# Tate v. The City of Chicago

> District Court, N.D. Illinois · September 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10645966

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** September 27, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EBONY TATE, et al., )
)
Plaintiffs, )
)
v. ) 18 C 7439
)
CITY OF CHICAGO, et al., )
)
Defendants. )

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
Plaintiffs Ebony Tate, Cynthia Eason, E’Monie Booth, La’Niya Booth, Legend
Booth, and LaKai’ya Booth brought this case alleging violations of 42 U.S.C. § 1983
and Illinois state law by Defendants Michael Higgins, Jennifer Burmistrz, Matthew
Evans, Patrick Kennedy, Pachara Santisuk, Andrew Cuomo, Eric James, Evan
Kilponen, Nicholas Linker, Ricardo Lopez, Ryan McCallum, Michael Pantano, Marco
Zenere, Patrick Boyle, John Hroma, and James D. Cascone (together, “Defendant
Officers”)1 and the City of Chicago (“City”). Before the Court is the Defendant
Officers’ motion for summary judgment and Plaintiffs’ cross-motion for partial
summary judgment. For the following reasons, the Defendant Officers’ motion is
granted-in-part and denied-in-part, and Plaintiffs’ motion is denied.

1 Defendant Officers are herein further divided into the “SWAT Officers”, including Santisuk,
Cuomo, James, Kilponen, Linker, Lopez, McCallum, Pantano, and Zenere, and the “Warrant
Officers”, including Higgins, Burmistrz, Cascone.
BACKGROUND
Plaintiffs initiated this case on November 9, 2018. Dkt. # 1. The operative third

amended complaint was filed on March 19, 2019, and asserts ten claims: (1) a Monell
claim under Section 1983; (2) unlawful search due to an invalid warrant under Section
1983; (3) unreasonable manner of entry and search under Section 1983; (4) false arrest
under Section 1983; (5) assault under Illinois law; (6) false arrest under Illinois law;
(7) intentional infliction of emotional distress2 under Illinois law; (8) trespass under

Illinois law; (9) respondeat superior under Illinois law; and (10) indemnification under
Illinois law. Dkt. # 70. The Defendant Officers filed a motion for summary judgment
on February 6, 2023, seeking judgment in their favor on all claims against them—i.e.,

Counts II through VIII. Dkt. # 376. Plaintiffs filed a motion for partial summary
judgment on June 2, 2023, seeking judgment in their favor on Counts II, IV, VI, and
VIII, and “portions” of Counts III, V, and VII.3 Dkt. # 395.
In resolving a motion for summary judgment, the Court views the evidence in
the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The following facts are taken from the record and are

2 Plaintiffs have dropped their claim for negligent infliction of emotional distress. Dkt. # 401, at
30 n.28.

3 Plaintiffs also seek summary judgment on “portions of count I, the Monell claim,” Dkt. # 395, at
2, but that claim is not asserted against the Defendant Officers.
undisputed unless otherwise noted.4
A registered confidential informant (“RCI”) registered with the FBI, with an

extensive history of providing credible and reliable information to the FBI and Chicago
Police Officers, informed Defendant Higgins that Javale Bell, a convicted felon, was in
possession of an all-black semi-automatic handgun in the basement apartment of 5033
S. Hermitage in Chicago (“5033 Residence”), where Plaintiffs live. The RCI

specifically observed the handle of a black semi-automatic handgun sticking out of
Bell’s waistband before observing Bell place the handgun on a table, where it remained.
The RCI provided Higgins with a photograph from Bell’s Facebook account showing
him leaning against the front door of the 5033 Residence while holding the all-black

handgun like a cell phone.
The RCI also told Higgins that Bell resided at the 5033 Residence and used 5039
S. Hermitage (“5039 Residence”) (together, the “Residences”), which is next door to
the 5033 Residence, to keep narcotics and weapons and that the RCI had observed Bell
in possession of firearms in both residences. Specifically, the RCI stated that Bell had

a second weapon, a two-tone multi-capacity handgun, at the 5039 Residence, and
possibly a rifle as well. Other social media photos confirmed that Bell had the two-tone
handgun at the 5039 Residence.
After learning that the RCI observed Bell in the basement of the 5039 Residence

4 Any asserted facts, or purported disputes of fact, that were immaterial or not properly supported
have not been included.
with another firearm, Higgins asked Defendant Burmistrz to handle the search warrant
investigation for the 5039 Residence. Higgins and Burmistrz then conducted their own

separate investigations.
As to the 5033 Residence, Higgins conducted an investigation to corroborate the
information he received from the RCI. Upon receiving the information, Higgins
searched for Bell on police databases based on the RCI’s description. He located Bell’s

criminal history and mugshot. Bell’s criminal history report confirmed that Bell was a
convicted felon who did not have a FOID card or Concealed Carry License (“CCL”).
Higgins texted a CPD photo of Bell to the RCI who positively identified him as the
individual with the black semi-automatic handgun in the 5033 Residence. Higgins also

texted a photo of the two-story, three-unit apartment building located at 5033 S.
Hermitage and the RCI positively identified Plaintiffs’ basement apartment from the
photo.
Higgins conducted surveillance of the 5033 Residence on three different
occasions—once in the morning for about 15 minutes, once in the afternoon for about

