Jackson et al v. City of Bloomington et al
Filing
69
ORDER AND OPINION entered by Chief Judge James E. Shadid on 2/12/2019. Defendants' Motion for Summary Judgment 48 is DENIED. SEE FULL WRITTEN ORDER. (SAG, ilcd)
E-FILED
Tuesday, 12 February, 2019 04:57:15 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
DONNELLY JACKSON and ASHLEY
BURRELL,
Plaintiffs,
v.
CITY OF BLOOMINGTON, BRADLEY
MASSEY, AARON VEERMAN, TYREL
KLEIN, and JUSTIN SHIVELY,
Defendants.
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Case No. 17-cv-1046-JES-JEH
ORDER AND OPINION
Now before the Court is Defendants’ Motion for Summary Judgment (Doc. 48). Plaintiffs
have filed a Response (Doc. 50) and Defendants have filed a Reply (Doc. 66). For the reasons set
forth below, Defendants’ Motion is DENIED.
BACKGROUND
I. Agreed Facts
The following facts are undisputed by the parties. On January 7, 2016, Plaintiff Ashley
Burrell was driving a gray Cadillac with Plaintiff Donnelly Jackson seated in the passenger seat
in Bloomington, Illinois. Doc. 48, p. 3; Doc. 50, p. 5. They pulled up to Mr. Jackson’s mother’s
residence, and Ms. Burrell waited in the car while Mr. Jackson briefly went inside for two to
three minutes to retrieve a bus pass. Doc. 48, p. 3. When he returned to the car, they drove away.
Officer Massey observed the car stopping for a short time in an area he believed was known for
drugs, and chose to follow them in his car. Doc. 48, p. 4. At the intersection of Robinhood and
Fairway, Officer Massey pulled them over for an alleged stop sign violation. Id.
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When Ms. Burrell stopped the car, Officer Massey approached the driver’s side of the car
and spoke with her. Id. at 5. At some point, Mr. Jackson began loudly protesting the stop,
describing it as “bullshit” and racially motivated. Id. Officer Massey asked Ms. Burrell to step
out of the vehicle and discuss the traffic stop near his squad car. Id. Officer Massey told Ms.
Burrell he had pulled her over for a stop sign violation. Id. Officer Veerman then arrived at the
scene and approached the passenger side of the car. Id. Mr. Jackson was agitated, loudly arguing
that the officers had profiled them based on their race and the kind of car Ms. Burrell was
driving. Id. He refused to provide an ID to Officer Veerman. Id. at 6. Officer Klein then arrived
at the scene and approached the car. Id. Officer Massey got into his squad car and began drafting
Ms. Burrell’s traffic citation. Id. Meanwhile, Officer Veerman informed Mr. Jackson that he was
free to leave the scene, and Mr. Jackson said that he was not going anywhere. Id. Officer
Veerman learned that K9 Officer Shively was on his way to conduct a free air sniff of the car
with a canine. Id.
At that point, Officer Veerman requested that Mr. Jackson get out of the car, as the
department does not conduct free air sniffs while there are people inside. Id. Mr. Jackson initially
refused, and asked why he had to get out. Id.; Doc. 50, p. 5. Officer Veerman told him he would
be arrested if he did not. Doc. 48, p. 7. Officer Veerman believed he had probable cause to arrest
Mr. Jackson for Resisting/Obstructing a Police Officer, and grabbed him by the arm around the
time he stated “hold on.” Id.; Doc. 50, p. 5. Officer Klein and Officer Veerman pulled Mr.
Jackson out of the car. Doc. 48, p. 7. Mr. Jackson said that he was “not doing anything,” and the
officers brought him to the ground. Id. at 8; Doc. 50, p. 6. Observing this, Officer Massey got out
of his squad car and went to join Officers Klein and Veerman. Doc. 48, p. 8. Officer Klein
delivered a 2-second drive stun to Mr. Jackson’s lower back, and then a second 4-second drive
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stun. Id. Officer Massey sprayed pepper spray at Mr. Jackson’s face. Id. After this, officers
handcuffed Mr. Jackson. Id.
K9 Officer Shively and a narcotics detection police dog named Lex then began a free air
sniff of the car. Doc. 48, pp. 9–10. Officer Shively left his microphone in his car while they
conducted the free air sniff, and so there is no audio recording of the process. Doc. 66, p. 3.
When Officer Shively brought Lex near the passenger’s side of the car, he changed his breathing,
jumped up and put his feet on the window, and spun when he came back down. Doc. 48 at 10.
