Bailey et al
Filing
109
MEMORANDUM Opinion and Order:For the foregoing reasons, Defendants' motion for summary judgment 80 is granted, and Bailey's complaint is dismissed. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 10/30/2013:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EUGENE BAILEY,
Plaintiff,
No. 10 C 5735
v.
CITY OF CHICAGO, WILLIAM SULLIVAN
and MICHELLE MOORE-GROSS,
Judge Thomas M. Durkin
Defendants.
MEMORANDUM OPINION AND ORDER
Eugene Bailey filed a complaint against Detectives Michelle Moore-Gross and
William Sullivan (the “Detectives”) and the City of Chicago, alleging that the
Detectives arrested and detained him in violation of the Fourth and Fourteenth
Amendments and claims under state law for malicious prosecution and intentional
infliction of emotional distress. R. 74. Defendants have filed a motion for summary
judgment. R. 80. For the following reasons, Defendants’ motion is granted.
Background
On September 24, 2009, Derrion Albert was brutally beaten and killed during
an after-school brawl among students from Fenger High School in Chicago. Albert’s
murder was caught on video. R. 82 Ex. D. During the course of the fight, Albert was
punched by a person wearing red and black shorts. R. 86 ¶ 12.
The Detectives were assigned to investigate Albert’s murder. Id. ¶ 5. The
Detectives showed the video of the fight to Officer Dorothy Massey, a police officer
assigned to Fenger, and Derrell Bramlett, a Fenger student. Officer Massey had
worked at Fenger since 2000, and Bramlett had known Bailey for a year or two as a
schoolmate. Id. ¶¶ 13, 15, 17, 19. Both Officer Massey and Bramlett identified
Bailey immediately and without hesitation, and without any suggestion from the
Detectives, as the person wearing red and black shorts who punched Albert.
Id. ¶¶ 14, 18-19.
Based on these two identifications, the Detectives had Bailey arrested and
brought to the Area 2 Detective Headquarters at approximately 9:00 p.m. on
September 26, 2009. Id. ¶¶ 21, 25. The Detectives questioned Bailey from
approximately 10:43 p.m. until 10:53 p.m. on September 26, and from
approximately 12 midnight until 12:11 a.m. the next day. R. 82 Ex. J-1. The
Detectives then placed a “detective hold” on Bailey so he would not be released.
R. 90 ¶ 14.
At about 12:45 a.m. on September 27, Bailey was in the interview room alone
and he knocked on the table repeatedly. R. 82 Ex. J; R. 86 Ex. 9. About four minutes
later, an officer checked on him and asked what he needed. R. 82 Ex. J; R. 86 Ex. 9.
The Detectives did not attempt to question Bailey again until just after 5:00
p.m. on September 28, at which point Bailey asked for a lawyer and the Detectives
immediately ceased questioning him and left the room. R. 86 ¶¶ 59-60. All of
Bailey’s interactions with the Detectives and other police officers in the interview
rooms were recorded. R. 82 Ex. J; R. 86 Exs. 3-5, 8-10, 12-13. Bailey consistently
2
maintained that he was not present during the fight and would not have hit Albert
because they were friends. Id.
Just after his arrest on September 26, Bailey was identified from the video by
Ali Muhammad, the assistant principal at Fenger, and Tyrone Ento-Nichols and
Bernard Broadway, security guards at Fenger. R. 86 ¶ 32; R. 90 ¶ 8. The next day,
September 27, Bailey was identified from the video by Officer Charlie McDonald,
who worked at Fenger, R. 86 ¶ 52, and Derrick Young, a Fenger student, who said
he had left school with Bailey the day of the fight and saw Bailey wearing red and
black shorts that day. Id. ¶¶ 50-51. Young reaffirmed this information in a written
statement for Assistant State’s Attorney (“ASA”) Kathy Morrissey on September 28.
Id. ¶ 56. On September 27, Muhammad, who had previously identified Bailey from
the video, told Detective Sullivan that he was not 100% sure it was Bailey.
Detective Sullivan gave this information to ASA Morrissey. Id. ¶ 55.
Bailey appeared before the Honorable Maria Kuriakos Ciesil for a probable
cause hearing on September 28 at 7:40 p.m., and Judge Kuriakos Ciesil entered an
order finding probable cause. See R. 100-1.