5 minutes, and once in the evening for about 15 minutes—during which he parked his
car at both corners of the 5000 block of S. Hermitage and watched the block and target
residences. Each time he visited the 5000 block of S. Hermitage, Higgins drove around
the Residences by driving down the street and through the alley. He did not observe

anyone in front of, entering, or leaving the Residences during his surveillance. He
observed children’s toys adjacent to the 5033 Residence.
An Assistant State’s Attorney approved Higgins’s search warrant for the 5033
Residence (“5033 Search Warrant”). Higgins then appeared before Judge Sullivan and

presented her with a complaint for a search warrant, the 5033 Search Warrant, and the
RCI’s criminal history and any payment, promise, or expectation of payment. Judge
Sullivan approved the 5033 Search Warrant.
Once the 5033 Search Warrant and the search warrant for the 5039 Residence

(“5039 Search Warrant”) (together, “Search Warrants”) were approved, they were
submitted to SWAT for a risk assessment. As the SWAT Mission Supervisor and
Command and Control, Defendant Sergeant Hroma reviewed the complaints and the
Search Warrants and completed the Search Warrant Risk Assessment. A warrant is

considered high risk if the assessment results in a score of 35 or above. Hroma searched
databases for calls for service and arrests for the addresses and Bell’s criminal
background, viewed photos of the Residences obtained from Google and the Cook
County Assessor’s website, and had other SWAT officers conduct surveillance. The
Search Warrants received a risk assessment score of 108 because (1) Bell had a

documented gang affiliation, (2) surveillance revealed a large number of associates
outside the Residences, (3) family and gang associates may be on site, (4) there was
information that an AR-15 may be in one of the Residences, (5) a handgun with an
extended magazine and four additional handguns may be present, (6) there were

multiple lookouts on the block, and (7) there was a steel security door at the 5033
Residence. Hroma thus accepted the Search Warrants for SWAT service as high-risk
warrants.
It was determined that the Search Warrants would be executed simultaneously

for the safety of the officers and occupants of the Residences, including any children
possibly located in the basement apartment at the 5033 Residence, because there were
social media photos of the weapons they were looking for, including a semi-automatic
gun with an extended magazine and a weapon-mounted light. The Search Warrants

were executed simultaneously on August 9, 2018.
The Defendant Officers planned for and executed a maximum force “dynamic
entry” into the 5033 Residence. Upon entering, the entry process slowed down
considerably when SWAT officers encountered Plaintiffs and directed them to exit. No

Plaintiff was a target of the Search Warrants or a suspect in the related investigation.
No Plaintiff was arrested and no contraband was found in the 5033 Residence. Plaintiffs
LaKai’ya, Legend, La’Niya, and E’monie were ages 4, 8, 11, and 13, respectively. Tate
is their mother, and Eason is their 55-year-old grandmother.
Between 6:00 and 6:30 p.m. on August 9, Plaintiffs heard two to four loud

explosions. Plaintiffs say the Defendant Officers exploded stun grenades in front of
and on the south side of the 5033 Residence. Defendants dispute this fact and assert
the explosives were placed at the 5039 Residence. Plaintiffs further claim that despite
knowing they did not have a “no knock” warrant, the SWAT Officers did not knock,

announce themselves, or wait before forcibly entering the 5033 Residence, except for
Pantano who waited only 5–15 seconds. Defendants dispute this, asserting Officers
Linker and Pantano knocked and announced while another officer was announcing over
the SWAT vehicle’s PA system that Chicago police were executing search warrants at

the Residences. Plaintiffs state that no announcement from any loudspeaker was made.
Defendant Officers forced the screen door open and 10 officers rushed into the
5033 Residence holding a riot shield at the front of the line. As they entered, all except
Defendant Santisuk trained their guns on Tate. One came to within 1–2 feet of her and

pointed his rifle directly at her chest for 3–5 seconds with 3–4 inches between the gun
and her body. His finger was on the trigger and he screamed “Who the f**k is in here?”
Dkt. # 423, ¶ 60. Tate could see the inside of the barrel and was afraid she was going
to be shot. She immediately put her hands up, answered, and repeatedly asked what

was going on. The officer continued pointing the gun at her for about a minute and
screamed at her to “get the f**k out!” Id.
Tate quickly picked up Lakai’ya and walked to the front door and out of the
apartment while officers continuously pointed their rifles at them, specifically at Tate’s
back and at La’Kaiya’s head from a couple of feet away. Plaintiffs claim officers

pointed their guns at La’Niya for about 30 seconds as she ran after her mother;
Defendants say it was only for a “quick second.” Id. ¶ 63. La’Niya complied with the
officers’ direction to put her hands up.
According to Plaintiffs, when Eason reached the front of the apartment, several

officers rushed at her and pointed their guns at her. One officer pointed his gun directly
at her face, a couple of inches away so she was staring down the barrel. He screamed
at her, “who the f**k is in here?” Id. ¶ 64. Eason had the gun in her face for about 30
seconds, while she was frozen in shock. She answered the officer and complied with