Eventually Lex scratched at the area, which is his trained “final response.” Id. Officer Shively
informed the other officers that Lex had alerted to the scent of narcotics. Id. Officers searched
the car and found no narcotics. Id.
Mr. Jackson was taken to St. Joseph Emergency Room to be evaluated and then taken to
jail for Resisting a Peace Officer. Id. at 11. Ms. Burrell was issued a citation for Violation of a
Stop Sign and released from the scene. Id. On May 9, 2016, Ms. Burrell’s traffic charge
terminated in an order of nolle prosequi. Id. On August 2, 2016, Mr. Jackson’s misdemeanor
charge terminated in an order of nolle prosequi.
II. Disputed Facts
A. The Stop
Ms. Burrell and Mr. Jackson contend that Ms. Burrell came to a complete stop at the
intersection of Riley Drive and Mecherle, and that she stopped behind the stop sign. Doc. 50,
p. 5. Defendants, on the other hand, argue that Officer Massey “believed” that the car did not
come to a complete stop at the stop sign because he saw the brake lights flash only briefly.
Doc. 48, p. 4. Plaintiffs argue that Officer Massey could not have seen the car from his vantage
point. Doc. 50, p. 2.
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B. The Use of Force
Plaintiffs do not dispute that Mr. Jackson initially refused to get out of the car when
asked. Doc. 50, p. 2. However, they allege that Mr. Jackson was attempting to get out when he
said “hold on,” and officers forcibly pulled him out anyway. Id. at 5. Although Defendants
labeled this allegation “undisputed” in their Reply, they claim Mr. Jackson was not attempting to
get out of the car when he said “hold on.” Doc. 66, p. 2. According to Defendants, when Jackson
refused to get out of the car, Officer Veerman grabbed Mr. Jackson’s arm to pull him out of the
car, but Mr. Jackson pulled back, so Officer Klein joined Officer Veerman in pulling Mr. Jackson
out of the car. Doc. 48, p. 7. Again, Plaintiffs assert that Mr. Jackson was trying to voluntarily get
out of the car. Doc. 50, p. 3.
According to Plaintiffs, when Mr. Jackson was out of the car, he put his hands up, and
Officer Veerman kicked his left knee out from under him, knocking him to the ground. Doc. 50,
p. 3. Mr. Jackson was not pulling away, and his statement that he was “not doing anything”
referred to his lack of resistance. Id. at 6. To the extent that he “pulled” on the officers, this was a
result of his fall to the ground. Id. at 3. Once on the ground, Mr. Jackson could not get his hands
behind his back because the officers were on top of him and were holding his arms. Id. at 3. He
told them as much. Id. However, while on the ground, with his hands held behind him by
officers, Mr. Jackson felt a taser and pepper spray simultaneously. Id. at 4. To the extent that his
body moved, it was an involuntary response to the pain of the taser. Id. He did not physically
resist the officers. Id. at 6.
According to Defendants, Mr. Jackson was trying to get away from them as they pulled
him out of the car. Doc. 48, p. 7. Officers Klein and Veerman brought him to the ground, where
he locked his arms under his body. Id. at 8. Officer Massey went to help subdue Mr. Jackson, and
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Mr. Jackson tensed his body and pulled away. Id. Officers repeatedly told Mr. Jackson to put his
hands behind his back, or he would be tased. Id. He failed to do so, and Officer Klein used his
taser to deliver a 2-second stun drive to Mr. Jackson’s back. Id. Mr. Jackson still did not comply,
so Officer Klein used the taser for 4 seconds, again on Mr. Jackson’s back. Id. When Mr. Jackson
still did not comply, Officer Massey sprayed pepper spray at Mr. Jackson’s face for two seconds.
Id. Mr. Jackson began yelling and pulling harder, so Officer Massey sprayed him again for 2
seconds. Id. After the second spray, Mr. Jackson immediately placed his hands behind his back,
and the officers handcuffed him. Id.
C. The Search
1. Bloomington K9 Training and Policy
Officer Shively arrived with his K9 partner Lex, relying on Officer Massey’s
representation that the stop was valid and reasonable. Doc. 48, p. 9. Plaintiffs contend that
although Lex was certified by the Canine Training Institute, the National Police Canine
Association, the Midwest Counterdrug Training Center, and the State of Illinois, he was not
appropriately trained. Doc. 50, p. 4. Plaintiffs dispute Lex’s accuracy and reliability, noting that
Lex and Officer Shively were criticized by the Seventh Circuit in Bentley. Id. at 6; United States
v. Bentley, 795 F.3d 630, 636 (7th Cir. 2015). Plaintiffs point out that there were no new policies
issued after the Bentley decision, and Lex’s training records after the Bentley decision do not
show any improvements. Doc. 50, p. 6. In fact, Lex’s training records show that his accuracy got
worse after Bentley. Id., citing Doc. 50, Exh. 7, p. 8. Plaintiffs rely on an expert witness for the
assertion that the City of Bloomington’s K9 policies lack oversight to identify training issues. Id.
