Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DANTE SMITH,

Plaintiff, Case No. 21-cv-890

v.

THE CITY OF CHICAGO, et al., Judge John Robert Blakey

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Dante Smith brings claims against the City of Chicago and Chicago

Police Officers Marvin Bonnstetter, Michael Bertini, Wayne Frano, Jr., Nicholas

Hertko, Ivan Ramos, Kevin Garcia, Michael Napoli, and Salvatore Reina (collectively,

the “Officer Defendants”) under § 1983 for violations of his Fourth Amendment rights

during the execution of a search warrant. He asserts a Monell claim against the City

(Count I) and sues the Officer Defendants for unlawful search (Count II), false arrest

(Count III), and excessive force (Count IV). The Officer Defendants now seek

summary judgment on the false arrest and excessive force claims (Counts III and IV),

[105]. For the reasons explained below, the Court grants in part, and denies in part,

Defendants’ motion.

I. Background1

On July 1, 2017, Defendant Bonnstetter procured a search warrant for

Plaintiff’s apartment on the second floor of the building located at 3910 W. Van Buren

in Chicago. [143] ¶ 5. The search warrant targeted an individual named Kevin

Stewart a/k/a “Kevo” and identified items to be seized, including heroin, drug

paraphernalia, records involving drug transactions, and residency documents. Id. ¶

6.

There were seven occupants in the apartment on the evening of July 1,

including Plaintiff. Id. ¶ 9. Plaintiff, who was in his bedroom at the time, heard a

loud noise and moved to the rear of the apartment to look out the window, where he

observed a police officer and police cars. Id. ¶ 10. Plaintiff then moved to the front

of the apartment where he encountered Officer Bonnstetter, the first officer to enter

Plaintiff’s apartment. Id. ¶¶ 11–12. As each of the Defendant Officers entered

Plaintiff’s apartment, they were approximately two to three feet from Plaintiff, and

Plaintiff testified that each Officer Defendant pointed his firearm at Plaintiff for a

few seconds upon entry. Id. ¶ 17; [107-6] at 126:21–127:6; 163:24–165:19. Plaintiff

also testified that Defendant Frano carried a long, black rifle, which he also pointed

at Plaintiff’s chest and head for several seconds. [147] ¶ 33. Defendants dispute that

any officer pointed a firearm at Plaintiff or any other occupant of the apartment.

[147] ¶¶ 24, 30–32.

1 The Court draws these facts from the parties’ statements of material facts, responses thereto, and

cited exhibits. [107], [143], [147].

Plaintiff testified that, as the Defendant Officers entered the apartment, they

shouted, “get down, don’t move,” [107-6] at 94:5–6, and that Defendant Garcia

grabbed Plaintiff’s arm, twisted it behind his back, and handcuffed him. Id. at 94:7–

9. Defendant Garcia then pushed Plaintiff into the dining room and put him on the

floor. [143] ¶ 38; [147] ¶ 36; [107-6] at 94:9–14.2

Plaintiff testified that Officer Garcia placed the handcuffs on Plaintiff’s wrists

so tightly that they caused pain, broke the skin, and gave Plaintiff abrasions on his

wrists. [147] ¶ 36. Plaintiff remained handcuffed while the Defendant Officers

finished searching the apartment. Id. ¶ 37. Officer Garcia had no recollection of

handcuffing Plaintiff or anyone else during the execution of the search warrant. Id.

¶ 39. None of the Defendant Officers recall whether Plaintiff remained handcuffed

throughout the entire time they searched his apartment or who, if any of them,

handcuffed Plaintiff. Id. ¶ 16.

During execution of the search warrant, Plaintiff complied with the Defendant

Officers’ orders, did not resist the Defendant Officers, and presented no safety threat

to the officers on the scene. [147] ¶ 28. Plaintiff testified that, at one point, while he

was seated on the floor by the wall, Defendant Napoli put his firearm to Plaintiff’s

head and said, “if you want to keep hooping, don’t f***ing move or I’ll blow your brains

2 In the Second Amended Complaint, Plaintiff alleged that Defendant Ramos twisted Plaintiff’s arm

and handcuffed him. [143] ¶ 35; [90] ¶ 64. In response to Defendants’ interrogatories, Plaintiff

represented that Defendant Napoli twisted his arm and handcuffed him. [143] ¶ 37; [107-14] ¶ 11.