In the day or two following Bailey’s probable cause hearing, numerous
individuals left messages for the Detectives either claiming that it was not Bailey in
the video or stating that the person wearing red and black shorts was another
person, specifically a juvenile whose identity has been protected by using the
initials “D.J.” R. 86 ¶ 64. Sometime during the week of September 28, Ento-Nichols
and Broadway, the Fenger security guards who had previously identified Bailey
3
from the video, concluded that they were mistaken in identifying Bailey. R. 90 ¶ 17.
Broadway went to the police station and shared this information with an
unidentified police officer. Id. On September 30, Jamal Harding, an eyewitness to
the fight, told the Detectives and ASA Jodi Peterson that the person in red and
black shorts who punched Albert was “D.J.” R. 86 ¶¶ 65-66. That same day, Young,
who had previously identified Bailey from the video, recanted this identification in a
meeting with the Detectives and ASA Peterson. R. 86 ¶¶ 65, 67. On October 1,
Bramlett reaffirmed his identification of Bailey. R. 86 ¶ 69. On October 1, the
Detectives told ASA Fabio Valentini that several individuals had come forward and
stated that the person in the red and black shorts was not Bailey, but “D.J.” R. 89 ¶
70.
On October 16, two more people who knew Bailey, Markese Keefer and
Dantrell Myles, told the Detectives and ASA Peterson that Bailey was not the
person in red and black shorts in the video. R. 86 ¶ 73. Myles, who said he had been
present during the fight, identified the person in the red and black shorts as D.J.
from a Fenger school photo of D.J. Id. ¶ 74. On October 19, another person who
knew Bailey, Miesha Walker, told ASA Peterson that Bailey was not the person in
red and black shorts in the video. Id. ¶ 75. That same day, another person who was
present at the fight, Dion Blandon, told ASA Peterson that “D.J.” was the person in
the red and black shorts who had punched Albert. Id. ¶ 76.
Charges against Bailey were dropped on October 19, and he was released,
id. ¶ 77, having spent 23 days in custody.
4
Legal Standard
Summary judgment is appropriate “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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all
of the evidence and draw all reasonable inferences from that evidence in the light
most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more than “a mere
scintilla of evidence” and come forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
Ultimately, summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Analysis
A.
Bailey’s Federal Claims
Bailey makes the following claims under federal law: (1) the Detectives
violated the Fourth Amendment because they did not have probable cause to arrest
Bailey, R. 85 at 2-3; (2) the Detectives violated the Fourth Amendment because they
detained Bailey for an unreasonably long period before bringing him before a judge
for a probable cause hearing, and the probable cause hearing was deficient, id. at 37; and (3) the Detectives violated the due process clause of the Fourteenth
5
Amendment because they failed to inform prosecutors that Ento-Nichols and
Broadway had recanted their identifications of Bailey. Id. at 7-10.
1.
Probable Cause for Arrest
“Probable cause [to arrest] exists if at the time of the arrest, the facts and
circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent
person . . . in believing . . . that the suspect has committed . . . an offense.” Ramos v.
City of Chicago, 716 F.3d 1013, 1018 (7th Cir. 2013) (internal quotation marks
omitted). The Seventh Circuit has “repeatedly held that a . . . single witness is
generally sufficient to establish probable cause.” Reynolds v. Jamison, 488 F.3d 756,
765 (7th Cir. 2007). “[P]robable cause does not depend on the witness turning out to
have been right; it’s what the police know, not whether they know the truth, that
matters.” Sow v. Fortville Police Dep’t, 636 F.3d 293, 302 (7th Cir. 2011) (internal
quotation marks omitted).
Bailey does not dispute that two people identified him from the video and
that the Detectives had him arrested on this basis. Rather, Bailey argues that the
video is not clear enough for the Detectives to have reasonably relied on
identifications made from the video. R. 85 at 2-3. Bailey submits two still images
from the video showing the person in red and black shorts, R. 86 Exs. 1, 2, and
characterizes the images as “blurred.” R. 85 at 3.
The Court has repeatedly reviewed the video and the still images and
concludes that it was reasonable for the Detectives to rely on identifications by
people who know Bailey, as Officer Massey and Bramlett did, despite the fact that
6
the video is somewhat blurred. If the Detectives themselves had attempted to match
individuals in the video to photos of known individuals in police or Fenger records,
the fact that the video is not crystal clear would have hampered their efforts. But
that is not what the Detectives did. Instead, the Detectives asked Massey and
Bramlett to identify anyone they might recognize from the video. Both Massey and
Bramlett recognized Bailey immediately and without hesitation, and without any
suggestion from the Detectives. Indeed, it appears from the record that Massey’s
identification of Bailey was the first indication the Detectives had that Bailey might
be a suspect. Further, Massey and Bramlett had the opportunity to rewind and
pause the video as much as they wished to confirm their identifications. Finally, the
Court notes that the video was not so blurry as to prevent numerous people from
identifying the person wearing red and black shorts as “D.J.” over the course of the
three weeks Bailey was detained. Thus, it was reasonable for the Detectives to rely
on the identifications made from the video by Massey and Bramlett to justify
arresting Bailey.
