Swanigan v. City of Chicago
Filing
24
MEMORANDUM Opinion and Order Signed by the Honorable Virginia M. Kendall on 1/4/2012: (lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RASHAD SWANIGAN,
Plaintiff,
v.
CITY OF CHICAGO,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. 08 C 4780
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Rashad Swanigan sued a number of Chicago police officers and their employer, the
City of Chicago, for violations of his civil rights as the result of an incident where he was held for
an extended period of time after being arrested. (See N.D. Ill. Case No. 07 C 4749) (“2007 Suit”).
That case went to trial against two subsets of those officers, and the jury awarded Swanigan damages
on his unlawful detention claim. A year after he filed that case, Swanigan filed the instant case
against the City, asserting that the City itself was liable for the violations of Swanigan’s rights under
Monell v. City of New York Department of Social Services, 436 U.S. 658 (1978) because a municipal
policy or practice caused the violations (“Monell Suit”). As is common practice in this District, the
Court stayed this Monell Suit in favor of proceeding with the 2007 Suit because the City agreed,
consistent with its usual practice (and Illinois law), to indemnify the officers. Swanigan now moves
to lift that stay and proceed on his Monell claim challenging two allegedly unconstitutional practices
by the Chicago Police Department (CPD): the “hold past court call” procedure and the “clearedclosed” procedure. As detailed below the Court denies Swanigan’s motion and dismisses the case
because there is no actual case or controversy as to either procedure and, in addition, Swanigan has
not stated a claim for which relief can be granted as to the “clear-closed” procedure.
I.
PROCEDURAL AND FACTUAL HISTORY
A.
2007 Suit
In August 2007, Swanigan filed suit under 42 U.S.C. § 1983 against almost two dozen
Chicago police officers as well as the City, alleging that he was falsely arrested and unlawfully
detained in August 2006. The Court recounted the facts of the case in full in its lengthy opinion on
the parties’ summary judgment motions (see Swanigan v. Trotter, 645 F. Supp. 2d 656 (N.D. Ill.
2009)); the following facts will relevant for the purposes of this motion.
On August 22, 2006, two CPD patrol officers, spotted Swanigan leaving a bank on Chicago’s
north side. The officers had received information at their morning roll call regarding the “Hard Hat
Bandit,” who allegedly had robbed a number of banks on the City’s north side wearing a yellow hard
hat. The officers ran the plates on Swanigan’s car, and the system indicated that they were
suspended due to an insurance problem. When they approached, the officers saw Swanigan
“hotwiring” the car. Though Swanigan protested that he, in fact, had insurance, he did not produce
an insurance card and the officers arrested him. The officers then searched Swanigan’s car and
found a knife as well as a yellow hard hat. Believing that Swanigan could be the Hard Hat Bandit,
a more senior officer approved Swanigan’s arrest for traffic violations and told the arresting officers
to contact the detectives investigating the bank robberies. The detectives then started investigating
Swanigan for a different crime, namely the recent robbery of a Popeye’s Chicken restaurant, not the
traffic violations for which he was actually arrested.
2
In order to round up witnesses for various lineups for the Popeye’s Chicken robbery, the
detectives put a “hold” on Swanigan, meaning he would not be released from custody, or go to court,
without the “hold” being released. Without the “hold,” Swanigan could have been released the same
day he was arrested. However, as a result of the “hold,” he was held for two additional days (under
conditions he found uncomfortable) while he was placed in various lineups. Several witnesses
identified Swanigan as the Popeye’s Chicken robber. On the evening of August 26, 2006,
Swanigan’s hold ended and he was released after a state prosecutor declined to charge Swanigan
with the Popeye’s Chicken robbery. All told, he spent 51.5 hours in custody, the vast majority after
his fingerprints had cleared the CPD’s database. Approximately two weeks later, a CPD sergeant
reviewed the reports generated by the detectives with respect to Swanigan and marked the file
“Cleared - closed other exceptional.” The sergeant picked that designation because the CPD closed
its investigation after prosecutors refused to approve charges. That sergeant testified that the
detective’s report identified Swanigan as the offender in the Popeye’s Chicken robbery and that
employees of the restaurant had picked Swanigan out of lineups. (See Case No. 07 C 4749, Doc.
168-21.)
In August 2011, the case went to trial before this Court on Swanigan’s false arrest claim (as
to the three arresting officers) and his unlawful detention claim (as to eight officers involved in his
detention). The jury found for the arresting officers on Swanigan’s false arrest claim, but awarded
him $60,000 in damages on his unlawful detention claim, finding seven of the eight officers liable.
The jury did not award any punitive damages.
3
B.