But in his more recent March 9, 2023 deposition, Plaintiff testified that Defendant Garcia twisted his

arm and handcuffed him. [107-6] at 93:17–94:14.

out.” Id. ¶ 41; [107-6] at 103:5–15.3 Plaintiff testified that Officer Napoli continued

to stand next to him with his pistol pointed at Plaintiff’s chest, torso, and legs from

approximately two to three feet away for approximately 10 to 15 minutes. [147] ¶ 42;

[107-6] at 118:2–5. According to Plaintiff, Defendant Ramos witnessed his encounter

with Defendant Napoli, [107-6] at 117:13–22, 118:14–20, but no other Defendant

touched him with a firearm or verbally threatened him. Id. at 119:4–120:21. Officer

Napoli denied touching Plaintiff with his firearm and threatening him. [147] ¶ 42.

Plaintiff remained handcuffed for approximately one to two hours, throughout

the officers’ search of the apartment. [143] ¶ 46. Plaintiff did not tell the officers at

the time that his handcuffs were too tight or otherwise uncomfortable; nor did he

complain of injury or request medical attention during the incident. Id. ¶¶ 48–49;

[107-6] at 135:4–11, 159:21–160:6. Plaintiff’s left arm and wrist were sore for several

days following the incident. Id. ¶ 47. After the search of Plaintiff’s residence, the

Defendant Officers recovered various types of firearm ammunition and bags

containing a substance the officers suspected to be heroin. Id. ¶ 50.

On February 17, 2021, Plaintiff filed a complaint against the City of Chicago

and the Officer Defendants, [1], which he amended on June 4, 2021, [28], and

September 16, 2022, [90]. In the operative complaint, Plaintiff asserts a § 1983 claim

against the City of Chicago under Monell (Count I) and § 1983 claims against the

Officer Defendants for unlawful search (Count II), false arrest and imprisonment

3 In the Second Amended Complaint, Plaintiff alleged that, on information and belief, Defendant

Ramos touched Plaintiff with his firearm and threatened him. [90] ¶ 65. In his response to

Defendants’ discovery requests and at his deposition, Plaintiff clarified that it was Defendant Napoli,

not Defendant Ramos, who interacted with Plaintiff. [143] ¶¶ 36–37; [107-6] at 103:5–15.

(Count III), and excessive force (Count IV). On July 21, 2022, the Court granted the

City of Chicago’s motion to bifurcate the Monell claim and stay the case as to that

claim while the case proceeds against the Officer Defendants. [87]. This Court also

previously granted Defendants’ motion to dismiss Count II without prejudice, which

Plaintiff has re-pled (making no substantive changes) in the Second Amended

Complaint, purportedly to preserve the issue on appeal. [90] at 33 n.6. The parties

agree the Court dismissed this claim in its prior order, [67], and it is no longer at

issue; thus, the Court dismisses Count II with prejudice for the reasons stated in its

March 25, 2022 order, [67].

Defendants move for summary judgment on Counts III and IV. [105].

II. Legal Standard

A motion for summary judgment can be granted only when there are no

genuine issues of material fact and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a). The party seeking summary judgment has the

burden of establishing that there is no genuine dispute as to any material fact. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To withstand a motion for summary

judgment, the nonmovant must “set forth specific facts showing that there is a

genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

The Court must construe the record “in the light most favorable to the nonmovant”

and avoid the “temptation to decide which party’s version of the facts is more likely

true.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).

In resolving a motion for summary judgment, this Court has “one task and one

task only: to decide, based on the evidence of record, whether there is any material

dispute of fact that requires a trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918,

920 (7th Cir. 1994) (citations omitted). The nonmovant, though, “must do more than

raise a metaphysical doubt as to the materials facts. Rather, she must come forward

with specific facts showing that there is a genuine issue for trial.” Miller v. American

Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000) (citation omitted).