Defendants challenged Plaintiffs’ expert in a separate Daubert motion, which this Court
denied on January 15, 2019. Doc. 68. Defendants hold that Lex’s accuracy percentage in training
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exercises in 2016 was 98.88%, that he was properly trained, and that his satisfactory completion
of training and certification programs is sufficient to establish his reliability. Doc. 66, p. 4.
2. The Search on January 7, 2016
According to Defendants, Officer Shively arrived shortly after the stop began. Doc. 48,
p. 6. When Mr. Jackson got out of the car, Officer Shively brought Lex up to the car and began
the free air sniff. Id. When they got near the passenger’s side door, Lex’s breathing changed, he
jumped up and put his feet on the front passenger window, “made a big swooping spin,” and
came back down. Id. Officer Shively recognized these behaviors as indications that Lex had
smelled narcotics. Id. Finally, Lex scratched at the door, which was his trained “final response”
when he identified the odor of narcotics. Id. This prompted officers to search the car. Id.
According to Plaintiffs, Officer Shively did not arrive “shortly,” but rather about seven
minutes after the initiation of the stop.1 Doc. 50, p. 2. Lex did demonstrate the behaviors
Defendant describes near the car, but not all of them (e.g., a breathing change) are alert
behaviors. Id. at 4; Doc. 50, Exh. 8, p. 195. Officer Shively cued Lex to give the behaviors that
were alerts, and his microphone did not pick up any audible cuing because it was not on him at
the time of the free air sniff. Doc. 50, pp. 4, 6.
D. The Proceeding Charges
Defendants state simply that orders of nolle prosequi terminated the charges against Ms.
Burrell and Mr. Jackson. Doc. 48, p. 11. They claim that the officers took no part in the McLean
County prosecutor’s decision to prosecute the Plaintiffs other than by providing their reports, and
that the officers provided no misstatements regarding the Plaintiffs. Id. Plaintiffs argue that the
This assertion of fact, #20 from Defendants’ Motion for Summary Judgment (Doc. 48), is listed in both the
“Undisputed Material Facts” section and the “Disputed Material Facts” section of Plaintiffs’ Response (Doc. 50).
Like Plaintiff’s Additional Material Fact #4 (Doc. 50, p. 5), which Defendants contradicted despite labeling it
“undisputed” (Doc. 66, p. 2) the Court will treat this fact as disputed.
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officers were involved in the commencement of criminal proceedings against them by submitting
false arrest reports, particularly with regard to the officers’ statements about the initial traffic
stop. Doc. 50, p. 4.
LEGAL STANDARD
Summary judgment is proper where the materials in the record demonstrate that there is
“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56. The role of the judge in resolving a motion for summary judgment is not
to weigh the evidence for its truth but to determine whether sufficient evidence exists that a jury
could return a verdict in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Thus, in order to survive a motion for summary judgment, the non-movant must
show specific facts that demonstrate the existence of genuine issues for trial. Id. The Court will
construe the record “in the light most favorable to the non-movant” in deciding whether the case
involves genuine issues of fact requiring a trial. Payne v. Pauley, 337 F.2d 767, 770 (7th Cir.
2003). However, mere allegations in the complaint by a non-movant plaintiff will not suffice;
instead, they must show admissible evidence such as depositions that show genuine disputes of
material fact. Fed. R. Civ. P. 56(e)(2); Behrens v. Pelletier, 516 U.S. 299, 309 (1996).