the direction to put her hands up. At the same time, officers were yelling at E’monie
and Legend to put their hands up and “get the f**k out.” Id. They complied and put
their hands up. An officer pointed his rife at Legend’s chest, with the barrel a couple
inches from his body, for about 30 seconds, then moved his rifle to aim at E’monie’s

chest. An officer kept his rifle aimed at Eason and Legend for 3–4 minutes while other
officers searched the apartment. An officer held his rifle an inch from the left side of
E’monie’s face or temple continuously for 2–4 minutes during the search. Defendants
dispute these facts, stating E’monie was only in the 5033 Residence for 15–20 seconds

after seeing the Defendant Officers, and Legend exited before him.
Eason had been about to take a bath when the SWAT Officers entered the
apartment and she was dressed only in underwear and t-shirt that went down to her
belly, with no bra on. An officer yelled at her: “You have to leave, get out, get the f**k
out of here!” Id. ¶ 68. She asked to be allowed to put some clothes on and an officer

screamed at her “No! Get Out!” Id. Officers told Legend and E’monie to “get the f**k
out!” Id. Officers kept their guns pointed at Eason, E’monie, and Legend as they exited
the apartment. Guns were pointed at Plaintiffs for as long as they remained inside the
apartment.

All Plaintiffs followed all officer commands and instructions from the moment
of entry, did not attempt to flee, did not raise their voices, and never verbally or
physically threatened the Defendant Officers. Plaintiffs were fully compliant at all
times and never posed any safety threat. The Defendant Officers did not encounter any

threat in the 5033 Residence.
The SWAT Officers who entered the 5033 Residence wore green army uniforms,
black boots and gloves, helmets, visors, and earmuffs, and had their faces and ears
covered with black or dark cloth (except their eyes). They carried what Plaintiffs

believed to be AR-15s or assault rifles.
Plaintiffs were detained outside of the 5033 Residence during the execution of
the 5033 Warrant. None of them were handcuffed. Immediately upon exiting the 5033
Residence, Plaintiffs were directed to the “safe side” of a SWAT truck so that the

SWAT vehicle was between them and the Residences. The SWAT Officers kept their
guns trained on Plaintiffs for the first 5–7 minutes they were outside. Defendants
dispute this, citing testimony from E’monie that the Defendant Officers did not point
firearms at Plaintiffs while they were outside. At the SWAT truck, Tate, Eason,
La’niya, Legend, and Lakai’ya were crying the whole time they were in detention. Tate

and Cynthia were also crying. All Plaintiffs were barefoot. Tate continued asking
officers what was going on but no one would answer her. Defendants contend Plaintiffs
were not crying the whole time, the Defendant Officers announced they had a search
warrant, Higgins provided Tate with a copy of the 5033 Search Warrant, and Higgins

and Boyle explained why they were there. Plaintiffs admit officers eventually presented
a search warrant but claim it was not until the end of their detention outside.
When Tate began experiencing a panic attack and had difficulty breathing, the
SWAT medic assisted her and an ambulance was called. Tate was then treated by a

paramedic. Id. Plaintiffs contend that when Eason asked officers to call paramedics
for Tate, one officer dismissed her as “just hyperventilating” and hesitated to call an
ambulance, so Eason asked another officer. Dkt. # 423, ¶ 86.
Once outside and still wearing only a T-shirt and underwear, Eason

unsuccessfully tried to pull her T-shirt down to cover her underwear and legs. When
she sat on the SWAT truck, it looked like she was naked. Neighbors had gathered on
their porches to see what was going on. Eason was mortified and had never been more
embarrassed in her life. She asked three or more officers to be allowed to get pants;

they all declined or did not respond. One SWAT Officer looked at her and laughed at
her state of nudity. Defendants contend Eason was provided with a blanket shortly after
exiting the apartment; Plaintiffs contend she did not receive the blanket until the
ambulance arrived.
Once the scene was secured, Plaintiffs were moved to the outdoor stairway in

front of the 5033 Residence until the officers finished executing the 5033 Search
Warrant. Plaintiffs assert they remained outside for between 45 minutes and 2 hours;
Defendants contend it was only 30–75 minutes.
When Plaintiffs were allowed back in the apartment, they saw three or four

officers searching various rooms. It took Plaintiffs a week of work to clean up the mess
the officers made. La’Niya testified that “everything was on the floor . . . toys, clothes,
everything.” Id. ¶ 92. E’monie testified that the “whole entire house was just messed
up . . . everything was just thrown everywhere.” Id. Eason testified that it was “just

like a tornado came in there. It was tore up.” Id. During the search, the Defendant
Officers made a hole in Eason’s bedroom closet wall and tore her closet doors off the
track, broke the closet door next to the utility room, smashed the screens of the four
children’s Samsung iPad tablets so that they no longer worked, broke Legend’s

controller/console for his Xbox video game, broke La’niya’s Hello Kitty karaoke
machine (her favorite toy), and damaged Lakai’ya’s dolls (which had been in a toy bin
but were scattered on the floor with three of the faces smushed in as if they had been
stepped on). Those toys had been Christmas presents, and La’niya cried when she