Monell Suit and the Stay
In August 2008, a year after he filed the 2007 Suit, Swanigan filed the Monell Suit
challenging a pair of allegedly unconstitutional practices by the CPD, the “hold past court call”
procedure and the “clear-closed” procedure. Specifically, Swanigan alleged in his complaint that
the “hold” procedure allows the police to arrest individuals without a warrant on minor crimes and
then hold them for unreasonable periods of time while officers drum up more evidence of different,
unrelated crimes. In his motion to lift the stay, Swanigan clarifies that the “hold” procedure is
unconstitutional because it unreasonably delays an independent finding of probable cause by a
neutral magistrate.1 Though the thrust of Swanigan’s Monell complaint (and his motion to lift the
stay) is against the “hold” procedure, he also takes issue with the CPD’s “cleared-closed” procedure,
where by a criminal investigation is “cleared”—meaning “solved,” according to Swanigan—
indicating an arrestee or suspect was the perpetrator, even if that person is not charged with the
crime. In other words, the procedure “permits the closing of official police department records with
innocent suspects identified as actual career offenders.” (Doc. 17 at 1.) In his motion to lift the stay,
Swanigan adds that he is still erroneously identified in police records as the perpetrator in the
Popeye’s Chicken robbery, even though that crime was perpetrated by the Hard Hat Bandit, who
Swanigan concedes was caught and imprisoned several years ago. (Id. at 2.)
In December 2008, the City moved to consolidate the Monell Suit (then pending before
another court) with the 2007 Suit because they arose from the exact same facts. The Court granted
that motion, and the City stipulated in the 2007 Suit that it would indemnify the officers for
1
The Monell complaint also takes issue with how the CPD conducts and documents its lineups, but Swanigan’s
motion to lift the stay does not mention that issue and states that an amended complaint would narrow the issues in the
Monell case.
4
compensatory damages and attorneys’ fees awarded under 42 U.S.C. § 1988, and accept one dollar
in nominal damages against it if any compensatory damage award was entered against one of the
individual officers.2 The Court then stayed the Monell Suit, as is common in this District, because
if a jury found against the officers, the City would pay in any event and Swanigan would not have
to demonstrate a municipal policy or practice (or engage in the extensive discovery Monell cases
typically require) to recover directly from the City. See, e.g., Medina v. City of Chicago, 100 F.
Supp. 2d 893, 895 (N.D. Ill. 2000) (listing the advantages of staying discovery in Monell claims until
after the claims against the individuals are complete).
Consistent with the stipulation, the City offered, with its briefing on the instant motion to lift
the stay, a proposed certification of entry of judgment against it in both the 2007 Suit and the Monell
Suit. That certification states that the City “agrees to entry of judgment against the City for
compensatory damages” and that the City “waives its right under Monell . . . not to be held liable
in damages under section 1983 without proof that the City by its ‘policy, custom or practice,’ and
with the requisite degree of culpability, caused the alleged constitutional violation.” (See Doc. 21-1
at 2.) The City also reiterated its “irrevocable” commitment to indemnify the individual officers,
and set out that the City “agrees to pay nominal damages (not to exceed one dollar), as plaintiff has
proven a violation of a substantive constitutional right and actual compensable injury.” (Id.)
2
Though Illinois law requires municipalities to indemnify their employees for tort judgments incurred while
acting within the scope of their employment (see 745 Ill. Comp. Stat. 10/9-102), and courts have noted that the City’s
collective bargaining agreement with its police officers requires the same (see Parker v. Banner, 479 F. Supp. 2d 827
829 (N.D. Ill. 2007)), such stipulations are not academic, because they protect the plaintiff against changes in the law
and policy and prevent the City from refusing to indemnify an officer post-judgment by asserting the officer was acting
outside the scope of his employment.
5
II.
DISCUSSION
A.
“Hold Past Court Call” Procedure
“It goes without saying that those who seek to invoke the jurisdiction of the federal courts
must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an
actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1980). Swanigan
asserts that in addition to damages “nominal or otherwise,” he will amend his complaint to seek
“declaratory and/or injunctive relief.” As an initial matter, Swanigan has no right to further
compensatory damages against the City in the instant Monell suit. Monell provides a way for a
plaintiff to seek compensation for violations of constitutional rights directly from a municipality;
it does not provide an avenue for extra compensation above what a plaintiff receives from an
individual municipal employee. See Monell, 436 U.S. at 691; see also Almaraz v. Haleas, 602 F.