III. Analysis

The Officer Defendants move for summary judgment on Plaintiff’s false arrest

claim on the grounds that the officers detained Plaintiff pursuant to a valid search

warrant. Further, Defendants argue that the undisputed facts demonstrate that the

Officer Defendants did not use excessive force against Plaintiff during the execution

of the search warrant, and the doctrine of qualified immunity shields the Officer

Defendants from liability. The Court considers Defendants’ arguments, in turn,

below.

A. False Arrest / False Imprisonment (Count III)

Plaintiff claims that the Defendant Officers subjected him to a false arrest by

placing him in handcuffs while they executed a search warrant of his residence.

While the Fourth Amendment requires searches and seizures to be reasonable,

officers executing a search warrant may “take reasonable action to secure the

premises and ensure their own safety and the efficacy of the search.” United States

v. Jennings, 544 F.3d 815, 818 (7th Cir. 2008) (quoting Los Angeles Cnty., Cal v.

Rettele, 550 U.S. 609 (2007)). Thus, the Fourth Amendment grants officers

“categorical authority to detain any occupant of the subject premises during the

search,” id. (citing Muehler v. Mena, 544 U.S. 93, 98 (2005)), to minimize “the risk of

violence that may erupt when an occupant realizes that a search is underway,” id.

(citing Michigan v. Summers, 452 U.S. 692 (1981)). Further, the Fourth Amendment

permits such detentions during the execution of a valid search warrant “because the

character of the additional intrusion caused by detention is slight and because the

justifications for detention are substantial.” Mena, 544 U.S. at 98 (citing Summers,

452 U.S. at 701–05). Thus, an individual’s detention for the duration of a search is

reasonable if officers possessed a valid search warrant for the premises and the

individual occupied those premises at the time of the search. Id.

The undisputed facts in this case mirror those in Mena. As in Mena, the

Defendant Officers here executed a valid warrant to search Plaintiff’s apartment, and

because Plaintiff resided at that address at the time of the search, the Officer

Defendants acted reasonably when they detained Plaintiff for the duration of that

search. See id. (“Mena’s detention for the duration of the search was reasonable

under Summers because a warrant existed to search 1363 Patricia Avenue and she

was an occupant of that address at the time of the search.”).

Plaintiff argues that such detention became unreasonable because it lasted

longer than necessary and that, because the warrant did not identify Plaintiff as a

suspect, there was no reason for officers to handcuff him. But, when the warrant

identifies a premises, not an individual, “the connection of an occupant to a home

alone justifies a detention of that occupant.” Id. (citing Summers, 452 U.S. at 703–

04). Further, the Officer Defendants detained Plaintiff only for the duration of the

search, which the parties agree lasted approximately 1.5 to 2 hours. [143] ¶ 46; see

id. (finding a “2– to 3–hour detention in handcuffs” for the duration of a search was

not unreasonable).

Plaintiff’s remaining arguments, which include that the handcuffs caused

Plaintiff injury because they were too tight and that the Defendant Officers placed

guns in Plaintiff’s face and physically assaulted and threatened him, support his

excessive force claim, not his unreasonable arrest claim. As the Seventh Circuit

noted, false arrest “and excessive force are unrelated except in forming a sequence”;

valid detention “does not justify beating him up, and the beating does not invalidate

the arrest.” Lenard v. Argento, 808 F.2d 1242, 1246 (7th Cir. 1987). Thus, it “is

possible for a police officer to use excessive force to make what is otherwise a

legitimate arrest.” Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 681 (7th Cir.

2007).

The Court grants Defendants’ motion for summary judgment as to Count III.

The Court addresses Plaintiff’s arguments supporting his excessive force claim below.

B. Excessive Force

Plaintiff brings an excessive force claim on the grounds that: (1) Officer Garcia

handcuffed Plaintiff with such force that he sustained injury; (2) each of the Officer

Defendants pointed his firearm at Plaintiff upon entry to the premises; and (3) Officer

Napoli touched his firearm to Plaintiff’s head and threatened to shoot him while

Plaintiff was in handcuffs.