found her Hello Kitty toy broken on her bedroom floor.
As a result of the Defendant Officers’ conduct, Plaintiffs suffered serious
traumatic distress. Two of the minor Plaintiffs have been diagnosed with Post
Traumatic Stress Disorder (“PTSD”). The night of the search, the children were crying
and afraid all evening. They kept asking why officers would speak to them the way

they did, and why they would break their games, toys, and dolls. Plaintiff Eason had a
“meltdown,” the minor Plaintiffs were “in shock” at how the officers cursed at them
and their family, and none of the Plaintiffs slept that night. Id. ¶ 95.
Bell and the two-tone handgun were found in the 5039 Residence. No sign of

Bell or any connection between him and Plaintiffs were found at the 5033 Residence.
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986). To defeat summary judgment, a nonmovant must produce more than a “mere
scintilla of evidence” and come forward with “specific facts showing that there is a

genuine issue for trial.” Johnson v. Advocate Health and Hosps. Corp., 892 F.3d 887,
894, 896 (7th Cir. 2018). The Court considers the entire evidentiary record and must
view all of the evidence and draw all reasonable inferences from that evidence in the
light most favorable to the nonmovant. Horton v. Pobjecky, 883 F.3d 941, 948 (7th Cir.

2018). The Court does not “weigh conflicting evidence, resolve swearing contests,
determine credibility, or ponder which party’s version of the facts is most likely to be
true.” Stewart v. Wexford Health Sources, Inc., 14 F.4th 757, 760 (7th Cir. 2021).
Ultimately, summary judgment is warranted only if a reasonable jury could not return
a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

DISCUSSION
We first note that Plaintiffs chose to use the same brief to both oppose the
Defendant Officers’ summary judgment motion and support Plaintiffs’ motion. Dkt.
# 401. The Defendant Officers then submitted one brief as both their reply in support

of their motion and their response to Plaintiffs’ motion, Dkt. # 431, to which Plaintiffs
replied, Dkt. # 452. While, the Court appreciates this streamlining, it makes it so that
the parties’ arguments as to each separate motion are virtually inextricable. Cross-
motions for summary judgment are analyzed separately and we view the evidence in

different lights depending on the movant. Here, our opinion will go claim by claim and
determine whether summary judgment is appropriate for the Defendant Officers,
Plaintiffs, or neither.
I. Count II: Validity of the Search Warrant
We first address Plaintiffs’ claim that the Warrant Officers “unreasonably

approved, obtained and/or executed a search warrant for [the 5033 Residence], the
wrong apartment, a fact which invalidated the warrant from the start, prior to
execution.” Dkt. # 70, ¶ 196. Defendant Officers argue they are entitled to summary
judgment on this claim because Plaintiffs fail to overcome the 5033 Search Warrant’s

presumed validity and because it was supported by probable cause. Plaintiffs counter
that they are entitled to summary judgment on this claim because the 5033 Search
Warrant was based on false and unreliable information and thus lacked probable cause.
In the Court’s view, based on the undisputed facts, no reasonable jury could conclude

that the 5033 Search Warrant was invalid. Summary judgment is thus granted in the
Defendant Officers’ favor and Plaintiffs’ motion is denied as to this claim.
The probable cause balance favors the government when an arrest is executed
pursuant to a warrant. Johnson v. Myers, 53 F.4th 1063, 1068 (7th Cir. 2022). “When

a judge authorizes an arrest, as one did here, ‘we presume the validity of [the] warrant
and the information offered to support it.’” Id. (quoting Dollard v. Whisenand, 946
F.3d 342, 354 (7th Cir. 2019)). “That is, we presume probable cause.” Id. That
presumption can give way, however, if the warrant application was “so lacking in

indicia of probable cause as to render official belief in its existence unreasonable.” Id.
at 1068–69 (cleaned up). In such circumstances, “even a facially valid arrest warrant
does not shield otherwise unreasonable conduct.” Id. at 1069 (quoting Williamson v.
Curran, 714 F.3d 432, 444 (7th Cir. 2013)).

A warrant’s presumption of validity may also yield “on a showing that the officer
who sought the warrant ‘knowingly or intentionally or with a reckless disregard for the
truth, made false statements to the judicial officer, and that the false statements were
necessary to the judicial officer’s determination that probable cause existed.’” Id.

(quoting Whitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010)). This includes when an
“officer intentionally or recklessly withheld material facts from the warrant-issuing
judge.” Id. (cleaned up). But these exceptions are “narrowly drawn by design” because
“we accord ‘great deference’ to the issuing judge’s ‘determination of probable cause.’”
Id. (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)).

