Petition for Writ of Certiorari — Daniel A. Madero, Petitioner v. Owen McGuinness

No. 24In the

Supreme Court of the United States

DANIEL A. MADERO,

Petitioner,

v.

OWEN MCGUINNESS,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Robert L. Sirianni, Jr.

Counsel of Record

Brownstone, P.A.

PO Box 2047

Winter Park, FL 32790

(407) 388-1900

robertsirianni@brownstonelaw.com

Counsel for Petitioner

130254

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED FOR REVIEW

I.

Whether the denial of Mr. Madero’s appeal to

Respondent’s motion for summary judgment was in

error, under this Court’s ruling in Tolan, as there

was a genuine dispute of material fact and the

evidence of the nonmovant was not believed.

II.

Whether the denial of Mr. Madero’s appeal regarding

lack of probable cause at the time of his arrest

violates the Fourth Amendment, and is contradictory

to this Court’s findings in Beck and Llaguna.

ii

PARTIES TO THE PROCEEDINGS

The parties to the proceedings before this court are

as follows:

Daniel A. Madero.

Owen McGuiness.

iii

LIST OF PROCEEDINGS

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Case No. 23-2574

DANIEL A. MADERO V. OWEN MCGUINNESS

No. 23-2574, (CITATION)

Order affirming the decision of the district court.

Judgment dated April 1, 2024.

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

Case No. 20-CV-50062

DANIEL A. MADERO V. OWEN MCGUINESS

No. 20-CV-50062 (CITATION)

Order granting motion for summary judgment.

Judgment dated June 27, 2023

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . ii

LIST OF PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BASIS FOR JURISDICTION IN THIS CASE . . . . . . 1

CONSTITUTIONAL PROVISIONS INVOLVED . . . . 1

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 2

FEDERAL RULE PROVISIONS INVOLVED . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

REASONS TO GRANT THIS PETITION . . . . . . . . . . 9

v

Table of Contents

Page

I.

The denial of Mr. Madero’s appeal to

Respondent’s motion for summary judgment

was in error, under this Court’s ruling

in Tolan, as there was a genuine dispute

of material fact and the evidence of the

nonmovant was not believed . . . . . . . . . . . . . . . . 10

II. T he den ia l of M r. Madero’s appea l

regarding lack of probable cause at the

time of his arrest violates the Fourth

Amendment and is contradictory to this

Court’s findings in Beck and Llaguna . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

vi

TABLE OF APPENDICES

Page

A PPEN DI X A — ORDER A FFIRM ING

DECISION OF THE DISTRICT COURT

IN THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT,

DECIDED APRIL 1, 2024 . . . . . . . . . . . . . . . . . . . . . 1a

A PPEN DI X B — OR DER OF T H E

UNITED STATES DISTRICT COURT

F O R T H E N O R T H E R N DI S T R I C T

OF ILLINOIS, W ESTERN DI V ISION,

FILED JUNE 27, 2023 . . . . . . . . . . . . . . . . . . . . . . .18a

APPENDIX C — COMPLAINT IN THE UNITED

STATES DISTRICT COURT NORTHERN

DIST RICT OF ILLINOIS W EST ERN

DISTRICT, FILED APRIL 10, 2020 . . . . . . . . . . . 39a

A PPEN DI X D — R EP ORT OF OW EN

Mc GU INNES S T HE ROCK FORD,

ILLINOIS POLICE DEPARTMENT, DATED

FEBRUARY 9, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . 57a

A P PEN DI X E — PR OBA BL E CAU S E

S TAT EM EN T OF T H E RO CK F OR D,

ILLINOIS POLICE DEPARTMENT, DATED

FEBRUARY 9, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . 79a

APPENDIX F — DISCOVERY DEPOSITION

OF RICH A RD DEV LIEGER , DAT ED

OCTOBER 21, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . 83a

vii

Table of Appendices

Page

A PPENDIX G — REPORT OF RICHARD

DE V L I E GER OF T H E R O C K F OR D,

ILLINOIS POLICE DEPARTMENT, DATED

FEBRUARY 9, 2018 . . . . . . . . . . . . . . . . . . . . . . . . 135a

A P PEN DI X H — R E P ORT OF K U RT

S WA N S O N O F T H E R O C K F O R D ,

ILLINOIS POLICE DEPARTMENT, DATED

FEBRUARY 9, 2018 . . . . . . . . . . . . . . . . . . . . . . . . 177a

viii

TABLE OF CITED AUTHORITIES

Page

CASES

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Beck v. Ohio,

379 U.S. 89 (1964) . . . . . . . . . . . . . . . . . . . . . . 15, 17, 18

BeVier v. Hucal,

806 F.2d 123 (7th Cir 1986) . . . . . . . . . . . . . . . . . . . . 16

Brinegar v. United States,

338 U.S. 462 (1949) . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Celotex Corp v. Catrett,

477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Henry v. United States,

361 U.S. 98 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Illinois v. Gates,

462 U.S. 213 (1983) . . . . . . . . . . . . . . . . . . . . . . 9, 15, 16

Jones by Jones v. Webb,

45 F.3d 178 (7th Cir. 1995) . . . . . . . . . . . . . . . 10, 13, 14

Llaguna v. Mingley,

763 F.2d. 1560 (7th Cir. 1985) . . . . . . . . . 15, 16, 17, 18

ix

Cited Authorities

Page

McKinney v. George,

726 F.2d 1183 (7th Cir 1983) . . . . . . . . . . . . . . . . . . . 16

Tolan v. Cotton,

572 U.S. 650 (2014) . . . . . . . . . . 9, 10, 11, 12, 13, 14, 15

United States v. Fooladi,

703 F.2d 180 (5th Cir. 1983) . . . . . . . . . . . . . . . . . . 9, 16

STATUTES AND OTHER AUTHORITIES

U.S. Const. amend. IV . . . . . . . . . 1, 8, 9, 10, 11, 14, 15, 18

28 U.S.C. §1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. §1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 9

Fed. R. Civ. P 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Fed. R. Civ. P. 56(a) . . . . . . . . . . . . . . . . . . . . . . 3, 9, 10, 15

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Daniel A. Madero respectfully requests

that a Writ of Certiorari be issued to review the denial

of relief from the United States Court of Appeals for the

Seventh District.

OPINIONS BELOW

The June 27, 2023, order from the United States

District Court for the Northern District of Illinois Western

Division is reproduced in the Appendix (“Appendix B”)

The April 1, 2024, opinion from the United States

Court of Appeals for the Seventh Circuit is reproduced

in the Appendix (“Appendix A”).

BASIS FOR JURISDICTION IN THIS CASE

The United States Court of Appeals for the Seventh

Circuit issued its opinion on April 1, 2024. This Court has

jurisdiction under 28 U.S.C. §1254.

CONSTITUTIONAL PROVISIONS INVOLVED

“The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched and the persons or things

to be seized.”

U.S. Const. amend. IV.

2

STATUTORY PROVISIONS INVOLVED

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress, except

that in any action brought against a judicial

officer for an act or omission taken in such

officer’s judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was

violated or declaratory relief was unavailable.

For the purposes of this section, any Act of

Congress applicable exclusively to the District

of Columbia shall be considered to be a statute

of the District of Columbia.”

42. U.S.C. §1983

FEDERAL RULE PROVISIONS INVOLVED

“A party may move for summary judgment,

identifying each claim or defense—or the part

of each claim or defense—on which summary

judgment is sought. The court shall grant

summary judgment 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. The court should state on the

3

record the reasons for granting or denying the

motion.”

Fed. R. Civ. P. 56 (a).

STATEMENT OF THE CASE

Applicant Daniel A. Madero (“Mr. Madero or

Applicant”) brought the above-captioned appeal following

the granting of the motion for summary judgment. The

lower court should not have granted the motion for

summary judgment as there was a genuine dispute as to

material fact within the case. Further, this Petition raises

questions about a grave constitutional violation in Mr.

Madero’s arrest and the wrongful granting of the motion

for summary judgment. Mr. Madero followed all necessary

procedures and exhausted all lower court remedies before

promptly filing.

On February 9, 2018, during a heavy snowstorm, Mr.

Madero, went out in the storm to assist other drivers whose

vehicles got stuck in the storm. Compl. ¶ 7 (“Appendix C”).

On Mr. Madero’s drive home, he was stopped at a red light

at the intersection of Parkside Avenue and Broadway,

where he was ambushed. Compl. ¶ 9. Three individuals,

Brandon Philbee (“Philbee”), Brett Daehler (“Daehler”),

and John Keck (“Keck”), hazardously surrounded Mr.

Madero while in their vehicle, driving at a high-speed

rate. Compl. ¶ 9. Philbee was the one whose vehicle was

hit, and Daehler and Keck were merely “witnesses” of

the accident.

Before surrounding Mr. Madero’s vehicle, Philbee was

driving through an intersection, where another vehicle

4

collided with his, leaving the scene. Compli. ¶ 10, 13.

Philbee, along with Daehler and Keck, left the scene and

began to chase down the individual who collided with his

car. Compli. ¶14. While in this pursuit, Philbee, Daehler,

and Keck lost sight of the individual, and in desperate

need to find the suspect, decided to surround and ashbush

Mr. Madero. Compl. ¶ 17. When surrounding his vehicle,

Philbee approached Mr. Madero’s window and began

screaming at him, which prompted Mr. Madero to roll

down his window and inform Philbee he was not involved

in an accident. Compl. ¶ 17.

In full rage, and need to find the individual who hit his

vehicle Philbee did not believe Mr. Madero, and opened his

driver-side door, punched Mr. Madero, and threatened to

kill him. ¶ 18-19. Philbee, then proceeded to jump into Mr.

Madero’s car, continuing to punch and choke him, forcing

Mr. Madero to defend himself. Compli. ¶ 20.

Officer Owen McGuiness (“Officer McGuiness”)

responded to the scene around 4:00 A.M., along with

Officer Kurt Swanson (“Officer Swanson”) and Officer

James Napchampassack (“Officer Napchampassack”).

Compl. ¶23. Each officer interviewed Phillbee, Keck, and

Daehler, and they received contradictory information from

all the interviews. Compl. ¶24. Philbee claimed that he

fell inside Mr. Madero’s vehicle, while Daehler and Keck

stated that Philbee jumped into Madero’s vehicle. Compl.

¶24.

Officer McGuiness w ithin this process did an

incomplete investigation of the scene (McGuiness Police

Report, 7). At no point did Officer McGuiness witness

any of the crime first-hand. (McGuiness, 7). It was

5

noted that upon arrival “the Audi passenger side door

[Madero’s vehicle] was open and I noticed Madero and

Philbee grabbing each other inside the Audi. (McGuiness,

7). According to Officer McGuiness, “Philbee exited the

passenger side of the vehicle and told [him] that Madero

stabbed him in the face with a key. (McGuiness, 7). Officer

McGuiness “observed a cut under Philbee’s right eye,” he

did not witness the alleged account, nor did he recover

any evidence that corroborates Philbee’s story of the

encounter. (McGuiness 7).

Officer McGuiness further acknowledges that Officer

Nachampassack spoke with Mr. Madero, as provided

that Mr. Madero stated that “Philbee punched him a few

times in the face” (McGuiness, 7). Yet, despite obtaining

this information from Officer Nachampassack, Officer

McGuiness, arrested Mr. Madero for aggravated battery

based solely on the information provided by Philbee,

although his fellow officer mentioned how Philbee punched

Mr. Madero. Further, this was provided in the probable

cause statement provided by Officer McGuiness as it was

stated “Philbee punched him a few times in the face.”

(Probable Cause, 1). Not only did Officer McGuiness not

have probable cause for the arrest of Mr. Madero as there

was a complete lack of investigation, but he acknowledged

Mr. Madero was punched and failed to arrest Philbee.

Beyond, the physical aspect of the event, there was

an issue regarding Officer McGuiness and Mr. Madero’s

vehicle. Officer McGuiness failed to complete a full

investigation of Mr. Madero’s vehicle to see if there was

damage to the vehicle that should have been based on the

description of the accident from Philbee. Officer McGuiness

stated “I observed the green Audi [Mr. Madero’s vehicle]

6

had front-end damage. The Pontiac Torrent [Philbee’s

vehicle] had driver side and passenger side damage,

both headlights were smashed . . . I was unable to see

any visible paint transfer from the vehicles due to the

heavy snowstorm” (McGuiness, 8). As shown here Officer

McGuiness failed to do an adequate investigation to see

if the damages to the vehicles equated to the reported

accident and made an arrest solely on the account of the

victim, and not the accused.

Further, after Mr. Madero was arrested and everyone

left the scene, there was contradictory evidence that

was introduced that speaks to the dispute as to material

fact relating to the statements of the witnesses and the

supposed damage to the front of Mr. Madero’s vehicle.

Richard DeVliger, a detective, in his deposition, stated

about Mr. Madero’s vehicle when presented with the

question of whether the was any front-end damage “Not on

the front. There was some damage on the back.” (DeVliger

Deposition, 23). Further, when asked if there was any

other damage indicating if the vehicle was involved in

a collision “absolutely not.” (DeVliger, 23). Further,

DeVliger, noted in his report “while looking at the Audi I

could not observe any front end damage consistent with a

front end collission. The head lights, grill and hood were all

intact and had no visible damage.” (DeVliger Report, 12).

While interviewing Mr. Madero, DeVliger, provided

regarding the event Mr. Madero stated “the driver of the

truck [Philbee] then reached in and took the car keys from

the ignition. Madero sadi during this altercation Brandon

[Philbee] said he was going to “kill me.”” (DeVliger

Report, 14). Further noting, Mr. Madero told officers he

was not involved in any accident, and the only front end

7

damage possible would be front hitting a snow bank when

Philbee jumped into his vehicle. (DeVliger Report, 14).

Within Officer Swanson’s report, at around 5:00 A.M.,

he stated that Daehler called the 911 dispatch center

wanting to speak to one of the Officers. (Swanson Report,

8). At 7:40 A.M. Swanson spoke with Daehler, where it

was reported that he and Keck when speaking about the

accident wanted to recant their initial statements about

the accident (Swanson, 8). Daehler and Keck both provided

that they were not certain if Mr. Madero was the one to

hit Philbee. (Swanson, 8). Daehler specifically provided

that he believed this because “the front-end damage that

was on the Audi on the scene was likely not caused by

the collision that they witnessed. (Swanson, 8). Further,

Daehler stated he is now changing his story because

“at the time of the incident he was going along with the

victim but now . . . he did lose sight of the Audi but never

lost sight of the Pontiac, which was chasing the suspect

vehicle.” (Swanson, 8). Further, DeVileger in his report

provides that while speaking with Keck, he stated, “one

he was away from the scene and had time to sit and reflect

on what had occurred he realized the front of the Audi did

not have any damage which it should have.” (DeVlieger

Report, 11).

Mr. Madero was released from jail around 5:00 P.M.

after the state declined to charge him with aggravated

battery, and his tickets were later dismissed.

The procedural history is as follows:

• On February 10, 2020, Mr. Madero filed a

complaint with the United States District Court

8

for the Northern District of Illinois alleging that

Officer McGuiness conducted an unreasonable

search and deprived Mr. Madero of his liberty

in violation of 42 U.S.C. §1983 and the Fourth

Amendment of the United States Constitution.

• On January 30, 2023, Officer McGuiness filed a

motion for summary judgment.

• On April 10, 2023, Mr. Madero filed a motion

in opposition to Officer McGuiness’s motion for

summary judgment.

• On June 27, 2023, the United States District

Court for the Northern District of Illinois

granted Officer McGuiness’ motion for summary

judgment.

• On August 10, 2023, Mr. Madero filed a notice of

appeal to the United States Court of Appeals for

the Seventh Circuit.

• On April 1, 2024, the United States Court of

Appeals for the Seventh Circuit released its

opinion affirming the decision of the District

Court.

• On June 14, 2024, the Supreme Court of the

United States granted an extension for filing to

July 30, 2024.

9

REASONS TO GRANT THIS PETITION

This Court should reverse the lower courts and

remand with instructions to grant relief because Mr.

Madero denies a critical constitutional right. In 1986,

this Court found in Celotex Corp v. Catrett, that the

burden of proof is on the moving party to prove that

there is no genuine dispute of any material fact and must

demonstrate the absence of such by “citing to particular

parts of materials in the record” Celotex Corp v. Catrett,

477 U.S. 317, 323 (1986). this Court, Moreover, in 2014,

this Court Tolan v. Cotton, vacated the fifth circuit’s

judgment because they failed to adhere to the principle

that reasonable inference should be drawn in favor of the

nonmoving party at the summary judgment stage, and

further that genuine disputes should be resolved by juries.

Tolan v. Cotton, 572 U.S. 650 (2014). The standard to be

used regarding summary judgment is not only provided

in the case law precedent of this Court but further in

FRCP 56(a).

Moreover, under 42 U.S.C. §1983 and the Fourth

Amendment of the United States Constitution, a police

officer must have probable cause to make an arrest.

Probable cause depends on the “factual and practical

considerations of everyday life. Illinois v. Gates, 462 U.S.

213, 231 (1983). In considering probable cause, it includes

the totality of the circumstances, including the facts

available to the defendant, that are dispositive. Id. at 231232; United States v. Fooladi, 703 F.2d 180 (5th Cir. 1983).

This Court should reverse the lower courts’ granting

of summary judgment because the dismissal of the claim

is contrary to, FRCP 56, and the constitutional rights

10

under the 4th Amendment as to probable cause required

in an arrest.

I.

The denial of Mr. Madero’s appeal to Respondent’s

motion for summary judgment was in error, under

this Court’s ruling in Tolan, as there was a genuine

dispute of material fact and the evidence of the

nonmovant was not believed.

To determine if summary judgment can be granted,

the Federal Rules of Civil Procedure provides that

summary judgment is only appropriate when “there is

no genuine dispute as to any material fact.” Fed. R. Civ.

P. 56(a). In doing so, the moving party must demonstrate

the absence of a genuine dispute of any material fact by

“citing to particular parts of materials in the record.

Celotex, 477 U.S. at 317; Fed. R. Civ. P 56(c). The burden

of proof is on the moving party to prove that there is no

dispute as to any material fact. CeloTex, 477 U.S. at 323.

When a court is ruling on a motion for summary judgment

“the evidence of the nonmovant is to be believed, and all

justifiable inferences are to be drawn in his factor. Tolan,

572 U.S. at 651 (citing to Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). Further, when there is dispute

of material fact “whether an officer had probable cause to

make an arrest generally will present a question for the

jury, although the court can decide it when the material

facts are not disputed.” Jones by Jones v. Webb, 45 F.3d

178, 182 (7th Cir. 1995).

