Posey et al v. The City of Chicago et al
Filing
100
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 8/5/2014.(psm, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JENNIFER POSEY, AS NEXT FRIEND OF
K.M.,
Plaintiff,
No. 11 CV 5660
v.
Judge Manish S. Shah
OFFICER LUIGI MIRO,
UNKNOWN OFFICER, and
THE CITY OF CHICAGO,
Defendants.
MEMORANDUM OPINION AND ORDER
Chicago Police Officer Luigi Miro was on duty when his police truck collided
with K.M., a minor who was riding his bike.1 K.M.’s mother, Jennifer Posey, sued
Miro, asserting that he violated K.M.’s constitutional rights to be free from
excessive force, unreasonable seizure, and conscience-shocking governmental action.
Posey also brought related state law claims against Miro, and sued the City of
Chicago as an indemnifier. The defendants moved for summary judgment on all
claims. For the reasons discussed below, I grant the defendants’ motion in part, and
deny it in part.
1
K.M. is referred to by his initials, pursuant to Fed. R. Civ. P. 5.2(a).
I.
The Facts2
On August 10, 2011, Miro was assigned to patrol beat 22 in the 15th district,
in a Chicago Police Department truck. DSOF ¶ 8. As he patrolled, he drove north on
Central Avenue and then turned right, proceeding east either on Gladys Avenue or
through an alley between Gladys and Jackson Boulevard. DSOF ¶¶ 18, 20. He
turned right again and drove south along Lotus Avenue. DSOF ¶ 21. Because Lotus
is a one-way street going north, DSOF ¶ 22, Miro drove “the wrong way” down
Lotus. Still, Miro did not turn on his emergency lights or siren. DSOF ¶ 24.
As Miro approached Van Buren Street, it was light outside, he could see
people sitting on the steps of a church at Lotus and Van Buren, and he could see
clearly along Lotus all the way down to Congress Parkway, the next street south of
Van Buren. DSOF ¶¶ 13, 26, 28. At Van Buren, rather than stop, Miro “revved” his
engine and sped up. PSOAF ¶¶ 18–20, 26. Miro testified that he did not see K.M.
(DSOF ¶ 29), but it was a clear day and Miro had an unobstructed view (DSOF
¶¶ 13, 26, 28), Miro was looking straight ahead (DSOF ¶ 34), and eyewitnesses offer
first-hand testimony about Miro’s and K.M.’s positions and directions of travel,
prior to and at the time of the collision (e.g., Dkt. 86-1 at 46–48, 52, 60–61, 65).
That’s enough to raise a genuine dispute about what Miro saw. While Miro’s
Summary judgment is appropriate only if there is no genuine dispute as to any material
fact, and Miro is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). I view the
facts, and draw any reasonable inferences from those facts, in the light most favorable to
Posey. Unless otherwise noted, the facts recited in this opinion are taken from the parties’
Local Rule 56.1 statements. Miro’s reply statement of undisputed material facts (Dkt. 89) is
cited as “DSOF” and Miro’s response to Posey’s statement of additional facts (Dkt. 88) is
cited as “PSOAF.”
2
2
testimony is clear—he says he did not see K.M.—a reasonable jury could choose not
to believe him. Miro did not use any evasive measure (such as applying the brakes).
PSOAF ¶ 27. As Miro crossed the street, he collided with K.M. DSOF ¶¶ 30–31.
Just before the collision, K.M. was riding his bike on Van Buren toward
Lotus. DSOF ¶ 31. He was in the street, waiting for a car to pass, when a friend
called his name. Id. K.M.—who had not seen Officer Miro—was turning his bike
around to respond to his friend when he was hit by Miro. DSOF ¶¶ 31–32. His
injuries necessitated a cast, crutches, and a leg brace. DSOF ¶ 48.3
II.