Plaintiffs take issue with the fact that both the 5033 and 5039 Search Warrants
were issued for Bell at neighboring residences, and that each stated Bell resided at that
address. Because of this, Plaintiffs argue, the Search Warrants were based on false
information. But we do not find the factual bases for the Search Warrants inherently

inconsistent. A reliable RCI personally witnessed Bell engaging in criminal conduct in
both the 5033 and 5039 Residences. Photos showed Bell possessing firearms, i.e.,
committing crimes, at both Residences. The RCI told Higgins that Bell resided at 5033
and stored drugs and weapons at 5039. Burmistrz testified that the RCI never

specifically told her Bell resided at 5039, just that he would be there, and she
independently used the word “reside” in her application for the 5039 Search Warrant.
And even if the RCI had stated that Bell lived both at 5033 and 5039, people can live
in more than one place, and furthermore it is not required that a target reside somewhere

for that residence to be constitutionally searched. See Gates, 462 U.S. at 244 n.13
(probable cause “requires only a probability or substantial chance of criminal activity,
not an actual showing of such activity.”); see also London v. Guzman, 26 F. Supp. 3d
746, 754 (N.D. Ill. 2014); Horne v. Wheeler, 2005 WL 2171151, at *4–5 (N.D. Ill.

2005). Judge Sullivan reviewed the Search Warrants in quick succession and approved
both. Even if statements about Bell’s residing in one or the other location were false,
there is no indication that his residence was necessary to Judge Sullivan’s determination
that probable cause existed.5
Plaintiffs have come forward with no facts to show that Higgins knowingly,

intentionally, or with a reckless disregard for the truth made false statements or withheld
material facts from Judge Sullivan, nor that any such misstatements were necessary to
her determination that probable cause existed. The 5033 Search Warrant is thus
presumed valid.

5 Nor do any of the other facts Plaintiffs cite indicate that the 5033 Search Warrant was based on
false information. See Dkt. # 401, at 12–15.
Plaintiffs also fail to show the 5033 Search Warrant was not supported by
probable cause. “[A]n affidavit submitted in support of a warrant application ‘need

only contain facts that, given the nature of the evidence sought and the crime alleged,
allow for a reasonable inference that there is a fair probability that evidence will be
found in a particular place.’” United States v. Zamudio, 909 F.3d 172, 176 (7th Cir.
2018) (quoting United States v. Aljabari, 626 F.3d 940, 944 (7th Cir. 2010)); see also

United States v. Dismuke, 593 F.3d 582, 586 (7th Cir. 2010) (affidavit submitted in
support of search warrant application supports probable cause if “based on the totality
of the circumstances, the affidavit sets forth sufficient evidence to induce a reasonably
prudent person to believe that a search will uncover evidence of a crime.”).

The Supreme Court in Gates adopted a “totality-of-the-circumstances analysis
that traditionally has informed probable cause determinations” for cases where a search
warrant’s affidavit is based on an informant’s report. 462 U.S. at 238. Reliability,
veracity, and basis of knowledge are all “highly relevant,” but the totality-of-the-
circumstances approach means “a deficiency in one may be compensated for . . . by

some other indicia of reliability.” Id. at 230, 233.
To evaluate the totality of the circumstances, the Seventh Circuit considers “five
primary factors [] along with other pertinent concerns: the level of detail, the extent of
firsthand observation, the degree of corroboration, the time between the events reported

and the warrant application, and whether the informant appeared or testified before the
magistrate.” United States v. Glover, 755 F.3d 811, 816 (7th Cir. 2014). Again, no one
factor is determinative. United States v. Peck, 317 F.3d 754, 756 (7th Cir. 2003).
We find that probable cause supported the 5033 Search Warrant based on the

Glover factors. It contained Bell’s name and address, the items to be seized, an account
of the criminal activity observed firsthand by the RCI (i.e., he personally observed Bell
with the black semi-automatic handgun in the 5033 Residence multiple times), the
RCI’s five-year history with Bell and his knowledge that Bell always carried firearms

with him despite being a convicted felon with no FOID card or concealed carry license,
and the RCI’s statements that Bell lived in the basement apartment of the 5033
Residence. Higgins corroborated the RCI’s information: he had the social media photo
showing Bell holding the black handgun while standing outside the 5033 Residence, he

provided the RCI with photos and the RCI positively identified both Bell and the
residence, he found Bell’s criminal history report which confirmed Bell was a convicted
felon with no FOID card or concealed carry license, and he conducted surveillance on
three different occasions and observed children’s toys adjacent to the 5033 Residence,
which supported the RCI’s statement that children may be present.

The information was timely because the RCI observed Bell with the black
handgun in the 5033 Residence during the 48 hours leading up to August 7, 2018, when
the warrant was approved. See United States v. Searcy, 664 F.3d 1119, 1122 (7th Cir.
2011). Even though the RCI did not appear before Judge Sullivan, Judge Sullivan was

presented with the RCI’s criminal history, payment or expectation of payment, and his
history of providing credible and reliable information.
Plaintiffs argue that Bell was not connected with the 5033 Residence and thus
the RCI’s “statement turned out to be wholly false.” Dkt. # 401, at 11. But this is

unavailing, since for probable cause we “look only at what [Higgins] knew at the time
he sought the warrant, not at how things turned out in hindsight.” See Edwards v. Jolliff-
Blake, 907 F.3d 1052, 1057 (7th Cir. 2018). Judge Sullivan had a “substantial basis for
concluding that a search would uncover evidence of wrongdoing,” and her probable

cause determination is thus entitled to significant deference. See Gates, 462 U.S. at 236
(cleaned up).
Based on the totality of the circumstances, we find that the 5033 Search Warrant
was supported by probable cause. Summary judgment on Count II is granted in

Defendants’ favor, and Plaintiffs’ motion is denied as to this claim.
II. Count III: Unreasonable Manner of Entry and Search
Next, we turn to Count III, which alleges an unlawful search under Section 1983
based on the Defendant Officers’ “objectively unreasonable” entry and search of the
5033 Residence, in violation of Plaintiffs’ Fourth Amendment rights. Dkt. # 70, ¶ 211.