The Court analyzes claims that law enforcement officers used excessive force

in the course of a seizure or detention “under the Fourth Amendment and its

‘reasonableness’ standard.” Abdullahi v. City of Madison, 423 F.3d 763, 768 (7th Cir.

2005) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The reasonableness

standard is an objective one from “the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Payne v. Pauley, 337 F.3d 767, 778

(7th Cir. 2003) (quoting Graham, 490 U.S. at 396–97). And the Court must allow “for

the fact that police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation.” Abdullahi, 423 F.3d at 768 (quoting

Graham, 490 U.S. at 396–97).

The Court must consider whether, based upon the “totality of circumstances at

the time of the arrest, the officer used greater force than was reasonably necessary to

make the arrest.” Payne, 337 F.3d at 778 (quoting Lester v. City of Chicago, 830 F.2d

706, 713 (7th Cir. 1987)). This inquiry is fact specific and must balance “the intrusion

of the individual against the governmental interests at stake.” Id. Thus, the Court

must consider “the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether the suspect is

actively resisting arrest or attempting to evade arrest by flight.” Id. (citing Graham,

490 U.S. at 396).

1. Plaintiff’s Handcuffs and Resulting Injuries

Plaintiff first argues that, when Defendant Garcia placed him in handcuffs, he

tightened them to the point they broke Plaintiff’s skin and caused him pain for several

days after the incident.

Like any excessive force claim, the Court analyzes Plaintiff’s argument under

“the Fourth Amendment’s reasonableness standard,” which considers a particular

use of force “from the perspective of a reasonable officer on a scene…in light of the

facts and circumstances confronting them, without regard to their underlying intent

or motivation.” Tibbs v. City of Chicago, 469 F.3d 661, 665 (7th Cir. 2006) (citing

Graham, 490 U.S. at 396–97).

While the Seventh Circuit has “recognized excessive force claims based upon

overly tight handcuffs,” id., those cases each had particular facts and circumstances

markedly different from the circumstances described by Plaintiff. For example, in

Payne v. Pauley, the plaintiff complained to officers that her handcuffs were too tight,

experienced numbness in her wrist and fingers, sought treatment at the emergency

room, and underwent two surgical procedures due to the arrest, which left her unable

to work for years. 337 F.3d 767, 774–75 (7th Cir. 2003); see also Lester v. City of

Chicago, 830 F.2d 706 (officers kneed plaintiff in the back, dragged her down the

hallway, and handcuffed her tightly causing scratches and bruises); Herzog v. Village

of Winnetka, Ill., 309 F.3d 1041, 1043 (7th Cir. 2002) (officers forced a breath

screening device in plaintiff’s mouth, cracking her tooth, and laughed when she

complained her handcuffs were too tight); Brown v. Village of Evergreen Park, 2002

WL 31844991, at *4 (N.D. Ill. Dec. 18, 2002) (officers jammed plaintiff’s head against

hood of car and handcuffed him so tightly it caused nerve damage).

In contrast, the court in Tibbs affirmed summary judgment against a plaintiff

who complained “only once” to the officers on the scene that his handcuffs were too

tight “without elaborating on any injury, numbness, or degree of pain.” 469 F.3d at

666. Further, the plaintiff remained in handcuffs for only twenty-five to thirty

minutes, and his only symptoms included redness on his wrists for which he never

sought medical care. Id. The Seventh Circuit noted that in cases denying summary

judgment, such as Herzog and Lester, “plaintiffs presented evidence they had suffered

numerous additional injuries,” and plaintiff cited “no cases in which any court has

permitted a plaintiff to reach a jury based on such mild allegations.” Id.; see also Sow

v. Fortville Police Dept., 636 F.2d 293, 304 (7th Cir. 2011) (plaintiff only complained

the handcuffs were too tight once, never complained of injury at the scene, and sought

no treatment for injury).