Analysis
A. Count I (“Excessive Force Under 42 U.S.C. § 1983”) and Count II
(“Unreasonable Seizure Under 42 U.S.C. § 1983”)
A claim of “excessive force” is a claim that seeks to impose liability for
physically abusive governmental conduct. Kingsley v. Hendrickson, 744 F.3d 443,
448 (7th Cir. 2014). The right to be free from such abuses derives from various
provisions of the Bill of Rights. Id. In a particular case, the claim is evaluated by
reference to the specific constitutional standard that governs the right, rather than
under some generalized “excessive force” standard. Id. at 449. Because Posey’s
“excessive force” claim derives from the Fourth Amendment’s prohibition against
As an “additional fact,” Posey submits that police officers “routinely accelerate towards
pedestrians crossing the street, forcing them to jump out [of] the way.” PSOAF ¶ 1. I have
not considered this because it is inadmissible to show that Miro acted that way leading to
the incident with K.M. (and irrelevant if used otherwise).
3
3
unreasonable seizures, Counts I and II both require proof of a seizure, and in the
context of this case are essentially duplicative.4
Miro argues that he is entitled to summary judgment because he accidentally
hit K.M., while a “seizure” under the Fourth Amendment requires intent. Dkt. 65 at
5–6. Miro is right on the law. County of Sacramento v. Lewis, 523 U.S. 833, 843–44
(1998). But at this stage I must resolve genuine disputes of fact, and make all
reasonable inferences from those facts, in Posey’s favor. Through that lens, as Miro
approached the Lotus-Van Buren intersection, he: did not stop, revved his engine,
and sped up. PSOAF ¶¶ 18–20, 26. A jury could reasonably conclude that before
impact, Miro saw K.M. but did nothing to avoid hitting him. PSOAF ¶ 21; DSOF
¶¶ 30–31. If those are the facts, a reasonable inference is that Miro terminated
K.M.’s freedom of movement “through means intentionally applied,” Brower v.
County of Inyo, 489 U.S. 593, 597 (1989), and therefore the collision was a seizure
under the Fourth Amendment.
Miro also argues that he is entitled to summary judgment on the basis of
qualified immunity. The doctrine of qualified immunity is discussed more fully in
Section II.B below. For now, Miro’s argument fails because it assumes that he did
not hit K.M. intentionally (Dkt. 65 at 9–10)—a finding I cannot make at this stage.
Miro did not argue that he is protected by qualified immunity even if he
intentionally hit K.M. Such an argument would be meritless anyhow. See Brower,
489 U.S. 593.
4
Miro points this out (Dkt. 65 at 2) and Posey concedes it (Dkt. 82 at 3).
4
The motion for summary judgment on Counts I and II is therefore denied.
B. Count III (“Due Process Under 42 U.S.C. § 1983”)
In Count III, Posey asserts that Miro violated K.M.’s “substantive due
process” rights. Substantive due process rights are violated when the government
abuses its power so egregiously that it “shocks the conscience.” Lewis, 523 U.S. at
845–47. If Miro hit K.M. intentionally, he is entitled to summary judgment on
Count III because Posey has a Fourth Amendment claim, not a substantive due
process one. Id. at 843. Miro argues that there can be no substantive due process
violation for unintentional conduct either (Dkt. 65 at 6–8), but as discussed below,
that is not quite the current state of law. In any event, even if a person’s
substantive due process rights can be violated through less than intentional
conduct, Miro is entitled to qualified immunity.
“Qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known. In
determining qualified immunity, the court asks two questions: (1) whether the facts,
taken in the light most favorable to the plaintiff, make out a violation of a
constitutional right and (2) whether that constitutional right was clearly
established at the time of the alleged violation.” Hernandez v. Sheahan, 711 F.3d
816, 817 (7th Cir. 2013) (internal quotation marks omitted) (citing Pearson v.
Callahan, 555 U.S. 223 (2009)). If the answer to either question is “no,” Miro is
entitled to summary judgment.