In Tolan, the District court granted summary

judgment to the moving party and reasoned that his use of

force was not unreasonable and did not violate the Fourth

Amendment. This Court remanded this decision finding

11

that the Fifth Circuit failed to adhere to the axiom that “in

ruling on a motion for summary judgment, the evidence

of the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Tolan, 572 U.S.

at 651 (citing to Anderson, 477 U.S. at 255 (1986). There,

this Court, provided that the Circuit Court failed to view

the evidence at summary judgment in the light most

favorable to the nonmovant concerning the central facts of

the case. Id. at 658. As a result of failing to credit evidence

that contradicted some of the key factual conclusions, the

court improperly “weighed the evidence” and “resolved

disputed issues in favor of the moving party.” Id. (citing to

Anderson, 477 U.S. at 249.) This Court further provided

that the lower court should have acknowledged and

credit the evidence of the nonmovant regarding smaller

details such as lighting, demeanor, and whether certain

words were an overt threat, as a part of their reasoning

to remand the summary judgment decision. Id. at 660.

The Court did not speak to the Fourth Amendment

determinations but showed that they are vacating so the

court can determine “when evidence is properly credited

and factual inferences are reasonably drawn in his favor,

Cotton’s actions violated clearly established law.”

As this Court ruled in Tolan, we are asking you to

consider this case as the decision of the lower court is

in direct conflict with the ruling here. The lower court

failed to consider all of the evidence in the light of the

non-moving party in the summary judgment ruling.

Here, as in Tolan, the lower court improperly weighed

the evidence and resolved disputed issues in favor of

the moving party. Here, there were multiple disputes as

to material fact including; whether it was Mr. Madero

who was in the accident, whether McGuiness properly

12

investigated the scene prior to the arrest of Mr. Madero,

whether there was damage to the front of the vehicle

indicating a car accident, whether Mr. Madero caused the

supposed injury to Philbee, and the recanting of evidence

of the two witnesses to the accident.

In Tolan, this Court remanded to the lower court

based on minor details from the time of day, demeanor,

and the usage of words. Using this same reasoning this

Court should remand to the lower court as the issues of

material fact here are grave.

Looking at the evidence in the light most favorable

to the non-moving party, first, Mr. Madero stated to

the police that he was not in any kind of car accident, in

the encounter with McGuiness and the lower court did

not see that as a genuine dispute, when there is a major

discrepancy between the two parties.

Second, as to the proper investigation McGuiness

provides, and the court concluded that McGuiness did

a proper investigation while looking at the facts in a

favorable like to Mr. Madero, there is a genuine dispute

as to the facts. Here, Mr. Madero’s vehicle did not have

any damage that would lead to a conclusion he was in a car

accident, and Mr. Madero stated he was punched, choked,

and told he was going to be killed, yet Mr. Madero was the

one who was arrested. McGuiness failed to do a proper

investigation, as it was provided in DeVliger’s report that

upon looking at the front of Mr. Madero’s vehicle there was

a clear indication that there was no damage to the front of

the vehicle showing he was in an accident. Moreover, this

was provided in the amended statements of the witness’

to DeVliger in his report. The witness’ stated that upon

13

thinking back at the accident they did not see any damage

to the vehicle that should have been there if Mr. Madero

was a party to the accident but rather were going on the

statements of Philbee rather than what they witnessed.

There is a clear issue as to material fact as to whether the

investigation of McGuiness and proper and further as to

the evidence and statements that were obtained.

Third, there is a dispute over material facts when

it comes to the witnesses of the accident and the other

officers. As provided in McGuiness’s police report and

that of the officers, the witnesses had different stories

regarding which road they were going down, the direction,

and whether it was for certain that Mr. Madero was the

one who hit Philbee’s vehicle, similar to the issue of fact

that was remanded in Tolan. McGuiness, failed to do a

proper investigation, as there was not a clear statement of

facts between all of the officers on the scene and between

the witnesses before an arrest. Further, the lower court

provided that the recanting of the statements of the

witnesses was not relevant here, as it was not at the time of

the arrest. Although it was not at the time of the arrest, it

should have been an inference that the issue later brought

in the difference in the statements of the witnesses two

hours past the arrest of Mr. Madero is important and is

further a material fact. Instead of the court considering

these statements which included evidence that which the

witnesses provided they did not believe that the

Fourth, the court should not have been allowed to

make a summary judgment decision as to probable cause

as there was dispute as provided above as to the material

facts of the case. As provided in Jones by Jones, the court

should have left this as a dispute to present to a jury, as

14

there were material facts in dispute. Jones by Jones, 45

F.3d at 182. Due to the dispute of material fact, this Court

should vacate and remand, as since there was a dispute

of material fact, the court should have left the decision

to the jury, rather than granting a motion for summary

judgment.

Here, the lower court rather than viewing the evidence

in the light most favorable to the non-moving party found

“the only evidence supporting Mr. Madero’s claim that he

was uninvolved in the hit and run accident, other than his

testimony, was the lack of front-end damage, but none of

the officers nor any of the witnesses brought up the lack

of damage to the front of the car.” This was incorrect

and was further contradictory to the finding in Tolan, as

the witnesses amended their statements and DeVliger’s

police report stated the issue of lack of front-end damage.

Beyond the falsity of the statement, the court states

the issue as to whether Philbee jumped or fell into Mr.

Madero’s car was not important to dispel probable cause,

and it did not matter as to the discrepancy in witness

testimony as to the direction of the vehicle. These findings

are contradictory to this Court’s finding in Tolan, as the

Court did not rule on the Fourth Amendment issue but

found the issue as to summary judgment and using the

smaller details as material disputes of fact.

Moreover, there was incorrect inference of the

evidence regarding the supposed aggravated assault of

Philbee. McGuiness never witnessed Mr. Madero commit

the assault but merely as he provided in the police report

saw they were “grabbing each other” inside Mr. Madero’s

car. McGuiness, and the lower correct incorrectly

inferences the showing of blood and scratches on Philbee’s

15

face, even knowing the surrounding evidence that Philbee

choked, punched, and threatened to kill Mr. Madero, and

agreed with the incorrect inferences not in light of the

moving party by McGuiness. The lower court should have

found these to be a dispute as to material fact, and further,

this Court should remand, as the lower court incorrectly

weighed the evidence in favor of the moving party.

Therefore, as this Court has provided in Tolan, the

present case is contradictory to this Court’s findings, as

such we ask the Court to vacate and remand, as the lower

court failed to view the evidence at summary judgment

in the light most favorable to the nonmovant concerning

the central facts of the case, and improperly weighed the

evidence in favor of the moving party. Thus, there was a

genuine dispute of material fact in violation of FRCP 56(a).

II. The denial of Mr. Madero’s appeal regarding lack

of probable cause at the time of his arrest violates

the Fourth Amendment and is contradictory to this

Court’s findings in Beck and Llaguna.

Whether an arrest is constitutionally valid depends in

turn upon whether at the moment the arrest was made,

the officers had probable cause to make it—whether at

the moment the facts and circumstances within their

knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent man

in believing that the petitioner had committed or was

committing an offense. Beck v. Ohio, 379 U.S. 89, 91 (1964);

Brinegar v. United States, 338 U.S. 160, 175-176; Henry

v. United States, 361 U.S. 98, 103 Probable cause is a

“fluctuating concept; its existence depends upon factual

and practical considerations of everyday life” Illinois v.

16

Gates, 462 U.S. 213, 231 (1983) (quoting Brinegar v. United

States, 338 U.S. 462 (1949)).

W hen det e r m i n i ng whet he r a n of f ic e r h a d

probable cause the court must look to the totality of

the circumstances, including the facts available to the

defendant that are dispositive. Gates, 462 U.S. at 231-232;

United States v. Fooladi, 703 F.2d 180 (5th Cir. 1983). In

the determination of probable cause “police officers are

allowed to make mistakes, but those mistakes must be

reasonable ones. BeVier v. Hucal, 806 F.2d 123, 126 (7th

Cir 1986); Brinegar, 338 U.S. at 176; McKinney v. George,

726 F.2d 1183, 1187 (7th Cir 1983). Further, a police officer

is not allowed to “close her or his eyes to facts that would

help clarify the circumstances of an arrest.” BeVier, 806

F.2d at 128.

The court in Llaguna v. Mingey, found that in

determining probable cause, the court should balance

the amount of information available to the police with

the situation they faced to decide whether probable

cause existed. Llaguna v. Mingley, 763 F.2d. 1560 (7th

Cir. 1985). There, the court found that the amount of

information that prudent police will “collect before

deciding to make a search or an arrest, and hence the

amount of probable cause they will have, is a function of

the gravity of the crime, and especially the danger of its

imminent repetition. Id. at 1566-1567. Further, there the

officer acted on minimal information and weak inferences

because the danger was so great, as they were searching

for two murderers. Id. at 1567 (emphasis added).

Here, when looking at the totality of the circumstances,

McGuiness did not have sufficient information, knowledge,

17

and trustworthiness of the information to have probable

cause under this Court’s ruling in Beck. As stated above,

McGuiness did not have direct knowledge as to any of

the relevant facts to have probable cause. McGuiness did

not witness any supposed aggravated battery, he did not

witness the hit and run and did not have any evidence

such as looking to see if Mr. Madero’s vehicle evidenced

a car accident such as damage to the front of his vehicle.

McGuiness, as provided in his police report noticed Mr.

Madero and Philbee “grabbing each other” inside Mr.

Madero’s vehicle. While McGuiness was told that Mr.

Madero was punched, choked, and threatened, McGuiness

failed to recover any relevant evidence. McGuiness and

the lower court failed to consider the statements of Mr.

Madero as to his experience of the event and rather relied

on the testimony of witnesses, which was later retracted as

McGuiness failed to properly conduct a full investigation.

Further, concerning Llaguna, this Court has found

that the officer had probable cause acting on minimal

information and weak inferences because the danger

was so great as they were searching for murderers.

This standard would not apply here McGuiness, was not

in great danger. McGuiness arrived on the scene after

the event had occurred. McGuiness did not witness the

accident and alleged battery. As such McGuiness should

have been required to collect the amount of evidence that

a prudent officer would have before deciding to make

an arrest, concerning the gravity of the crime, and the

danger of repetition. Here, there was no gravity as to

the repetition of the crime as it was concluded by the

time of McGuiness’s arrival and further, the gravity of

the crime was nothing to the extent of finding murders

on the run. The event here was contained, and as such

18

McGuiness should have collected ample evidence before

making an arrest. Especially due to the contradictory

statements made and should have taken the time to look

at Mr. Madero’s vehicle for damage to back the finding

that Philbee was accusing Mr. Madero of a hit and run,

which led to the accused aggravated battery.

Therefore, the lower court was incorrect in their

findings, as they are contradictory to this Court’s ruling

in Beck and Llaguna, as McGuiness did not collect the

amount of evidence that a prudent officer would have,

concerning the gravity of the crime, and did not have

sufficient and trustworthy knowledge, McGuiness failed

to have probable cause in the arrest of Mr. Madero. Thus,

this Court should vacate and remand the finding that

McGuiness, violated Mr. Madero’s Fourth Amendment

rights.

19

CONCLUSION

The harm suffered by Mr. Madero in the granting of

summary judgment in the lower court goes against the

essence of the Constitution and the rulings of this Court,

causing irreparable harm upon Mr. Madero absent the

relief requested here.

For the foregoing reasons this Court should grant this

Petition for Writ of Certiorari.

Respectfully submitted,

Robert L. Sirianni, Jr.

Counsel of Record

Brownstone, P.A.

PO Box 2047

Winter Park, FL 32790

(407) 388-1900

robertsirianni@brownstonelaw.com

Counsel for Petitioner

APPENDIX

i

TABLE OF APPENDICES

Page

A PPEN DI X A — ORDER A FFIRM ING

DECISION OF THE DISTRICT COURT

IN THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT,

DECIDED APRIL 1, 2024 . . . . . . . . . . . . . . . . . . . . . 1a

A PPEN DI X B — OR DER OF T H E

UNITED STATES DISTRICT COURT

F O R T H E N O R T H E R N DI S T R I C T

OF ILLINOIS, W ESTERN DI V ISION,

FILED JUNE 27, 2023 . . . . . . . . . . . . . . . . . . . . . . .18a

APPENDIX C — COMPLAINT IN THE UNITED

STATES DISTRICT COURT NORTHERN

DIST RICT OF ILLINOIS W EST ERN

DISTRICT, FILED APRIL 10, 2020 . . . . . . . . . . . 39a

A PPEN DI X D — R EP ORT OF OW EN

Mc GU INNES S T HE ROCK FORD,

ILLINOIS POLICE DEPARTMENT, DATED

FEBRUARY 9, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . 57a

A P PEN DI X E — PR OBA BL E CAU S E

S TAT EM EN T OF T H E RO CK F OR D,

ILLINOIS POLICE DEPARTMENT, DATED

FEBRUARY 9, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . 79a

APPENDIX F — DISCOVERY DEPOSITION

OF RICH A RD DEV LIEGER , DAT ED

OCTOBER 21, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . 83a

ii

Table of Appendices

Page

A PPENDIX G — REPORT OF RICHARD

DE V L I E GER OF T H E R O C K F OR D,

ILLINOIS POLICE DEPARTMENT, DATED

FEBRUARY 9, 2018 . . . . . . . . . . . . . . . . . . . . . . . . 135a

A P PEN DI X H — R E P ORT OF K U RT

S WA N S O N O F T H E R O C K F O R D ,

ILLINOIS POLICE DEPARTMENT, DATED

FEBRUARY 9, 2018 . . . . . . . . . . . . . . . . . . . . . . . . 177a

1a

Appendix

A

APPENDIX A — ORDER

AFFIRMING

DECISION

OF THE DISTRICT COURT IN THE UNITED

STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT, DECIDED APRIL 1, 2024

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 23-2574

DANIEL A. MADERO,

Plaintiff-Appellant,

v.

OWEN McGUINNESS,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Western Division,

No. 3:20-cv-50062—Philip G. Reinhard, Judge.

A rgued February 22, 2024

Decided A pril 1, 2024

Before Sykes, Chief Judge, and Ripple and St. Eve,

Circuit Judges.

Ripple, Circuit Judge. At 4 a.m. on a snowy morning

in Rockford, Illinois, Officer Owen McGuinness responded

to a call that drivers involved in a hit-and-run accident

were fighting. When he arrived at the scene, Officer

2a

Appendix A

McGuinness was faced with two different stories of the

events that had transpired. Three witnesses insisted that

Daniel Madero had been the driver of the hit-and-run

vehicle and that, after a confrontation, Mr. Madero had

struck Brandon Philbee, the hit-and-run victim, in the

face with a key. For his part, Mr. Madero asserted his

innocence, denying that he was the driver of the hit-andrun car. He maintained that he had acted in self-defense

against Philbee. It was, essentially, three against one.

Confronted with the decision of whose story to credit,

Officer McGuinness believed the three witnesses. He

arrested Mr. Madero for aggravated battery for his fight

with Philbee and issued him traffic citations for his role

in the hit-and-run accident.

An investigation later in the day concluded that Mr.

Madero’s vehicle was likely not involved in the hit-andrun accident. An assistant state’s attorney declined to

press charges against Mr. Madero, and he was released

from jail that evening. He then filed a complaint in

federal district court against Officer McGuinness. His

complaint set forth claims of false arrest in violation of

the Fourth and Fourteenth Amendments. The district

court granted summary judgment to Officer McGuinness

because it determined that he had probable cause to arrest

Mr. Madero. We hold that the district court correctly

concluded that Officer McGuinness had probable cause to

arrest Mr. Madero based on the information available to

him at the time of the arrest. Accordingly, we affirm the

judgment of the district court.

3a

Appendix A

I

BACKGROUND

A. Facts

The events in question occurred in the early morning

hours of February 9, 2018, in Rockford, Illinois. There

were four main witnesses and/or participants to the hitand-run accident and ensuing fight: Mr. Madero, Philbee,

Daehler, and Keck.

The story unfolds as follows. As Philbee was driving

through an intersection on a green light, his beige Pontiac

SUV was struck on the front passenger side by the

front bumper of a dark-colored sedan driving through a

red light. Philbee saw the incoming car and shifted his

car into neutral before impact. The contact forced him

into oncoming traffic, where he collided with a GMC

pickup truck, driven by Keck. The nearby driver of a

white Ford pickup, Daehler, observed the accident. The

dark-colored sedan fled the scene. All three of the other

drivers – Philbee in his Pontiac and Daehler and Keck

in their respective trucks – followed the dark-colored

sedan as it drove away, leading them on a chase around

several blocks.1 The chase culminated back at the original

intersection. Philbee, Daehler, and Keck surrounded a

1. The three disagreed slightly about the path they traveled.

Although all agreed that they made three left turns and ended

back at the original intersection, they disagreed about whether

they first turned left onto Alpine Road (Philbee’s testimony) or

Point Avenue (Daehler’s and Keck’s testimony). These two roads

are “a block apart.” R.66-5 at 45.

4a

Appendix A

green Audi sedan waiting at the intersection with their

vehicles, and Philbee got out of his car and walked up to

the driver’s side window of the Audi.

It is not disputed that the driver waiting at the

intersection in his green Audi was Mr. Madero. Mr.

Madero does dispute, however, that he was the driver

of the dark-colored sedan involved in the hit-and-run

accident. According to Mr. Madero, he was an innocent

driver waiting at the intersection for the light to change

when the three vehicles surrounded him and Philbee

confronted him. But as the events of the morning

continued, Philbee, Daehler, and Keck were operating

under the belief that Mr. Madero and the driver of the

dark-colored sedan were one and the same. They insisted,

to each other and to police, that they had never lost sight

of the dark-colored sedan as they chased it through the

streets of Rockford.

Back to the scene. Philbee and Mr. Madero began

arguing. Philbee accused Mr. Madero of the hit-andrun accident, and Mr. Madero denied involvement. At

some point, Philbee reached inside the vehicle, and when

the light turned green, Mr. Madero attempted to drive

through the intersection. He was prevented from doing so

by Daehler’s truck and Keck’s truck, each of which hit his

Audi and sent it careening into a snowbank. Philbee, who

had grabbed ahold of the steering wheel, ended up inside

the vehicle, and began choking Mr. Madero. The fight

between the two ended only when Officer McGuinness

arrived at the scene.

5a

Appendix A

Officer McGuinness observed the very end of the

fight between Philbee and Mr. Madero. He saw that

Philbee had blood dripping below his eye. Philbee and

Daehler informed Officer McGuinness that Mr. Madero

had stabbed Philbee with a key. Mr. Madero denied the

accusation.

