Baker et al v. Ghidotti et al

Filing 178

Memorandum Opinion and Order Signed by the Honorable Harry D. Leinenweber on 3/28/2014:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KENNETH BAKER, BARBARA BAKER,
CAMDEN BAKER, and A.B., a
Minor, by Parent BARBARA BAKER,
Plaintiffs,
v.

Case No. 11 C 4197

TIMOTHY M. GHIDOTTI, BORIS
JURKOVIC, RELIABLE RECOVERY
SERVICES, INC., JEAN M.
LINDGREN, JESUS VERA, STEVEN
MARTIN, JUAN M. CABRALES,
DENNIS P. WALSH, MICHAEL A.
FLORES, UNKNOWN OFFICERS OF THE
CHICAGO POLICE DEPARTMENT, and
THE CITY OF CHICAGO,

Hon. Harry D. Leinenweber

Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court are three Cross-Motions for Summary Judgment.
For the reasons stated herein, each Summary Judgment Motion is
granted in part and denied in part.

Also pending are various

Motions to Strike, all of which are denied as moot.
I.
This
Recovery

case

arises

Services,

out

Inc.

BACKGROUND
of

and

attempts
its

by

employee,

Defendant

Reliable

Timothy

Ghidotti

(collectively, the “Recovery Defendants”), to repossess a Chevrolet
Impala owned by Juanita Horton.

Ms. Horton is the stepdaughter of

Plaintiff Kenneth Baker (“Baker”). Around 4:30 a.m. on January 11,

2010, Ghidotti went to the Baker house looking for the Impala.
When he knocked on the front door, the door came open and a
security alarm went off.

Ghidotti saw several officers of the

Chicago Police Department (“CPD”) down the street, so he got the
officers to talk to Baker, who told them that there was a problem
with the front door.

Ghidotti spoke with a woman at the Baker home

who told him that Juanita Horton did not live there but did stay
there occasionally.
The next day, at 6:30 a.m., thirteen-year-old Plaintiff Ashley
Baker (“Ashley”) emerged from a shower and saw a white man peering
in through the window of the Baker back door.

Ashley heard this

man go down the back outdoor stairs, close the gate to the yard,
and come up the front stairs to the home.

Ashley was so terrified

that she ran into a closet to hide and could not stop herself from
urinating all over herself and her clothes.

For reasons that are

not entirely clear, she then ran outside into the Chicago winter
wearing nothing but her soiled pajamas.

Ashley’s older brother,

Oliver Johnson, was driving to the Baker house to give Ashley a
ride to school and saw her running down the street.

Oliver helped

the distraught Ashley back to the house, where they found a
business card from a company with the name “Recovery” in it.
Ghidotti does not remember whether he went to the Baker house that
day, and stated that he never would have looked through the window
of a back door.

- 2 -

Two

weeks

later,

on

January

27,

the

ADT

alarm

company

contacted Baker to tell him that the alarm at the Baker home had
been activated.

The police arrived and found the front door wide

open, so they entered with guns drawn, which woke and frightened
Plaintiffs Ashley and Camden Baker.
In the middle of the night on February 1, 2010, Ghidotti
arrived at the Baker house looking for the Impala.

Even though the

car was nowhere to be seen, Ghidotti rang the doorbell.

Baker

answered the door and Ghidotti asked about Juanita and the Impala.
Baker told Ghidotti that Juanita did not live there.

Ashley Baker

looked out the window and recognized Ghidotti as the man who had
been peering through the back door on January 12.

Ghidotti

testified that Baker disappeared for a moment and returned holding
a gun, although the gun was barely visible.

Baker and his family

all testified that Baker was not holding a gun, and police officers
testified that Ghidotti later told them that he did not actually
see a gun but just believed, based on Baker’s demeanor, that Baker
was holding one.

Either way, Baker shouted at Ghidotti to get off

his porch, saying such things as “get the hell off my porch” and
“don’t come back on my property no more.”

Apparently, Baker also

said that if Ghidotti kept coming back looking for the car, he
would “have something for him.”

There is no suggestion that Baker

pointed a gun at Ghidotti or made any threatening movements or
gestures.

- 3 -

Ghidotti returned to his truck and called 911.

He told the

dispatcher that he had been threatened by a man with a gun.
Defendants Jean Lindgren and Jesus Vera, both CPD officers, arrived
at the scene.

Lindgren and Vera spoke with Ghidotti, who told them

that he thought Baker had been holding a handgun, although he
caught only a glimpse of it and could not offer many specifics – in
his deposition, Ghidotti could not decide whether he had seen part
of the trigger or part of the barrel.

Lindgren and Vera knocked on

the front door to determine whether Baker knew anything about the
missing vehicle.

More officers arrived at the scene, including

Sergeant

Martin.

Steven

The

officers

asked

Baker

for

identification, and he presented a Firearm Owner’s Identification
(“FOID”) Card, although the parties dispute whether the card was
valid or expired.
The parties agree that the police entered the home but dispute
the circumstances that led them to do so.

Sergeant Martin says

that he asked Baker if he could step inside to get out of the cold,
and Baker allowed him in.