Plaintiff’s testimony describes circumstances more similar to Tibbs and Sow

than the other Seventh Circuit excessive force cases. Like the plaintiff in Tibbs,

Plaintiff never complained to officers that his handcuffs were too tight or that they

caused him any injury. [143] ¶ 48–49; [107-6] at 135:4–11. He testified that he

suffered abrasions, and his wrists were sore for several days, [147] ¶ 36; [107-6] at

134:2–23, but he identified no other injuries and testified that he never sought

medical care after the incident, [107-6] at 96:16–20, 143:6–8.

Based upon these “mild allegations,” no reasonable jury could find that the

force employed by the Defendant Officers to handcuff Plaintiff violated his Fourth

Amendment rights.

2. Officers’ Guns Pointed at Plaintiff’s Face

Defendants also argue that the Defendant Officers’ briefly pointing their

firearms at Plaintiff when they first entered his apartment to effectuate a search

warrant cannot constitute excessive force.

The Supreme Court has acknowledged that officers do not violate the Fourth

Amendment when they “execute a valid warrant and act in a reasonable manner to

protect themselves from harm.” Los Angeles Cnty., California v. Rettele, 550 U.S. 609,

615 (2007). If there is “reason to fear danger, based on factors like the nature of the

crime, the threat to safety, and the resistance of the suspect, police officers may have

cause to point their guns at citizens.” Johnson v. Gullickson, No. 22-1016, 2022 WL

2387350, at *2 (7th Cir. July 1, 2022) (citing Baird v. Renbarger, 576 F.3d 340, 346–

47 (7th Cir. 2009)). Thus, “the action of a police officer in pointing a gun at a person

is not in and of itself, actionable.” Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989);

see also Simmons v. City of Chicago, Illinois, 2017 WL 635144, at *7 (N.D. Ill. Feb.

16, 2017) (police may detain an individual found at search warrant premises,

including by “entering the residence with guns drawn, forcing a show of hands, and

detaining him”).

While Defendants dispute that any Defendant Officer pointed his firearm at

Plaintiff, [147] ¶¶ 24, 30, 32–36, 43–44, Plaintiff testified that the Officer Defendants

had their guns drawn upon entry and, as each Defendant Officer entered the

apartment, he pointed his firearm at Plaintiff. [107-6] at 126:21–127:6 (“They came

in. They aimed their weapons at us. All the cops, they all aimed them at us.”). But

Plaintiff also testified that each Defendant Officer only pointed his gun at Plaintiff

for “a few seconds” and that each encounter was “quick.” See [107-6] at 163:10–19

(Officer Bonstetter); 163:15–19 (Officer Frano); 163:20–24 (Officer Ramos); 164:5–9

(Officer Garcia); 163:8–18 (Officer Bertini). Further, Plaintiff testified that each of

the Defendant Officers only continued pointing their firearms at Plaintiff until they

handcuffed the individuals at the scene. See [107-6] at 175:8–15 (“Q: And for about

how long did the other officers point their firearms at you, each one of them? A: It

was fast…A few seconds. A few seconds and then they started to, like, handcuff

everybody.”).

Based upon Plaintiff’s testimony, the Officer Defendants acted reasonably by

drawing their firearms to enter a residence in search of evidence related to drug

crimes. See Johnson, 2022 WL 2387350, at *2 (citing Baird, 576 F.3d at 344) (“Drug

trafficking is a crime often associated with violence.”). Further, like the officers in

Johnson, the Defendants only pointed their guns at Plaintiff briefly (and, based upon

Plaintiff’s testimony, for a period of time much shorter than the five minutes in

Johnson) and only until the individuals on the premises had been secured in

handcuffs.4 Id. And, with the exception of the interaction with Defendant Napoli,

which the Court addresses below, none of the Officer Defendants’ firearms made

4 Plaintiff’s mother, Melvina Smtih, who resided at the apartment at the time of the search, testified

that it could have been up to five minutes that the officers pointed their weapons at Plaintiff. See