Soon two other officers arrived: Officer Swanson and

Officer Nachampasack. The officers began their initial

investigation. They divided the task of interviewing

the witnesses amongst themselves as was their custom.

Officer McGuinness interviewed Philbee, Officer Swanson

interviewed Daehler and Keck, and Officer Nachampasack

attempted to inter view Mr. Madero. Mr. Madero,

however, was too “out of sorts” to provide a statement

at that time. 2 For their part, Daehler, Keck, and Philbee

insisted that they had never lost sight of the dark-colored

sedan during the entire chase and that the dark-colored

sedan was certainly Mr. Madero’s green Audi. The

officers communicated with each other at the scene after

conducting their respective interviews.

Eventually, an ambulance arrived and transported

Mr. Madero to the hospital for treatment of his injuries

sustained dur ing the f ight w ith Philbee. Off icer

Nachampasack followed the ambulance and remained with

Mr. Madero at the hospital. He obtained a statement from

him there. Mr. Madero told Officer Nachampasack that

he had been waiting innocently at the intersection when

he was surrounded by the three vehicles and attacked by

2. R.66-3 at 27-28.

6a

Appendix A

Philbee. Officer Nachampasack called Officer McGuinness

and relayed this information. Officer McGuinness then

spoke on the phone with an assistant state’s attorney,

who approved an aggravated battery charge against

Mr. Madero. In doing so, the state’s attorney relied

on a probable cause statement prepared by Officer

McGuinness, which summarized the police interviews

with the witnesses and other evidence. Mr. Madero was

then informed of the aggravated battery charge against

him. He was also informed that he had been issued four

traffic citations relating to the hit-and-run accident. He

was taken to jail around 5 o’clock that morning.

A few hours later, at around 7:30 a.m., Daehler

and Keck modified their original witness statements.

According to Officer Swanson’s police report, after the

accident, Daehler and Keck began discussing the events

of the morning with each other. They ultimately came to

the joint conclusion that they were no longer certain that

Mr. Madero’s green Audi was the dark-colored sedan

involved in the original hit-and-run accident. They based

this conclusion on the lack of damage to the front of the

Audi; in their view, had the Audi hit Philbee’s Pontiac with

enough force to push it into Keck’s truck, the front of the

Audi should have reflected that sort of damage. It did not,

and so the two informed law enforcement that they were

no longer sure that the green Audi was the hit-and-run

vehicle. They also admitted, contrary to their on-scene

testimony, that they had not had their eyes upon the

dark-colored sedan the entire time; at some point during

the chase, Daehler was relying on his view of Philbee’s

Pontiac, and Keck was relying on his view of Daehler’s

truck.

7a

Appendix A

Around that time, Assistant Deputy or Deputy

Chief Pann contacted Detective DeVlieger, an accident

investigator, and requested that he look into the morning’s

events. 3 Detective DeVlieger read the police reports and

spoke with Daehler and Keck (who at this point had called

police to modify their earlier statements). He also viewed

Philbee’s Pontiac and Mr. Madero’s Audi. The Pontiac

“had a lot of front-end passenger side damage,” while

“there was no evidence in [Detective DeVlieger’s] opinion

that [Mr. Madero’s] vehicle was involved in a front-end

collision.”4 Further, Philbee’s vehicle showed evidence of

paint transfer from a gray or white vehicle, rather than a

green vehicle. Based on this evidence, Detective DeVlieger

concluded that Mr. Madero’s vehicle had not been involved

in the initial hit-and-run accident. 5

Mr. Madero was released from jail around 5 p.m.

that evening after the State declined to charge him

with aggravated battery. His traffic tickets were later

dismissed.

3. It is not clear whether Chief Pann was the deputy chief or

assistant deputy chief.

4. R.73-3 at 6.

5. It is not clear whether Officer McGuinness closely

examined the supposed damage to the front end of the Audi from

the hit-and-run accident prior to Mr. Madero’s arrest. His report

stated that he “observed the green Audi had front end damage,”

but that he “was unable to see any visible paint transfer from

the vehicles due to the heavy snow storm.” R.73-1 at 8. At his

deposition, however, Officer McGuinness was unable to recall the

damage he saw that led to this statement in his report.

8a

Appendix A

B. Prior Proceedings

Mr. Madero filed an action against Officer McGuinness

in the United States District Court for the Northern

District of Illinois in February 2020. His complaint set

forth allegations that Officer McGuinness had violated

his Fourth and Fourteenth Amendment rights by falsely

arresting him the morning of February 9, 2018. After the

parties conducted discovery, Officer McGuinness filed a

motion for summary judgment.

The district court granted the motion. The court

focused on the information available to Officer McGuinness

and the other officers at the time of the arrest. Of

particular importance to the court was that Officer

McGuinness heard testimony from three “very adamant”

witnesses who each “said the same thing.” Madero v.

McGuinness, No. 20-cv-50062, 2023 WL 10669146, at *5

(N.D. Ill. June 27, 2023). “In short, it was three witnesses

against one.” Id. The court explained that the officers had

enough information available to them at the scene of the

accident to establish probable cause to arrest Mr. Madero

for aggravated battery. Id. at *6.

The district court found Mr. Madero’s arguments

to the contrary to be unpersuasive. First, although Mr.

Madero highlighted conflicting testimony on whether

Philbee “jumped” or “fell” into the Audi, the court “[did]

not believe this discrepancy [wa]s material” and found

that it was “not especially surprising that witnesses might

have described this movement in slightly different ways

given that it occurred at the end of a fairly complicated

9a

Appendix A

sequence of events.” Id. at *6-7. Second, the court

rejected Mr. Madero’s argument concerning Philbee’s

disagreement with Daehler and Keck on the exact path

taken during the chase. In the court’s view, because the

witnesses were “adamant . . . that they never lost sight of

the vehicle,” Officer McGuinness could have reasonably

concluded “this discrepancy about the exact road taken

to be an inconsequential mistake made by one of these

witnesses.” Id. at *7. Third and finally, the district court

considered Mr. Madero’s argument regarding the lack of

damage to the front of his vehicle. This argument failed,

too. In the district court’s view, Detective DeVlieger’s

conclusion that Mr. Madero’s vehicle was not the hit-andrun vehicle because it did not have the expected damage

assumed that the hit-and-run vehicle had been traveling

the posted speed limit. But the court pointed to Philbee’s

testimony that the hit-and-run vehicle had slowed its

speed down significantly and “barely bumped” Philbee’s

car. Id. at *8 (quoting R.66-4 at 19). Although the court

recognized that Philbee may not have been a credible

witness, it ultimately determined that Philbee’s theory

was not “completely implausible.” Id.

In closing, the court concluded that “there was enough

evidence at the time of the initial investigation to meet the

lower probable cause standard for both the aggravated

battery charge and for the four traffic violations,” and

granted summary judgment to Officer McGuinness. Id.

at *9.

10a

Appendix A

II

DISCUSSION

We review the district court’s grant of summary

judgment de novo, viewing the facts in the light most

favorable to the non-moving party, here Mr. Madero.

Lawson v. Veruchi, 637 F.3d 699, 703 (7th Cir. 2011).

“Summary judgment is proper ‘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.’”

Abbott v. Sangamon Cnty., Illinois, 705 F.3d 706, 713 (7th

Cir. 2013).6

A plaintiff seeking to prevail on a claim of false arrest

must show that he was arrested without probable cause

because “probable cause is an absolute defense to such a

claim.” Lawson, 637 F.3d at 703 (quoting Gonzalez v. City

of Elgin, 578 F.3d 526, 537 (7th Cir. 2009)). The burden

of demonstrating a lack of probable cause belongs to the

plaintiff. McBride v. Grice, 576 F.3d 703, 706 (7th Cir.

2009). Although the jury typically determines whether an

6. We note that the district court conducted no separate

analysis of Mr. Madero’s claim that his false arrest was a violation

of his due process rights under the Fourteenth Amendment.

Rightfully so. Claims for false arrest prior to trial are appropriately

considered under the Fourth Amendment, not the Fourteenth

Amendment. Manuel v. City of Joliet, Illinois, 580 U.S. 357, 367,

137 S.Ct. 911, 197 L.Ed.2d 312 (2017) (“If the complaint is that a

form of legal process resulted in pretrial detention unsupported

by probable cause, then the right allegedly lies in the Fourth

Amendment.”); Lewis v. City of Chicago, 914 F.3d 472, 478 (7th

Cir. 2019) (“It’s now clear that a § 1983 claim for unlawful pretrial

detention rests exclusively on the Fourth Amendment.”).

11a

Appendix A

arrest was supported by probable cause in a Section 1983

false-arrest case, the court may make that decision on

summary judgment if the underlying facts are undisputed.

Abbott, 705 F.3d at 714.

An officer has probable cause when, “at the time

of the arrest, the facts and circumstances within the

defendant’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 . . .

an offense.’” Lawson, 637 F.3d at 703 (quoting Chelios v.

Heavener, 520 F.3d 678, 686 (7th Cir. 2008)). “The existence

of probable cause . . . depends, in the first instance, on the

elements of the predicate criminal offense(s) as defined by

state law.” Doe v. Gray, 75 F.4th 710, 719 (7th Cir. 2023)

(quoting Abbott, 705 F.3d at 715); see also Michigan v.

DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 61 L.Ed.2d 343

(1979). Mr. Madero was charged with aggravated battery

under Section 12.305(c) of the Illinois Criminal Code.

Illinois law provides that “[a] person commits battery

if he or she knowingly without legal justification by any

means (1) causes bodily harm to an individual or (2) makes

physical contact of an insulting or provoking nature with

an individual.” 720 ILCS 5/12-3. A battery charge may

be elevated to an aggravated battery charge when the

person committing battery, or the person battered, is on

or about a public way. 720 ILCS 5/12-3.05(c).

Our inquiry into probable cause “is limited to what

the officer knew at the time of the arrest.” Harney v.

City of Chicago, 702 F.3d 916, 922 (7th Cir. 2012). We

therefore consider only the information available to Officer

12a

Appendix A

McGuinness prior to his 5 a.m. arrest of Mr. Madero. We

hold that Officer McGuinness had probable cause to arrest

Mr. Madero.

When he arrived at the scene, Officer McGuinness

was informed by three witnesses that Mr. Madero was

the driver of a hit-and-run vehicle. Two of those witnesses

insisted that he had struck Philbee in the face with a key.

Mr. Madero disputed both assertions. It was the word of

three witnesses against one.7 At the scene, the only evidence

supporting Mr. Madero’s claim that he was uninvolved in

the hit-and-run accident, other than his own testimony,

was the lack of front-end damage to his car. But none of

the officers nor any of the witnesses brought up the lack of

damage to the front of Mr. Madero’s car. Furthermore, it

was snowing heavily that night, so much so that “[i]t would

have been almost impossible” for the tow truck drivers to

clean up accident parts from the intersection. 8 In such a

situation, we cannot say that Officer McGuinness’s failure

to investigate the damage to Mr. Madero’s car dispelled

probable cause. See Seiser v. City of Chicago, 762 F.3d

647, 654 (7th Cir. 2014) (“The general rule is that when

the police have information from a reasonably credible

witness that a person has committed a criminal act, they

7. The existence of probable cause does not depend on whether

Officer McGuinness correctly credited Philbee’s, Daehler’s, and

Keck’s testimony over Mr. Madero’s. Braun v. Village of Palatine,

56 F.4th 542, 549 (7th Cir. 2022) (“There is no requirement that

‘the officer’s belief be correct or even more likely true than false,

so long as it is reasonable.’”) (quoting Qian v. Kautz, 168 F.3d 949,

953 (7th Cir. 1999)).

8. R.66-5 at 57.

13a

Appendix A

may rely on that witness’s account, even when the suspect

himself denies wrongdoing. The police need not exhaust

all available avenues of investigation, including those

that might potentially exculpate the suspect.”) (internal

citation omitted); Matthews v. City of East St. Louis, 675

F.3d 703, 707 (7th Cir. 2012) (“[O]nce probable cause has

been established, officials have ‘no constitutional obligation

to conduct further investigation in the hopes of uncovering

potentially exculpatory evidence.’”) (quoting Spiegel v.

Cortese, 196 F.3d 717, 723 (7th Cir. 1999)).

Of course, although an officer is not required to

search vigorously for exculpatory evidence, at the same

time, an officer may not ignore conclusively established

exculpatory evidence. Dollard v. Whisenand, 946 F.3d

342, 355 (7th Cir. 2019); McBride, 576 F.3d at 707 (“An

officer . . . may not close his eyes to facts that would clarify

the situation.”); Hodgkins ex rel. Hodgkins v. Peterson,

355 F.3d 1048, 1061 (7th Cir. 2004).9 Our precedent simply

9. Our colleagues in some of the other circuits have had

occasion to acknowledge that an arresting officer, in assessing

the existence of probable cause, cannot fail to acknowledge and

to take into consideration obvious exculpatory evidence that

casts a dark cloud on the reliability of other evidence suggesting

guilt. See Harvard v. Cesnalis, 973 F.3d 190, 200 (3d Cir. 2020)

(“In determining probable cause, arresting officers must consider

plainly exculpatory evidence in addition to inculpatory evidence.

This is true ‘even if substantial inculpatory evidence (standing by

itself ) suggests that probable cause exists.’”) (emphasis added)

(quoting Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000)); Amrine

v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008) (“Exculpatory evidence

is . . . relevant to whether an officer has probable cause. Officers are

not required to conduct a ‘mini-trial’ before arrest, but probable

14a

Appendix A

imposes upon the arresting officer the duty to act in a

reasonable fashion and not to take an ostrich-like approach

to exculpatory evidence that is obvious in nature and

weakens substantially the relevance and probative value

of the evidence suggesting guilt. We need not examine

the contours of this exception. Here, we think that it is

clear that Officer McGuinness was not obliged, in the face

of the eyewitness testimony before him and the evidence

of a bleeding victim, to conduct a crash investigation

in the middle of a snowstorm in the early hours of the

morning. In short, exculpatory evidence available through

a detailed examination of the exterior of the vehicles was

not obviously available to the officer.

Mr. Madero raises a number of other arguments

supporting his view that Officer McGuinness lacked

probable cause. He submits that genuine disputes of

material fact exist that prevent us from deciding the

case on summary judgment. We disagree. No underlying

facts supporting the probable cause determination are in

dispute. Even viewing the facts in the light most favorable

to Mr. Madero, and therefore assuming that he was not

the driver of the hit-and-run vehicle and that he did not

strike Philbee in the face with a key, Officer McGuinness

cause ‘does not exist when a “minimal further investigation” would

have exonerated the suspect.’”) (quoting Kuehl v. Burtis, 173 F.3d

646, 650 (8th Cir. 1999)); Gardenhire v. Schubert, 205 F.3d 303,

318 (6th Cir. 2000) (“[A]n officer cannot look only at evidence of

guilt while ignoring all exculpatory evidence. Rather, the officer

must consider the totality of the circumstances, recognizing both

the inculpatory and exculpatory evidence, before determining if

he has probable cause to make an arrest.”).

15a

Appendix A

still had probable cause to arrest Mr. Madero. As we have

explained, Officer McGuinness was informed by three

seemingly credible witnesses that Mr. Madero did in

fact flee the scene of the accident. He also observed blood

dripping from a large cut on Philbee’s face and heard from

both Philbee and Daehler that Mr. Madero had struck

Philbee in the face with his key. That Officer McGuinness

heard such testimony and saw Philbee’s face is not in

dispute, and he reasonably relied on such information to

arrest Mr. Madero.

Two of Mr. Madero’s remaining arguments generally

stem from law enforcement’s decision to split the task

of interviewing the four witnesses between the three

officers at the scene of the accident. Mr. Madero highlights

conflicting testimony and suggests that had Officer

McGuinness interviewed each witness himself, he would

have realized the conflicts. First, Mr. Madero points to

the discrepancy between Philbee’s statement that he

“fell” into Mr. Madero’s vehicle, and Daehler’s and Keck’s

statements that Philbee “jumped” into Mr. Madero’s

vehicle. This is an important distinction, Mr. Madero

contends, because it goes directly to his assertion of selfdefense. He also points out that Philbee, Daehler, and

Keck disagreed about the path they took while chasing

the hit-and-run vehicle.

These arguments fail. These slight disagreements

in testimony did not dispel probable cause. First, Officer

McGuinness had no duty to investigate the validity of

Mr. Madero’s claim of self-defense, which was far from

conclusively established. Moreover, as the district court

16a

Appendix A

recognized, the disagreement between Philbee, Daehler,

and Keck about the path traveled during the chase did

not dispel Officer McGuinness’s probable cause. At the

scene, all three were “adamant” that they did not lose

sight of the dark-colored sedan, and all three arrived

back at the intersection, surrounding Mr. Madero’s car,

at the same time. The slight disagreement about the path

taken is insubstantial in light of the trio’s insistence in the

immediate aftermath that they had maintained sight of

the dark-colored sedan the entire chase.

Nor was probable cause for the arrest eliminated

because Daehler and Keck later recanted their statements

that they had never lost sight of the hit-and-run car. As

we have explained, we look only to information available

to the officer at the time of the arrest when determining

whether probable cause existed. Additional evidence

discovered later “is irrelevant to whether probable cause

existed at the crucial time” of the arrest. Braun v. Village

of Palatine, 56 F.4th 542, 549 (7th Cir. 2022) (quoting

Bailey v. City of Chicago, 779 F.3d 689, 695 (7th Cir.

2015)). The accident occurred around 4 a.m., Mr. Madero

was arrested around 5 a.m., and Daehler and Keck did

not recant their statements until 7:30 a.m. that morning.

Their recantations, therefore, do not affect the existence

of probable cause.

Because we hold that Officer McGuinness had

probable cause to arrest Mr. Madero, we need not reach

the question of whether Officer McGuinness was entitled

to qualified immunity.

17a

Appendix A

Conclusion

Ultimately, Officer McGuinness credited the testimony

of three consistent – and “very adamant” – witnesses over

the testimony of one witness telling a different story. His

decision to arrest Mr. Madero on the basis of the testimony

of those three eyewitnesses was supported by probable

cause, and we therefore affirm the district court’s grant

of summary judgment to Officer McGuinness.

AFFIRMED

18a

B THE UNITED

APPENDIX B —Appendix

ORDER OF

STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF ILLINOIS, WESTERN DIVISION,

FILED JUNE 27, 2023

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS,

WESTERN DIVISION

Case No. 20 CV 50062

DANIEL A. MADERO,

Plaintiff,

v.

OWEN MCGUINNESS,

Defendant.

June 27, 2023, Decided;

June 27, 2023, Filed

Judge Philip G. Reinhard

ORDER

Defendant Owen McGuinness’s motion for summary

judgment [64] is granted. This case is closed.