Lindgren and Vera were a few feet away

and could not hear anything, but nonetheless did not hear Baker
give them permission to enter.

According to Baker, Martin and

another officer came running up the front stairs, pushed Baker out
of the way, opened the screen door and inner door, and barged into
the Baker house uninvited.

Plaintiffs testified that Sergeant

Martin and Officers Lindgren and Vera corralled the Baker family

- 4 -

into one room and began scouring the house.

To prevent the police

from tearing up his house any further, Baker informed Martin that
he owned a gun and stored it in his bedroom, under his mattress.
Martin retrieved a shotgun from the bedroom.
Martin then went outside to speak with Ghidotti.

It appears

that at that point, Ghidotti denied that he had seen a shotgun and
informed these officers that he did not actually see a gun, but
believed based on Baker’s demeanor and actions that Baker was
holding a gun.

The CPD “incident report” from that night reflects

that Ghidotti told the police that he did not actually see Baker
holding a gun.

Sergeant Martin testified that he does not believe

that as a police officer he is supposed to determine whether an
alleged victim’s story is credible, except in extreme situations.
Martin next engaged in some back and forth negotiations
between Baker and Ghidotti. When at the car, Martin asked Ghidotti
whether he wanted to press charges, and Ghidotti said that he would
decline to press charges if Baker told him where the car was.
Martin returned to the house and relayed this proposition to Baker,
but Baker either did not know or did not offer any information
about the car.

Baker testified that Martin shuttled between him

and Ghidotti four times. At one point, Martin tried unsuccessfully
to talk Ghidotti out of signing a complaint against Baker.

When

Martin came back to the house after talking to Ghidotti for the

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last time, Martin relayed to Baker that Ghidotti intended to sign
a complaint.

Baker was then arrested for aggravated assault.

It is unclear exactly how much time elapsed, but it appears
that the Defendant Officers were probably in the home for at least
twenty minutes, if not longer. Plaintiffs testified that they were
detained in their living room during this time.
The police took Baker to the police station, where Lindgren
and Vera inventoried the shotgun and were told by “someone at the
gun desk” that the shotgun was not registered properly.

Lindgren

testified that when they arrested Baker, they did not have any
reason to think that the gun was not registered properly.

At the

station, however, a charge of having an expired gun registration
was added.

Baker attended nine court hearings in two different

courts before the charges of aggravated assault and possession of
a firearm with an expired registration were dismissed.
Plaintiffs

have

submitted

evidence

suffered in the wake of these events.
require security clearance:

of

the

distress

they

Baker works two jobs that

one for the City of Chicago in the

Aviation Department (one of his responsibilities is meeting Air
Force One to let the president on and off the plane) and another
with J.B. Hunt Transportation where he helps transport poison gas,
explosives, and other hazardous or dangerous materials.

Baker’s

arrest was picked up promptly by Homeland Security, and the arrest
and prosecution threatened his security clearance and credentials.

- 6 -

Baker feared for his jobs and his safety.

Baker also worried about

the toll that these events took on his daughter, Ashley.

Baker has

suffered from crying fits and lost sleep.
As to the other Plaintiffs, Barbara Baker testified that she
is upset and angry and stays up all night because she cannot sleep.
She lost her job because she fell asleep at the wheel of a company
van.

Ashley Baker was distraught at the series of events in this

case: the incident with someone who may have been Ghidotti peering
through a window after her shower, the police waking her up at
gunpoint, the police searching her house, and her father’s arrest.
In addition to the trauma described above, she suffered bedwetting, fear of being alone (which led her to sleep on the floor
of her parents’ bedroom for four months), anger at authority,
failing grades, and fights and suspensions at school.

Camden

Baker, like his sister, was upset that he was woken up and gunpoint
and had to watch the police search his house.

He had trouble

sleeping and, when he did sleep, he suffered from nightmares.

He

was so afraid of the police returning to the house that he moved
out and visits only rarely.
II.

MOTIONS FOR SUMMARY JUDGMENT

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).

The Court construes all facts and draws all reasonable inferences

- 7 -

in favor of the non-moving party.

Ricci v. DeStefano, 557 U.S.

557, 586 (2009).
A.
Defendant

Defendants Cabrales and Flores

Officers

Cabrales

and

Flores

move

for

summary

judgment on the ground that they were neither at the scene nor
involved in the incident.

By this, they mean that they were in

their police vehicle on the street near the Baker house but never
left the vehicle and did not interact with Plaintiffs.

Plaintiffs

oppose this Motion and note that multiple witnesses, including
Ghidotti and Plaintiffs, testified that somewhere between six and
nine officers entered and searched the home.

Plaintiffs offer no

identifying characteristics for those other officers whom they saw
enter the house. They hope to prove circumstantially that Cabrales
and Flores – who concede that they were in their police car parked
at the curb – were some of the other officers who entered the
house.

This

argument

relies

entirely

on

speculation,

and

“[i]nferences that are supported only by speculation or conjecture
will not defeat a summary judgment motion.” McDonald v. Village of
Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004); Billups v. Kinsella,
No.