[143] ¶¶ 12–16, 18–26, 44–45; [143-1] at 104:16–22. Even if the Court, drawing all reasonable

inferences in Plaintiff’s favor, credits Ms. Smith’s testimony over Plaintiff’s, pointing a firearm at an

individual for five minutes while securing a premises during a search warrant is not, on its own,

sufficient to support a claim for excessive force. See Johnson, 2022 WL 2387350, at *2 (affirming

summary judgment where “two officers pointed guns at Johnson for about five minutes—only from the

time they arrived until he was secured in handcuffs”).

contact with Plaintiff. [143] ¶ 17; see also Walker v. Weatherspoon, No. 12-cv-08571,

2017 WL 3521417, at *7 (N.D. Ill. Aug. 15, 2017) (“Once it was established that

Walker was going to come out of the room and cooperate with the search, none of the

Defendant Officers pointed any weapons at her, and at no time did any of the weapons

make physical contact with Walker. Considering all of the circumstances present—

and the brief amount of time during which the gun may have been pointed at

Walker—the evidence before the Court is not sufficient to create a genuine issue of

material fact as to whether excessive force was used.”).

Thus, based upon Plaintiff’s own testimony, the Officer Defendants pointed

their firearms at him when they first entered the apartment from approximately two

to three feet away from Plaintiff for only a “few seconds” and, as soon as Plaintiff and

the other individuals in the apartment had been secured, the officers no longer

pointed their firearms at Plaintiff. Drawing all inferences in Plaintiff’s favor,

Plaintiff has failed to identify a genuine issue of material fact that would support a

finding of excessive force based upon the officers’ pointing their guns at Plaintiff upon

entry into his apartment.

3. Officer Napoli’s Gun Pointed at Plaintiff while Handcuffed

Plaintiff also brings an excessive force claim based upon his interaction with

Officer Napoli during the execution of the search warrant.

Plaintiff testified that, when he was seated on the floor of the dining room,

Officer Napoli walked over to Plaintiff, put his gun to Plaintiff’s head and told him,

“If you want to keep hooping, don’t f***ing move [or] I blow your brains out.” [107-6]

at 103:5–15. Plaintiff, who was 16 at the time, was handcuffed when Officer Napoli

approached him, and Officer Napoli continued pointing his gun at Plaintiff for

approximately 10 to 15 minutes after he threatened to shoot Plaintiff. Id. at 118:2–

5. Officer Napoli denies that he touched Plaintiff with his firearm and denies that he

threatened to shoot Plaintiff. [107-9] at 255:2–12.

Although Defendant Napoli denies threatening Plaintiff with his firearm, at

this stage, the Court must draw all reasonable inferences in Plaintiff’s favor, and

holding a firearm to a minor’s head for 10–15 minutes, while the minor is handcuffed

and secured, and threatening to pull the trigger, constitutes conduct that a

reasonable jury could find “shocks the conscience” in support of a sufficient excessive

force claim. McDonald v. Haskins, 966 F.2d 292, 294 (7th Cir. 1992) (quoting Black

v. Stephens, 662 F.2d 181, 189 (3d Cir. 1981)).

In McDonald, the officer held a gun to the plaintiff’s head and threatened to

pull the trigger despite the plaintiff (a nine-year-old child) posing no risk or threat to

the officer or anyone else at the scene. Id. Finding that such facts “are the very

ingredients relevant to an excessive force inquiry,” the Seventh Circuit agreed that

“it would be objectively unreasonable” for the officer, “in the alleged absence of any

danger, to place his gun to the head of a young child and threaten to shoot.” Id.

Similarly, in Jacobs v. City of Chicago, the Seventh Circuit found it “clearly

unreasonable for the Defendant Officers to have pointed a loaded weapon at Jacobs

for an extended period of time when they allegedly had no reason to suspect that he

was a dangerous criminal, or indeed that he had committed any crime at all, Jacobs

was unarmed, and when Jacobs had done nothing either to attempt to evade the

officers or interfere with the execution of their duties.” 215 F.3d 758, 774 (7th Cir.

2000).