2.
Post-Arrest Detention and Probable Cause Hearing
Detentions of up to 48 hours prior to a judicial probable cause determination
are presumptively reasonable. County of Riverside v. McLaughlin, 500 U.S. 44, 56
(1991). Nevertheless, an arrested person can attempt to prove that his probable
cause hearing was delayed unreasonably. Id. at 56. “Examples of unreasonable
delay are delays for the purpose of gathering additional evidence to justify the
7
arrest, a delay motivated by ill will against the arrested individual, or delay for
delay’s sake.” Id.
Bailey argues that the Detectives detained him for 46 hours and 45 minutes
before seeking a probable cause ruling in order to gather additional evidence to
“justify” his arrest. R. 85 at 6. But that is of course not what happened here, since,
as the Court just noted, the Detectives already had probable cause to “justify”
Bailey’s arrest in the first place. All the Detectives can be accused of is taking time
to “bolster” the case against Bailey, and the Seventh Circuit has held that it is
“ludicrous” to argue that the Supreme Court intended to prevent the police from
detaining suspects for that reason. U.S. v. Daniels, 64 F.3d 311, 314 (7th Cir. 1995);
accord U.S. v. Sholola, 124 F.3d 803, 820 (7th Cir. 1997).
The cases Bailey cites are not to the contrary. In Ray v. City of Chicago, 629
F.3d 660, 663 (7th Cir. 2011), the Seventh Circuit held that “detention times
ranging from three to fourteen and one-half hours were not constitutionally
unreasonable” in the context of an arrest after a traffic stop. But this holding does
not mean that longer detentions are unreasonable in other contexts, such as the
murder investigation the Detectives were conducting here.
Bailey also cites Willis v. City of Chicago, 999 F.2d 284, 288-89 (7th Cir.
1993), because in that case the Seventh Circuit held that although the police had
probable cause to arrest and detain the suspect on an initial charge, the police
violated the Fourth Amendment when they continued to detain the suspect to
gather evidence against him on a separate charge. Unlike in Willis, the Detectives
8
here only detained Bailey to gather evidence on the charge for which he was
initially arrested based on probable cause. Thus, Bailey’s post-arrest detention did
not violate the Fourth Amendment.
Bailey also challenges the sufficiency of his probable cause hearing. See R. 97.
In his opposition to summary judgment, Bailey initially questioned the authenticity
of the documents Defendants submitted to prove that the probable cause hearing
actually occurred. Id. The parties have since deposed Judge Kuriakos Ciesil, who
conducted the hearing, R. 100-1, and Bailey’s counsel conceded at oral argument
that whether and when the probable cause hearing occurred is no longer in dispute.
R. 108 at 20:18-23.1 Bailey also argues that his probable cause hearing was deficient
because Judge Kuriakos Ciesil relied on a conclusory complaint in making her
finding. See R. 97. This is simply not so. Bailey’s arrest report stated that he had
been “positively identified.” R. 102 at 12. Although Judge Kuriakos Ciesil
remembered that she had conducted a probable cause hearing for one of the
suspects in the Derrion Albert murder, she did not specifically remember Bailey’s
hearing. See R. 100-1 at 19. But she confirmed that it was her handwriting and
signature on the probable cause order. See id. at 7. And Judge Kuriakos Ciesil
stated that it is her practice to examine the complaint and complaining witnesses
for all probable cause hearings, id. at 9, and she did not remember deviating from
that procedure in Bailey’s case. Id. at 26. In this case, the Detectives were the
Were it still in dispute, the Court would find that the probable cause hearing
occurred at the time and date indicated by the documents put forward by
Defendants.
1
9
complaining witnesses and they knew that Massey and Bramlett had identified
Bailey. Therefore, Bailey received a sufficient probable cause hearing.
3.