DISCUSSION
Defendants argue that they are entitled to summary judgment on twelve grounds:
1. Officer Massey had probable cause to conduct the traffic stop; 2. Officer Massey is entitled to
qualified immunity with respect to the traffic stop; 3. Officers Veerman, Klein, and Massey had
probable cause to arrest Mr. Jackson for obstructing a peace officer; 4. Officers Veerman, Klein,
and Massey are entitled to qualified immunity for their actions involving Mr. Jackson’s arrest;
5. Officers Veerman, Klein, and Massey did not use excessive force; 6. Officers Veerman, Klein,
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and Massey are entitled to qualified immunity on the excessive force claim; 7. there was
probable cause to search the car; 8. Officers Veerman, Klein, Massey, and Shively are entitled to
qualified immunity for the search of the car; 9. Plaintiffs have not sufficiently alleged that the
City of Bloomington has policies that led to a violation of Plaintiffs’ constitutional rights;
10. Plaintiffs have not sufficiently alleged any of the four elements required for a malicious
prosecution claim; 11. Plaintiffs’ respondeat superior claim fails because the malicious
prosecution claim is unsupported; 12. Plaintiffs’ indemnification claim fails because Plaintiffs
cannot recover on any of their claims. The Court will examine these in turn.
I. The Traffic Stop
A. Probable Cause
Defendants have alleged that Officer Massey had probable cause to initiate the traffic
stop based on his observation that the brake lights flashed “for only an instant” at a stop sign.
Doc. 48, pp. 13–14. Defendants argue that Officer Massey reasonably believed a traffic violation
had taken place, and that he was thus entitled to stop the Plaintiffs. Doc. 48, p. 13 (citing Abbott
v. Sangamon County, 705 F.3d 706, 714 (7th Cir. 2013)). However, Plaintiffs have alleged that
Ms. Burrell came to a complete stop at the stop sign, as supported by her deposition, and that
Officer Massey could not even see their vehicle when it was at the stop sign. Doc. 50, p. 2.
Plaintiffs support this latter assertion with a dashboard camera video from Officer Massey’s car,
which indeed does not depict Plaintiffs’ car at the stop sign in question. Doc. 50, Exh. 2.
Defendants argue that this does not contradict their account, because “what Officer Massey could
see, or where he was looking, is not depicted upon any video.” Doc. 66, p. 6. The Court
disagrees. Taking the evidence in the light most favorable to the Plaintiffs, a factual dispute
exists as to whether Officer Massey could see their car at the time of the alleged stop sign
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violation. Since Officer Massey’s observations form the entirety of the basis for the traffic stop,
and the video arguably contradicts his assertions, summary judgment is not warranted on the
issue of whether he had probable cause to stop Plaintiffs’ car for the alleged stop sign violation.
B. Qualified Immunity
Police officers are indeed entitled to qualified immunity if a reasonable officer in the
same circumstances could have reasonably believed there was probable cause, even if that belief
was mistaken. Humphrey v. Staszak, 148 F.3d 719, 728 (7th Cir. 1998). However, Plaintiffs’
version of the facts here, supported by their depositions and by video evidence, is that Officer
Massey could not see Plaintiffs’ car at the time of the alleged stop sign violation, and that no stop
sign violation actually took place. If a fact-finder were to credit the Plaintiffs’ version of what
happened over Officer Massey’s version, then Officer Massey’s decision to pull the car over was
not based on any observed traffic violation. Thus, no officer in those circumstances would have
reasonably believed there was probable cause to pull the car over—the stop was baseless.
Summary judgment is thus not warranted on the grounds of Officer Massey’s qualified
immunity; material disputes of fact remain on the issue of whether he could have reasonably
believed he had probable cause to stop the car.
II. The Use of Force
A. Probable Cause for the Arrest
Defendants contend that they had probable cause to arrest Mr. Jackson when he refused
to get out of his car and subsequently failed to put his hands behind his back. Doc. 48, p. 18.
Plaintiffs agree that Mr. Jackson initially refused to get out of the car, but argue that he was
attempting to comply when Officers Veerman and Klein “violently yanked” him out. Doc. 50,
p. 10. Mr. Jackson asserted in his deposition that he was trying to pull on his “bad knee” to get
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out of the car when the officers intervened, and dashboard camera video from Officer Veerman’s
car shows Mr. Jackson made some kind of motion and said “hold on” to the officers. Doc. 50,
Exh. 6, p. 28; Doc. 50, Exh. 5.