08

CV

(speculative

3365,

2010

evidence

WL

5110121

linking

(N.D.

police

Ill.

officer

Dec.
to

the

9,

2010)

alleged

violation “is not enough to allow the claim to proceed to trial”).
Summary judgment is granted in favor of Defendants Cabrales and
Flores on all counts for which they are named.

- 8 -

B.

Search

Defendants Lindgren, Vera, Martin, and Walsh (the “Defendant
Officers”) argue that they are entitled to summary judgment on the
Fourth Amendment search claim because Baker consented to the
search.

However, it is quite clear that the parties dispute the

circumstances of the police entry to the house and the subsequent
search of the bedroom, where Martin found the shotgun.

Both Baker

and Camden testified that Martin and one of the police officers ran
up the front stairs, pushed Baker out of the way, and barged into
the house.

ECF No. 105-5 at 70:15-18.

Plaintiffs testified that

Defendants began searching the house, and Baker told them where his
gun was hidden only because he did not want them to tear up his
entire house.

Id. at 73:15-20.

Consent is an exception to both

the warrant requirement and the probable cause requirement, but
consent must be given voluntarily.
391 U.S. 543, 548 (1968).

See, Bumper v. North Carolina,

Genuine factual disputes preclude the

Court from concluding whether the entry of the home and the search
for the gun were reasonable based on valid consent.
Plaintiffs move for summary judgment on the ground that even
if the entry was consensual, the scope and duration of the police
occupation of the home made the search unreasonable.
difficult

to

evaluate

this

argument

without

But it is

knowing

circumstances under which the Defendants entered the house.

the
As

discussed above, Martin testified that Baker invited him in, but

- 9 -

Baker

testified

that

Martin

and

another

officer

barged

in

uninvited. Martin testified that none of the officers searched the
house except for when Baker told Martin where the gun could be
found.

Plaintiffs all testified that the officers were rummaging

through the entire house.

Thus, it is unclear how long the police

were in the house, what took place during that time, and whether
Baker allowed the police into the house in the first place.

A

twenty-minute stay could have been reasonable, depending on the
circumstances.

With critical facts disputed, the Court cannot

grant summary judgment for either party on the Fourth Amendment
search claim.
C.

False Arrest

The parties have filed cross-motions for summary judgment on
the false arrest claim, asking the Court to determine whether the
arrest was supported by probable cause. “Probable cause to justify
an arrest exists if the totality of the facts and circumstances
known to the officer at the time of the arrest would warrant a
reasonable, prudent person in believing that the arrestee had
committed, was committing, or was about to commit a crime.” Abbott
v. Sangamon County, Ill., 705 F.3d 706, 714 (7th Cir. 2013).
Probable cause does not require evidence sufficient to sustain a
conviction or to demonstrate that it is more likely than not that
the suspect committed a crime.

United States v. Sawyer, 224 F.3d

675, 679 (7th Cir. 2000). Probable cause exists where the totality

- 10 -

of the circumstances reveals a substantial chance that the suspect
was engaged in criminal activity.

Id.

In this case, the underlying crime was aggravated assault, and
Defendants do not argue that they had probable cause to arrest
Baker for any other crimes.

In Illinois, an individual commits

assault when he “knowingly engages in conduct which places another
in reasonable apprehension of receiving a battery.” 720 Ill. Comp.
Stat. 5/12-1(a).

Assault involves either a threatening gesture or

an otherwise innocent gesture made threatening by accompanying
words, such

that

imminent battery.

it creates

a reasonable

apprehension

of

an

Kijonka v. Seitzinger, 363 F.3d 645, 647 (7th

Cir. 2004).
Here, the proffered basis for probable cause was that Baker
threatened Ghidotti with a gun and then Ghidotti felt threatened.
Of course, it is not enough that the victim feel threatened, as
that feeling “must have a measure of objective reasonableness.”
People v. Floyd, 663 N.E.2d 74, 76 (Ill. App. Ct. 1996).

And it is

not enough to say that Baker threatened Ghidotti, because that
argument assumes the conclusion: that there was a threat. Rather,
the Court must consider “the words employed by the person charged
with assault.”

Id.

Here, Baker said such things as “get the hell

off my porch” and “don’t come back on my property no more.”

Baker

also apparently said that if Ghidotti kept coming back looking for
the car, he would “have something for him.”

- 11 -

Even if these words

are taken to mean that Baker would shoot Ghidotti if Ghidotti ever
returned, these words do not add up to a threat because they speak
to only indefinite action at some indefinite point in the future.
Kijonka, 363

F.3d

at

647

(explaining

that

verbal

threats

of

“indefinite action in the indefinite future” fail to meet the
imminence requirement in the assault statute).
The requisite threatening gesture is similarly missing.

The

Defendant Officers admit that Ghidotti told them that he did not
actually see a weapon; instead, Ghidotti thought that Baker was
holding a weapon because of Baker’s demeanor and actions.

This

admission came after Ghidotti had told the 911 dispatcher that he
had seen a gun.