Post-Charge Detention
Under Brady v. Maryland, the government can violate the due process clause
of the Fourteenth Amendment by “fail[ing] to disclose evidence materially favorable
to the accused.” Mosley v. City of Chicago, 614 F.3d 391, 397 (7th Cir. 2010). This
duty to disclose “extends to the police and requires that they similarly turn over
exculpatory . . . evidence to the prosecutor.” Carvajal v. Dominguez, 542 F.3d 561,
566 (7th Cir. 2008). The elements of a Brady violation are: “(1) the evidence at issue
is favorable to the accused, either being exculpatory or impeaching; (2) the evidence
must have been suppressed by the government, either willfully or inadvertently;
and (3) there is a reasonable probability that prejudice ensued—in other words, [the
evidence was] material[].” Id. at 566-67. “[F]avorable evidence is material . . . if
there is a ‘reasonable probability’ that, had the evidence been disclosed . . . the
result of the proceeding would have been different.” Bielanski v. County of Kane,
550 F.3d 632, 643-44 (7th Cir. 2008) (internal quotation marks omitted).
Bailey argues that the Detectives did not inform the prosecutors on the case
that Ento-Nichols and Broadway recanted their identifications of Bailey on
September 28, and that the State’s Attorney would have dismissed the charges
against Bailey earlier had the prosecutors known this information. R. 85 at 7. As an
initial matter, under federal law, Bailey suffered no prejudice since he was never
tried. Unlike some other federal circuits, the Seventh Circuit has held open the
10
possibility that withholding of evidence may be material even if the defendant is
acquitted at trial. See Bielanski, 550 F.3d at 644-45 (citing cases). Even then, a trial
must occur. Courts in this District, however, have held that withholding of evidence
cannot be material if the defendant is released without being tried. See Padilla v.
City of Chicago, 2013 WL 1208567, at *15 (N.D. Ill. Mar. 26, 2013). Thus, Bailey has
no claim under Brady v. Maryland because he was released before being indicted,
let alone tried.
Even if Bailey did have a cognizable claim based on Brady, there is no
evidence in the record that these defendants—the Detectives—ever learned that
Ento-Nichols and Broadway recanted. The record only shows that Broadway
communicated with an unidentified “police officer.” But even assuming that the
Detectives
had
learned
that
Ento-Nichols
and
Broadway
recanted
their
identifications, there is no reason to think that the Detectives would have failed to
provide this information to the prosecutors, since the record reflects that the
Detectives were working closely with the State’s Attorney’s Office throughout the
investigation. And once the prosecutors had the information, it was within the
State’s Attorney’s discretion, not that of the Detectives, to determine whether
Bailey should continue to be detained.
Moreover, even if, contrary to the evidence in the record, the Detectives had
this information and failed to disclose it to the prosecutors, there is no “reasonable
probability,” that “the result of the proceeding would have been different.”
Bielanski, 550 F.3d at 643-44. Within two days of Ento-Nichols and Broadway
11
recanting their identifications of Bailey the prosecutors knew that Young had also
recanted his identification of Bailey, that Muhammad had qualified his
identification, and Harding and numerous other people had identified “D.J.” as the
person wearing red and black shorts in the video. Thus, assuming that a delayed
release from custody constitutes prejudice under Brady (which, as the Court
discussed earlier, it does not), there is no “reasonable probability” that at that early
point in the investigation the additional knowledge that Ento-Nichols and
Broadway had recanted would have altered the prosecutors’ calculations of how long
to detain Bailey. In any event, the record is insufficient to show that the Detectives
knew that Ento-Nichols and Broadway had recanted their identifications, so it was
not possible for the Detectives to provide the prosecutors with information they
themselves did not have.
4.
Qualified Immunity
Even if the Detectives did violate any of Bailey’s rights, they are entitled to
qualified immunity, which attaches as long as the Detectives’ actions can be
described as “reasonable mistakes.” Gutierrez v. Kermon, 722 F.3d 1003, 1008 (7th
Cir. 2013); see also Saucier v. Katz, 533 U.S. 194, 205 (2001) (“The concern of the
immunity inquiry is to acknowledge that reasonable mistakes can be made as to the
legal constraints on particular police conduct.”). A “plaintiff seeking to defeat a
defense of qualified immunity must establish two things: first, that she has alleged
a deprivation of a constitutional right; and second, that the right in question was
12
‘clearly established.’” Miller v. Harbaugh, 698 F.3d 956, 962 (7th Cir. 2012) (quoting
Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
Even if the video was in fact insufficiently clear for the Detectives to rely on
identifications made from the video such that the Detectives violated Bailey’s
Fourth Amendment rights, it was reasonable for the Detectives to believe that the
video was sufficiently clear enough so as to allow individuals to identify Bailey. And
even if it was unreasonable for the Detectives to detain Bailey for nearly 47 hours
before providing him with a probable cause hearing, it was reasonable for the
Detectives to believe they could use that time to confirm or further bolster the
probable case they already had. And finally, as the Court discussed above, even if
the Detectives knew that Ento-Nichols and Broadway had recanted their
identifications, and the Detectives inadvertently failed to provide this information
to the prosecutors, such a mistake was not unreasonable in light of the other
evidence the prosecutors already had indicating Bailey’s innocence.