5
1. Whether Miro’s conduct violated K.M.’s substantive due
process rights
In arguing that no substantive due process right was violated, Miro relies
heavily on Lewis, which he asserts stands for the proposition that there is “no
Fourteenth Amendment liability without an intent to harm.” Dkt. 65 at 7. But
Lewis was not that broad. Because conduct that “shocks in one environment may
not be so patently egregious in another,” Lewis demands “an exact analysis of
circumstances” in each substantive due process claim. Lewis, 523 U.S. at 850.
In some contexts, government officials have time to make unhurried
judgments and reflect on the wisdom of those judgments. In such situations,
substantive due process rights can be violated even if the official does not intend to
harm the plaintiff. For example, substantive due process rights are violated when
prison officials are “deliberately indifferent” to the medical needs of their prisoners,
even if the officials don’t intend harm. Id. at 849–50, 853. In different contexts,
“unforeseen circumstances demand an officer’s instant judgment” and decisions
have to be made “in haste, under pressure, and frequently without the luxury of a
second chance.” Id. at 852–54. Under those circumstances, greater culpability is
required before substantive due process rights are violated. Thus, prison guards
attempting to quell a riot do not violate substantive due process rights unless they
apply force with the intent to cause harm. Id. at 852–53. The holding of Lewis is
that this greater culpability—intent to harm—applies in the context of sudden,
high-speed police chases. Id. at 854.
6
Aside from its specific holding, and the specific examples discussed, the Lewis
Court noted that “[w]hether the point of the conscience-shocking is reached when
injuries are produced with culpability falling within the middle range, following
from something more than negligence but less than intentional conduct, such as
recklessness or gross negligence, is a matter for closer calls.” Id. at 849 (internal
citation and quotation marks omitted).5
This case may be one of those “closer calls” where a government actor could
violate substantive due process and shock the conscience even though his
culpability follows from something less than intentional conduct. Miro was not
involved in a high-speed chase, and may have had time to make an unhurried
judgment (indeed, he claims he was driving conservatively). Miro testified that
when traveling the wrong way on a one-way street, he would normally turn on his
lights or siren, and that there is no reason not to do so. Dkt. 85-2 at 69. But he
didn’t do so here. DSOF ¶ 24. A dispute exists as to how fast he was traveling at the
time of impact. E.g., PSOAF ¶ 20; Dkt. 85-3 at 19; Dkt. 86-1 at 66, 75; Dkt. 86-2 at
35, 81–82. And a dispute exists as to whether he saw K.M. before impact and had
time to stop. PSOAF ¶¶ 21, 28. These facts, like those in Carter v. Simpson, 328
Miro discusses Jones v. City of Chicago, No. 04 C 3742, 2008 WL 4153679 (N.D. Ill. 2008),
which reads Hill v. Shobe, 93 F.3d 418 (7th Cir. 1996) as holding that a state actor’s
conduct can never “shock the conscience” and therefore violate substantive due process
unless the actor intended to cause harm. Jones, at *16–17. Hill does hold that in order to
state a substantive due process claim, a plaintiff must demonstrate that the defendant
knew of impending harm and consciously refused to prevent it. Hill, 93 F.3d at 421. Hill
remains the law of the circuit, but in light of Lewis, decided after Hill, the contours of the
substantive due process right are less clear. Intentional seizures are to be analyzed as
Fourth Amendment claims, not substantive due process ones, and as discussed above,
Lewis acknowledges a “middle range” of conduct proscribed by substantive due process. For
these reasons, Count III is best resolved on the basis of qualified immunity.
5
7
F.3d 948 (7th Cir. 2003), would allow a reasonable jury to find the officer’s conduct
to have been “willful and wanton,” meaning that it “show[ed] an utter indifference
to or conscious disregard for the safety of others.” Carter, 328 F.3d at 951–52.6
I need not decide whether Miro’s conduct, if it were unintentional, violated
K.M.’s due process rights because (as explained next) no such right was clearly
established at the time, and Miro is entitled to qualified immunity. See Pearson, 555
U.S. at 236 (courts may resolve qualified immunity on the second step, without
resolving the first step).