Supp. 2d 920, 926 (N.D. Ill. 2008) (noting “Monell would only be an alternative means of holding
the City liable for the [constitutional violation] and would not increase or decrease the
damages–nominal or compensatory–that plaintiff is entitled to receive for his injuries.”). In other
words, a jury determined that the proper compensation for Swanigan’s extended detention is
$60,000. He has recovered that amount of money from the officers (and ultimately, the City).
Because he cannot recover twice for the same injury, there are no more compensatory damages
available to him from the City in the Monell Suit. As for punitive damages, the City is immune. See
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (punitive damages are not available
against municipalities under § 1983). Finally, turning to nominal damages, the City agreed in its
stipulation that it would accept judgment for nominal damages in the amount of one dollar if a jury
awarded compensatory damages against one of its officers. The certification, in turn, accepts
6
judgment for those nominal damages. In short, Swanigan has received in the 2007 Suit all the
possible monetary damages he could receive in the Monell Suit.
That leaves the “declaratory and/or injunctive relief.” With respect to the declaratory relief,
the certification already provides a statement by the City that his constitutional rights were violated.
It is true that in its proposed certification, the City does not admit that a municipal policy caused the
violation of his rights, or that the City’s alleged “hold” policy is unconstitutional. However, to the
extent that Swanigan wants to litigate the Monell Suit in search of a such a verdict or declaration that
the City’s practice is unconstitutional (for deterrence value or his own satisfaction), there is no case
or controversy. See Alliance to End Repression v. City of Chicago, 820 F.2d 873, 878 (7th Cir.
1987) (“[P]recedent, valuable though it is, must be a by-product of the resolution of a real
controversy. A party does not ‘prevail’ by obtaining a precedent divorced from any other results.”);
Parker v. Banner, 479 F. Supp. 2d 827, 833 (N.D. Ill. 2007) (citing Alliance to End Repression and
explaining “[i]n simple terms, if you just want a trial court to say that the City was wrong, you have
not presented a case or controversy to that court . . . you cannot sue for the court’s opinion since the
expression of judicial views is a by-product of the need to decide the case.”) (internal quotation
omitted); Almarez, 602 F. Supp. 2d at 925 (finding it “inappropriate” to permit a plaintiff to proceed
on a Monell claim “based on its possible deterrent value when all the actual relief he can be entitled
to receive has already been determined”); see also Petersen v. Gibson, 372 F.3d 862, 866 (7th Cir.
2004) (noting “[t]he mere moral satisfaction of being wronged” was insufficent to be a “prevailing
party” for purposes of an award of attorneys’ fees under § 1988).
Swanigan also cannot seek an injunction against the “hold” procedure. To allege an actual
controversy, Swanigan must
7
demonstrate a personal state in the outcome to assure that concrete
adverseness which sharpens the presentations of issues necessary for
the proper resolution of constitutional questions. Abstract injury is
not enough. [Swanigan] must show that he has sustained or is
immediately in danger of sustaining some direct injury as the result
of the challenged official conduct and the injury of threat of injury
must be both real and immediate, not conjectural or hypothetical.
Lyons, 461 U.S. at 101-102. In Lyons, the plaintiff sought an injunction against the Los Angeles
police department’s policy of using chokeholds during arrests even if the suspect was not resisting
arrest or threatening the officers. Id. at 98. The Supreme Court, applying the principles set down
in O’Shea v. Littleton, 414 U.S. 488 (1974), found that the plaintiff’s “standing to seek the injunction
requested depended on whether he was likely to suffer future injury form the use of the chokeholds
by police officers.” Id. at 104-05. “That [the plaintiff] may have been illegally choked,” the Court
concluded, “while presumably affording [the plaintiff] standing against individual officers and
perhaps against the City, does nothing to establish a real and immediate threat that he would again
be stopped for a traffic violation, or for any other offense, by an officer or officers who would
illegally choke him into unconsciousness without any provocation.” Id. at 105. The Court then
detailed what the plaintiff would need to allege to establish an actual controversy, namely (1) that
he would likely have another encounter with the police as well as (2) the “incredible assertion” that
all the city’s police officers always choke any citizen they encounter or that the City ordered or
authorized the officers to choke citizens in such situations. Id.
The Court noted that while the complaint alleged the municipality authorized the chokeholds,
the plaintiff had not sufficiently alleged that he would have another encounter with the police. Id.;
see also Gates v. Towery, 430 F.3d 429, 432 (7th Cir. 2005) (finding prospective relief
“inappropriate” where the plaintiff did not contend that he was likely to be arrested again). Even
8
if the “odds” were that the plaintiff would be stopped again, it was “untenable to assert . . . that
strangleholds are applied by the . . . police to every citizen who is stopped or arrested regardless of
the conduct of the person stopped.” Lyons, 461 U.S. at 108. It was “conjecture” to assume that the
police would choke everyone, and “speculation” that the plaintiff would, himself, be arrested again,
and, if arrested, be choked. Id. Finally, the Court also found that the plaintiff could not seek an
injunction via the standing he had in his damages case; he could not show an irreparable injury given
there was no real or immediate threat he would be stopped and choked again, and in any event, he
had an adequate remedy at law. Id. at 111; see also Campbell v. Miller, 373 F.3d 834, 836 (7th Cir.