Plaintiffs allege the entry and search was unreasonable because the Defendant Officers
did not knock or announce themselves, set off flash bang explosives outside of the 5033
Residence, pointed assault rifles in Plaintiffs’ faces and at their bodies, unnecessarily
damaged or destroyed Plaintiffs’ personal property, continued the search despite the

target being discovered next door, and detained Plaintiffs for an unreasonably long time
and in a humiliating manner despite Plaintiffs not being the target of the search.
Defendants, in turn argue that the manner of entry and search was reasonable under the
circumstances. Because we find multiple disputes of material fact, we deny both

summary judgment motions as to this claim.
Plaintiffs cite evidence showing the following: the Defendant Officers knew
children were inside the 5033 Residence, the Defendant Officers requested, planned,
and/or executed a “dynamic entry” into the 5033 Residence, the entry plan included the

use of stun grenades outside the 5033 Residence, and no Defendant Officer knocked,
announced themselves, or waited a reasonable time before forcibly entering the 5033
Residence. Additionally, eight of the nine SWAT Officers entered the 5033 Residence
with their faces completely covered and they pointed their loaded assault rifles directly

at Plaintiffs’ faces, heads, chests, and bodies at close or point-blank range for several
minutes despite all Plaintiffs being fully compliant at all times and posing no safety
threat. See Baird v. Renbarger, 576 F.3d 340, 345 (7th Cir. 2009) (“gun pointing when
an individual presents no danger is unreasonable and violates the Fourth
Amendment.”); see also Jacobs v. City of Chicago, 215 F.3d 758, 773–74 (7th Cir.

2000); McDonald v. Haskins, 966 F.2d 292, 294–95 (7th Cir. 1992).
Defendants argue that once approved by Judge Sullivan, the Search Warrants
were assessed as high risk, and Hroma prepared a mission plan that included executing
the Search Warrants simultaneously for the safety of both the officers and occupants.

Although the initial plan was to make a dynamic entry, the process “slowed down
considerably” and was no longer a dynamic entry once Plaintiffs were encountered and
called out by the SWAT Officers. Dkt. # 377, at 15.
Defendants dispute the facts cited by Plaintiffs and put forth their own set of

facts. They first contend that a flashbang was deployed near the 5039 Residence, not
the 5033 Residence, specifically because the Defendant Officers were aware children
might be present at 5033. The SWAT Officers did knock and announce their office
while there was an announcement over the PA system of a SWAT vehicle that police

were executing search warrants at the Residences. After they received no answer, the
SWAT Officers rammed open the steel security door, and the interior door was already
open. As to the gun-pointing allegations, Defendants contend that the SWAT Officers
held their firearms consistent with their SWAT safety training and did not intentionally

point their firearms at any of the Plaintiffs. They argue that displaying their guns upon
entry was reasonable given the high-risk nature of the 5033 Search Warrant, and that
“any minimal, inadvertent gun pointing during this short duration was not unlawful.”
Dkt. # 377, at 17.
While we find that most of the above-discussed evidence creates factual disputes

for the jury, we do agree that Defendants Hroma and Cuomo cannot be held liable for
Count III under supervisory liability since there is no evidence that they were personally
involved or planned for or directed any unreasonable or excessive conduct. See Chavez
v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001). Defendants’ motion for

summary is granted as to Hroma and Cuomo for Count III.
Furthermore, summary judgment is granted in the Defendant Officers’ favor as
to the property damage allegations. Plaintiffs fail to supply evidence that the Defendant
Officers’ manner of searching the property was excessive or unnecessary, United States

v. Ramirez, 523 U.S. 65, 71 (1998), or was anything more than negligence, Lewis v.
Anderson, 308 F.3d 768, 773 (7th Cir. 2002).
Otherwise, the reasonability of the Defendant Officers’ actions is a question for
the jury and both motions for summary judgment are denied as to Count III.

Although the Defendant Officers contend they should be afforded qualified
immunity as to Count III, we disagree. 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. Kisela v. Hughes, 584 U.S. 100, 104 (2018)

(cleaned up). Because the focus is on whether the officer had fair notice that her
conduct was unlawful, reasonableness is judged against the backdrop of the law at the
time of the conduct. Id. “Although ‘this Court’s caselaw does not require a case directly
on point for a right to be clearly established, existing precedent must have placed the
statutory or constitutional question beyond debate.’” Id. (quoting White v. Pauly, 580

U.S. 73, 79 (2017)). “In other words, immunity protects all but the plainly incompetent
or those who knowingly violate the law.” Id. (cleaned up).
We decline to find the Defendant Officers are entitled to qualified immunity for
this claim because precedent clearly establishes that “gun pointing when an individual

presents no danger is unreasonable and violates the Fourth Amendment.” Baird, 576
F.3d at 345 (collecting cases).
III. Counts IV and VI: False Arrest
Counts IV and VI allege claims for false arrest and false imprisonment under
Section 1983 and Illinois law, respectively.