In addition, Ghidotti told the officers that he

had seen a handgun, but the police recovered a shotgun.
circumstances

–

a

victim

with

a

changing

story

and

These

physical

evidence that does not match the story – should have alerted the
officers to the possibility that Ghidotti might not be credible.
Officers Lindgren and Vera indicated in their narrative in the
police case incident report that Ghidotti told them that he did not
actually see

a

gun;

later,

the

officers

testified

that

this

incident report was accurate. There is no evidence that Baker made
any other threatening gestures, such as raising his fist, pointing
a gun, or moving to grab a weapon.

Subject to limited exceptions

not relevant here, some action or gesture is required before
threatening words can amount to an assault.

- 12 -

People v. Floyd, 663

N.E.2d 74, 76 (Ill. App. Ct. 1996) (explaining that “words alone
are not usually enough to constitute an assault”).
There can be no genuine dispute that Baker’s statements to
Ghidotti were not threatening enough to give Ghidotti a reasonable
fear of an imminent battery.

Moreover, even assuming that Baker

held a gun at his side, it appears that Baker did his best to hide
that gun from Ghidotti, who caught only a glimpse of it.

And there

is no indication from the record that Baker made any threatening
gesture. This conduct does not amount to an assault under Illinois
law.
The Defendant Officers knew all of this yet nonetheless
arrested Baker for aggravated assault.

Defendants repeat ad

nauseum that they “reasonably relied on information provided to
them by Ghidotti,” ECF No. 125 at 8, and arrested Baker based on
the “threat” that Ghidotti described.

Even if police need not

establish every element of an offense, they will have probable
cause to arrest only if the facts known to the officers at the time
would

have

led

to

committed a crime.

a

reasonable

belief

that

the

suspect

had

The police cannot simply rely on a victim who

reports that he was “threatened” or feared for his safety; before
police officers conclude that they have probable cause to arrest a
suspect, they must determine whether the words and conduct amounted
to

an

assault

Conclusory

and

that

assertions

the

that

victim’s
Baker

- 13 -

fear

was

threatened

reasonable.

Ghidotti

are

insufficient.

Defendants do not even attempt to argue that the

Baker’s

amounted

words

to

a

threat

or

that

there

was

any

threatening gesture – they merely assert that there was a threat.
On this record, there can be no genuine dispute that the
arresting officers should have known at the time that no assault
had been committed.

Thus, the Defendant Officers lacked probable

cause to arrest Kenneth Baker. United States v. McDonald, 453 F.3d
958, 962 (7th Cir. 2006) (“A stop based on a subjective belief that
a law has been broken, when no violation actually occurred, is not
objectively reasonable.”).
favor of

Plaintiff

The Court grants summary judgment in

Kenneth

Baker

on the

false

arrest claim,

Count VIII.
D.

Failure to Investigate

Plaintiffs’ Count IX is brought against the Defendant Officers
for failure to investigate.

The parties have filed cross-motions

for summary judgment on this issue.
When it is unclear whether a crime has been committed, a
police officer may not arrest a suspect without first pursuing
“[r]easonable avenues of investigation” to determine whether a
crime has actually taken place.

BeVier v. Hucal, 806 F.2d 123, 128

(7th Cir. 1986) (“A police officer may not close her or his eyes to
facts that would help clarify the circumstances of an arrest.”).
But Plaintiffs have not cited, and the Court could not find, any
authority

for

the

idea

that

a

police

- 14 -

officer’s

failure

to

investigate can constitute a distinct constitutional violation,
apart

from

the

false

arrest

claim.

Plaintiffs’

failure

to

investigate claim is not cognizable, and therefore it is dismissed.
E.

Failure to Intervene

The Defendant Officers have moved for summary judgment on
Count X for failure to intervene. The only support that Defendants
offer

is

their

contention

that

there

was

no

underlying

constitutional violation. But as discussed above, the Court grants
summary judgment in favor of Plaintiff Kenneth Baker on one of his
constitutional

claims.

Thus,

Defendants’

Motion

for

Summary

Judgment is denied as to this Count as well.
F.
Count

XIII,

brought

Conspiracy
against

Ghidotti

and

the

Defendant

Officers, is a conspiracy claim brought pursuant to 42 U.S.C.
§ 1983.

The conspiracy claim is brought by all four Defendants to

remedy four alleged constitutional violations:

the entry into the

Baker

the

home,

Plaintiffs

the

search

while

the

of

the

police

Baker

home,

negotiated

with

detention

Baker,

and

of
the

custodial arrest of Baker.
1.

Ghidotti

A private citizen can be held liable under § 1983 only if his
conduct is attributable to the state.
U.S. 42, 49 (1988).

See, West v. Atkins, 487

One way for a plaintiff to forge the requisite

connection between the private conduct and the state is to prove
- 15 -

that the private defendant was “a willful participant in joint
action with the State or its agents.”
24,

27

(1980).

“To

establish

§

Dennis v. Sparks, 449 U.S.
1983

liability

through

a

conspiracy, a plaintiff must establish that (1) a state official
and private individual(s) reached an understanding to deprive
plaintiff of his constitutional rights; and (2) those individual(s)
were willful participants in joint activity with the State or its
agents.”

Logan v. Wilkins, 644 F.3d 577, 583 (7th Cir. 2011).

Ghidotti argues that there is no evidence of a conspiracy or
joint action.