2004) (“Unless the same events are likely to happen again to him, there is no controversy between
him and the City about the City’s future handling of other arrests.”).3
In Littleton, the plaintiffs claimed that they were subject to discriminatory application of the
criminal laws, namely, that black people seeking equality (and their white supporters) were
sentenced more harshly than other defendants, and sought an injunction against the county officials’
racially discriminatory practices. 418 U.S. at 490-91. The Court found no actual case or
controversy, because although past wrongs were evidence bearing on “whether there is a real and
immediate threat of repeated injury,” the prospect of future injury rested “on the likelihood that [the
plaintiffs] will again be arrested for and charged with violations of the criminal law and will again
be subjected to bond proceedings, trial, or sentencing before [the defendants].” Id. at 497-98. The
Court assumed “that [the plaintiffs] will conduct their activities within the law and so avoid
3
In Lyons, the Supreme Court also ruled that the plaintiff did not have standing under the “capable of repetition,
yet evading review” doctrine, given that the plaintiff could litigate his constitutional claim for the illegal chokehold for
damages. 461 U.S. at 109-110.
9
prosecution and conviction as well as exposure to the challenged course of conduct.” Id. at 498.
This case is a straightforward application of Lyons and Littleton. In his Monell complaint,
Swanigan has not plead that he is likely to be arrested again, and his motion to lift the stay provides
no basis to suspect he would be. The Court will assume, as the Supreme Court did in Littleton, that
Swanigan will follow the law and not encounter the “hold” procedure. Further, like the plaintiff in
Lyons, Swanigan does not plead or suggest any basis to believe that even if he was arrested again,
he would be subject to the “hold” procedure again. Indeed, crediting Swanigan’s allegations in his
Monell complaint, it appears that the “hold” procedure is only used by the police if they suspect the
person arrested on a minor offense was involved in a more serious crime. Under Lyons and
Littleton, Swanigan cannot seek injunctive relief against the “hold” procedure.
B.
“Cleared Closed” Procedure
In his motion to lift the stay, Swanigan details his complaint as to the “cleared-closed”
procedure.4 Specifically, a CPD “Case Supplementary Report,” drafted by a detective, lists
Swanigan as the “offender” in the August 17, 2006 Popeye’s Chicken robbery, states he was picked
out of lineups by witnesses to the robbery5, and contains a narrative tying him to the Hard Hat
Bandit’s bank robberies. According to Swanigan (referencing testimony in the 2007 Suit), the case
was then marked “cleared-closed” when the prosecutor declined to charge Swanigan with the
Popeye’s Chicken robbery. Swanigan asserts that he “does not know under what circumstances and
4
For expediency, the Court will consider the assertions in Swanigan’s motion to lift the stay as if they were
included in Swanigan’s Monell complaint.
5
Swanigan’s motion to stay suggests that the CPD report erroneously states that Swanigan was picked out of
lineups by witnesses to the Popeye’s Chicken robbery. However, at summary judgment and trial in the 2007 Suit, it was
undisputed that Swanigan was picked out of at least some lineups. See Swanigan, 645 F. Supp. 2d at 670.
10
to whom the police records identifying him as a violent offender might be made available.” (Doc.
22 at 4.) Swanigan seeks “expungment” relief as to the police report and injunctive relief with
respect to the “cleared closed” procedure.6 As an initial matter, Swanigan cannot seek injunctive
relief with respect to the “cleared closed” procedure for the same reasons that he cannot seek an
injunction against the “hold” procedure. Just as he has not pled (and likely could not plead) any
facts supporting the conclusion that he is likely to be arrested again, Swanigan has not plead any
facts suggesting that he would be listed on another police report as an offender, in spite of his
innocence, and have that case considered closed without those charges filed.
That leaves “expungement” relief. Swanigan’s proposed Monell claim for expungment of
the police report has at least two fatal flaws. First, Swanigan does not state a claim under § 1983.