“[T]he Fourth Amendment authorizes officers executing a search warrant to take
reasonable action to secure the premises and to ensure their own safety and the efficacy
of the search.” United States v. Clifton Banks, 628 F. Supp. 2d 811, 815 (N.D. Ill. 2009)
(quoting United States v. Jennings, 544 F.3d 815, 818 (7th Cir. 2008) (cleaned up)).

“In fact, officers executing a search warrant ‘have categorical authority to detain any
occupant of the subject premises during the search,’ not only because ‘the probable
cause underlying a warrant to search a premises gives police reason to suspect that its
occupants are involved in criminal activity,’ but ‘also because the officers have a

legitimate interest in minimizing the risk of violence that may erupt when an occupant
realizes that a search is underway.’” Id. (quoting Jennings, 544 F.3d at 818)); see also
United States v. Burns, 37 F.3d 276, 280 (7th Cir. 1994) (detention during execution of
search warrant was reasonable under Fourth Amendment); People v. Edwards, 144 Ill.

2d 108, 126 (1991) (“a warrant to search for contraband, founded on probable cause,
implicitly carries with it the authority to detain occupants of the premises while the
search is being conducted”). Officers’ authority to detain people incident to a search
warrant carries with it the authority to use reasonable force to effectuate the detention.

Muehler v. Mena, 544 U.S. 93, 98 (2005).
The Defendant Officers seek qualified immunity as to Count IV. Because
Plaintiffs have not identified clearly established precedent applying to the manner of
their detention, the Defendant Officers are immunized from liability on Plaintiffs’

federal false arrest and unlawful detention claim and summary judgment is granted in
the Defendant Officers’ favor.
Turning to Count VI, as discussed supra, the 5033 Search Warrant was supported
by probable cause. Thus, to the extent Count VI assert the Defendant Officers

unlawfully detained Plaintiffs based on an invalid search warrant, summary judgment
is granted in Defendants’ favor. Summary judgment is otherwise denied as to this
claim. Officers may only use reasonable force to effectuate a lawful detention. The
facts regarding multiple aspects of Plaintiffs’ detention are disputed, for example

whether Eason was forced to stand outside in a state of partial nudity, and the length of
Plaintiffs’ detention. The reasonability of Plaintiffs’ detention is a question for the jury.
IV. Count V: Assault
Plaintiffs argue that Defendants’ summary judgment motion as to their state law
assault claim must be denied because there are disputes of material fact. In Illinois,

assault involves “intentional conduct that places the plaintiff in reasonable
apprehension of an imminent battery.” Wagner v. Cook Cnty. Sheriff’s Off., 453 F.
Supp. 3d 1101, 1102 (N.D. Ill. 2020). Subjective fear is not enough—“[s]uch feelings
must have a measure of objective reasonableness.” Hespe v. City of Chicago, 307 F.

Supp. 3d 874, 890 (N.D. Ill. 2018). Furthermore, while a search warrant authorizes the
use of reasonable force to effectuate a detention of individuals in the area, that force
must still be “objectively reasonable” for the circumstances. Mena, 544 U.S. at 98–99;
Graham v. Connor, 490 U.S. 386, 397 (1989).

Count V alleges that the Defendant Officers’ actions were intended to, and did,
cause Plaintiffs reasonable apprehension of immediate harmful contact, and/or that the
Defendant Officers’ actions were willful and wanton, showed utter indifference or
conscious disregard for the safety of Plaintiffs. Dkt. # 70, ¶ 234–40. The specific bases

for Plaintiffs’ claim are similar to those of the excessive force claim—evidence that the
Defendant Officers exploded concussion grenades next to the 5033 Residence, forcibly
entered without knocking, announcing, or waiting then rushed in with their faces
covered, and pointed assault rifles at the “fully compliant” Plaintiffs. Dkt. # 401, at 27.