Ghidotti notes correctly that the fact that he

called the police to report a crime – even if he lacked grounds to
do so – does not make him a co-conspirator with agents of the
state.

See, Gramenos v. Jewel Cos., 797 F.2d 432, 435 (7th Cir.

1986). But Ghidotti appears to have done more than report a crime;
facts in the record suggest that Ghidotti sought police assistance
with a purely private matter, recovering the car.

It appears that

the officers conducted a coordinated effort to coerce Baker to
reveal information about the missing car.

Ghidotti took the

position that he would sign a criminal complaint against Baker
unless Baker gave him the car or told him where it was.

The police

told Baker that if he gave Ghidotti the car, or told him where it
was, they would not arrest him.
Although it does not appear that the Seventh Circuit has
addressed this issue, district courts applying the law of this

- 16 -

circuit and other circuit courts have held that state action can be
found where a police officer takes an active role in repossessing
property.

Niemeyer v. Williams, 910 F.Supp.2d 1116, 1127 (C.D.

Ill. 2012); Barrett v. Harwood, 189 F.3d 297, 302 (2d Cir. 1999).
The Sixth Circuit has explained that “[a] police officer's arrival
and close association with the creditor during the repossession may
signal to the debtor that the weight of the state is behind the
repossession

and

that

the

debtor

should

not

interfere

by

objecting.” Hensley v. Gassman, 693 F.3d 681, 690 (6th Cir. 2012).
Here,

disputed

facts

viewed

in

the

light

most

favorable

to

Plaintiff show that the police, after conferring with Ghidotti,
took an active role in the repossession by relaying messages from
Ghidotti to Baker and trying to find out more information about the
car.

Based on testimony from a variety of deponents, it appears

that the police were trying to convince Baker to reveal information
about the location of the car – that is, the police were helping
Ghidotti do his job.

These facts are evidence of a conspiracy and

thus summary judgment is not warranted.
2.

Defendant Officers

The Defendant Officers have moved for summary judgment on the
conspiracy claim on the ground that Plaintiffs have failed to point
to evidence showing a genuine issue of material fact regarding the
existence of a conspiracy.

As discussed above, there is ample

evidence that, based on discussions with Ghidotti, the Defendant

- 17 -

Officers agreed

to

help

find

out

information

about

the car.

Sergeant Martin negotiated with Baker and Ghidotti, and told Baker
that he would put the gun back under the mattress and not arrest
Baker if Baker would reveal where Juanita Horton lived and where
her vehicle could be found.

Apparently, Martin took four round

trips between the house, where he spoke with Baker, and the curb,
where he spoke with Ghidotti. Sergeant Martin threatened to arrest
Baker if Baker did not reveal where the car was, and that arrest
would have been unlawful if not supported by probable cause.
Martin’s participation in a cooperative effort to recover the car
and coerce information from Baker is evidence of a conspiracy.
Richardson v. City of Indianapolis, 658 F.2d 494, 500 (7th Cir.
1981) (explaining that a conspiracy involves “[a] combination of
two or more persons acting in concert to commit an unlawful act, or
to commit a lawful act by unlawful means”).

As to the conspiracy

count against the Defendant Officers, the Motion for Summary
Judgment is denied.
G.

Malicious Prosecution

Counts XV and XVI are brought against all Defendants for
malicious

prosecution

of

the

aggravated

registration charges, respectively.
moved for summary judgment.

- 18 -

assault

and

weapons

Both sets of Defendants have

1.

Defendant Officers

The Defendant Officers argue that they are entitled to summary
judgment on Count XV because they had probable cause to arrest
Baker

for

aggravated

assault.

But

as

discussed

above,

the

Defendant Officers lacked probable cause for the arrest.
Defendants argue that they had probable cause to arrest Baker
for failing to register his firearm, the basis of Count XVI.

They

support that argument with the unsworn statement of Sergeant Schaff
– but unsworn statements are not appropriate evidence on summary
judgment.

FED. R. CIV. P. 56(c)(1)(A) (requiring affidavits or

declarations).

Defendants contend that someone at the “gun desk”

told them that Baker’s gun was not registered – but that statement,
offered to prove the truth of the matter asserted, is inadmissible
hearsay.

Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009)

(explaining that a party may not rely upon inadmissible hearsay at
summary judgment).

If Defendants want to prove that they had

probable cause for this arrest, they must offer competent evidence
to support the charge.

As to both malicious prosecution claims,

the Motion for Summary Judgment brought by the Defendant Officers
is denied.
2.

Recovery Defendants

The Recovery Defendants have moved for summary judgment on
Count XV for malicious prosecution.

They note correctly that a

plaintiff prevails on a malicious prosecution claim by proving five

- 19 -

elements:

(1)

the

institution

and

prosecution

of

judicial

proceedings by the defendant, (2) a lack of probable cause for
those proceedings, (3) malice in instituting the proceedings, (4)
termination of the prior cause in the plaintiff’s favor, and (5)
suffering by the plaintiff of damage or injury from the prior
proceeding.

Reed v. Doctor’s Associates, Inc., 824 N.E.2d 1198,

1205 (Ill. App. Ct. 2005).