See Wilson v. Price, 624 F.3d 389, 392 (7th Cir. 2010) (requiring a violation of federal constitutional
rights to support a § 1983 suit). Swanigan does not cite any cases that find an individual’s rights
are violated when that individual is discussed as a suspect in a crime in a detective’s report,
accompanied by a summary of the evidence against the suspect, even if the suspect is innocent of
the crime. Nor does Swanigan cite any authority that holds that an individual’s rights are violated
when the police close a case when a prosecutor refuses charges and the police records reflect that
the individual was the main suspect (or listed in the “offender” box). Police investigations,
including a detective’s thoughts with respect to the involvement of ultimately innocent parties,
should be documented fully, and innocent people are, unfortunately (but necessarily), investigated
for crimes all the time. It is a matter of common sense that the police keep track of who they believe
committed the crime and list the evidence against that person. Even if the case is eventually
6
The specifics of what such injunctive relief against the “clear-closed” procedure would be is unclear.
11
“cleared-closed” because the prosecutor thinks the evidence is insufficient, perhaps the police will
happen across additional evidence in the future that allows them to charge the original suspect. Such
basic and sensible police record-keeping does not violate Swanigan’s constitutional rights.
Moreover, crediting Swanigan’s assertion that he did not rob the Popeye’s Chicken restaurant for
current purposes, it is undisputed that he was briefly a suspect in that crime, was picked out of
lineups by witnesses, and the State’s Attorney declined to charge him. By seeking expungement of
the record that states (truthfully) that he was a suspect and the lineup evidence against him (which
existed, even if it was insufficient to support charges), Swanigan is really asking the Court to be the
Ministry of Truth in George Orwell’s 1984 and re-write the history of the investigation in a way that
suggests Swanigan was never investigated. Put another way, there is no constitutional right not to
be investigated for a crime and an individual’s constitutional rights are not violated when a police
detective documents that investigation with his thoughts and opinions. Even accepting Swanigan’s
assertions as true, he has not stated a violation of his constitutional rights.
Second, Swanigan does not have standing to seek the expungement relief in the first place.
To have standing under Article III’s “case or controversy” requirement, Swanigan must plead,
among other things, that his claimed injury is “both (a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical.” Parvati Corp. v. City of Oak Forest, 630 F.3d 512,
516 (7th Cir. 2010) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Swanigan
must also “demonstrate standing separately for each form of relief sought.” Parvati, 630 F.3d at 516
(citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 185 (2000)). In simple
terms, Swanigan has not asserted any actual injury resulting from his name appearing on the single
internal detective report; any injury is purely hypothetical. Swanigan’s hypothetical and contingent
12
injury contrasts with the concrete injury in Monroe v. Thigpen, 932 F.2d 1437 (11th Cir. 1991), one
of the cases cited by Swanigan, where inaccurate information that a prisoner was a sex offender
hampered the prisoner’s chances for parole. The internal detective’s report is not an official finding
or as far as the Court can tell, even part of Swanigan’s criminal record. Rather, Swanigan’s
assertions indicate it is part of the investigative file of the Popeye’s Chicken robbery. As noted
above, Swanigan concedes in his briefing that he is unaware of how the report might be distributed
or what injury it may cause him.
At bottom, Swanigan is really questioning whether the CPD should consider a case to be
“cleared” or “solved” even if the alleged perpetrator is not charged with a crime. (See Compl., Doc.
1, at ¶ 7 (“The procedure further allows the [CPD] to close cases where the violent offender has
never been charged, prosecuted or otherwise taken off the streets of the City of Chicago.”).) In other
words, Swanigan suggests that the CPD should not consider a case closed until the alleged
perpetrator is actually prosecuted, or that the CPD should not close a case until the actual criminal
is found. However, whether the police should considered a case to be “cleared” that is not actually
“solved” is an issue of police procedure and allocation of police resources to be determined by the
Chicago City Council and CPD commanders; it is not a constitutional question for this Court to
decide because neither Swanigan nor any other citizen of Chicago has a constitutional right to police
protection or to have any particular crime investigated or charged. See Town of Castle Rock v.
Gonzales, 545 U.S. 748, 768 (2005) (individual has no due process right to enforcement of a
restraining order); DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989) (the
Due Process Clause is “phrased as a limitation on the State’s power to act, not as a guarantee of
certain minimal levels of safety and security.”). In short, if Swanigan disagrees with the “cleared-
13
closed” procedure because it lets the real criminal get away with the crime, he should seek a
legislative solution, not a judicial one.
III.
CONCLUSION
For the foregoing reasons, Swanigan’s motion to lift the stay is denied and the case dismissed
for lack of an actual case or controversy (with respect to the “hold” procedure) and for failure to
state a claim and lack of an actual case or controversy (with respect to the “cleared closed”
procedure).
________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: January 4, 2012
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?