First, we address Mr. Jackson’s initial refusal to get out of the car. The question for the
Court is whether a reasonable officer would believe that brief passive physical resistance and
failure to comply with a lawful police order2 alone constituted probable cause to arrest him for
resisting a police officer. See Holmes v. Village of Hoffman Estate, 511 F.3d 673, 679–80 (7th
Cir. 2007) (“If the officer had probable cause to believe that the person he arrested was involved
in criminal activity, then a Fourth Amendment claim for false arrest is foreclosed.”). Plaintiffs
point out multiple cases where verbal argument and refusal to comply with a police order did not
constitute resisting, as long as it was brief. See People v. Stoudt, 555 N.E.2d 825, 828
(Ill.App.Ct. 1990) (defendant’s refusal to remove himself from the street was not a physical act
of resistance); Skube v. Williamson, 2015 WL 890363 (C.D. Ill. 2015) (plaintiff’s verbal attempts
to make police stop searching her purse did not constitute resisting). Defendants argue that these
cases deal with convictions for resisting, not establishing probable cause for the arrest. Doc. 66,
p. 14. However, a Court in this district held in Skube that “the law is clear—and had been for
many years when the events giving rise to this case occurred in July 2011—that a short period of
arguing and not complying with police orders does not constitute resisting arrest.” Skube, at *7.
Cited in that case are numerous Illinois appellate cases upholding the proposition that brief
refusal to comply with a police order clearly is not resisting arrest. See, e.g., People v.
Weathington, 411 N.E.2d 862, 863–64 (Ill. 1980) (“No physical act of resistance or obstruction
occurred: merely argument coupled with eventual cooperation.”); People v. Berardi, 948 N.E.2d
See Maryland v. Wilson, 519 U.S. 408, 414 (1997) (authorizing police officers making traffic stops to order
passengers to get out of the car until the stop has concluded).
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98, 103 (Ill.App.Ct. 2011) (“Defendant’s almost immediate acquiescence to [the officer’s]
authority, once defendant learned that his protestations about the validity of [the officer’s]
request would be fruitless, adds further proof that defendant was not attempting to ‘hinder’ or
‘delay’ [the officer’s] performance of his duty.”). It is “well settled under Illinois law” that mere
argument does not constitute resistance, and taking the facts in the light most favorable to the
Plaintiffs, Mr. Jackson’s short period of argument followed by attempted compliance did not
provide probable cause to arrest him for resisting. See Payne, 337 F.3d at 776 (“[R]esistance
must be physical; mere argument will not suffice.”) (citing Weathington, 411 N.E.2d at 863–64).
Second, we address Mr. Jackson’s alleged failure to put his hands behind his back.
Defendants claim that after the officers pulled Mr. Jackson from the vehicle, he “continued to
resist by refusing to place his hands behind his back.” Doc. 48, p. 17. Plaintiffs contend that as
soon as Mr. Jackson was pulled out of the car, Officer Veerman kicked his knee out from under
him and he fell to the ground. He then had no control over his arms as officers held both arms
while they pepper sprayed and tased him. Doc. 50, pp. 11–12. Squad car video shows that as Mr.
Jackson was pulled out of the car, one officer was holding his left arm and one officer was
holding his right arm, and that Mr. Jackson quickly fell to the ground. Doc. 48, Exh. 6. Thus,
taking the evidence in the light most favorable to Plaintiffs, the officers based their arrest on
behavior they physically forced Mr. Jackson into—claiming he failed to put his hands behind his
back while they pulled his arms up and away from his body. The Court cannot conclude that,
under those circumstances, a reasonable officer would believe that he had probable cause to
arrest Mr. Jackson for resisting. See City of Pekin v. Ross, 400 N.E.2d 992, 994 (Ill.App.Ct.
1980) (attempting to pull one’s arms down because of severe pain during arrest was not resisting)
(citing People v. Flannigan, 267 N.E.2d 739 (Ill.App.Ct. 1971)). Because a genuine dispute of
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fact remains on the issue of whether probable cause existed to arrest Mr. Jackson, the Court
denies summary judgment on those grounds.
B. The Use of Force to Effect the Arrest
To evaluate whether the use of force is excessive, courts must balance “the nature and
quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.”3 Graham v. Connor, 490 U.S. 386, 396 (1989).
This includes considering factors such as how severe the crime at issue was, whether the suspect
posed an immediate safety threat, and whether the suspect was actively resisting or attempting to
flee. Id. When there are disputes of fact regarding what happened, summary judgment in
excessive force cases “should be granted sparingly.” Abdullahi v. City of Madison, 423 F.3d 763,
773 (7th Cir. 2005). The fact-intensive nature of such claims, together with the necessity of
weighing conflicting testimony, makes them more appropriate for resolution by a jury. See Cyrus
v. Town of Mukwonago, 624 F.3d 856, 862 (7th Cir. 2010) (“[W]hen material facts are in dispute,
then the case must go to a jury, whether the argument is that the police acted unreasonably
because they lacked probable cause, or that they acted unreasonably because they responded
overzealously and with too little concern for safety.”) (quoting Bell v. Irwin, 321 F.3d 627 (7th
Cir. 2003)).