Defendants concede the first element

but contest the rest.
As to probable cause, Defendants insist that “the record is
clear

that

in

Ghidotti’s

threatened him with a gun.”

mind,

he

believed

ECF No. 114 at 17.

that

Mr.

Baker

That contention

distorts the inquiry – the question is whether any apprehension was
reasonable – and ignores testimony from the police that Ghidotti
admitted that he did not actually see a gun.

Even after Plaintiffs

used their opposition papers to call attention to the factual
dispute,

Defendants’

reply

brief

simply

repeats

their

highly

questionable claim that Ghidotti’s testimony is uncontroverted.
ECF No. 171 at 12.

It seems appropriate to remind counsel for

Defendants of their duty of candor before the Court.
On

the

third

and

fifth

elements,

Defendants

provide

argument or evidence to support granting summary judgment.

no

It is

true enough that a party may move for summary judgment on the
ground that “an adverse party cannot produce admissible evidence to
support” a fact necessary for the adverse party’s case.

- 20 -

FED. R.

CIV. P. 56(c)(1)(B).

However, the movant still bears the initial

burden of showing, not merely asserting, “an absence of evidence to
support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986).

Defendants’ argument on this Count fails to

discuss two of the elements and, as discussed above, ignores
pertinent factual disputes.

Defendants’ failure to develop their

argument warrants denial of their motion on this Count.

See,

Thompson v. Boggs, 33 F.3d 847, 854 (7th Cir. 1994) (failure to
develop argument on summary judgment waives the argument); United
States

v.

(explaining

Berkowitz,

arguments
waived”).

that
that

927

F.2d

“perfunctory
are

1376,

and

unsupported

1384

(7th

Cir.

1991)

undeveloped

arguments,

and

pertinent

authority,

are

by

As to the malicious prosecution counts, the Motion

brought by the Recovery Defendants is denied.
H.

Defendant Walsh

Defendant Walsh has moved for summary judgment on all counts
against him on the ground that in his capacity as watch commander
he did not participate personally in any constitutional violations.
“An individual cannot be held liable in a § 1983 action unless he
caused or participated in an alleged constitutional deprivation.”
Jenkins v. Keating, 147 F.3d 577, 583 (7th Cir. 1998).
In Jenkins, the defendant officer, though not involved with
the initial arrest, signed the criminal complaint against the
plaintiff.

Jenkins, 147 F.3d at 583.
- 21 -

The officer could not be

held liable on a false arrest claim because the arrest had already
taken place
defendant

once

did

violation.

not

the defendant
participate

signed
in

the

the

complaint,

alleged

so

the

constitutional

Id. at 583-84.

Here, in contrast, the alleged violations involve not just the
arrest but subsequent police conduct as well.

There is evidence

that Walsh made the decision to keep Baker in custody and elected
to charge Baker with aggravated assault, even once he saw the
report wherein the arresting officers indicated that Ghidotti had
said that he did not actually see Plaintiff holding a gun.

Walsh

testified that he read and approved the police report that notes
that Ghidotti admitted he did not actually see a gun.

He testified

that, in his role as watch commander, he had the authority to
decide whether Baker should be charged or released without charges.
When these facts are viewed in the light most favorable to the
Plaintiff, it is apparent that Defendant Walsh knew that the
arresting officers lacked probable cause and nonetheless condoned
the arrest – thereby prolonging the constitutional violation.
Defendant

Walsh’s

failure

to

use

his

authority

to

stop

the

constitutional violation subjects him to potential liability under
§ 1983.

See, Morfin v. City of Chicago, 349 F.3d 989, 1001 (7th

Cir. 2003) (noting that “an officer has a duty to intervene to
prevent a false arrest or the use of excessive force if the officer
is informed of the facts that establish a constitutional violation

- 22 -

and has the ability to prevent it”).

As to Defendant Walsh, the

Motion for Summary Judgment is denied.
I.

Trespass

The Recovery Defendants move for summary judgment on the
trespass claims (Counts I-IV) on the ground that Ghidotti had a
privilege to enter Baker’s land to repossess the car.

A party is

liable for trespass when he intentionally intrudes upon the land of
another.
1980).

Dial v. City of O’Fallon, 411 N.E.2d 217, 220 (Ill.
But there can be no liability for trespass when a person

enters land based upon privilege or consent.

Desnick v. Am.

Broadcasting Cos., 44 F.3d 1345, 1351 (7th Cir. 1995).
One such privilege is used every day but not often given much
thought: the privilege to approach a house and knock on the front
door.

See, Florida v. Jardines, __ U.S. __, 133 S.Ct. 1409, 1415

(2013) (recognizing that even unsolicited visitors have an implied
privilege “to approach the home by the front path” and “knock
promptly”).

Another

privilege

arises

in

the

context

of

repossession, and allows a person who is entitled to the immediate
possession

of

a

chattel

to

enter

the

land

of

another

at

a

reasonable time and in a reasonable manner in order to remove the
chattel.

Restatement

repossessor

must

not

(Second)
breach

of

the

Torts

peace,

§

198

(1965).

which means

The

that the

repossessor’s conduct must not invite, or be likely to invite,
immediate

public

turbulence.