19a

Appendix B

STATEMENT-OPINION

Plaintiff Daniel Madero was arrested and charged

with aggravated battery for allegedly stabbing Brandon

Philbee in the face with a key during a fight after an

earlier car accident that plaintiff may (or may not) have

been involved in. He was also given four traffic citations

for his role in allegedly causing the earlier accident.

Plaintiff brought this § 1983 false arrest case against just

one defendant, Officer Owen McGuinness, who was one

of four Rockford police officers initially investigating this

incident. Plaintiff asserts that McGuinness was the officer

who made the key decisions and accuses him of conducting

a one-sided and sloppy investigation that overlooked

exculpatory evidence. According to plaintiff, Philbee

was the aggressor against whom plaintiff was merely

defending himself. Before the court is McGuinness’s

motion for summary judgment.

BACKGROUD

This case arose out of a hit-and-run traffic accident

at around 4 a.m. on February 9, 2017 in Rockford—

specifically at the intersection of Broadway Avenue

(running east-west) and Parkside Drive/Eastmoreland

Avenue (a combined north-south street). There had been

a large snowstorm that night, described as a blizzard by

some, and all of the four main witnesses had been out

late into the night either snowplowing or helping drivers

stuck in the snow.

At around 4 a.m., Brandon Philbee was driving his

silver Pontiac Torrent on Broadway Avenue through

20a

Appendix B

the above-described intersection. He was going west to

east and had the green light. Another car, which will be

referred to for now as simply the dark-colored sedan, was

going northbound up Eastmoreland Avenue approaching

the intersection. The sedan went through the red light

and hit Philbee’s car on the passenger side. The collision

pushed Philbee’s car into the other lane of oncoming traffic

lane where it hit into a GMC pickup truck going westbound

on Broadway. Nearby was a white Ford pickup that was

not involved in the accident but the driver was able to see

some of what happened. John Keck and Brett Daehler

were each driving one of the two pickups.1 They are two

important witnesses.

The dark-colored sedan, after hitting into Philbee’s

car, left the scene of the accident, turning right and

driving eastbound on Broadway. Philbee in his Pontiac

chased after the sedan, and the two pickup trucks followed

behind. According to these three men (Philbee, Keck, and

Daehler), they never lost sight of the sedan, which went

a ways down Broadway (either two or three blocks) and

then made a series of left turns, first north, then west, and

finally back south. Essentially, it made a counterclockwise

trip around the block (or several blocks), ending back up

at the same intersection, except that the sedan was now

on Parkside Drive at a red light facing south. The two

pickup trucks pulled up alongside, or maybe even in front

1. In defendant’s Rule 56.1 statement, he states that it is

unclear which of the two men were driving which pickup. Although

it is somewhat surprising that this basic fact cannot be pinpointed,

defendant asserts that resolution of this question is not important

to any issue, and plaintiff does not disagree.

21a

Appendix B

of, the sedan to try to block it in and prevent the driver

from leaving. Philbee got out of his car and went over to

the sedan and confronted the driver who had just rolled

down his driver’s side window.

We can pause the narrative here to identify the central

fact in dispute. Everyone agrees that the driver of the

sedan waiting at the red light at this moment was plaintiff

Daniel Madero and that he was driving a 1993 dark green

Audi. But what is in dispute is whether the green Audi was

the dark-colored sedan involved in the earlier accident.

That is, was plaintiff the hit-and-run driver? Philbee,

Keck, and Daehler all believed he was. They witnessed

the earlier accident, saw what the car looked like (Philbee

even claimed to have seen the face of the driver pretty

clearly in his headlights), and they all followed that car

as it drove around the block.

Turning back to the budding confrontation between

Philbee and plaintiff at the car window, the court notes that

the two men provide conflicting accounts of what happened

next, and each accuses the other of being the aggressor

and the person primarily at fault. It is not necessary

nor really possible to provide a definitive blow-by-blow

recounting, but the broad outlines of each man’s version

can be set forth. According to Philbee, he walked up to

the window and tried to engage plaintiff in a reasonable

manner by asking him if he would provide his insurance

information to address the earlier accident. Philbee claims

that plaintiff then spat in his face, whereupon Philbee

reacted by punching him. Plaintiff tried to drive away.

Philbee reached in the window to grab the steering wheel

22a

Appendix B

to prevent plaintiff from leaving. Eventually Philbee

ended up inside the front seat of the car, and the two men

continued to fight. Philbee claims he was merely trying

to hold plaintiff down and restrain him—in effect, he was

trying to make a citizen’s arrest.

Plaintiff tells a different story, although it contains

some points of agreement. Plaintiff states that he had

just taken a friend home after a long night in which they

helped stranded drivers. He was on his way back to his

own house, waiting at a stoplight and minding his own

business when three vehicles suddenly swarmed around

him. Philbee came over and aggressively accused him of

having caused an earlier accident. Plaintiff tried to drive

away to protect himself. During the struggle inside the

car, Philbee was trying to choke and strangle him. At some

point, plaintiff punched Philbee in self-defense. Plaintiff

denies stabbing Philbee in the face with a key or any other

object. Plaintiff was spitting blood from the blows inflicted

on him by Philbee.

Someone called 911, and Officer McGuinness was the

first of four officers to arrive on the scene. As he pulled

up, he saw Philbee and plaintiff fighting in the front seat

of the car and then he saw Philbee exit the front passenger

door. As McGuinness walked up, he saw plaintiff talking

on the phone with someone. 2 McGuinness saw that Philbee

had blood on his face from some type of puncture wound

below his right eye. Philbee told McGuinness that the

2. In his deposition, plaintiff claimed that McGuinness pointed a

gun at him twice. However, no other witness verified this allegation,

and plaintiff’s attorney has not mentioned it in any of his filings here.

23a

Appendix B

wound was caused by plaintiff stabbing him with a key.

Daehler, who was standing nearby, stated that he saw

plaintiff holding a key in his fist during the fight. Plaintiff

yelled out that this accusation—that he stabbed Philbee

with a key—was untrue.

Three other officers (Sergeant Dobran, Officer

Swanson, and Officer Nachampasack) arrived shortly

thereafter. McGuinness and these three officers conducted

the initial investigation. It was their normal procedure to

divvy up interviews when multiple witnesses were present.

See McGuinness Dep. at 43. McGuinness interviewed

Philbee; Swanson interviewed Keck and Daehler; and

Nachampasack interviewed plaintiff. Plaintiff was noticed

to be injured and disoriented, and was taken to the hospital.

Although McGuinness did not speak directly with either

Keck, Daehler, or plaintiff, all the officers communicated

with each other about what they learned from the

interviews. They had a group conference at the scene

“discussing [the] details of what [they had] uncovered.”

Swanson Dep. at 55. At some point, McGuinness talked

on the phone with Jessica Maveus, who as the assistant

states’ attorney on duty. Officers were required to get

ASA approval for any felony charges. Maveus eventually

approved the aggravated battery charge against plaintiff.

In addition to talking with McGuinness, she relied

on a two-page probable cause statement prepared by

McGuinness. This statement summarized the officers’

interviews with the four witnesses and the other evidence

gathered up until that point. After Maveus approved

the aggravated battery charge, plaintiff was arrested

by Nachampasack and taken to jail. Plaintiff was also

24a

Appendix B

issued four traffic citations relating to his involvement in

the earlier hit-and-run accident. 3 Sergeant Dobran gave

approval at the scene to issue the four traffic citations.

At this point, the initial investigation was concluded, and

McGuinness had no further substantive involvement in

the investigation.

However, the investigation was re-opened a few

hours later. When Richard DeVlieger, a Rockford police

detective, showed up to work that morning, he received

a visit from Douglas Pann, a deputy or assistant deputy

in the office. Pann asked DeVlieger, who had experience

investigating traffic accidents, to look into the case

because there might be some problems with it. (Pann’s

involvement in the case will be further discussed briefly

at the end of this decision). The preliminary results from

DeVlieger’s re-investigation were conveyed to ASA Wendy

Larson Bennett later that day. Based on these results,

at around 5:00 p.m., ASA Bennett reversed all charges

against plaintiff, and he was released from jail. In total, he

spent about 12 hours in jail. The main reason for reversing

the charges is that Keck and Daehler called in and talked

to Officer Swanson at 7:40 a.m. and told him that they

had second thoughts about what happened. Here is the

summary of this conversation, as set forth in Swanson’s

police report:

3. These citations were for (1) disregarding a traffic control

device, 625 ILCS 5/11-305; (2) failing to reduce speed to avoid an

accident in violation of 625 ILCS 5/11-601(a); (3) leaving the scene of

an accident in violation of 625 ILCS 5/11-402(a); and (4) operating an

uninsured motor vehicle in violation of 625 ILCS 5/3-707.

25a

Appendix B

Daehler called me back and advised me that

he and Keck returned to their office, after the

incident and began talking about the incident.

Daehler stated that he and Keck both came

to the conclusion that they were not positive

anymore that the Audi was the vehicle that

was involved in the accident. Daehler believed

this because the front end damage that was on

the Audi on scene was likely not caused by the

collision that they witnessed. Daehler believed

that the Audi should have had front driver’s side

damage from the way he witnessed the crash

occur, which it did not. It should be noted that

Daehler said he was positive that the vehicle

that struck the Pontiac was a dark colored

sedan but was not sure anymore if it was the

Audi because he thought the damage that the

Audi had, he believed, would be different.

Daehler said that he was changing his story

because at the time of the incident he was going

along with the victim but now, after having

some time to think about the incident, he could

not be 100 percent sure that the suspect vehicle

was the Audi that was on scene. Daehler also

changed his story, stating that he did lose

sight of the Audi, but he never lost sight of the

Pontiac, which was chasing the suspect vehicle.

Daehler explained that because of the stress of

the situation he believed that the Audi was the

correct vehicle but after time passed he became

less sure of the details of the incident.

26a

Appendix B

[73-4 at p. 8.] This statement sets forth two points, or

changes, in their statements. First, the two men indicated

that, contrary to their earlier statements, they did lose

sight of the hit-and-run car, although they never lost

sight of Philbee’s Pontiac during the chase. Second, they

raised a new theory, one that serves as plaintiff’s central

argument now. It is that the Audi did not have front end

damage consistent with it hitting Philbee’s Pontiac.4 In

other words, plaintiff was not the hit-and-run driver.

Some participants in this case have referred to these

new statements as “recantations.” For example, ASA

Bennett, in her deposition taken several years later, could

not recall exactly why the charges were reversed except

that “the witnesses had recanted.” Dep. at 22. Perhaps

“recantation” is a fair label, but it also should be noted that

these two men did not recant all their previous statements,

as will be discussed below.

ANALYSIS

Defendant McGuinness argues that plaintiff’s two

§ 1983 claims both fail because (in addition to other

reasons) no reasonable jury could find that probable

cause was lacking for the arrest. This court agrees. In

considering this question, it is important to keep in mind

that McGuinness, the only defendant plaintiff chose to sue,

was only substantively involved in the initial investigation,

which took place before the recantations.

4. Keck and Daehler apparently came up with this theory after

they had left the scene, meaning that they were not then looking at

the Audi but were recalling what they had seen earlier.

27a

Appendix B

Plaintiff faults McGuinness for overlooking several

evidentiary anomalies supposedly undermining the

probable cause finding. Plaintiff identifies three main

problems, which will be considered below. But the court

will first summarize the affirmative evidence McGuinness

and others relied on initially. In a nutshell, they relied on

three witnesses who told a consistent story implicating

plaintiff. Specifically, Philbee, Keck, and Daehler all told

police that (i) plaintiff was the hit-and-run driver; (ii) they

followed his car after the accident and never lost sight of it

during the chase; and (iii) after they caught up to plaintiff’s

car and after Philbee confronted him, plaintiff tried to

leave the scene a second time. None of these witnesses

expressed any doubts or equivocations about these points

during the on-scene investigation. As McGuinness stated

in his deposition: “The witnesses were very adamant

that they never lost sight of the vehicle. [] We took the

witnesses’s statements and the victim’s statement too and

they were really separate statements and basically said

the same thing.” Dep. at 63. Two points to note about this

observation. One is the confidence level of the witnesses

(“very adamant”); the other is the consistency among them

(“said the same thing”). In short, it was three witnesses

against one.

As for the specific issue of the key stabbing, which

is obviously a critical issue, McGuinness personally saw

Philbee get out of the car with blood dribbling down his

face from what looked like to be some sort of puncture

wound to his face. This wound, which according to the

pictures taken appears to be consistent with a stabbing

injury, is the type of fact that calls out for some sort of

28a

Appendix B

explanation. Philbee provided one, telling McGuinness

that plaintiff had stabbed him with a key. Also, Swanson

was told by either Keck or Daehler that they saw plaintiff

during the fight holding a key between his fingers in a

way that looked like he was brandishing it as a weapon.

See Swanson Dep. at 33. Plaintiff himself confirmed that

Daehler made this statement. In plaintiff’s deposition,

he testified that he heard Daehler telling McGuinness on

the scene that plaintiff “had stabbed someone in the face

with a key.” Pl. Dep. at 52. Also, even though Daehler and

Keck made a partial recantation later, Daehler did not

recant his statement about seeing plaintiff with a key in

his hand. DeVlieger interviewed Daehler five days after

this incident, and here is the portion of DeVlieger’s police

report summarizing what Daehler said then about the key:

I asked Daehler about the keys. Daehler said

while Madero and [Philbee] were fighting he

could see through the passenger side window.

Daehler said he observed Madero to have keys

in his hand and the keys were pointing through

his fingers “like a weapon”. Daehler said he

could see Madero was bleeding from a scrape

under his eye and assumed Madero had injured

[Philbee] with the keys. Daehler said he opened

the passenger door and took the keys from the

hand of Madero and told them they needed to

calm down and wait for the police to arrive.

[73-5 at 16 (emphasis added).] As the italicized language

indicates, although Daehler did not directly witness the

moment of the stabbing, he nonetheless concluded that

29a

Appendix B

plaintiff did stab Philbee based on seeing plaintiff holding

the key “like a weapon.” All this evidence, in this court’s

view, is enough to establish probable cause that plaintiff

purposefully stabbed Philbee with the key. 5

The affirmative defense lurking in the wings is selfdefense. Plaintiff has indicated, generally, that he was

trying to defend himself during the fight and has admitted

that he threw a punch or two to try to ward off Philbee’s

aggressive attacks. However, importantly, plaintiff has

consistently denied that he ever stabbed Philbee with a key

or with any other similar object and also has specifically

denied holding a key like a weapon. See Pl. Dep. at 52

(stating that he told McGuinness on the scene that he

“didn’t stab anybody with a key[.]”); Pl. Resp. to Def. Fact

#24 (stating that he “denies pulling out a key, placing it

between his fingers, and in a closed fist, striking Philbee’s

face.”). In his deposition, plaintiff was asked if he knew

how Philbee got the cut on his face, and plaintiff offered

no explanation. Dep. at 118. McGuinness and the other

officers at the scene thus had to decide who was telling the

truth about the key stabbing allegation. After talking it

over in an on-scene conference, the four officers ultimately

chose to believe Philbee and Daehler’s statements about

the key over plaintiff’s directly contrary statement.

5. One refrain in plaintiff’s response brief is that Philbee’s story

was contradicted by the on-scene statements of Keck and Daehler.

But the undisputed evidence simply does not support this broader

contention. For example, as just noted above, Daehler confirmed

Philbee’s statement that plaintiff was holding a key in his fist like

a weapon.

30a

Appendix B

To sum up, McGuinness and the other officers, as

well as ASA Maveus, all relied on the three generally

consistent witness statements to find probable cause. They

did not appear to rely on any physical evidence one way

or another. (As will be discussed below, plaintiff argues

they should have paid more attention to this evidence.)

In his deposition, McGuinness stated that they had “no

physical evidence” to tie plaintiff’s car to the initial

accident scene. Dep. at 51. The other officers testified

that the heavy snowstorm made it difficult to inspect the

vehicles and reach any firm conclusions. In this court’s

view, the evidence relied on by these officers at the scene

was enough to establish probable cause for the aggravated

battery charge. As the Seventh Circuit has often noted,

“an officer with probable cause ordinarily may proceed

with an arrest without further investigating potentially

exculpatory evidence.” Taylor v. Ways, 999 F.3d 478, 490

(7th Cir. 2021) (“A patrol officer is not a judge. Once she

has probable cause to arrest, the Fourth Amendment

allows her to make the arrest and leave it to others in the

criminal justice system to sort out conflicting evidence.”).

However, an exception exists to this general rule when a

“reasonable officer would have known that the evidence”

fails to establish probable cause. Brunson v. Murray, 843

F.3d 698, 709 (7th Cir. 2016); McBride v. Grice, 576 F.3d

703, 707 (7th Cir. 2009) (although an officer may end the

investigation once probable cause is found, that officer

“may not ignore conclusively established evidence of

the existence of an affirmative defense”) (quoting earlier

Seventh Circuit case) (emphasis added).

Plaintiff is basically relying on this type of exception

when he raises the three evidentiary anomalies that

31a

Appendix B

McGuinness allegedly ignored. However, even when

the evidence is construed in the light most favorable to

him, the court does not find that a reasonable jury could

conclude that these three alleged anomalies, either viewed

singly or in combination, “conclusively establish” that

probable cause was lacking.

Plaintiff first argues that a conflict existed between the

statement of Philbee, on the one hand, and the statements

of Daehler and Keck, on the other hand, regarding exactly

how Philbee entered through the window of plaintiff’s

car during the fight. Plaintiff states that (i) McGuinness,

in his police report, wrote that Philbee stated that he

“fell” into plaintiff’s car during the initial struggle but

(ii) Swanson, in his police report, wrote that Keck and

Daehler stated that Philbee “jumped” into plaintiff’s

car. Plaintiff believes that this difference—“fell” versus

“jump”—is material. Plaintiff’s theory seems to be that

McGuinness or Philbee, or perhaps both of them, were

trying to downplay that Philbee was the aggressor and

that he purposefully entered plaintiff’s car. In other

words, it was not an accident. The court does not believe

this discrepancy is material. Philbee has openly stated

throughout this case that he was intentionally trying to

restrain plaintiff by keeping him from driving away from

the scene and that he entered the car to achieve this larger

goal. See, e.g., Dep. at 43 (“I dove through the window one

time. It was one swift move.”); id. at 17 (“I jumped into the

window.”). This is the citizen’s arrest rationale. Moreover,

it is not especially surprising that witnesses might have

described this movement in slightly different ways given

that it occurred at the end of a fairly complicated sequence

32a

Appendix B

of movements. The witnesses stated that Philbee first

reached through the window to grab the steering wheel;

then plaintiff started driving away; as a result, Philbee

was awkwardly half inside the car, with the other half of

his body hanging outside the car; and finally, as the car

was moving, he ended up inside. It is thus not clear exactly

what the proper descriptive label should be for this final

movement.

