervene is not a viable claim under

§ 1983 in this circuit. See Mwangangi v. Nielsen, 48 F.4th 816,

834 (7th Cir. 2022) (Easterbrook, J., concurring) (“What statute

or constitutional rule requires one employee of the government to

stop another from making a mistake? The Supreme Court has held

many times that § 1983 supports only direct, and not vicarious,

liability.” (emphasis in original) (citations omitted)). To the

contrary, the viability of failure-to-intervene claims under

§ 1983 is firmly grounded in the majority holdings of Seventh

Circuit cases. See, e.g., Doxtator v. O’Brien, 39 F.4th 852, 864–

65 (7th Cir. 2022) (explaining the elements of a failure-to-

intervene claim under § 1983); Abdullahi v. City of Madison, 423

F.3d 763, 774 (7th Cir. 2005) (same).

Defendants also seek to strike Haligas’ request for punitive

damages, which she may recover upon a showing of “evil motive or

intent, or . . . reckless or callous indifference to” her federally

protected rights. Smith v. Wade, 461 U.S. 30, 56 (1983).

Defendants’ argument on this point appears in a single sentence:

“For the reasons set forth more fully above, Plaintiff cannot show

that the Officers violated her Constitutional rights, let alone

that they acted with malice.” Mem., ECF 97 at 32. But as discussed

above, Haligas may be able to show a constitutional violation. And

she will not be required to show the Officers acted with malice,

but can recover punitive damages by showing reckless disregard. I

therefore decline to strike her request for punitive damages.

Finally, defendants move for summary judgment on Haligas’

Monell claims and her indemnity claim against the City because

those claims depend on a finding of liability against the Officers.

But because Haligas’ excessive force claim against Officer

McCallum and her failure to intervene claim against Officer Delgado

will proceed, her Monell and indemnification claims against the

City can, too.

V.

For the foregoing reasons, defendants’ motion for summary

judgment is granted in part and denied in part. It is granted as

to the false arrest claim. It is also granted as to the excessive

force claim against Officer Delgado. It is otherwise denied.

ENTER ORDER:

LO A) Lf

( Onedetr—

Elaine E. Bucklo

United States District Judge

Dated: September 3, 2024

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