810
- 23 -

Ill.

Comp.

Stat.

5/9-609;

Valentino v. Glendale Nissan, Inc., 740 N.E.2d 538, 543 (Ill. App.
Ct. 2000).
Count

I

seeks

redress

for

a

trespass

that

occurred

on

January 11, 2010. Undisputed facts show that on that day, Ghidotti
approached the Baker residence and knocked on the front door.

The

front door swung open, but Baker admits that the door was broken.
Even though Ghidotti could see that the car was not in front of the
house or in view on the property, absent some indication that
visitors were not welcome, Ghidotti was entitled to go up to the
front door and knock.

Jardines, 133 S.Ct. at 1415.

For this

Count, it does not matter whether Ghidotti was on the premises to
repossess a vehicle.

There is no genuine dispute that Ghidotti’s

conduct on January 11 did not exceed the scope of the implied
license to approach and knock on the front door, and thus was not
a trespass. Summary judgment is granted for Defendants on Count I.
Count II relates to the incident on January 12 where a white
man breached a closed gate in the Baker backyard and peered in
through the window of the Baker back door.

Ashley Baker saw the

man peering in, and later identified that man as Ghidotti.

A

business card left at the front door that morning had the name
“Recovery” on it.

Even though Ghidotti does not remember going to

the house that day, the record contains sufficient facts for a
reasonable jury to conclude by a preponderance of the evidence that
Ghidotti was the man who went into the Baker backyard that day.

- 24 -

For that day, Ghidotti cannot rely on any privilege to approach the
house by the front path because he was in the backyard and crossed
through closed gates.

Any because the Impala was nowhere to be

seen, Ghidotti cannot say that he was on the property to repossess
the car; at most, he was investigating its whereabouts.

This

conduct amounts to a trespass, so summary judgment is denied as to
Count II.
The third incident, which took place on January 27, forms the
basis of Count III.

On that day, someone knocked on the front

door, which caused the door to swing open.

As with Count I, the

tortious conduct consists of walking up to the front door and
knocking.

In the absence of some indication to the contrary – such

as a closed gate, a sign saying that visitors are not welcome, or
an admonition never to return – that conduct is not a trespass.
There is no evidence that the Baker house was closed to visitors,
or that Ghidotti was told not to return, either of which might have
indicated that Ghidotti would not have had a license to go up to
the front door of the house and knock.

It is true that the door

swung open and triggered an alarm, which lead ultimately to police
entering the house with their guns drawn.

But there is no

indication that Ghidotti intended that result, or even that the
police entering with guns drawn was a reasonably foreseeable
consequence of a knock on the front door.

Because the conduct

complained of in Count III did not exceed the scope of the implied

- 25 -

license to knock on a house’s front door, summary judgment is
granted for Defendants on Count III.
The

final

February 1.

trespass,

alleged

in

Count

IV,

took

place on

As an initial matter, the repossessor privilege is

unavailable because with no car in sight, Ghidotti was not entering
the property to repossess property.

In addition, on that day,

Ghidotti arrived at the Baker house and rang the doorbell in the
middle of the night:

either around 2:30 or 3:30 a.m.

It is not

customary for strangers to walk up to houses and ring the doorbell
in the middle of the night with no invitation to do so.

As the

Supreme Court has noted, “[c]omplying with the terms of that
traditional invitation,” to approach a house and knock on the front
door, “does not require fine-grained legal knowledge.”
133 S.Ct. at 1415.

Jardines,

Whether Ghidotti had a privilege to enter the

premises at that early hour on February 1 is subject to reasonable
debate and is outside the scope of the briefing provided by the
parties.
the

The early hour of the events in question also precludes

Court

from

finding

that

Ghidotti

was

privileged

as

a

repossessor, because his entry to the premises was not at a
reasonable time.

Restatement (Second) of Torts § 198 (1965).

For

these reasons, the Court denies summary judgment as to Count IV.
J.

Intentional Infliction of Emotional Distress

The Recovery Defendants move for summary judgment as to
Count

XIV,

for

intentional

infliction

- 26 -

of

emotional

distress

(“IIED”).

In Illinois, a Plaintiff succeeds on an IIED claim by

proving four elements:

(1) extreme and outrageous conduct; (2)

intent or recklessness to cause emotional distress; (3) severe or
extreme emotional distress suffered by the plaintiff; and (4)
actual

and

proximate

causation

defendant’s outrageous conduct.

of

the

emotional

distress

by

Sornberger v. City of Knoxville,

434 F.3d 1006, 1030 (7th Cir. 2006) (citing Pub. Fin. Corp. v.
Davis, 360 N.E.2d 765, 767–68 (Ill. 1976)).
Defendants contend that “there is no evidence proving that the
actions of the Reliable Recovery Defendants meet the extreme and
outrageous conduct necessary to sustain a cause of action for
intentional infliction of emotional distress.”

ECF No. 114 at 19.

Defendants give the Count zero analysis of the facts of this case
and not a single citation to a relevant case for more than a legal
standard.

As the Court has noted already in this opinion, the

Court declines to make the parties’ arguments for them.