Plaintiffs argue that any force used to effectuate an unlawful arrest is automatically unreasonable, citing Herzog v.
Village of Winnetka, 309 F.3d 1041, 1044 (7th Cir. 2002) and an Eleventh Circuit case. Although there is some
support for this contention in the Fourth and Eleventh Circuits (see Reese v. Herbert, 527 F.3d 1253, 1272 (11th Cir.
2008) (“even de minimis force will violate the Fourth Amendment if the officer is not entitled to arrest or detain the
suspect”); Bailey v. Kennedy, 349 F.3d 731, 744 (4th Cir. 2003) (“[W]e have twice confronted situations in which a
plaintiff, subjected to police force, had committed no crime; in each, we held that the plaintiff had stated a claim for
violation of his constitutional right to be free from excessive police force.”)), the Seventh Circuit has expressly
separated the inquiry into false arrest from the inquiry into the excessiveness of subsequent use of force. Carlson v.
Bukovic, 621 F.3d 610, 622 (7th Cir. 2010) (rejecting, as the Third Circuit did, a statement of law that “any amount
of force used to effect an arrest without probable cause is per se excessive”). Some confusion remains in
harmonizing Herzog with subsequent cases (see Irons v. Village of Dolton, 2017 WL 3872478 (N.D. Ill. Sept. 5,
2017)), but the state of the law in the Seventh Circuit is now that “the lawfulness of an arrest is irrelevant to an
excessive force analysis.” Sebright v. City of Rockford, 585 F. App’x 905, 907 (7th Cir. 2014).
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Numerous factual disputes exist involving the use of force. The parties disagree about
whether Mr. Jackson was attempting to comply when he was pulled out of the car, whether he
was struggling with the officers who pulled him out, whether they kicked his legs out from under
him, whether he continued to struggle after he was repeatedly tased, whether he was pepper
sprayed at the same time he was tased, and whether he continued to struggle after the first burst
of pepper spray. Essentially, all three of the factors set out in Graham are disputed: Plaintiffs
argue that Mr. Jackson had committed no crime, that he posed no safety risk whatsoever, and that
he was not resisting the officers as he endured pepper spray to his face, kicks, and electric
shocks. Defendants argue that these facts are not genuinely disputed because the squad car
videos of the event clearly contradict Plaintiffs’ claims.
The Court may consider video evidence, and in situations where the video evidence
refutes the plaintiff’s account of the facts, “the court should not accept the plaintiff’s story for
purposes of summary judgment.” Gillis v. Pollard, 554 F. App’x 502, 506 (7th Cir. 2014) (citing
Scott v. Harris, 550 U.S. 372, 378–80 (2007)). However, the video evidence in question here is
“open to varying interpretations.” Horton v. Pobjecky, 883 F.3d 941 (7th Cir. 2018). The video
does not clearly contradict Plaintiffs’ account of what happened. Officer Massey’s squad car
video does show Plaintiff raising his arms above his head when he is pulled out of the car, and
Officer Veerman’s squad car video and audio arguably support Plaintiffs’ contention that Mr.
Jackson was attempting to comply with orders when he was pulled out. Because the video does
not show the ensuing scuffle clearly, and the audio and picture are grainy, the Court cannot
conclude that there is no genuine dispute of fact as to whether Mr. Jackson’s knee was kicked out
from under him, whether he was struggling while pinned under the officers, and in what
sequence the pepper spray and taser were used. If a jury were to accept Plaintiffs’ account of the
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disputed facts, then the use of force could be found unreasonable; all three Graham factors
would point towards excessiveness if officers kicked, tased, and pepper sprayed a verbally
belligerent but unresisting person who had committed no crime. See, e.g., Abbott, 705 F.3d at
732 (“[I]t was well-established in this circuit that police officers could not use significant force
on nonresisting or passively resisting subjects.”); Payne, 337 F.3d at 780 (“It was also well
established that it was unlawful to use excessively tight handcuffs and yank the arms of arrestees
who were not resisting arrest, did not disobey the orders of a police officer, did not pose a threat
to the safety of the officers or others, and were suspected of committing only minor crimes.”);
Phillips v. Community Ins. Corp, 678 F.3d 513, 525 (7th Cir. 2012) (failing to exit a car after
repeated police commands was “passive noncompliance of a different nature than the struggling
that we have found warrants escalation of force.”). The Court therefore denies summary
judgment on the excessive force claim.