Plaintiff next argues that Philbee and the two pickup

truck drivers disagreed on the exact path the hit-andrun driver took during the chase. This contradiction

could potentially be important to plaintiff’s theory that

the three witnesses lost sight of the hit-and-run driver.

Plaintiff seems to be arguing that the three drivers

started following the hit-and-run driver going east on

Broadway (everyone agrees on this initial fact) but then

they somehow lost track of that car and mistakenly started

following another car, also a dark-colored sedan, that

coincidentally was going down Broadway at exactly the

same time. In plaintiff’s response brief, he describes the

alleged contradiction as follows: “Philbee stated [that]

the [hit-and-run] vehicle went north on Alpine Road

while Witness Keck and Witness Daehler both stated

that the vehicle went north on Point Avenue.” [73 at p.

8-9.] (Alpine Road is one block further east than Point

Avenue.) Although this does appear to be a contradiction,

the court again finds it is not material. First, as noted

previously, all three witnesses were adamant (at least in

their on-scene statements) that they never lost sight of the

vehicle. Given these unequivocal statements, a reasonable

police officer could have viewed this discrepancy about the

33a

Appendix B

exact road taken to be an inconsequential mistake made

by one of these witnesses. Second, it is undisputed that

all three cars ended up behind or around plaintiff’s car,

back at the original Broadway intersection, all together at

the same time. But this simultaneous convergence would

seem unlikely if Philbee took one route and Keck and

Daehler took a different route. Moreover, in their later

recantation, Keck and Daehler stated that although they

did lose sight of the hit-and-run car, they never lost sight

of Philbee’s Pontiac. This means that, even accepting the

recanted version, all three of the cars were together the

whole time. This again implies that this contradiction was

likely a mistake in the police reports.

Plaintiff’s third argument is the front-end theory

discussed previously. This argument is stronger than the

first two, and also more complicated, but the court still

does not believe it is enough to avoid summary judgment.

It is true that Keck and Daehler after their recantation,

and then DeVlieger, believed that plaintiff’s green Audi

should have had front-end damage if it were involved in

the initial accident. Plaintiff believes this argument is

airtight and unimpeachable. Perhaps the argument is

persuasive, but there is another competing theory in the

record. Philbee, in his deposition, argued that the accident

happened in a way that would not have left any front-end

damage. The main difference in these two theories seems

to be in how fast they assume the cars were moving at

impact. DeVlieger testified that his conclusions were based

on the assumption that all the cars were moving at or near

the posted speed limits at the time of impact—roughly in

the 30 mph range. See [73-5 at 12 (“The posted speed limit

34a

Appendix B

for Broadway is 35 miles per hour (MPH) and the posted

speed limit for Eastmoreland Ave is 30 MPH. With these

speeds there would be significant front end damage to the

Audi.”) (emphasis added).] Philbee, by contrast, testified

that the cars were moving more slowly, particular the hitand-run car. Philbee estimated that his car was initially

moving at the speed limit but he reduced his speed down

to somewhere between 20 and 25 mph just before impact to

avoid the collision. Dep. at 71. He testified that the driver of

the hit-and-run car was actively trying to keep from going

into the intersection and had engaged the brakes before

going through the red light. Philbee believed that car at

the time of impact “couldn’t have been going but five miles

an hour, if that” and that it “barely bumped” Philbee’s car.

Id. at 19. Philbee further testified that he switched his

car into neutral just before impact such that it only took

a slight bump to push his car over the icy surface a few

feet into the other lane. The court recognizes that plaintiff

likely could point to criticisms about Philbee’s alternative

theory and that plaintiff believes more generally that

Philbee is not a credible witness. Among other things,

he is not an expert in traffic accidents and not a neutral

witness either.6 Still, given the current record, the court

cannot say with certainty that this theory is completely

implausible. DeVlieger tried to interview Philbee during

his more extended investigation, but he was unable to do

so because he could not find him. So DeVlieger presumably

was unaware of Philbee’s theory and his testimony about

the speeds of the cars at the time of the crash. It also

6. Also, at the time his deposition, Philbee was in prison serving

a two-year sentence for domestic battery.

35a

Appendix B

must be remembered that McGuinness would have had

to consider this issue, on the scene during a snowstorm

at four in the morning. By contrast, DeVlieger examined

the car several days later in a more placid setting. None

of the other officers or witnesses on the scene (including

specifically Keck and Daehler) spoke up and raised any

concerns about the lack of front-end damage. See Swanson

Dep. at 55-56 (during the on-scene conference, none of

the four officers “brought up the fact that there was no

damage to Mr. Madero’s car”).7

7. Plaintiff has also alleged that McGuinness, in one of his

police reports, “falsely stated that he had observed frontend

damage to Plaintiff’s vehicle.” Cmplt. ¶ 57; see also Pl. Resp. at

p.11. It is true that McGuinness’s police report does include this

one sentence: “I observed the green Audi had front end damage.”

[73-1 at p.8.] However, this police report did not flag this one fact as

being important. This court does not believe that this one incorrect

statement was material in a way that could save plaintiff’s claims

here. This is because McGuinness did not include this fact in the twopage probable cause statement. ASA Maveus testified that it was the

probable cause statement that she relied on to approve he aggravated

battery charge. Also, the fact that McGuinness sought approval from

the ASA is another point in his favor. See, e.g., Fleming v. Livingston

Cnty., Ill., 674 F.3d 874, 881 (7th Cir. 2012) (police officer’s “act in

calling state’s attorney Carey Luckman goes a long way toward

solidifying his qualified immunity defense”). Plaintiff seems to be

suggesting here that McGuinness was engaged in an intentional

effort to fabricate evidence. But this argument is speculative and

is supported by no other evidence in the record. Plaintiff has never

articulated any larger motive McGuinness would have had to frame

him for a charge of aggravated battery. In sum, no evidence suggests

that this one sentence played any role in the initial decision to charge

plaintiff with aggravated battery.

36a

Appendix B

One additional point is worth noting about the broader

decision to re-investigate this case based on the new

front-end-damage theory. Although neither side discussed

this point in their briefs or in their 56.1 statements, it is

hard not to notice from reading the depositions and police

reports that Douglas Pann, the chief deputy or assistant

deputy at the time, played some role in deciding to re-open

this investigation. This is potentially noteworthy because

Pann is plaintiff’s brother-in-law. As noted earlier, right

after the fight, plaintiff immediately called someone on the

phone before he talked to any officer on the scene. That

person was Pann. So Pann knew about the case a little

after four a.m. McGuinness stated that he was unable to

talk to plaintiff when he first walked on the scene because

plaintiff was busy talking to someone on the phone. When

DeVlieger came to work later that morning, it was Pann

who asked him to re-investigate the case because there

were “problems” with it. DeVlieger couldn’t recall in his

deposition whether the problems referred to by Pann were

the recantations or whether Pann approached him even

before investigators learned about those recantations.

Pann also talked to others that morning about the case.

Swanson wrote in his police reports that Pann approached

him and asked about the investigation: “Shortly after I

completed the phone call with Daehler, at approximately

0800 hours, Assistant Deputy Chief D. Pann talked to

me about the incident. I informed him of the facts and

circumstances regarding the incident, specifically in

regards to the witness changing his statement.” [73-4

at 8.] Similarly, McGuinness testified that, after Keck

and Daehler recanted their stories, “Chief Pann came

in, we told him what happened and they [i.e. Pann and

37a

Appendix B

Sergeant Jacobi] said they will take care of it.” Dep. at

74. ASA Bennett, in her deposition, stated that she was

aware that Pann was related to plaintiff and that Pann had

some limited involvement in re-opening the investigation,

but she believed that Pann had “properly” distanced

himself from the investigation and was not exerting any

pressure on her to drop the charges but was acting more

“like he was a knowledgeable citizen saying there is a

problem here.” Dep. at 32-33. This court is not making

any judgment about Pann’s involvement (the record isn’t

clear on this issue), but it is still possible that his efforts

as described above might have unintentionally put some

pressure on investigators to reach a different result from

the one reached by McGuinness who did not have any

known biases for reaching a particular result.

The parties have raised some additional arguments

in their briefs, but the court believes that the above

arguments are the most substantive ones and are sufficient

to support the granting of summary judgment to defendant

on both counts. In reaching this conclusion, this court is

not indicating that the evidence is clear or definitive that

plaintiff committed any crime or other violation, merely

that there was enough evidence at the time of the initial

investigation to meet the lower probable cause standard

for both the aggravated battery charge and for the four

traffic violations. 8 See generally Kaley v. United States,

8. The court notes for the record that plaintiff stated in his

deposition that he has a separate pending civil suit in the Circuit

Court of Winnebago County Circuit Court against Philbee, Keck,

and Daehler in which he alleges that he was wrongly arrested

because they told false stories to police during the initial on-scene

investigation. Dep. at 148.

38a

Appendix B

571 U.S. 320, 338 (2014) (“Probable cause, we have often

told litigants, is not a high bar: It requires only the kind of

fair probability on which reasonable and prudent people,

not legal technicians, act.”) (cleaned up).

Date: 6/27/2023

ENTER:

/s/ Philip G. Reinhard

United States District Court Judge

Electronic Notices.

39a

C

APPENDIX C Appendix

— COMPLAINT

IN THE

UNITED STATES DISTRICT COURT NORTHERN

DISTRICT OF ILLINOIS WESTERN DISTRICT,

FILED APRIL 10, 2020

UNITED STATES DISTRICT COURT NORTHERN

DISTRICT OF ILLINOIS WESTERN DIVISION

DANIEL A. MADERO,

Plaintiff,

vs.

OWEN MCGUINNESS,

Defendant.

Case Number: 20-CV-50062

Jury Trial Demanded

COMPLAINT

NOW COMES the Plaintiff, Daniel A. Madero, by and

through his attorney, James T. Harrison, and complaining

of the Defendant, Owen McGuinness, states as follows:

Jurisdiction

1. This Complaint contains two (2) counts. Count I

arises under 42 U.S.C. §1983, and the Court has original

jurisdiction over Count I of this Complaint pursuant to 28

U.S.C. §1331—federal question jurisdiction, and pursuant

40a

Appendix C

to 28 U.S.C. §1343—civil rights. Count II arises under

42 U.S.C. §1983, and the Court has original jurisdiction

over Count II of this Complaint pursuant to 28 U.S.C.

§1331—federal question jurisdiction, and pursuant to 28

U.S.C. §1343—civil rights.

Venue

2. Venue is appropriate in the Northern District of

Illinois, Western Division because the events alleged in

the Complaint occurred in the Western Division of the

Northern District of Illinois.

Parties

3. At all times relevant hereto, the Plaintiff Daniel A.

Madero (hereinafter “Madero”) was an adult resident of

the State of Illinois and was a United States citizen.

4. At all times relevant hereto, the Defendant Owen

McGuinness (hereinafter “McGuinness”) was an adult

resident of the County of Winnebago and the State of

Illinois, and resided at 1306 Summerland Drive, in the

Village of Durand, Illinois.

FACTS

5. At all times relevant hereto, Defendant McGuinness

was employed as a police officer for the City of Rockford,

Illinois and his actions complained of herein occurred

under color of law.

41a

Appendix C

6. On February 8, 2018 and February 9, 2018, a heavy

snowstorm fell on the greater Rockford, Illinois, area.

7. On February 9, 2018, at approximately 0130 hours,

Plaintiff and his friend went out together in Plaintiff ’s

vehicle to assist other drivers whose vehicles got stuck in

the snow or had slid off the road into a ditch.

8. At approximately 0350 hours, Plaintiff and his friend

returned to Plaintiff ’s friend’s house where Plaintiff

dropped off his friend and then headed home.

9. At approximately 0356 hours, Plaintiff was stopped

at the red light at the intersection of Parkside Avenue

and Broadway, in the City of Rockford, Illinois, when

three subjects, Brandon Philbee (hereinafter “Philbee”),

Bret Daehler (hereinafter “Daehler”), and John Keck

(hereinafter “Keck”), came up from behind Plaintiff in

their vehicles, at a high rate of speed.

10. Some minutes earlier, Philbee was eastbound on

Broadway approaching the intersection with Eastmoreland

Avenue and was proceeding into the intersection with a

green light, when a vehicle that was northbound on

Eastmoreland Avenue failed to stop at the red light at

Broadway, and collided with Philbee’s vehicle, striking the

front/passenger-side of Philbee’s vehicle with the front/

driver-side of the northbound vehicle.

11. The posted speed limit for Broadway was 35 MPH,

and the posted speed limit for Eastmoreland Avenue was

30 MPH.

42a

Appendix C

12. The force of the impact from the collision with the

northbound vehicle caused Philbee’s vehicle to go into the

oncoming traffic lane and collide with Keck’s vehicle which

was westbound on Broadway.

13. The vehicle that collided with Philbee’s vehicle left

the scene of the accident eastbound on Broadway.

14. Philbee also left the accident scene, eastbound on

Broadway. Daehler saw Philbee leaving the scene of the

accident and pursued Philbee eastbound on Broadway.

Keck left the accident scene and followed Daehler’s vehicle

eastbound on Broadway.

15. Plaintiff had no knowledge of or involvement in the

collision involving Philbee’s vehicle.

16. Philbee, Daehler, and Keck boxed-in Plaintiff ’s

vehicle with their vehicles. Keck yelled to Daehler that

there was no damage to the driver’s side of the Audi,

(Plaintiff ’s vehicle), which Daehler acknowledged.

17. Philbee got out of his car and screamed at Plaintiff

that Plaintiff had run a red light and caused an accident.

Plaintiff lowered his window and told Philbee that Plaintiff

had not been involved in any accidents.

18. Philbee attempted, unsuccessfully, to open the

driver’s door of Plaintiff ’s vehicle, which was locked, and

then punched Plaintiff in the left temple through the open

window, reached into Plaintiff ’s vehicle, and attempted

to remove the keys from the ignition.

43a

Appendix C

19. Philbee screamed at Plaintiff that Plaintiff caused

an accident, and threatened to kill the Plaintiff; Philbee

then physically entered Plaintiff ’s vehicle through the

front, driver-side window.

20. Philbee got on top of the Plaintiff inside Plaintiff ’s

vehicle and continued to strike and choke the Plaintiff,

while Plaintiff attempted to defend himself.

21. During the attack by Philbee, Daehler drove his plow

truck into the rear passenger-side corner of Plaintiff ’s

vehicle, causing damage to Plaintiff ’s vehicle.

22. Plaintiff was still defending himself against attacks

by Philbee, inside Plaintiff ’s vehicle, when the police

arrived.

2 3. At approx imately 0 40 4 hou rs, Febr ua r y 9,

2018, Defendant Owen McGuinness, Officer James

Napchampassack, Officer Kurt Swanson, and Sgt. Jason

DoBran were dispatched to investigate the hit-and-run

accident; Defendant McGuinness was the first officer to

arrive on the scene.

24. Philbee got out of Plaintiff ’s vehicle and approached

Defendant McGuinness; Philbee accused Plaintiff of being

the hit-and-run driver that collided with Philbee’s vehicle

and claimed that Plaintiff had battered him.

25. Daehler and Keck were interviewed by Officer

Swanson and initially thought the Plaintiff was involved

in the collision with Philbee’s vehicle.

44a

Appendix C

26. Officer Nachampassack questioned Plaintiff and

asked Plaintiff what had happened. Madero stated that

he was stopped at a red light when he was attacked by

Philbee, and that during the attack, his car was rammed

on the rear passenger-side.

27. Officer Nachampassack noted marks and multiple

bruises on Plaintiff ’s face, swelling in his hands, marks on

Plaintiff ’s stomach and left shoulder, marks on Plaintiff ’s

neck, and that Plaintiff was spitting blood onto the ground.

28. Officer Nachampassack inspected the rear passengerside of Plaintiff ’s vehicle and found fresh damage to the

rear quarter panel and tail light assembly.

29. Officer Nachampassack did not ask Plaintiff whether

his vehicle was involved in a collision with Philbee’s vehicle.

30. Officer Nachampassack did not inspect the front end

of Plaintiff ’s vehicle for any damage consistent with the

hit-and-run collision with Philbee.

31. Defendant McGuinness claimed to have inspected

Plaintiff ’s vehicle for front-end damage while he was at

the scene.

32. Plaintiff ’s vehicle had no front-end damage and no

other damage consistent with a front-end collision.

33. The head lights, parking lights, turn lights, grill,

and hood of the Plaintiff ’s vehicle were all intact and had

no visible damage.

45a

Appendix C

34. The lack of front-end damage to Plaintiff ’s vehicle

contradicted Plaintiff ’s involvement in the collision with

Philbee’s vehicle.

35. There was no physical evidence that Plaintiff ’s

vehicle was involved in the collision with Philbee’s vehicle.

36. Plaintiff was transported via rescue squad to St.

Anthony Hospital Emergency Room for treatment of the

injuries he sustained at the hands of Philbee.

37. The Rockford police impounded Plaintiff ’s vehicle

and had it towed to the Greater Rockford Auto Auction

for storage and safekeeping; the Rockford police also had

Philbee’s vehicle towed to Cruz Towing for storage and

safekeeping.

38. Officer Nachampassack questioned Madero again

at the hospital; Madero explained that he was stopped at

a red light when Philbee, Daehler, and Keck surrounded

him, physically attacked him, prevented him from leaving,

and rammed his vehicle.

39. Plaintiff told Officer Nachampassack that Philbee

had forcibly entered Plaintiff ’s vehicle through the open

driver-side window, after Philbee had punched Plaintiff in

the left side of Plaintiff ’s head, through the open window.

40. Plaintiff received emergency medical treatment for

injuries to Plaintiff ’s left temporal lobe.

46a

Appendix C

41. Plaintiff told Officer Nachampassack that Philbee

had choked Plaintiff Madero with his hands, his arm, and

with other items in the vehicle.

42. Plaintiff received emergency medical treatment for

strangulation injuries on his neck.

43. Plaintiff Madero told Officer Nachampassack that

he wanted to press charges against Philbee.

44. Defendant McGuinness notified Plaintiff that

Plaintiff was going to be arrested upon his release from

the hospital.

45. Defendant McGuinness did not personally question

Madero, Daehler, or Keck in his investigation.

46. Plaintiff was released from the hospital at

approximately 0530 hours. Plaintiff incurred charges

and expenses for the medical treatment he received for

the injuries he sustained at the hands of Philbee.