B.
Bailey’s State Law Claims
1.
Pendent Jurisdiction
Under 28 U.S.C. §§ 1367(c)(1) and (c)(3), “district courts may decline to
exercise supplemental jurisdiction over a claim,” if “the claim raises a novel or
complex issue of State law,” or “the district court has dismissed all claims over
which it has original jurisdiction.” District courts have “broad discretion in deciding
whether to retain supplemental claims.” Hansen v. Bd. of Trs. of Hamilton Se. Sch.
Corp., 551 F.3d 599, 608 (7th Cir. 2008). “[T]he general rule is that, when all federal
13
claims are dismissed before trial, the district court should relinquish jurisdiction
over pendent state-law claims rather than resolving them on the merits.” Wright v.
Associated Ins. Cos. Inc., 29 F.3d 1244, 1251 (7th Cir. 1994). It is appropriate,
however, for the Court to retain jurisdiction over pendent claims if it is in the
interests of “judicial economy, convenience, fairness, and comity.” Hansen, 551 F.3d
at 608 (internal quotation marks omitted).
Bailey has not raised a “novel or complex issue of State law.” 28 U.S.C. §
1367(c)(1). Bailey contends that “Illinois courts have not confronted an intentional
infliction of emotional distress claim arising out of an abusive interrogation.” R. 105
at 1. This, however, is not a novel issue of law, but a question of applying settled
law to the particular facts of this case. Bailey has not argued that the resolution of
his claim will alter the scope of intentional infliction of emotional distress claims
generally. Rather, he argues that Illinois courts have never applied the law of
intentional infliction of emotional distress to circumstances like his; but insofar as
the facts of every case are unique, every plaintiff could make the argument Bailey
makes here. This is not a reason for the Court to decline jurisdiction over Bailey’s
state law claims.
The only case Bailey cites in which a court ordered remand to decide a “novel
issue of State law” under 28 U.S.C. § 1367(c) involved the scope of a statutory
taking. In Key Outdoors Inc. v. City of Galesburg, 327 F.3d 549, 550 (7th Cir. 2003),
the Seventh Circuit instructed the district court to remand the case because, “[n]o
state court has addressed the question whether, under Illinois law, a municipality
14
may ban signs and offer only ‘amortization’ rather than cash compensation. Nor has
any state court addressed the question whether the sort of statute [at issue here]
would be deemed a taking for purposes of state or federal law.” Bailey’s claim does
not purport to alter Illinois law in an analogous manner.
Bailey cites several other cases to support his argument that the Court
should remand his state law claims. See R. 105 at 2-3 (citing Insolia v. Philip Morris
Inc., 216 F.3d 596, 607 (7th Cir. 2000) (“We also decline to certify to the Wisconsin
Supreme Court the question of whether Wisconsin courts would recognize an
intentional exposure to a hazardous substance claim. Certification may be
appropriate where there are unresolved questions of existing state law but we
simply cannot certify every creative but unlikely state cause of action that litigants
devise from a blank slate.”); Myers v. County of Lake, 30 F.3d 847, 852 (7th Cir.
1994) (declining to certify question to Indiana Supreme Court regarding whether “it
[would] recognize intentional efforts to commit suicide as defenses to the tort of
negligently failing to prevent suicide”); Afram Export Corp. v. Metallurgiki Halyps,
S.A., 772 F.2d 1358, 1370 (7th Cir. 1985) (declining “to adopt an innovative rule of
state law” regarding opportunity cost damages for breach of contract)). These cases,
however, only stand for the rule that “innovative state law claims belong in state
court,” which Bailey contends applies to his case. R. 105 at 3. Bailey does not, and
cannot, argue that the legal questions at issue in Insolia, Myers or Afram are
remotely analogous to his contention that “Illinois courts have not confronted an
15
intentional infliction of emotional distress claim arising out of an abusive
interrogation.” R. 105 at 1. Thus, these cases do not support remand here.