So too here. Plaintiff, a minor at the time of the search who remained

handcuffed and secured for its duration, posed no risk to officers at that time,

cooperated with their orders, and made no attempt to evade the officers or interfere

with the search. [147] ¶¶ 27–28. The Officer Defendants executed a valid search

warrant for the premises, not for Plaintiff, and had no other reason to suspect

Plaintiff posed a danger while handcuffed. [147] ¶ 5. Thus, considering the “(1)

severity of the crime at issue; (2) whether the suspect poses an immediate threat to

the safety of the officers or others; and (3) whether he is actively resisting arrest or

attempting to evade arrest by flight,” Baird, 576 F.3d at 344 (quoting Graham, 490

U.S. at 396), a material dispute of fact exists as to whether Officer Napoli employed

excessive force by pointing his gun at Plaintiff’s head and threatening to shoot him

under the circumstances presented.

Defendants argue that Plaintiff’s excessive force claim against Defendant

Napoli must fail because he alleged, in the Second Amended Complaint, that it was

Defendant Ramos who held the gun to his head and told him he would pull the trigger.

[106] at 10–11. According to Defendants, this allegation constitutes a binding judicial

admission, and Plaintiff is now prohibited from arguing that a different Defendant

(Officer Napoli) held the gun to his head.

While Defendants are correct that factual statements made in the pleadings

can constitute judicial admissions, such statements must be “deliberate, clear and

unambiguous.” Wells v. Coker, 707 F.3d 756, 760 (7th Cir. 2013) (quoting Robinson

v. McNeil Consumer Healthcare, 615 F.3d 861, 872 (7th Cir. 2010)); see also Medcom

Holdings Co. v. Baxter Travenol Labs., Inc., 106 F.3d 1388, 1404 (7th Cir. 1997)

(quoting In re Lefkas Gen. Partners No. 1017, 153 B.R. 804)) (“Binding judicial

admissions are ‘any deliberate, clear and unequivocal statement, either written or

oral, made in the course of judicial proceedings.’”).

In the Second Amended Complaint, Plaintiff alleges that “An officer, on

information and belief Defendant officer Ramos, grabbed” Plaintiff, handcuffed him

and ordered him to sit down in the dining room. [90] ¶ 64. Plaintiff continues to

allege that, “Before sitting him down, officer Ramos physically threatened 16-year-

old Dante by holding a gun to his cheek and touching it, telling him, “If you want to

keep playing basketball, don’t F------ move or I’ll blow your brains out!” Id. ¶ 65. Read

in context, especially in light of the preceding statement that the allegation is made

“on information and belief,” Plaintiff’s statement that Officer Ramos physically

threatened him remains ambiguous. Footnote 2 of the Second Amended Complaint

provides additional context for the allegations, explicitly acknowledging that Plaintiff

still needed discovery regarding the incident. Id. at 4 n.2.5

5 Footnote 2 states: “Plaintiff needs discovery regarding the incident and all parties in order to name

all who have liability. CPD did not provide plaintiff with full identifying information in response to

Based upon the equivocal nature of the statement, the Court declines to find

that Plaintiff’s identification of Defendant Officer Ramos constitutes a binding

judicial admission and denies summary judgment on this ground.6

C. Qualified Immunity

Defendants also argue that, even if such facts give rise to an excessive force

claim, Officer Napoli remains protected by the doctrine of qualified immunity. When

a defendant raises the issue of qualified immunity, “the plaintiff bears the burden of

showing the existence of the allegedly clearly established constitutional right.” Clash

v. Beatty, 77 F.3d 1045, 1047 (7th Cir. 1996). The plaintiff may “do so by (1) pointing

to a closely analogous case that established a right to be free from the type of force

the police officers used on him, or (2) showing that the force was so plainly excessive

plaintiff’s pre-suit FOIA request. Moreover, officers on the scene were not wearing body cameras,

badges and nameplates, refused to provide plaintiff with their names and badge numbers when asked,

and the incident occurred nearly four years ago. While defendants provided plaintiff with official CPD

file photographs of the officers who executed the search warrant, plaintiff does not have height and

weight information for these officers. Moreover, to date plaintiff also cannot discern the identity of the

lieutenant who approved the search warrant (because the signature on plaintiff’s copy of the warrant

is unreadable).”