C. Qualified Immunity
As stated in Section II(A) of this Order, genuine disputes of fact exist as to whether Mr.
Jackson’s conduct rose to a level establishing probable cause to arrest him for resisting. The law
is well-settled that no arguable probable cause would exist if the events took place according to
Mr. Jackson’s account (see, e.g., Payne, 337 F.3d at 776), and so summary judgment is not
warranted on qualified immunity grounds with respect to the basis for the arrest.
With respect to the use of force, Defendants argue that, under their version of what
happened, the force used by Officers Veerman, Klein, and Massey did not violate any clearly
established constitutional rights. However, viewing the evidence in favor of the Plaintiffs, this is
not so—the use of a taser and pepper spray is more than a “minimal” amount of force, which is
what well-established precedent suggests officers must use when a person is only passively
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resisting. See Phillips, 678 F.3d at 525 (“[W]illful noncompliance was not the same as ‘actively
resisting,’ but instead a passive ‘resistance requiring the minimal use of force.’”) (quoting Smith
v. Ball State University, 295 F.3d 763, 771 (7th Cir. 2002)); Lewis v. Downey, 581 F.3d 467, 475
(7th Cir. 2009) (holding that a taser is not a de minimis application of force); Abbott, 705 F.3d at
726 (describing both tasers and pepper spray as an “intermediate level of force”). A jury could
also construe the initial force used to pull Mr. Jackson out of the car as unreasonable, if they
view the video and Mr. Jackson’s claims as indicating that he was attempting to comply when
they forcibly removed him. The Court therefore denies summary judgment on qualified
immunity grounds for the excessive force claim.
III. The Search
A. Probable Cause
To prevail on their claim of an unreasonable search of their vehicle, Plaintiffs must
demonstrate that there was no probable cause for the search. See Holmes, 511 F.3d at 679–80.
Defendants assert that Plaintiffs cannot prevail on this claim because Lex, a trained drug dog,
alerted to the presence of drugs, and the squad car video depicts Lex jumping up on the car. Doc.
48, p. 26; Doc. 66, p. 22.
Plaintiffs’ version of events—namely, that Officer Shively left his microphone in the car
to hide his cuing, and then led Lex around the car, cuing him to alert where Mr. Jackson had been
sitting—is not clearly contradicted by the evidence. Whatever his motives, Officer Shively did
leave his microphone in his car. He then walked in front of Lex as they circled the car, which
Plaintiffs’ expert suggests is an improper practice consistent with cuing. Doc. 50, Exh. 7, p. 41.
When they reach the passenger side door, the two walk past it once, and then Officer Shively
leads Lex past the passenger side door a second time. Doc. 48, Exh. 4. It is impossible to hear
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whether Officer Shively said anything to Lex. Officer Shively’s back is to the video cameras at
times, and he makes some movements with his hand that a jury could interpret as cuing gestures.
Id. This, coupled with Lex’s very high alert rate,4 suggests that Plaintiffs’ allegations have more
than “absolutely no support.” Doc. 66, p. 23. Viewing the evidence in the light most favorable to
Plaintiffs, the Court finds there are disputed material facts that preclude summary judgment on
the unreasonable search claim.
B. Qualified Immunity
If, as Plaintiffs allege, Officer Shively cued Lex to alert, then no reasonable officer would
believe that the alert created probable cause to search the vehicle. Because Plaintiffs’ expert and
the video evidence suggest a genuine dispute of material fact on this issue, summary judgment is
denied on qualified immunity grounds as to the unreasonable search claim.
IV. Plaintiffs’ Remaining Claims
A. Monell Claim
Plaintiffs allege that an unconstitutional custom, policy, procedure, or practice of the City
of Bloomington was “the moving force” behind the unconstitutional search of their car. Doc. 50,
p. 21. That is, Plaintiffs claim that Bloomington’s failure to establish proper policies on training,
documentation, supervision, and oversight created an environment where the K9 unit conducted
illegal searches, including the one they experienced. Defendants argue that Plaintiffs have only
alleged that one dog might have been trained better and one officer forgot to put on his
microphone. Doc. 66, pp. 25–26. However, Plaintiffs’ expert in dog training reviewed the
Bloomington policies and listed ways in which he claims they fall short, including by failing to
retire or retrain dogs like Lex in the wake of Bentley. Doc. 50, Exh. 7, pp. 3, 56–57. Taking that
In 2015, the Seventh Circuit noted that Lex alerted 93% of the time he was called to conduct a vehicle sniff, a rate
that the training company “was embarrassed by.” United States v. Bentley, 795 F.3d 630, 636 (7th Cir. 2015).