47. Upon his release from the hospital, Plaintiff was

charged with disobeying a traffic control device, failure to

reduce speed to avoid an accident, and leaving the scene

of an accident. Plaintiff was also charged with felony

aggravated battery to Philbee. Plaintiff was taken into

custody and transported to the Winnebago County Jail

wherein Plaintiff was incarcerated.

48. Plaintiff ’s arrest occurred after Defendant

McGuinness inspected Plaintiff ’s vehicle.

47a

Appendix C

49. Defendant McGuinness did not arrest Philbee for

his attack on Plaintiff Madero.

50. Also at approximately 0530 hours, February 9, 2018,

Daehler contacted the Rockford Police Department to

recant his and Keck’s previous statements.

51. In their revised statements, Daehler and Keck stated

that Plaintiff ’s vehicle was not the vehicle involved in the

collision with Philbee’s vehicle, because Plaintiff ’s vehicle

had no front-end damage, and the vehicle that struck

Philbee’s vehicle would have had significant front-end

damage.

52. On February 12, 2018, Officer Richard DeVlieger, a

traffic investigator for the Rockford police, conducted a

supplemental inspection of Plaintiff ’s vehicle, which had

been impounded and was still being held at the Greater

Rockford Auto Auction.

53. Officer DeVlieger’s inspection revealed that there

was no front end damage to Plaintiff ’s vehicle and no

damage consistent with a front end collision.

54. Officer DeVlieger’s inspection revealed that the head

lights, grill, and hood of the Plaintiff ’s vehicle were all

intact and had no visible damage. There was no collision

damage to either front quarter panel of Plaintiff ’s vehicle.

55. Officer DeVlieger’s physical inspection of Plaintiff ’s

vehicle revealed no physical evidence to support the

allegations of Philbee, Daehler, and Keck, that Plaintiff ’s

vehicle was involved in the collision with Philbee’s vehicle.

48a

Appendix C

56. As a result of his inspection of Plaintiff ’s vehicle,

Officer DeVlieger determined that Plaintiff ’s vehicle was

not the vehicle involved in the hit-and-run accident with

Philbee’s vehicle.

57. In Defendant McGuinness’s report of his investigation

of the hit-and-run collision involving Philbee’s vehicle,

Defendant McGuinness falsely stated that he had observed

front-end damage to Plaintiff ’s vehicle.

58. Officer DeVlieger did find evidence of a collision

and paint transfer from Daehler’s snow plow onto the

passenger-side rear corner of Plaintiff ’s vehicle.

59. On February 14, 2018, Officer DeVlieger went to

Cruz Towing to inspect Philbee’s vehicle which had been

towed from the scene and stored in their secured holding

area.

60. Officer DeVlieger’s inspection revealed that Philbee’s

vehicle had front end damage as well as severe damage

to both front corners. Both headlight assemblies were

damaged and pushed in. The front bumper on the driver’s

side was pulled out away from the attachment point. The

front tires were in different positions and were bent.

61. Officer DeVlieger’s inspection revealed that the front

passenger-side corner of Philbee’s vehicle was severely

damaged where the suspect vehicle was reported to have

collided.

62. Officer DeVlieger’s inspection revealed that the front

passenger-side of Philbee’s Pontiac, where the suspect

49a

Appendix C

vehicle was reported to have struck the Pontiac, had no

green or dark colored paint transfer.

63. Officer DeVlieger’s inspection of the front passenger

side of Philbee’s Pontiac where the suspect vehicle was

reported to have struck the Pontiac, revealed a lighter

colored, white, silver, or gray paint transfer.

64. A ll charges filed against the Plaintiff were

subsequently dismissed in Plaintiff ’s favor by the Circuit

Court of the 17th Judicial Circuit, Winnebago County, on

motion of the Winnebago County State’s Attorney’s Office.

Count I

42 U.S.C. §1983

Fourth Amendment—Unreasonable Search

65-128. Plaintiff adopts by reference thereto, and

incorporates by reference herein, paragraphs 1-64 of this

Complaint as paragraphs 65-128 of Count I.

129. 42 U.S.C. §1983 provides that “every person

who, under color of any statute, ordinance, regulation,

custom, or usage of any State . . . , subjects, or causes to

be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress . . . ”

130. The Fourth Amendment of the United States

Constitution guarantees the right of the people, including

50a

Appendix C

the Plaintiff, to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures.

131. At all times relevant hereto, Defendant McGuinness

had a duty under the Fourth Amendment to act reasonably

with regard to the enforcement of Illinois criminal laws

against United States citizens, including the Plaintiff

Madero.

132. At all times relevant hereto, the law was clearly

established that probable cause was required for the police

to make an arrest.

133. There was no probable cause for Defendant

McGuinness to arrest the Plaintiff for any traffic offense

in connection with the hit-and-rum collision involving

Philbee, including disobeying an official traffic control

device, failure to reduce speed to avoid an accident, and

leaving the scene of an accident.

134. There was no probable cause for Defendant

McGuinness to arrest the Plaintiff for aggravated battery

to Philbee.

135. Madero, Daehler, and Keck all reported that Philbee

forcibly entered Plaintiff ’s vehicle through the driver’s

side window, Plaintiff reported that Philbee punched

Plaintiff in the head, and medical records confirmed the

injuries Plaintiff reported to the police.

136. McGuinness reported seeing a disturbance in

Plaintiff ’s vehicle upon his arrival, and then witnessed

51a

Appendix C

Philbee come out of the passenger-side door of Plaintiff ’s

vehicle.

137. Plaintiff ’s vehicle contained no front-end damage,

nor any other damage consistent with a front end collision.

138. There was no evidence at the scene that Plaintiff ’s

vehicle was involved in the original reported accident at

Eastmoreland Avenue and Broadway involving Philbee’s

vehicle.

139. Defendant McGuinness breached his duty under

the Fourth Amendment and unreasonably arrested the

Plaintiff without probable cause.

140. No reasonable police officer in the position of

Defendant McGuinness would have interpreted compliance

with the Fourth Amendment in such a way as to arrest the

Plaintiff for disobeying an official traffic control device,

failing to reduce speed to avoid an accident, leaving the

scene of an accident, and aggravated battery under the

circumstances presented.

141. The Defendant McGuinness’s arrest of the Plaintiff

without probable cause was unreasonable and resulted in

a deprivation of Plaintiff ’s constitutional rights under the

Fourth Amendment.

142. The acts and/or omissions of the Defendant

McGuinness were intentional and/or occurred willfully

and/or with wanton disregard and/or reckless indifference

to the constitutionally protected civil rights of the Plaintiff,

and/or otherwise occurred in bad faith.

52a

Appendix C

143. As a direct and proximate result of the conduct of

the Defendant McGuinness, Plaintiff was caused to suffer

damages of a personal and pecuniary nature.

144. Pursuant to 42 U.S.C. §1983, Defendant Owen

McGuinness is liable to Plaintiff for civil damages and

other relief for his violation of the Plaintiff ’s constitutional

civil rights.

WHEREFORE, the Plaintiff, Daniel A. Madero,

respectfully prays this Honorable Court grant judgment

in his favor and against the Defendant Owen McGuinness

as follows:

a) Compensatory damages and in an amount in

excess of $100,000;

b) Punitive damages against the Defendant and in

an amount in excess of $250,000;

c) An award of Plaintiff ’s reasonable attorney’s fees

and costs pursuant to 42 U.S.C. §1988; and,

d) Such other and further relief as this Court deems

just and proper.

COUNT II

42 U.S.C. §1983

Fourteenth Amendment—Deprivation of Liberty

145-209. Plaintiff adopts by reference thereto, and

incorporates by reference herein, paragraphs 1-65 of this

Complaint as paragraphs 145-209 of Count II.

53a

Appendix C

210. 42 U.S.C. §1983 provides that “every person

who, under color of any statute, ordinance, regulation,

custom, or usage of any State . . . , subjects, or causes to

be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress . . . ”

211. The Fourteenth Amendment to the United States

Constitution guarantees persons, including the Plaintiff

Madero, the right to be free from deprivations of liberty

without due process of law.

212. Defendant McGuinness denied Plaintiff the process

of law that was due to him by falsely reporting that

Plaintiff ’s vehicle had front end damage, when he knew,

or should have known, that Plaintiff ’s vehicle had no front

end damage.

213. Defendant McGuinness knew that a warrant or

probable cause was required to arrest a person for a

criminal offense; Defendant McGuinness did not obtain

a valid warrant and did not have probable cause to arrest

Plaintiff Madero.

214. Defendant McGuinness knew that his warrantless

arrest of Plaintiff Madero without probable cause would

result in a deprivation of Plaintiff ’s constitutional right

to liberty.

54a

Appendix C

215. Notwithstanding his duty under the Fourteenth

Amendment to refrain from the unreasonable deprivation

of Plaintiff ’s constitutional right to liberty, the Defendant

McGuinness arrested Plaintiff Madero without a warrant

and without probable cause, resulting in Plaintiff ’s

incarceration and a deprivation of Plaintiff Madero’s

liberty.

216. No reasonable police officer in the position

of Defendant McGuinness would have interpreted

compliance with the Fourteenth Amendment in such a way

as to include arresting Plaintiff Madero without probable

cause and depriving the Plaintiff of his constitutional right

to liberty.

217. The acts and/or omissions of the Defendant

McGuinness were intentional and/or occurred willfully

and/or with wanton disregard and/or reckless indifference

to the constitutionally protected civil rights of Plaintiff

Madero, and/or otherwise occurred in bad faith.

218. The Defendant McGuinness’s unreasonable restraint

and detention of Plaintiff Madero without probable cause

and without a warrant constituted a denial of due process

and a deprivation of Plaintiff ’s constitutional right to

liberty, in violation of the Fourteenth Amendment of the

United States Constitution.

219. As a direct and proximate result of the conduct of

the Defendant McGuinness, Plaintiff was deprived of his

liberty and caused to suffer extreme mental anguish and

grave emotional distress.

55a

Appendix C

220. As a direct and proximate result of the conduct of

the Defendant McGuinness, Plaintiff was caused to suffer

damages of a personal and pecuniary nature.

221. Pursuant to 42 U.S.C. §1983, Defendant McGuinness

is liable to Plaintiff Madero for civil damages and other

relief for violation of Plaintiff Madero’s constitutional

civil rights.

WHEREFORE, the Plaintiff, Daniel A. Madero,

respectfully prays this Honorable Court grant judgment

in his favor and against the Defendant Owen McGuinness

as follows:

a) Compensatory damages and in an amount in

excess of $100,000;

b) Punitive damages and in an amount in excess of

$250,000;

c) An award of Plaintiff ’s reasonable attorney’s fees

and costs pursuant to 42 U.S.C. §1988; and,

d) Such other and further relief as this Court deems

just and proper.

Respectfully submitted,

/s/James T. Harrison

James T. Harrison

Attorney for Plaintiff

56a

Appendix C

James T. Harrison

Attorney at Law

Attorney No. 6207020

Harrison Law Offices, P.C.

684 S. Eastwood Drive

Woodstock, IL 60098

(815) 338-7773

jharrison@harrisonlawoffices.com

57a

Appendix

APPENDIX D — REPORT

OF D

OWEN McGUINNESS

THE ROCKFORD, ILLINOIS POLICE

DEPARTMENT, DATED FEBRUARY 9, 2018

Rockford Police Department

Report Date: 2/9/2018

Reported By: 1955—McGuinness, Owen

Report No. 18-016047.1

Subject AGGRAVATED BATTERY—3800 BROADWAY

Case Report Status A – Approved

Occurred On (and Between) 2/9/2018 4:04:00 AM

Location 3800 BROADWAY

Jurisdiction RCPD– Rockford Police

Department

Subbeat Area 09

Call Source Dispatched from 911

Vehicle Activity

Vehicle Traveling

Cross Street

Date Entered 2/9/2018 7:09:05 AM

Entered By 1955 – McGuinness, Owen

Date Verified 2/17/2018 1:04:05 AM

Verified By 4003 – Brass, Andre

Date Approved 2/17/2018 4:12:02 AM

Approved By 1169 – Ginter , Janine

Cross Reference

Disposition Arrest

Clearance Reason

Date of Clearance

Reporting Agency Rockford Police Department

Bureau Field Services Bureau

58a

Appendix D

Reporting Officer 1955 – McGuinness, Owen

Assisted By 2516 – Nachampassack, James

1770 – Swanson, Kurt

On Scene Supervisor 3858 - DoBran, Jason

Victim V1: PHILBEE, BRANDON L.

Victim Code V1

Victm Type I – Individual

Name PHILBEE, BRANDON L

AKA

Address 126 BLACKHAWK

CSZ ROCKFORD, IL 61102

Home Phone

Pager Number

Mobile Phone 779 208-2097

Email Address

Attire BROWN JACKET AND

DARK PANTS

Injury M – Apparent Minor Injury

Circumstances

DOB XXXXXXX

Age 23

Sex M – Male

Race W – White

Ethnicity N – Not Hispanic or Latino

Ht 5’8”

Wt 170

Eye Color HAZ – Hazel

Hair Color BRO – Brown

Facial Hair 01 – Clean Shaven

Complexion FAR – Fair

59a

Appendix D

Place of Birth

SSN XXXXXXX

DLN XXXXXXX

DLN State IL – Illinois

DLN Country USA – United States of America

Occupation/Grade

Employer/School AA CONSTRUCTION

Work Phone

Employment/School

Wrok Phone

Employment/School Hours

Employer Address

Employer CSZ

Res County WINNEABGO

Res Country USA – United States of America

Resident Status R – Resident

Arrestee A1: MADERO, DANIEL A.

Arrestee Number A1

Name MADERO, DANIEL A

AKA

Address 4970 S Mulford RD

CSZ ROCKFORD, IL 61109

Home Phone

Pager Number

Mobile Phone 815 391-0032

Email Address

Scars/Marks/Tattoos

Modus Operandi

Other MO

Attire

60a

Appendix D

Habitual Offender Status

Arrest No 1

DOB XXXXXXX

Age 36

Sex M – Male

Race W – White

Ethnicity N – Not Hispanic or Latino

Ht 6’0”

Wt 180

Eye Color HAZ – Hazel

Hair Color BRO – Brown

Hair Style

Hair Length

Facial Hair

Complexion

Build

Teeth

Place of Birth

SSN XXXXXXX

DLN XXXXXXX

DLN State IL – Illinois

DLN Country USA – United States of America

Occupation/Grade

Employer/School UNEMPLOYED

Work Phone

Employment/School

Wrok Phone

Employment/School Hours

Employer Address

Employer CSZ

Res County WINNEBAGO

Res Country USA – United States of America

Resident Status R – Resident

61a

Appendix D

Arrest Type O – On-view

FBI No.

State No.

Arrmed With 01 – Unarmed

Multi Clearance N – Not Applicable

Multi Clearance Offense

Prev Suspect No.

Notified

Arrested For 0445 – Aggravated

Battery (Public Way)

2461 – Operating

uninsured motor vehicle

5060 – Other traffic offenses

7723 – Failure to reduce speed/

Too fast for conditions

Fingerprints

Photos

Juvenile Disposition

Adult Present

Arrested On 2/9/2018 5:30:00 AM

Arrested Location 5666 E STATE ST

Arrest Notes Operating Uninsured

Vehicle: 1115228

Failure To reduce speed:

1115229

Disobeying Traffic

Control Device: 1115230

Leaving the Scene of an

Accident: 111523

62a

Appendix D

Witness W1: KECK, JOHN L.

Witness Code W1

Name KECK, JOHN L.

AKA

Address 1042 WOODLAWN AVE

CSZ Rockford, IL 61101

Home Phone

Pager Number

Mobile Phone 815 721-2760

Email Address

Attire

DOB XXXXXXX

Age 50

Sex M – Male

Race W – White

Ethnicity N – Not Hispanic or Latino

Ht 5’8”

Wt 220

Eye Color BLU – Blue

Hair Color BRO – Brown

Facial Hair

Complexion

Place of Birth USA

SSN

DLN XXXXXXX

DLN State IL – Illinois

DLN Country USA – United States of America

Occupation/Grade SNOW PLOW

Employer/School K-TAPP KAPPERS

Work Phone

Employment/School

63a

Appendix D

Work Phone

Employment/School Hours

Employer Address

Employer CSZ

Res County Winnebago

Res Country USA – United States of America

Resident Status R – Resident

Witness W2: DAEHLER, BRET A.

Witness Code W2

Name DAEHLER, BRET A.

AKA

Address 509 GARVER AVE

CSZ Rockford, IL 61102

Home Phone

Pager Number

Mobile Phone 815 988-8856

Email Address

Attire

DOB XXXXXXX

Age 37

Sex M – Male

Race W – White

Ethnicity

Ht 6’3”

Wt 195

Eye Color HAZ – Hazel

Hair Color BLN – Blond

Facial Hair

Complexion

Place of Birth

64a

Appendix D

SSN

DLN XXXXXXX

DLN State IL – Illinois

DLN Country

Occupation/Grade SNOW PLOW

Employer/School K-TAPP KAPPERS

Work Phone

Employment/School

Employment/School Hours

Employer Address

Employer CSZ

Res County Winnebago

Res Country USA – United States of America

Resident Status R – Resident

Other Entity: O1 – SCHWOCHERT, JENNIFER A.

Entity Code O1

Entity Type OP – Other Person

Name SCHWOCHERT,

JENNIFER A.