6 Even if the allegation were a judicial admission, it is within this Court’s discretion to relieve a party

of such admission. See Wilda v. JLG Indus., Inc., 470 F.Supp.3d 770, 792 (N.D. Ill. 2020) (noting a

district court “has the discretion to relieve a party of a judicial admission”); Solon v. Gary Community

School Corp., 180 F.3d 844, 858 (7th Cir. 1999) (“A judicial admission is conclusive, unless the court

allows it to be withdrawn.”). Defendants were on notice at least as of September 19, 2022 that Plaintiff

had identified Officer Napoli as the Defendant who threatened him, nearly a year before filing the

present motion, and Defendants’ own filings make it clear they conducted discovery on the issue. Thus,

they have suffered no prejudice, and even if this were a binding judicial admission, the Court,

exercising its discretion, would decline to hold Plaintiff to the statement.

that, as an objective matter, the police officers would have been on notice that they

were violating the Fourth Amendment.” Id. at 1048.

For purposes of this motion, Plaintiff has met his burden. First, as explained

above, Plaintiff’s case is closely analogous to McDonald, a case in which officers

placed a gun to the head of a minor and threatened to shoot, despite there being no

risk to the officers’ safety or threat of violence from the minor. 966 F.2d at 294.

Regardless, as in Jacobs, “it was clearly established” at the time of the search “that

‘police officers do not have the right to shove, push, or otherwise assault innocent

citizens without any provocation whatsoever.’” 215 F.3d at 774 (quoting Clash, 77

F.3d at 1048). Because no reasonable officer would believe that he had the right to

put a gun to a handcuffed minor’s head and threaten to pull the trigger under the

circumstances presented here, the Court declines to grant summary judgment based

upon a claim of qualified immunity.

D. Failure to Intervene

Finally, Defendants move for summary judgment on any failure to intervene

claim. As an initial matter, a failure to intervene claim must “rise and fall with the

underlying constitutional violations. Rivera v. Guevara, 319 F.Supp.3d 1004, 1049

(N.D. Ill. 2018); see also Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005) (citing

Fillmore v. Page, 358 F.3d 496 (7th Cir. 2004)) (“In order for there to be a failure to

intervene, it logically follows that there must exist an underlying constitutional

violation.”).

Because the only underlying constitutional claim that survives in this case is

Plaintiff’s claim against Officer Napoli for excessive force, the only basis for a claim

would be the failure to intervene in Officer Napoli’s use of force against Plaintiff. But

it is not clear that Plaintiff brings such a claim and, even if he did, Defendants argue

that Plaintiff cannot prove any Defendant Officer “was aware of or had a realistic

opportunity to intervene.” [106] at 15. Plaintiff does not respond to Defendant’s

argument and has thus waived the issue. Nichols v. Michigan City Plant Planning

Dept., 755 F.3d 594, 600 (7th Cir. 2014) (“The non-moving party waives any

arguments that were not raised in its response to the moving party’s motion for

summary judgment.”).

To the extent Plaintiff seeks to bring a failure to intervene claim against any

of the Officer Defendants, the Court grants summary judgment on that claim.

IV. Conclusion

For the reasons explained above, the Court grants in part, and denies in part,

Defendants’ motion for summary judgment, [105]. The Court grants judgment in

Defendants’ favor on Count III in its entirety and on Count IV as to Defendants

Marvin Bonnstetter, Michael Bertini, Wayne Frano, Jr., Nicholas Hertko, Ivan

Ramos, Kevin Garcia, and Salvatore Reina. Plaintiff may proceed on his excessive

force claim (Count IV) against Defendant Officer Napoli only and only with regard to

Napoli’s alleged placing his gun against Plaintiff's head and threatening to pull the

trigger. The Court dismisses Count II with prejudice.

The parties shall submit a joint status report by February 11, 2026, proposing

additional case management dates, including agreed trial dates in the second half of

2026; they shall also provide their estimate concerning the expected length of trial.

Dated: January 15, 2026

Clee

John Robert Blakey Z

United States District Judge

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