2. Whether the substantive due process right potentially
violated was clearly established in August 2011
By permitting damages only for violations of “clearly established” rights,
qualified immunity protects all but the plainly incompetent and those who
knowingly violate the law. Purvis v. Oest, 614 F.3d 713, 720 (7th Cir. 2010) (quoting
Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Posey bears the burden of
demonstrating that, as of August 2011, it was clearly established that Miro’s
conduct “shocked the conscience.” Estate of Escobedo v. Bender, 600 F.3d 770, 779
(7th Cir. 2010). To do so, Posey can show either that (1) Miro’s conduct so patently
“shocked the conscience” that reasonable officials would know that without
guidance from a court; or (2) in a closely analogous case, conduct like Miro’s
Carter held that there was no due process violation for the potentially willful and wanton
conduct because the case involved a situation like a high-speed chase, and after Lewis, due
process liability in such a case requires intentional conduct. Unlike Carter (or Lewis), this
case did not involve a high-speed chase or similar situation, and by speaking of a “middle
range,” Lewis does not restrict substantive due process claims to intent-to-harm claims.
6
8
“shocked the conscience.” Id. Posey did not attempt to make the first showing and
has failed to make the second.
Posey offers two cases: Hill v. Shobe, 93 F.3d 418 (7th Cir. 1996); and Lewis.
According to Posey, “Hill established that, in the context of non-emergency police
motor vehicle accidents, a criminal recklessness-deliberate indifference standard
would apply.” Dkt. 82 at 17. But the Hill court said that a substantive due process
violation would not be found unless “the official knew an accident was imminent but
consciously and culpably refused to prevent it,” and rejected plaintiff’s claim. Hill,
93 F.3d at 421. Hill does not clearly establish that culpability less than intent to
harm can support a substantive due process violation. Nor did Lewis. After Lewis, it
was clear that:
Mere negligence does not violate substantive due process rights. Lewis,
523 U.S. at 849.
Conduct intended to injure is the sort of official action most likely to
violate substantive due process rights. Id.
Deliberate indifference can violate substantive due process rights in
the context of ordinary prison custody. Id. at 850–51.
In a high-speed police chase or an attempt to quell a prison riot, intent
to harm is required in order to find a substantive due process violation.
Id. at 852–54.
In any other scenario, it is a stretch to argue that Lewis “clearly establishes”
anything. Indeed, Lewis specifically stated that “the constitutional concept of
conscience-shocking . . . points clearly away from liability, or clearly toward it, only
at the ends of the tort law’s spectrum of liability.” Id. at 848. The Court specifically
stated that “[w]hether the point of conscience-shocking is reached when injuries are
9
produced with culpability falling within the middle range, following from something
more than negligence but less than intentional conduct, such as recklessness or
gross negligence, is a matter for closer calls.” Id. at 849. Thus, in any case, the
Court demanded “an exact analysis of circumstances.” Id. at 850.
According to Posey, (dicta in) Lewis clearly establishes that “deliberate
indifference” shocks the conscience in all situations in which deliberation is
practical. Dkt. 82 at 16–17. Given the “close calls” and “exact analyses” that Lewis
prescribed, I disagree. Summary judgment is therefore granted on Count III, on the
basis of qualified immunity.
C. Count IV (“Battery Under Illinois Law”) and Count VI
(“Negligence”)
Miro argues that he is entitled to summary judgment on Counts IV and VI,
state law claims for battery and negligence, based on immunity under the Illinois
Tort Immunity Act. Dkt. 65 at 10–11, 14. But as he acknowledges (id.), there is no
immunity if his conduct was “willful and wanton.” 745 ILL. COMP. STAT. 10/2-202.