AKA

Address 2405 EASTMORELAND

AVE APT 7

CSZ ROCKFORD, IL

Home Phone

Pager Number

Mobile Phone 815 397-9062

Email Address

Attire UNIFORM

DOB XXXXXXX

Age 28

65a

Appendix D

Sex F – Female

Race W – White

Ethnicity N – Not Hispanic or Latino

Ht 5’8”

Wt 195

Eye Color GRN – Green

Hair Color BRN – Brown

Facial Hair

Complexion

Dental Records

Available At

Place of Birth

SSN

DLN XXXXXXX

DLN State IL – Illinois

DLN Country USA – United States of America

Occupation/Grade CAHSIER

Employer/School CIRCLE K

Work Phone 815 397-9062

Employment/School

Wrok Phone

Employment/School Hours

Employer Address 3819 BROADWAY AVE

Employer CSZ ROCKFORD, IL

Res County WINNEBAGO

Res Country USA – United States of America

Resident Status R – Resident

LEADS

Entered by

Entity Notes

Date Entered

Leads #

Lead Type

66a

Appendix D

Property Description Item 1: 3501 – Automobile (not Stolen

or Recovered) – A – GREEN 1993 AUDI S4 #AD79903

Item No 1

Property Category 3501 - Automobile (not

Stolen or Recovered)

IBR Type

UDR Type

Status K - Held For Safe Keeping

(Includes Impounds)

Count 1

Value 1000

Manufacturer AUDI

Model S4

Serial No WAUHP84A1PNO31686

License No AD79903

Color GRN – Green

Description A-GREEN 1993 AUDI S4

#AD79903

Vehicle Year 1993

License Year 2018

State IL – Illinois

Body Style 4D – 4 Door

Recovered Date

Owner 1

Disposition IMPOUND TO GRAA

Evidence Tag

LEADS

Entered By

Date Entered

Leads #

Lead Type

67a

Appendix D

Drug Type

Drug Quantity

Drug Measure

Property Notes

Property Description Item 2: 3501 – Automobile (not

Stolen or Recovered) – V – SILVER 2006 PONTIAC

TORRENT #Z663533

Item No 2

Property Category 3501 - Automobile (not

Stolen or Recovered)

IBR Type

UDR Type

Status I – Information Only

Count 1

Value 1000

Manufacturer PONTIAC

Model TORRENT

Serial No 2CKDL63F866163807

License No Z663533

Color SIL – Silver or Aluminum

Description V-SILVER 2006 PONTIAC

TORRENT #Z663533

Vehicle Year 2006

License Year 2008

State IL – Illinois

Body Style SUV – Sport Utility Vehicle

Recovered Date

Owner 2

Disposition

Evidence Tag

68a

Appendix D

LEADS

Entered By

Date Entered

Leads #

Lead Type

Drug Type

Drug Quantity

Drug Measure

Property Notes

Property Description Item 3: 3534 – Truck (not Stolen or

Recovered) – W1 – GRAY 2006 GMC SIERRA #80318W

Item No 3

Property Category 3534 - Truck (not Stolen

or Recovered)

IBR Type

UDR Type

Status I – Information Only

Count 1

Value 1000

Manufacturer GMC

Model SIERRA

Serial No 1GTHK29183E166858

License No 80318W

Color GRY – Gray

Description W1 – GRAY 2006 GMC

SIERRA #80318W

Vehicle Year 2006

License Year 2018

State IL – Illinois

Body Style PK – Pickup Truck

69a

Appendix D

Recovered Date

Owner 5

Disposition

Evidence Tag

LEADS

Entered By

Date Entered

Leads #

Lead Type

Drug Type

Drug Quantity

Drug Measure

Property Notes

Property Description Item 4: 3534 – Truck (not Stolen or

Recovered) – W2 – WHITE 2016 FORD F250 #1961267

Item No 4

Property Category 3534 - Truck (not Stolen

or Recovered)

IBR Type

UDR Type

Status I – Information Only

Count 1

Value 1000

Manufacturer FORD

Model F250

Serial No 1FT7W2B66GEA89113

License No 1961267

Color WHI – White

Description W2 – WHITE 2016 FORD

F250 #1961267

70a

Appendix D

Vehicle Year 2016

License Year 2018

State IL – Illinois

Body Style PK – Pickup Truck

Recovered Date

Owner 6

Disposition

Evidence Tag

LEADS

Entered By

Date Entered

Leads #

Lead Type

Drug Type

Drug Quantity

Drug Measure

Property Notes

Property Description Item 5: 1303 – Photograph –

PHOTOS OF MADERO AND PHILBEE INJURIES

Item No 5

Property Category 1303 – Photograph

IBR Type

UDR Type

Status ES – Evidence (Seized)

Count 1

Value 0

Manufacturer

Model

Serial No

License No

71a

Appendix D

Color

Description PHOTOS OF MADERO

AND PHILBEE INJURIES

Vehicle Year

License Year

State

Body Style

Recovered Date

Owner

Disposition UPLOADED TO THE

BEAST SERVER

Evidence Tag

LEADS

Entered By

Date Entered

Leads #

Lead Type

Drug Type

Drug Quantity

Drug Measure

Property Notes

Offense Detail: 0445 – Aggravated Battery (Public Way)

Offense 0445 – Aggravated Battery

(Public Way)

Description

IBR Code

IBR Group

Crime Against

Using N – Not Applicable

Criminal Activity

72a

Appendix D

Weapons/Force 90 – Other

Location 13 – Highway/Road/Alley/

Street (304)

Offense Completed? Yes

Hate/Bias 88 – None (No Bias)

Domestic Violence No

No Prem Entered

Entry Method

Type Security

Tools Used

Offense Detail: 2461 – Operating uninsured motor

vehicle

Offense 2461 – Operating

uninsured motor vehicle

Description

IBR Code

IBR Group

Crime Against

Using N – Not Applicable

Criminal Activity

Weapons/Force

Location 13 – Highway/Road/Alley/

Street (304)

Offense Completed? Yes

Hate/Bias 88 – None (No Bias)

Domestic Violence No

No Prem Entered

73a

Appendix D

Entry Method

Type Security

Tools Used

Offense Detail: 7723 – Failure to reduce speed/Too fast

for conditions

Offense 7723 – Failure to reduce speed/

Too fast for conditions

Description

IBR Code

IBR Group

Crime Against

Using N – Not Applicable

Criminal Activity

Weapons/Force

Location 13 – Highway/Road/Alley/

Street (304)

Offense Completed? Yes

Hate/Bias 88 – None (No Bias)

Domestic Violence No

No Prem Entered

Entry Method

Type Security

Tools Used

Offense Detail: 5060 – Other traffic offenses

Offense 5060 – Other traffic offenses

Description

IBR Code

74a

Appendix D

IBR Group

Crime Against

Using N – Not Applicable

Criminal Activity

Weapons/Force

Location 13 – Highway/Road/Alley/

Street (304)

Offense Completed? Yes

Hate/Bias 88 – None (No Bias)

Domestic Violence No

No Prem Entered

Entry Method

Type Security

Tools Used

On Friday 02/09/2018 at 0406 hours, Officers and I

responded to 3800 Broadway in reference to a car

accident. While en route dispatch advised that the suspect

(later identified as Daniel Madero) was in a green Audi

#AD79903 and he tried to leave the scene. Two witnesses,

John Keck and Bret Daehler blocked him in with their

pick up trucks. The victim, Brandon Philbee and Madero

were physically fighting on scene.

Upon arrival I observed a gray GMC Sierra #80318W,

a white Ford F250 #1961267, a green Audi #AD79903,

and a beige Pontiac Torrent #Z663533 in the middle of

the road at 3800 Broadway. The Audi passenger side door

was open and I noticed Madero and Philbee grabbing each

other inside the Audi. Philbee exited the passenger side

of the vehicle and told me that Madero stabbed him in

75a

Appendix D

the face with a key. I observed a cut under Philbee’s right

eye and there was blood dripping down his face from the

cut. Philbee told me that he was traveling eastbound on

Broadway and he had a green light at the Eastmoreland

Ave intersection. He continued to travel eastbound on

Broadway and was struck by a green Audi #AD79903

who was traveling northbound on Eastmoreland Ave.

Philbee advised that the impact of the crash made his

vehicle swerve into a gray GMC Sierra #80318W who was

traveling westbound on Broadway. The green Audi left the

scene, traveling eastbound on Broadway. Philbee advised

that he and a gray GMC Sierra and the white Ford F250

followed the green Audi. The Audi went north on Alpine

Rd then west onto Charles St. The Audi turned south onto

Parkside Dr. and stopped at a red light at Eastmoreland

Ave and Broadway. Philbee advised that he never lost sight

of the vehicle. Philbee exited his vehicle and approached

the green Audi. The driver had his window rolled down

and Philbee asked Madero why he left the scene and they

began to argue. Madero put the car in drive and tried

to leave the scene. Philbee reached into his window and

grabbed the steering wheel. Madero drove eastbound on

Broadway while Philbee was hanging out of the window.

While the vehicle was in drive Madero stabbed Philbee

in the face with a key. The vehicle did a 360 degree turn

in the middle of the road and the vehicle stopped. Philbee

fell inside the drivers side window and Madero punched

him. A gray GMC Sierra and white Ford F250 pulled

up and blocked him in the road to prevent Madero from

leaving. Philbee advised that he got ontop of him and

waited until the police arrived on scene. Philbee wanted

to pursue charges. Officer Swanson took photos of Philbee

76a

Appendix D

injuries and uploaded them to the server. Rockford Fire

Ambulance arrived on scene and Philbee refused medical.

Officer Nachampassack spoke with Madero who stated

that he was traveling southbound on Parkside Dr. and

stopped at a red light at Broadway. A Pontiac #Z663533

pulled up to next to him and Philbee exited the vehicle

and started yelling at him about blowing a red light.

Philbee punched him a few times in the face and Madero

drove eastbound while Philbee was hanging inside his

window. Rockford Fire Ambulance transported Madero

to St Anthonys Hospital for medical treatment. Officer

Nachampassack went to the hospital and took photos of

Madero injuries. He uploaded them to the server. See his

report for further details.

Officer K. Swanson spoke with two witnesses, (snow

plow drivers) John Keck (driving a white Ford F250) and

Bret Daehler (driving a gray GMC Sierra) who stated

that they were traveling west bound on Broadway and

they saw a green Audi #AD79903 blow a red light at

Eastmoreland Ave. The Audi struck a silver Pontiac

#Z663533 who was traveling eastbound on Broadway.

Keck and Daehler stated that they did not know either

party and were independent witnesses. See Officer K.

Swanson supplement report for further details.

I observed the green Audi had front end damage. The

Pontiac Torrent had drivers side and passenger side

damage, both headlights were smashed. The GMC Sierra

had minimal rear drivers side panel damage. I was unable

to see any visible paint transfer from the vehicles due to

the heavy snow storm.

77a

Appendix D

Sgt Dobran arrived on scene and I briefed him of the

incident.

Officer Swanson completed a impound sheet and Haas

arrived on scene and impounded Madero’s vehicle.

I contacted SAO who approved Aggravated Battery in a

Public Way.

I completed a crash report.

Sgt Dobran approved the following charges and Madero

was issued the citations

Operating Uninsured Vehicle: 1115228

Failure To reduce speed: 1115229

Disobeying Traffic Control Device: 1115230

Leaving the Scene of an Accident: 1115231

Lt Brass instructed me to do a follow up at the Circle K

gas station. On 02/10/2018 at 0610 hours I met with Circle

K cashier, Jennifer Schwochert who was able to operate

the surveillance cameras. On 02/09/2018 at 0401 hours

(camera time) I observed a dark color sedan (unknown

make nor model) traveling eastbound on Broadway. A few

seconds later a Suv was driving eastbound on Broadway

and behind the suv was a white pickup truck with a snow

plow attached to the front driving eastbound. It appeared

the white pickup truck was driving at a high rate of

78a

Appendix D

speed to catch up to the vehicles. The vehicles drove out

of cameras range. At 0404 hours I noticed a white pick

up truck stopped at broadway just east of the west side

entrance of the gas station. The white pickup truck was

facing east. I only saw the front passenger door side

to the engine due to cameras range. I saw a male that

appeared to be Philbee standing in the road next to the

truck. At 0407 hours (camera time) a black pick up truck

pulled in a angle in front of the white pick up truck. I

did not see the green Audi in the road due to the camera

range. Circle K had no exterior cameras pointed in the

direction of Eastmoreland Ave. and Broadway where the

crash occurred. Schwochert advised that she was unable

to provide a copy of the incident and the manager would

be working later during the day.

I took no further action.

79a

Appendix E

APPENDIX E — PROBABLE

CAUSE STATEMENT

OF THE ROCKFORD, ILLINOIS POLICE

DEPARTMENT, DATED FEBRUARY 9, 2018

PROBABLE CAUSE STATEMENT

Arresting Agency: Rockford Police Dept.

Agency Case Number: 18-016047

Defendant Name: DANIEL A MADERO

Alias:

Defendants Address: 4970 S MULFORD RD

DOB: 05/19/1981

Officer Name: MCGUINNES   Date: 02/09/2018

Reviewing Supervisor: JMAVEUS

Vehicle Impounded:  Arrest Date: On or about 02/09/2018

Domestic Related:  Defendants Status:

Charges: AGG BATTERY/PUBLIC PLACE

Briefly describe how the crime was committed, how the

defendant was identified as the perpetrator, and HOW

YOU KNOW THESE FACTS (for example, “The named

victim told me this.”)

On Friday 02/09/2018 0406 hours Officers and I responded

to 3800 Broadway in reference to a car accident. While en

80a

Appendix E

route dispatch advised that the subject (later identified as

Daniel Madero) in a green Audi #AD79903 tried to leave

the scene. Two witnesses, John Keck and Bret Daehler

blocked him in with their pick up trucks. The victim,

Brandon Philbee and Madero were physically fighting.

Upon arrival I observed two pick up trucks,green Audi

#A079903 and a beige Pontiac Torrent #Z663533 in the

middle of the road at 3800 Broadway. I noticed Madero

and Philbee fighting inside the green Audi. Philbee exited

the vehicle and told me that Madero stabbed him in the

face with a key. Under Philbee’s right eye was cut and

bleeding. Madero told me that he was traveling west bound

on Broadway and he had a green light at Eastmoreland

Ave intersection. He continued to travel west bound on

Broadway and was struck by a green Audi #AD79903 who

was traveling northbound on Eastmoreland Ave. Philbe

advised that his vehicle had struck a black GMC Sierra

#80318W who was traveling eastbound on Broadway.

The green Audi left the scene, traveling eastbound on

Broadway. Philbee advised that he and two pickup trucks

followed the green Audi. They traveled around the block

and the vehicle stopped at a red light at Eastmoreland Ave

and Broadway. Philbee exited the vehicle and approached

the green Audi. He asked Madero why he left the scene

and they began to argue. Madero tried to leave the scene

again and he reached into his window and grabbed the

sterring wheel. The vehicle drove eastbound on Broadway

and the vehicle did a 360 turn. The two pick up trucks

blocked him in to prevent Madero from leaving. Philbee

advised that Madero stabbed him in the face with a key

while he was hanging inside the vehicle. Philbee fell inside

81a

Appendix E

drivers side window and Madero punched him. Philbee

advised that he got on top of him and waited until the

police arrived on scene. Philbee wanted to pursue charges.

Officer Nachampassack spoke with Madero who stated

that he was traveling southbound on Parkside and stopped

at a red light at Broadway. A Pontiac #Z663533 pulled up

to next to him and Philbee exited the vehicle and started

yelling at him about blowing a red light. Philbee punched

him a few times in the face and Madero drove eastbound

while Philbee was hanging inside his window. Madero

advised that a white pick up truck struck him and he

crashed into a snow bank. Madero did not have proof of

insurance.

Officer K Swanson spoke with two witnesses, John Keck

and Bret Daehler who stated that they were traveling

west bound on Broadway and they saw a green Audi

blow a red light at Eastmoreland Ave. The Audi struck a

silver Pontiac #Z663533 who was traveling eastbound on

Broadway. The Pontiac crashed into Keck’s GMC Sierra

#80318W. Keck and Daehler followed the green Audi

around the block in separate trucks. The vehicle stopped

at a red light at Broadway and Eastmoreland Ave. Philbee

exited his vehicle and approached the green Audi. They

began to argue and the vehicle tried to leave the scene

again. Philbee jumped in the drivers side window and

the vehicle took off eastbound on Broadway. The vehicle

stopped at 3800 Broadway and they both blocked the

vehicle in with their pick up trucks until the police arrive

on scene.

82a

Appendix E

Rockford Fire Ambulance transported Madero to St

Anthonys Hospital for medical treatment. Madero was

arrested at St Anthony’s Hospital.

Operating Uninsured Vehicle: 1115228

Failure To reduce speed: 1115229

Disobeying Traffic Control Device: 1115230

Leaving the Scene of an Accident: 1115231

Date of Statement:

Officer (typed):

Signature:

COURT FINDINGS

 Probable Cause has been found to detain defendant.

 No probable cause. Defendant shall be released from

custody. Summons may issue for defendant.

 Defendant to be released on recognizance bond, even

though probable cause has been found.

1:27 pm

/s/

2/10/2018

83a

F DEPOSITION

APPENDIX F — Appendix

DISCOVERY

OF RICHARD DEVLIEGER, DATED

OCTOBER 21, 2021

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

No. 20-CV-50062

DANIEL A. MADERO,

Plaintiff,

vs.

OWEN McGUINNESS,

Defendant.

The discovery deposition of RICHARD DeVLIEGER

taken before Kathleen E. Phillips, C.S.R., via Zoom

videoconference with the witness sitting in Mesa, Arizona

on October 21, 2021, at the hour of 11:00 a.m.

[2] APPEARANCES:

HARRISON LAW OFFICES, by

MR. JAMES T. HARRISON,

appeared via Zoom on behalf of the Plaintiff;

CITY OF ROCKFORD DEPARTMENT OF

LAW, by MR. IFEANYI C. MOGBANA and

84a

Appendix F

MR. MATTHEW D. FLORES, appeared via

Zoom on behalf of the Defendant.

INDEX

WITNESS:

PAGE:

RICHARD DeVLIEGER

Examination by Mr. Harrison

3

EXHIBIT FIRST REFERENCED:

No. 1

43

No. 2

46/48

[3] COURT REPORTER: I will ask all counsel to

stipulate on the record that this deposition is being taken

pursuant to Amended Illinois Supreme Court Rule 206(h)

and that the court reporter will administer the oath to

the witness remotely. Counsel, please so stipulate for the

record that you agree to this.

MR. HARRISON:

Plaintiff ’s counsel stipulates.

MR. MOGBANA:

Defense counsel stipulates.

RICHARD DeVLIEGER,

having been first duly sworn, was examined and testified

as follows:

85a

Appendix F

EXAMINATION

BY MR. HARRISON:

Q

Okay. Please state your full name for the record.

A

It’s Richard DeVlieger.

MR. HARRISON: This is the deposition of Richard

DeVlieger. It’s taken pursuant to subpoena. It has been

continued to today’s date by agreement of the parties and

counsel. It’s taken in compliance with the Federal Rules of

[4] Civil Procedure, the local general rules of the United

States District Court For the Northern District of Illinois.

Q Okay. Mr. DeVlieger, you realize you are under

subpoena; is that correct?

A

Yes, sir.

Q

Where do you live, sir?

A

I live in Mesa, Arizona.

Q

How are you currently employed?

A I’m retired. I’m an independent contractor. I’m a

lead golf instructor.

Q

Okay. And where is that at?

A

In Gilbert, Arizona.

86a

Appendix F

Q

Okay. What is your highest level of education?

A

High school.

Q

Where did you go to school?

A

Stillman Valley.

Q Okay. Were you employed by the Rockford Police

Department on February 9th of 2018?

A

Yes, sir.

Q

What was your employment position?

A

Detective.

Q

time?

