Gilfand et al v. Planey et al

Filing 329

WRITTEN Opinion Signed by the Honorable Harry D. Leinenweber on 10/31/2011:For the reasons described below, Defendant City of Chicago's Motion to Reconsider Denial of its Motion for Summary Judgment {#321) is DENIED.Mailed notice(wp, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Harry D. Leinenweber

CASE NUMBER

07 C 2566

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

10/31/2011

Gilfand, et al. vs. Planey, et al.

DOCKET ENTRY TEXT

For the reasons described below, Defendant City of Chicago’s Motion to Reconsider Denial of its Motion for
Summary Judgment [# 321] is DENIED.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT
Defendant City of Chicago has asked this Court to reconsider its denial of the City's Motion for Summary
Judgment on Plaintiffs' Monell claims. The City's motion is denied.
I. INTRODUCTION
After a summary judgment ruling, a party may bring a motion to reconsider in order to correct errors of
law or fact, or to address newly discovered evidence. A motion to reconsider is appropriate where the Court
has failed to recognize a controlling precedent. See Narbaiz v. TCF Financial Corp., No. 08 C 17, 2009 WL
1346246, *1 (N.D. Ill. May 8, 2009).
As noted in the Court’s summary judgment ruling, Plaintiffs must demonstrate three things to maintain
their Monell claims against the City. Plaintiffs must show (1) a deprivation of a federal right (2) proximately
caused by (3) the City’s express policy, widespread custom, or deliberate indifference. See Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. 658, 690-92 (1978). As the final policy-making authority for the
City, the City Council's actions, or lack thereof, determine whether the City was deliberately indifferent. See
Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir.1992). In moving for summary judgment, the City conceded
that a genuine issue exists as to whether it has a policy and practice of failing to properly investigate off-duty
officers who use excessive force. This Court then found that genuine issues of material fact also exists as to:
whether Plaintiffs suffered a constitutional violation; whether the City Council was deliberately indifferent to
the issue of off-duty excessive force; and whether that alleged indifference was the proximate cause of
Plaintiffs' injuries.
II. DISCUSSION
The City claims that this Court ignored the binding authority of Wilson v. Chicago, 6 F.3d 1223 (7th Cir.
1993), in denying summary judgment as to whether the City Council was deliberately indifferent. However,
07C2566 Gilfand, et al. Vs. Planey, et al.

Page 1 of 2

STATEMENT
the City reads Wilson for more than it says, as though it means that any action, even mere lip service,
precludes liability under Monell. Rather, under Wilson — as under other Seventh Circuit and Supreme Court
authority — the question remains whether Plaintiffs can show that the City Council acquiesced in the
practice of excessive force by off-duty officers, either by its actions or the “conscious disregard for the
consequences” of its inactions. Bryan Cty. v. Brown, 520 U.S. 397, 407 (1997)
In Wilson, the Plaintiff alleged that Chicago had a policy of allowing police officers to torture people
suspected of killing other officers. In that case, the Superintendent of Police had been designated the City's
final policy-maker. He had taken complaints of torture and forwarded them to the appropriate investigatory
division; that division had done nothing. Concerned that he might endanger Wilson's prosecution, the
Superintendent took no further action. The court specifically noted that “[i]t was the plaintiff's responsibility
to show that in [referring complaints to the appropriate unit, the Superintendent] was not acting in good faith
to extirpate the practice [of torturing suspects]." 6 F.3d at 1240. That is to say, the Wilson court phrased the
deliberate indifference inquiry as one of the Superintendent’s good faith, and whether his conduct raised an
inference that he wished the practice to continue.
The City relies on two primary facts to show that the City Council was not deliberately indifferent. The
first is the ratification of a 2002 collective bargaining agreement with the Fraternal Order of Police, which
allows the City to retain files on prior excessive force complaints for use in later investigations. The second is
what the City describes as the Office of Professional Standards’ "sustained, good faith efforts to design and
implement investigative procedures — in particular… pattern analysis" to address the problem. Given these
facts, the City claims, the City Council cannot be found deliberately indifferent.
However, this Court cannot simply accept that characterization. On summary judgment, it must construe
the available evidence in the light most favorable to the non-moving party — here, Plaintiffs. Contrary to the
City’s insinuations and selective quotations, this Court did not side with Plaintiffs and find that the City was
deliberately indifferent. Instead, the Court described the proffered evidence and concluded that Plaintiffs had
identified a genuine question as to whether the City took good faith steps to deal with the problem, or
deliberately adhered to a dysfunctional “solution.” Cf. Brown, 520 U.S. at 407 (continued adherence to a
failed policy could constitute deliberate indifference). The Court did not, and in light of the conflicting
evidence could not, resolve that factual issue on summary judgment.
Certainly, if the City Council knew of a problem and genuinely undertook to remedy it, the mere fact
that its efforts have not been entirely (or even largely) successful would not open the city to liability under
Monell. Whether or not it did so, however, is precisely the question posed by Wilson, and is a hotly contested
fact for the jury in this case.
Thus, this Court did not ignore binding Seventh Circuit precedent. It applied the governing law and
found a triable question as to whether the City Council was deliberately indifferent. Finally, it bears noting
that on similar facts (despite the City’s attempts to distinguish), several other district courts have reached the
same conclusion. See, e.g., Johnson v. Chicago, No. 05 C 6545, 2009 WL 1657547 (N. D. Ill. June 9, 2009).
III. CONCLUSION
For the foregoing reasons, the City's motion for reconsideration is DENIED.

07C2566 Gilfand, et al. Vs. Planey, et al.

Page 2 of 2