The relevant Illinois statute defines “willful and wanton” conduct as “a course of
action which shows an actual or deliberate intention to cause harm or which, if not
intentional, shows an utter indifference to or conscious disregard for the safety of
others or their property.” 745 ILL. COMP. STAT. 10/1-210. As discussed above, a
reasonable jury could find that Miro intentionally hit K.M., in which case his
conduct would have been “willful and wanton.” And even if Miro didn’t hit K.M.
intentionally, as in Carter, a reasonable jury could find that Miro’s conduct was
10
nonetheless “willful and wanton.” Carter, 328 F.3d at 951–52. Summary judgment
is therefore denied on Counts IV and VI.
D. Count V (“Intentional Infliction of Emotional Distress Under
Illinois Law”)
To succeed on her state claim for intentional infliction of emotional distress,
Posey must show: (1) Miro’s conduct was extreme and outrageous; (2) Miro either
intended to inflict severe emotional distress or knew that there was a high
probability that his conduct would cause severe emotional distress; and (3) Miro’s
conduct did in fact cause severe emotional distress. Feltmeier v. Feltmeier, 207 Ill.
2d 263, 268–69 (2003).
It is undisputed that K.M. “did not talk to anyone” about the incident after it
happened. DSOF ¶ 50. He didn’t talk to his teacher, friends, mom, step-father,
grandmother, or aunts. Dkt. 66-1 at Exh. C, pp. 80–81. He has not seen a counselor.
Dkt. 86-8 at 61. In her attempt to defeat summary judgment, the only “emotional
distress” that Posey relied on is the fact that K.M. “thinks about” the incident “a lot”
and “gets out of the way” when he sees police officers. Dkt. 82 at 19; PSOAF ¶ 39.
That is insufficient as a matter of law:
Infliction of emotional distress alone is not sufficient to give rise to
a cause of action. . . . The emotional distress must be severe.
Although fright, horror, grief, shame, humiliation, worry, etc. may
fall within the ambit of the term ‘emotional distress,’ these mental
conditions alone are not actionable. The law intervenes only where
the distress inflicted is so severe that no reasonable man could be
expected to endure it.
11
Welsh v. Commonwealth Edison Co., 306 Ill. App. 3d 148, 155 (1999) (emphasis in
original) (some internal quotation marks omitted) (quoting Pub. Fin. Corp. v. Davis,
66 Ill. 2d 85, 90 (1976)). Summary judgment is therefore granted on Count V.
E. Count VII (“Claim Under 745 ILCS 10/9-102 and Respondeat
Superior Against the City of Chicago”)
In Count VII, Posey seeks to make the City of Chicago pay any judgment
awarded against Miro. The City argues that if Miro is granted summary judgment
on all of the substantive counts, there is no judgment against Miro that the City can
be made to pay. Dkt. 65 at 15. Because I deny summary judgment on Counts I, II,
IV, and VI, I also deny the motion as to Count VII.
F. Claims Against the “Unknown Officer”
Posey brought her claims against Officer Miro, the City of Chicago, and an
“Unknown Officer.” Dkt. 52. The time to name the unknown officer has long passed,
and the statute of limitations has run, so this defendant is dismissed. See Williams
v. Rodriguez, 509 F.3d 392, 402 (7th Cir. 2007).
III.
Conclusion
Defendants’ motion for summary judgment is granted in part, denied in part.
Because a dispute exists as to whether Miro hit K.M. intentionally, summary
judgment is denied on Counts I and II. Summary judgment is granted on Count III
on the basis of qualified immunity. Because there is a dispute as to whether Miro
acted willfully and wantonly, summary judgment is denied on Counts IV and VI.
Because there is no evidence that K.M. suffered severe emotional distress, summary
judgment is granted on Count V. Because substantive counts against Miro remain,
12
summary judgment on the indemnification count, Count VII, is denied. Finally, the
unknown officer is dismissed from the case.
ENTERED:
___________________________
Manish S. Shah
United States District Judge
Date: 8/5/14
13
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?