United

States v. Alden, 527 F.3d 653, 664 (7th Cir. 2008) (noting that “it
is not the obligation of this Court to research and construct the
legal arguments available to parties”).
Defendants’ argument on the severity element fares no better.
They assert

that

“the intensity

and

duration

of

the

claimed

distress allegedly suffered by Plaintiffs were not such as would
warrant the imposition of liability upon the Reliable Recovery
Defendants.”

ECF No. 114 at 19.

- 27 -

This conclusory statement,

unaccompanied by any analysis or supporting precedent, does not
tell the Court why it should grant summary judgment – it just
insists that summary judgment is warranted.
To the contrary, Plaintiffs have submitted evidence of the
severe emotional distress that they suffered.

The arrest and

prosecution put Baker’s security clearance at risk, which put his
employment at risk as well.

Baker’s fears for his job and his

safety, as well as his concerns about his daughter Ashley, led him
to suffer from crying fits and lost sleep.

Barbara Baker suffered

from sleeplessness that caused her to fall asleep at the wheel of
a

company

vehicle,

after

which

she

lost

her

job.

Ashley’s

emotional distress was manifest in a variety of ways, including her
bed wetting, failing grades, and fights and suspensions at school.
Camden Baker was so upset by these events that he moved out of the
house and visits rarely.
Plaintiffs’

evidence

of

the

severity

of

their

emotional

distress is sufficient to withstand Defendants’ Motion for Summary
Judgment.

Whether their distress was severe enough to allow them

to recover for IIED is an issue that must be resolved at trial.

As

to this Count, the Motion for Summary Judgment is denied.
K.
The

Defendant

qualified immunity.

Qualified Immunity

Officers

have

asserted

an

entitlement

to

“The doctrine of qualified immunity protects

government officials from liability for civil damages insofar as

- 28 -

their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation

omitted).
The

Defendant

Officers

argue

that

they

are

entitled

to

qualified immunity because they did not violate any constitutional
rights.

As discussed above, many of the alleged constitutional

violations and supported in the record and cannot be resolved
without the aid of a factfinder.
The Defendant Officers argue next that any mistakes that they
made were reasonable.

The procedural posture of the case requires

the Court to view the facts in the light most favorable to the nonmoving party, which means that the Court cannot ignore sworn
testimony from the Plaintiffs and others.

Police do not act

reasonably when they barge into a private home without a warrant,
exigent

circumstances,

or

even

probable

cause.

Nor

is

it

reasonable for police to arrest a suspect without investigating
further when it is unclear what happened at the scene and probable
cause is supported by only a report from a victim whose story does
not add up. The Court cannot cherry-pick facts and excuse what may
have been several serious constitutional violations.

And the

Supreme Court and Seventh Circuit precedent cited herein, such as
Sawyer,

224

F.3d

675,

and

West,

- 29 -

487

U.S.

42,

is

all

well-

established.

The Defendant Officers are not entitled to qualified

immunity at this stage.
L.

Defendant Unknown Officers

Plaintiffs brought this case against the named defendants and
“unknown officers of the City of Chicago.”

Discovery has closed,

and it does not appear that Plaintiffs have attempted to name any
other defendants or serve any other defendants with process.
addition,

because more

than

two

years

have

passed

since

In
the

incidents that form the basis of this action, any new defendants
will have a statute of limitations defense.

Dominguez v. Hendley,

545 F.3d 585, 588 (7th Cir. 2008) (explaining that in Illinois, the
statute of limitations for § 1983 claims is two years). Therefore,
the unknown officers are dismissed from this case.

See, Williams

v. Rodriguez, 509 F.3d 392, 402 (7th Cir. 2007) (dismissing unnamed
defendant after close of discovery).
III.

MOTIONS TO STRIKE

Plaintiffs have filed several Motions to Strike. Such motions
are generally unnecessary, as the parties are free to use to their
briefs on the substantive motion at hand to comment on the legality
or adequacy of evidence and arguments presented by the other side.
The Court has taken into account the arguments put forth in the
Motions to Strike, so the Motions [ECF Nos. 136, 172] are denied as
moot.

- 30 -

IV.

CONCLUSION

For the reasons stated herein, the Court rules as follows:
1.

Summary judgment is granted for Plaintiff Kenneth Baker

on Count VIII for false arrest;
2.

Summary

judgment

is

granted

in

favor

of

Defendants

Cabrales and Flores on all Counts, and for Defendants on Counts I
and III;
3.

The “Defendant Unknown Officers” are dismissed from the

case;
4.

Count IX is dismissed;

5.

Otherwise, the Motions for Summary Judgment are denied;

6.

As a result of these rulings, Plaintiffs’ Motion for

Summary Judgment [ECF No. 103] is granted in part and denied in
part;
7.

The Motion brought by Defendants Ghidotti and Reliable

Recovery [ECF No. 112] is granted in part and denied in part;
8.

The

Motion

brought

by

the

Defendant

Officers

[ECF

No. 106] is granted in part and denied in part; and
9.

The Plaintiffs’ Motions to Strike [ECF Nos. 136, 172] are

denied as moot.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Date:3/28/2014
- 31 -