A

And how long had you been a detective at [5] that

Since 2009.

Q Okay. And how long had you—were you employed

with the Rockford Police Department?

A

Since 1999.

Q Have you had any other police jobs besides the

Rockford Police Department?

A I had some part-time work for the Byron Police

Department and a reserve deputy for the Ogle County

Sheriff ’s Department.

87a

Appendix F

Q

Okay. And that was prior to our Rockford P.D.?

A

Yes, sir.

Q

Okay. Have you had any other non-police jobs?

A

Yes.

Q Since your retirement is your only non-police job

your golf instructor job?

A That, and I worked at the Golf Shack before I left

there to move to here.

Q

Okay.

A

The Golf Shack was in Rockford.

Q Okay. What training have you had regarding

accident investigation?

[6] A

Just through the Department.

Q Okay. Did you ever do any training like at the

Traffic Institute or—

A

No.

Q

No specialized training in accident investigation?

A I t o ok s o m e o n l i n e b u t i t w a s n ’ t l i k e

reconstructionist, no.

88a

Appendix F

Q

A

that.

Okay.

I hold no reconstruction license or anything like

Q Okay. Were you an accident investigator for a

period of time during your employment at Rockford P.D.?

A

Yes.

Q

How long a period of time?

A

2020.

Since I got promoted in 2019 until I retired in

Q Okay. And in that period of time how many

accidents would you say you investigated?

A

No clue. Hundreds, thousands.

Q

Okay. A lot of accidents, okay.

A

We had a lot of accidents in the city.

Q All right. So where did you do your [7] police

training at, your basic law enforcement training?

A

Champaign.

Q

At PTI?

A

Yes, sir.

89a

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Q Okay. And what year did you graduate from PTI,

do you recall?

A I got hired in March of ‘99. I couldn’t tell you when

I went to the Police Academy.

Q All right. Prior to your deposition you had an

opportunity to review your police report in this case; is

that correct?

A

Yes, sir.

Q

You have that in your possession?

A

I have it right next to me—

Q

Okay.

A

—if you want me to clarify something.

Q Okay. We are going to talk about your police

report so keep it nearby. But for now I would just like to

ask you questions based upon your recall. Have you ever

had your deposition taken before?

A

Yes.

Q Okay. A couple things to remember [8] especially

in this type of setting where we are working remotely, only

one of us can talk at a time. If I ask a question, please wait

for me to ask a full question before you start your answer.

I’ll wait for you to give me your full answer before I ask

90a

Appendix F

you the next question. If you don’t understand a question

that I ask you or other counsel asks you, tell us so we

can clarify the question. We want to make sure that you

are answering the question—that you know what we are

asking. And if you answer a question that we put to you,

I’m going to assume that you understood the question,

okay?

A

Yes, sir.

Q Okay. One other thing, if you hear the word

“objection” come out of the mouth of either attorney, please

stop talking. Let the attorney make their record and then

you’ll be directed whether or not to answer it, okay?

A

Yes, sir.

Q All right. So let’s—we are going to start asking

about your report of this investigation that you did. Who

is ADC Pozzi?

A

He’s Assistant Deputy Chief.

[9] Q Okay. And what is his role? Who is he in charge

of ? What does he do?

A He was in charge of—I believe it was—he was

in charge of traffic. I couldn’t tell you who else he was in

charge of but he was in charge of our whole unit. He was

the Chief of our—the new District 3.

Q

Oh, okay. So he was your boss?

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Appendix F

A

He was my boss’ boss but yeah, he’s still my boss.

Q All right. So he was in charge where you were

working at District 3?

A

Yes.

Q Okay. And he was the one that spoke to you about

investigating this case?

A

Not at the beginning.

Q Okay. Well, who first—who did you first talk to

about this?

A That morning Deputy—I don’t know if he’s

Assistant Deputy Chief or he’s Deputy Chief but it was—

Doug Pann came into my office.

Q

Okay. What did he say?

A He asked if I would—I was the hit-and-run

investigator so I investigated all [10] the hit and runs that

happened in the city. I also reviewed some other reports

just for myself so I could see what else was going on in case

that vehicle might be involved in another one or whatever.

Q

Okay.

A He asked if I read this one. I did not because there

was already an arrest made so I don’t usually go over the

ones where there is an arrest made because it’s not—I

have no reason to investigate it.

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Appendix F

Q

It’s not an open investigation?

A It ’s not an open i nvestigation. From my

understanding Mr. Madero is related to him or is a friend

of his or he knows of him, and said that he contacted him

and there was some stipulations or some problems that

he believed was with the report and was just asking my

opinion if I read it. I told him I did not.

Q

Okay.

A I don’t know how it got between me and—again,

I don’t remember a whole lot of this; just what I wrote.

Q

Sure.

[11] A But between him and Pozzi, then it came down

to me that Pozzi said, yeah, go ahead and re-investigate

this and see what went on.

Q Okay. Besides that initial conversation that you

had with Doug Pann, did you have any other conversations

with him about this case?

A

No, that was the first I heard of it.

Q Okay. So you talked to him initially, you told him

you had not reviewed it and that—

A

Right.

Q

—was the end of your conversation with Doug?

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Appendix F

A Yes, sir. It was very brief with Doug. He just

wanted to know if I read it, if I’m familiar with it. I said

I haven’t read anything. He said, well, this person here,

the girl was arrested and I guess witnesses were—I don’t

remember the exact conversation but it started with Doug,

went to Pozzi and then came down to me.

Q Okay. So it lands in your lap. What were your

marching orders?

A To follow up with some of the witnesses and reinvestigate the accident.

[12] Q Did anyone advise you at the time that

you started this that the witnesses had retracted their

statement?

A

I don’t recall.

Q

Okay.

A I could have—when I read the report it would have

been brought to my attention because it’s in my report, but

I don’t remember if it was brought to my attention prior

to that. I don’t remember.

Q All right. So how did you start your investigation?

What did you do?

A

I reviewed the previous reports.

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Appendix F

Q Okay. That included Officer McGuinness’ report,

Officer Nachampassack and Officer Swanson; right? Those

are the three guys that wrote a police—

A

I believe so, yes, sir.

Q And McGuinness was the arresting officer, do you

recall that?

A

I believe so.

Q Okay. So you read the reports. Do you recall—

hang on just a second here. We’ll come back to that.

[13] All right. So you read the reports and then what

did you do? What did you next do?

A

Q

first?

A

I called and spoke with the truck drivers.

Okay. And do you recall which one you spoke with

No. I can look.

Q Go ahead, look at your report if you need to refer

to it and then set it down when you are done.

A

Mr. Kleck (sic).

Q

Okay. So you—

A

Hold on. Daehler first.

95a

Appendix F

Q

I’m sorry?

A

Daehler first.

Q All right. So you talked to him first and what did

he have—what did you say to him and what did he say to

you the best you can recall?

A I don’t remember our exact conversation but I’m

sure it started out as I identified who I was, I said I was

investigating—or I was following up on this accident

investigation. I do remember in my report it stated they

called [14] because they wanted to re—they weren’t sure

exactly—oh, thank you. All I saw was this much of it.

Q

I just noticed that myself.

A I didn’t know if it was movable. That’s why I didn’t

say anything.

Q

I’m sorry about that.

A Just told him that I knew they called to talk to

the officers. I didn’t know if they actually spoke to them

or not so I was following up—

Q

Okay.

A

—on what they had to say.

Q Okay. And when did you—did you come to learn

that there had been a hit-and-run accident that morning?

96a

Appendix F

A

Yes.

Q Okay. And do you know where that hit-and-run

accident occurred at?

A Broadway, Eastmoreland and Parkside. It’s an

intersection—it’s one intersection but there is three road

names.

Q

Okay. Parkside is north of Broadway; correct?

[15] A

Yes, sir.

Q And Eastmoreland goes south from Broadway;

is that right?

A

Yes, sir.

Q

Okay. So the road just changes names essentially?

A

Yes.

Q Okay. The hit-and-run accident, that occurred at

the intersection of Broadway and Eastmoreland; is that

right?

A

It happened on the south side of the street, so yes.

Q

Okay.

A

It’s the same intersection.

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Appendix F

Q And the hit-and-run vehicle was northbound on

Eastmoreland; is that correct?

A

That’s how it was reported.

Q

Okay. And—

A

By everybody.

Q By everybody, okay. So we all know that that

much has happened. And that northbound vehicle on

Eastmoreland was reported to have gone through a red

light and struck one of the vehicles; correct?

[16] A

It struck Mr. Philbee.

Q Okay. And do you know what the speed limits were

for Broadway and Eastmoreland at that time?

A Not memorized but I’m sure I went out there

because it’s in my report.

Q Okay. If I were to suggest that you look at the

bottom of Page 12 of your report, would that assist you

in answering my question?

A Eastmoreland is 30 and Broadway is 35 which

is—sounds now that I’m reading it and—like I said, that’s

about the right speed limit for that area.

Q Okay. And do vehicles normally travel at or near

the speed limit around town?

98a

Appendix F

A

That’s an opinion. Everybody has their own—

Q Okay, no problem. So at—you had no opportunity

to go out to the scene of the accident at the time of the

accident; is that correct?

A

Correct.

Q Okay. After this collision with Mr. Philbee’s

vehicle happened, do you know what [17] happened with

Mr. Philbee’s vehicle?

A He—according to the report he took off and tried

to follow the vehicle.

Q I’m sorry, let me back up a little bit. After the

hit-and-run vehicle struck Mr. Philbee’s vehicle, did Mr.

Philbee strike any other vehicles?

A

It struck Mr. Kleck’s truck.

Q Okay. And was Mr. Keck coming toward Mr.

Philbee or was he traveling in the same direction as Mr.

Philbee?

A He was traveling westbound on Broadway, Philbee

was traveling eastbound on Broadway so they were

crossing this direction.

Q

Okay. So he was oncoming traffic?

A

Correct. For Philbee, yes, yes.

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Appendix F

Q Okay. So when—let me make sure I have this

straight. So the hit-and-run vehicle went—struck Mr.

Philbee, Mr. Philbee struck Mr. Keck and the hit-and-run

vehicle took off ?

A As reported, yes. That’s how I interpreted the

reports.

Q Okay. And now, I’m not going to ask you what Mr.

Daehler or Mr. Keck told the other [18] officers. I want

to know what they told you, okay? When you spoke with

Bret Daehler, when you spoke with him he told you that

he didn’t see where the dark-colored vehicle that left the

scene of the accident had gone; correct?

A

Correct.

Q And when you spoke with him did he indicate to

you that he no longer believed that Mr. Madero’s vehicle

was the vehicle involved in the hit-and-run collision?

A

Correct.

Q

Okay. Did he tell you why?

A Because there was no damage which was

consistent with a front-end accident.

Q Okay. So after you spoke with Mr. Daehler, then

what did you do next?

A

I spoke with Mr. Kleck.

100a

Appendix F

Q

Okay.

A

Keck, Keck. I’m sorry, Keck.

Q That’s all right. When you say “Kleck” and

“Keck”—or we are going to say Keck and Kleck are the

same guy.

A

Same person.

Q All right. So when you spoke with [19] Mr. Keck,

what did he say with regard to his conclusions about who

was involved in the hit-and-run accident?

A Well, unfortunately we try to separate witnesses

but both of these guys were at the same place, and

Mr. Keck was issued the usual Illinois Department of

Transportation orange form where he draws the picture.

Q

Okay.

A From their conversations as they were sitting

there doing this, he said, wait a minute, this doesn’t—now

that I’m thinking about it, you know, he said, I walked

around the vehicle, there was no damage where they hit

each other so it was their conclusion that, you know, hey,

wait a minute, no damage, you know. I think Kleck was

the one that said it was hard enough to hit—that car to hit

my truck, there should have been some front-end damage

which there wasn’t.

Q Okay. And it was your understanding that—from

what they reported to you was it your understanding that

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Appendix F

the hit-and-run collision to Mr. Philbee’s vehicle occurred

with such force that it drove Mr. Philbee’s vehicle into the

[20] other lane of traffic?

A I don’t know if it drove it but it was enough

to—I mean, I don’t know if it was high speed because

there wasn’t that much damage. I mean, it was like a

normal accident. But yeah, they—if you were driving this

direction and you get hit, your front end is going to move

over and that’s what hit the vehicle coming.

Q

Okay. So he—

A It did move the whole vehicle and they side

swiped and pushed—it was just more of a—from my

understanding of how they reported it, it was hit hard

enough to move off center for the vehicle to hit the

oncoming traffic.

Q Okay. So it just moved it into—a little bit into

the other lane where the front end got knocked into the

other lane?

A Right. I wouldn’t use the word “drove” but it was

enough impact, enough force to move the vehicle out of its

lane into another.

Q Okay. And you had a chance to take a look at Mr.

Philbee’s vehicle; right?

A

I did, yes, sir.

102a

Appendix F

Q Where was the—can you describe the [21]

damage? Was it—

A It was at—you asked where it was? It was Cruz’s

Towing. I don’t remember the street but it was at Cruz’s

Towing. He had a lot of front-end passenger side damage

which would be expected.

Q

Okay.

A

I took I think 19 pictures of his vehicle.

Q

Okay.

A And both the front—both front ends which was

consistent with him hitting Keck or Kleck.

Q

Okay.

A So, yeah, he had well enough damage that he said

he couldn’t drive it. He had to tow it.

Q

Okay.

A So he had enough impact to cause the front end

tires to be moved in. I believe I even stated in my report

that there was tire damage.

Q

Okay. So both vehicles were impounded; right?

A

I’m sorry?

103a

Appendix F

Q Were both vehicles impounded, [22] Mr. Madero’s

and—

A No, I don’t think Mr. Philbee’s was impounded. I

think it was just towed because—due to damage.

Q I see, okay. All right. So you looked at the

vehicle; you saw the damage there. And you also had an

opportunity to look at Mr. Madero’s vehicle?

A I looked at his first, but yes, and his was

impounded.

Q

Where was his?

A

The Greater Rockford Auto Auction.

Q

Okay.

A

Sandy Hollow and Mulford Road.

Q Had that been in—when it’s an impound nobody

can mess with the vehicle between the accident and the

time you looked at it; is that fair to say?

A

That is very correct.

Q Okay. Did you have a chance to look at the whole

vehicle and see what—you know, inspect Mr. Madero’s

vehicle inside and out?

A

Not inside but outside, yes.

104a

Appendix F

Q Okay. Did you happen to look inside the [23]

vehicle?

A

I did not.

Q All right. So based on your outside inspection of

the vehicle, what did you observe?

A There was no evidence in my opinion that that

vehicle was involved in a front-end collision.

Q Okay. Was there any front passenger or driver’s

side quarter panel or front-end damage that you could

observe?

A Not on the front. There was some damage on

the back and I don’t remember which side right now, but

there was some rear end which was caused by one of the

snow trucks.

Q Okay. Besides that damage, was there any other

damage indicating that vehicle had been involved in a

collision?

A

Absolutely not.

Q Mr. Madero’s Audi is equipped with air bags. Were

the air bags deployed in the vehicle?

A I don’t know. In order to search his vehicle I had

to get a search warrant and I didn’t need to get inside his

vehicle. It was irrelevant to my part of my investigation.

105a

Appendix F

[24] Q Well, wouldn’t whether the air bags deployed

be relevant to whether the vehicle had been involved in a

front-end collision?

A

I did not look inside the vehicle.

Q Okay. If the air bags were not deployed, would that

be consistent with your findings, that there was—that the

vehicle was not involved with a front-end collision?

A Yes and no. Not every air bag deploys when it’s

supposed to.

Q

Including front air bags and front—

A People always say, I’m surprised my air bags

didn’t go off and I’m like, yeah, me too, so not every

accident do air bags deploy.

Q

Okay.

A

But there is no—

Q In any event you didn’t make—you didn’t observe

the status of the air bags and that wasn’t part of your

investigation; is that fair to say?

A

That’s fair to say.

Q Okay. Now, in Mr.—you said you read the reports

to understand what was going on with the case before you

began your investigation; [25] right?

106a

Appendix F

A

In 2018, yes.

Q Yeah. In Mr. McGuinness’ report he states that

he observed front-end damage to Mr. Madero’s Audi. Did

you—you didn’t observe any front-end damage; is that

correct?

A

That is correct.

Q Did you speak with Officer McGuinness about his

statement that he had seen some front-end damage to try

to figure out maybe what he was referring to?

A I have not talked to anybody, any officer or

anything about this case until you guys just now brought

it up.

Q Okay. Well, that makes it easier. All right. So when

you got finished with your investigation, did you have to

report your findings to someone?

A Yes, I sent a—he was a sergeant but Pozzi, the

Deputy Chief.

Q

Okay.

A I’m used to him being a sergeant but he was a

Deputy Chief. He got promoted to Deputy Chief.

[26] Q Okay. So did you discuss with him your

investigation?

107a

Appendix F

A

I did.

Q Okay. What did you tell him? What did he say to

you and what did you say to him during that conversation?

A I told him that that Audi in my professional opinion

as being an investigator was not the vehicle that struck

Mr. Philbee in the intersection.

Q Okay. Did you speak to him about the fact that

Officer McGuinness’ report stated that there was frontend damage?

A

I did not.

Q Okay. After you told Deputy Chief Pozzi that you

didn’t believe that the vehicle was involved in the accident,

what did he tell you? What happened then?

A I don’t recall our actual conversation. I do know

I released the vehicle with no charges, you know, so that

he didn’t have any tow charges or holding charges, and

that’s common practice. That’s not just with him. I have

done that with many, many investigations that a vehicle got

[27] towed for some reason whatsoever and I have released

them with no charges, no—not with charges, no bill.

Q

No bill, okay.

A

No bill.

Q

Well, in this instance from your investigation

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Appendix F

Mr. Madero’s vehicle wasn’t involved in the hit-and-run

accident; right?

A

That is correct.

Q You had an opportunity to discuss with Mr.

Madero in person what had occurred out there; is that

right?

A You know, I don’t remember interviewing him and

I was making notes. Obviously I had audio/video recording

so it’s obviously yes, there is no doubt about it.

Q

Okay.

A When I was reading it, it said that he was provided

my number. I had that question, who gave him my number

because I did not reach out to him. He reached out to me.

So I would have reached out to him but he reached out

to me first.

Q

Okay.

[28] A And yeah, I did speak with him but I don’t

recall the actual one on one but it would be audio and

video recorded.

Q Okay. So as you sit here today do you have any

recollection of your conversation with him other than what

you have included in your police report?

A

No, sir, I’m sorry.

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Appendix F

Q Would it be fair to—is everything that you stated

in your police report to the best of your knowledge and

belief true and accurate?

A

Ye

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