Furthermore, judicial economy is served by addressing Bailey’s claims in one
forum. See Hansen, 551 F.3d at 608. This case is three years old. The parties have
completed discovery and are ready for trial. The state claims are based on the same
conduct as the federal claims. Remanding Bailey’s state law claims would only serve
to force the state court to duplicate this Court’s efforts and delay the ultimate
adjudication of this case.
For these reasons, the Court will exercise supplemental jurisdiction and
decide Bailey’s claims for malicious prosecution and intentional infliction of
emotional distress, even though the federal claims have been dismissed.
2.
Malicious Prosecution
Under Illinois law, for a malicious prosecution claim to be successful the
following five elements must be proven: “(1) the defendant commenced or continued
a criminal proceeding against the plaintiff; (2) the proceeding was terminated in
favor of the plaintiff; (3) there was no probable cause to commence or continue the
proceeding; (4) the defendant acted with malice; and (5) the plaintiff suffered
damages as a proximate result of the defendant’s conduct.” Thompson v. City of
Chicago, 722 F.3d 963, 978 (7th Cir. 2013) (citing Swick v. Liataud, 662 N.E.2d
1238, 1242 (Ill. 1996)).
As with his Brady claim, Bailey bases his malicious prosecution claim on his
allegation that the Detectives did not inform the prosecutor that Ento-Nichols and
16
Broadway recanted their identifications of Bailey on September 28, and that the
State’s Attorney would have dismissed the charges against Bailey earlier had the
prosecutors known this information. R. 85 at 11. Even if Bailey could show that the
Detectives knew that Ento-Nichols and Broadway recanted their identifications and
maliciously withheld that information from the prosecutors, which he has not,
Bailey cannot show that he suffered damages as a result of this conduct. Once
Bailey was charged, the decision to continue to detain or release Bailey belonged to
the State’s Attorney, not the Detectives. And as the Court discussed earlier, by
October 1, the prosecutors knew that Harding and others had identified the person
in red and black shorts as “D.J.,” and that Young had recanted his identification of
Bailey. Despite this evidence, the State’s Attorney still did not drop charges and
release Bailey until October 19. Considering the evidence of Bailey’s innocence the
prosecutors acquired shortly after Ento-Nichols and Broadway’s recanted their
identifications, those additional recantations would not have changed the
prosecutors’ calculations regarding how long they should continue to detain Bailey.
In any event, since the record does not show that the Detectives knew that EntoNichols and Broadway recanted their identifications of Bailey, Bailey’s malicious
prosecution claim is dismissed.
3.
Intentional Infliction of Emotional Distress
Under Illinois law, for an intentional infliction of emotional distress claim to
be successful the following elements must be proven: “(1) the defendants’ conduct
was extreme and outrageous; (2) the defendants knew that there was a high
17
probability that their conduct would cause severe emotional distress; and (3) the
conduct in fact caused severe emotional distress.” Swearnigen-El v. Cook County
Sheriff’s Dep’t, 602 F.3d 852, 864 (7th Cir. 2010) (citing Kolegas v. Heftel Broad.
Corp., 607 N.E.2d 201, 211 (Ill. 1992)).
Bailey alleges that the Detectives are liable for intentional infliction of
emotional distress because they “held him in custody in the interview room to try to
coerce a false confession.” R. 85 at 11. The Court has reviewed the video of the
Detectives’ interviews with Bailey, and there is nothing extreme or outrageous
about them. The Detectives spoke with Bailey for a total of approximately 20
minutes, and questioned him about why a number of people had identified him from
the video of Albert’s murder. As soon as he asked for an attorney, questioning
stopped. Rather than being extreme, this is what the Detectives were supposed to
do. As courts in Illinois have noted, “‘[t]here is nothing inherently extreme and
outrageous about [the police] conducting investigations or inspecting or questioning
or suspecting.’” Swanigan v. Trotter, 645 F. Supp. 2d 656, 685 (N.D. Ill. 2009)
(quoting Schiller v. Mitchell, 828 N.E.2d 323, 334 (Ill. App. Ct. 2d Dist. 2005)).
Thus, Bailey’s claim for intentional infliction of emotional distress is dismissed.
18
Conclusion
For the foregoing reasons, Defendants’ motion for summary judgment, R. 80,
is granted, and Bailey’s complaint is dismissed.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: October 30, 2013
19
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