Plaintiffs also claim the Defendant Officers emphasized their threat of deadly force by
“screaming angry, profane comments” at Plaintiffs. Id. Defendants’ arguments in
response only highlight that disputes of material fact remain as to this claim.
Both Defendants’ and Plaintiffs’ motions are denied as to this claim. Despite the
valid search warrant, Plaintiffs’ have raised material fact disputes regarding the

reasonability of Defendants’ actions, as well as whether they were willful and wanton,
and the reasonability of Plaintiffs’ apprehensions of harm. See Wagner, 453 F. Supp.
at 1103 (denying summary judgment when the defendant’s “conduct was sufficiently
threatening to place plaintiff in imminent apprehension of a battery.”); see also

Callahan v. Aldridge, 2011 WL 578848, at *4 (N.D. Ill. 2011).
V. Count VII: Intentional Infliction of Emotional Distress
Count VII alleges intentional infliction of emotional distress (“IIED”) under
Illinois law.6 To prevail on an IIED claim, a plaintiff must establish: (1) the defendant’s

conduct was extreme and outrageous; (2) the defendant intended to inflict severe
emotional distress; and (3) the defendant’s conduct did cause emotional distress.
Hespe, 307 F. Supp. 3d at 890 (citing Cairel v. Alderden, 821 F.3d 823, 835 (7th Cir.
2016)). “To meet the ‘extreme and outrageous’ standard, the defendants’ conduct ‘must

be so extreme as to go beyond all possible bounds of decency, and to be regarded as
intolerable in a civilized community.’” Swearnigen-El v. Cook Cnty. Sheriff’s Dep’t,
602 F.3d 852, 864 (7th Cir. 2010) (quoting Kolegas v. Heftel Broad. Corp., 154 Ill. 2d
1, 21 (1992)). Although it is not the only consideration, conduct may be characterized

as extreme and outrageous where it “arises out of an abuse of a position or relationship
in which the defendant has authority over the plaintiff.” Woods v. Clay, 2002 WL
731682, at *3 (N.D. Ill. 2002). Abuse of one’s position as a police officer constitutes
outrageous conduct. Id. (citing Doe v. Calumet City, 161 Ill. 2d 374, 392–93 (1994).

“The more control which a defendant has over the plaintiff, the more likely the
defendant’s conduct will be deemed outrageous.” Lopez v. City of Chicago, 464 F.3d
711, 721 (7th Cir. 2006) (cleaned up).
Plaintiffs base their IIED claim on the Defendant Officers’ conduct discussed in

detail supra. Defendants argue that Plaintiffs’ factual statements have been

6 Plaintiffs dropped their negligent infliction of emotional distress claim. Dkt. # 401, at 30 n.8.
“disproved,” Dkt. # 431, at 38, but again, this only demonstrates that disputes of
material fact remain.

Disputes of material fact exist as to whether the Defendant Officers’ conduct was
extreme and outrageous and whether they intended to inflict emotional distress.
Relevant evidence includes the Defendant Officers’ position of power over Plaintiffs,
some of the Plaintiffs’ young ages (between 4 and 13 years old), the Defendant Officers’

seemingly aggressive behavior, that Plaintiffs complied with all orders and did not pose
any threat to the Defendant Officers, and that Plaintiffs suffered traumatic distress, with
two of the minor Plaintiffs developing PTSD.
Both Defendants’ and Plaintiffs’ motions are denied as to this claim. Disputes

of material fact exist as to each of the IIED factors.
VI. Count VIII: Trespass
Finally, in Count VIII, Plaintiffs bring a state-law trespass claim. In Illinois,
“trespass is an intentional invasion of the exclusive possession and physical condition
of land.” Blassingame v. City of Chicago, 2021 U.S. Dist. LEXIS 190452, at *12 (N.D.

Ill. 2021) (cleaned up). “The validity of [a] search warrant is [] central to the viability
of the state law claim for trespass.” Caldwell v. City of Chicago, 2010 WL 2722207, at
*5 (N.D. Ill. 2010). “To constitute a cognizable trespass, an entry onto the land of
another must be unauthorized.” Id. (citing People v. Goduto, 21 Ill. 2d 605, 609 (1961)).

Plaintiffs assert that the Defendant Officers “trespassed in [P]laintiffs’ apartment
twice”—first by entering Plaintiffs’ apartment on an “invalid” search warrant, and
second by unreasonably excluding Plaintiffs from their apartment and “continu[ing] to

occupy it for 2 hours” when the search took 20—30 minutes.
Given the validity of the 5033 Search Warrant, the Defendant Officers’ “entry
was authorized by law, negating a cause of action for trespass.” See Caldwell, 2010
WL 2722207, at *5. And even if the facts surrounding the timing and duration of the
search were undisputed, Plaintiffs cite no authority standing for the proposition that
occupying the premises subject to a valid search warrant for two hours is inherently
unreasonable or unlawful. See Crespo v. Calvin, 824 F.3d 667, 674 (7th Cir. 2016)
(“Arguments that are unsupported by pertinent authority[] are waived.”).
Summary judgment on Count VIII is granted in the Defendant Officers’ favor,
and Plaintiffs’ motion for summary judgment on this claim is denied.
CONCLUSION
The Defendant Officers’ motion for summary judgment [376] is granted-in-part
and denied-in-part. The Defendant Officers’ motion is granted on Counts II, IV, and
VII, granted-in-part and denied-in-part on Counts HI and VI, and denied as to Counts
V and VII. Plaintiffs’ cross-motion for partial summary judgment [395] is denied in
full. Status hearing set for 11/7/2024 at 9:50 a.m. to discuss whether resolution of this

case is possible and if not, preparation for trial. It is so ordered.

= QO P lV
CharlesP.Kocoras
United States District Judge
Date: 9/27/2024
27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10645966. Public record. Not legal advice.