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evidence in the light most favorable to Plaintiffs, this is sufficient for their Monell claim to
survive summary judgment. See City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989) (“[In
some circumstances], the failure to provide proper training may fairly be said to represent a
policy for which the city is responsible, and for which the city may be held liable if it actually
causes injury.”); Spalding v. City of Chicago, 186 F.Supp.3d 884, 916 (N.D. Ill. 2016) (denying
summary judgment where expert testimony supported the existence of an unwritten code of
silence in a police force).
B. Malicious Prosecution Claims
Plaintiff Burrell claims that Officer Massey’s role in prosecuting her for Disregarding a
Stop Sign amounted to malicious prosecution. Plaintiff Jackson claims that all DefendantOfficers maliciously instituted charges against him for Resisting a Peace Officer. Defendants
move for summary judgment because they claim that Plaintiffs cannot show four out of the five
elements of a malicious prosecution claim: that the Defendants initiated or continued a criminal
proceeding, that the proceeding terminated in Plaintiffs’ favor, that there was no probable cause
for the charges, and that the officers acted with malice. Doc. 48, pp. 31–35. The Court will
examine each disputed element in turn.
First, Defendants argue that Plaintiffs have not shown that the officers knowingly made
misstatements to the prosecutors in their cases. Doc. 48, p. 31. As explained above, the Plaintiffs
have established material disputes of fact as to whether there was probable cause to arrest either
of them. If Plaintiffs version of events is correct, then the officers pulled them over without
probable cause and then arrested them illegally. The officers’ contrary representations in their
written reports (which they provided to prosecutors) would suffice to establish the first element.
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Second, Defendants argue that Plaintiffs can only show that their cases terminated in
nolle prosequi orders, not that the orders were entered for reasons consistent with innocence.
However, Officer Massey testified that he was present at Ms. Burrell’s traffic citation hearing,
and she was found not guilty after all the evidence was presented, including his testimony that he
watched her commit a traffic violation. Doc. 48, Exh. 3, p. 39. Additionally, the nolle prosequi
order in Mr. Jackson’s case was entered after the state court granted his motion to quash his
arrest, despite the officers’ testimony that they had probable cause to arrest him. Doc. 48, Exh. 4.
Neither nolle prosequi order was secured as part of an agreement with the accused, which
suggests that Plaintiffs have indeed established the second element of their malicious prosecution
claims. See Swick v. Liautaud, 662 N.E.2d 1238, 1242–43 (Ill. 1996).
Third, Defendants claim that the malicious prosecution claims fail because the Plaintiffs
have not shown an absence of probable cause for the relevant proceedings. As explained in
sections I(A) and II(A) of this Order, there are genuine disputes of material fact with regard to
whether probable cause existed for the traffic citation and for Mr. Jackson’s arrest. Accepting the
Plaintiffs’ version of events, they have established the third element of their malicious
prosecution claims.
Fourth, Defendants argue that Plaintiffs have not provided any facts in support of their
allegation of the officers’ malice. Plaintiffs respond that they have sufficiently alleged malice by
showing there was no probable cause and by alleging facts showing that Defendants were not
acting on behalf of any legitimate law enforcement interest, instead stopping Ms. Burrell on a
false basis and punishing Mr. Jackson for protesting the stop. Doc. 50, p. 25 (“It is clear that the
Defendants had no patience with Plaintiff Jackson because he had the audacity to call them out
for their illegal traffic stop and search.”). Interpreting the facts favorably to Plaintiffs, a
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reasonable fact-finder could find that the officers acted out of malice rather than legitimate law
enforcement interests or genuine belief that Plaintiffs had committed the acts alleged. The Court
thus denies summary judgment on the malicious prosecution claims.
C. Respondeat Superior Claim
Defendants claim that Count VIII fails because the malicious prosecution claims fail. As
explained above, the Court denies summary judgment on the malicious prosecution claim, and
therefore the respondeat superior claim based on the malicious prosecution claim survives
summary judgment as well.
D. Indemnification Claim
Defendants likewise claim that the Court should grant summary judgment on the
indemnification claim because Plaintiffs cannot recover on any of their other claims. Because the
Court denied summary judgment on the above claims, summary judgment is also denied as to the
indemnification claim.
CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment (Doc. 48) is
DENIED.
Signed on this 12th day of February, 2019.
/s James E. Shadid
James E. Shadid
Chief United States District Judge
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