Hernandez Jr. v. Hernandez et al

Filing 59

MOTION by Plaintiff Armando Hernandez Jr. for judgment as a Matter of Law as to Plaintiff's Illegal Seizure Claim (Grieb, Mary)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ARMANDO HERNANDEZ, JR.
)
)
Plaintiff,
)
) No: 13-CV-00153
v.
)
)
CHICAGO POLICE OFFICER
) Honorable Judge Harry D. Leinenweber
HERNANDEZ (Star #12289),
)
CHICAGO POLICE OFFICER MCCLAIN
) Magistrate Judge Jeffrey Cole
(Star #4915), and the CITY OF CHICAGO, )
)
Defendants.
) JURY DEMANDED
PLAINTIFF’S RULE 50(a)MOTION FOR JUDGMENT AS A MATTER OF LAW ON
HIS ILLEGAL SEIZURE CLAIM
NOW COMES Plaintiff, ARMANDO HERNANDEZ, JR., by and through his attorneys,
Mary J. Grieb of the Shiller Preyar Law Offices and James A. Shapiro with the instant Motion
for judgment as a matter of law under FRCP Rule 50(a) on Plaintiff’s Illegal Seizure Claim. In
support thereof, Plaintiff states as follows:
Plaintiff has presented his case in chief. Defendants have presented their own case.
Based on the evidence presented therein, and construing the facts in the light most favorable to
Defendants, the Defendants lacked reasonable suspicion to initially stop and seize Plaintiff as a
matter of law. For that reason, a directed verdict for Plaintiff should be granted on the illegal
seizure claim.
STANDARD
A judgment can be entered as a matter of law if during a trial by jury a party has been
fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to
find for that part on an issue. Fed. R. Civ. P. 50. The evidence must be viewed in the light most
favorable to the non-moving party and the Court must determine whether the evidence is
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sufficient to sustain a verdict in favor of the non-moving party. Hammond Group, Ltd. V.
Spalding & Evanflo Companies, Inc., 69 F. 3d 845, 848 (7th Cir. 1995).
ARGUMENT
Viewing all facts and testimony in the light most favorable to Defendants, Defendants
Hernandez and McClain unlawfully seized the Plaintiff when they initially came upon him and
ordered him to take his hands out of his pockets without reasonable suspicion that a crime had
been or was being committed.
To state a claim under 42 U.S.C. § 1983, Plaintiffs must allege that: (1) Defendants
deprived them of a right secured by the Constitution and laws of the United States, and (2)
Defendants acted under color of state law. Starnes v. Capital Cities Media, Inc., 39 F.3d 1394,
1396 (7th Cir.1994). The Fourth Amendment ensures “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated.” The Fourth Amendment applies to state actors, as a result of the Fourteenth
Amendment, which requires that the states not “deprive any person of life, liberty, or property,
without due process of law.” A Section 1983 violation of the 4th and 14th amendment occurs
when a state actor who, “under color of [law] ... subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.
As a general rule, all seizures must be reasonable, and the reasonableness of a seizure
depends on a balance between the public interest and the individual's right to personal security
free from arbitrary interference from law enforcement officers. United States v. Brignoni–Ponce,
422 U.S. 873, 878 (1975). A person may not be seized unless there are reasonable, objective

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grounds for doing so. People v. Brownlee, 186 Ill. 2d 501, 517-18, 713 N.E.2d 556, 564-65
(1999).
A seizure within the meaning of the Fourth Amendment occurs “whenever a police
officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that
person.” Terry v. Ohio, 392 U.S. 1, 16 (1968). Of course, a seizure does not occur every time a
police officer approaches someone to ask a few questions. Florida v. Bostick, 501 U.S. 429, 111
S. Ct. 2382, 115 L. Ed. 2d 389 (1991). However, if a reasonable person, under the circumstances,
would have believed that [he/she] was not free to end the encounter, then at that point the
encounter has turned into a “stop” that counts as a “seizure” for purposes of the Fourth
Amendment. United States v. Mendenhall, 446 U.S. 544 (1980). In determining whether a person
feels free to the end the encounter, the court will consider both the officers’ physical force and
show of authority upon the seized individual. California v. Hodari D., 499 U.S. 621, 625, (1991).
First, it is clear that the Plaintiff was seized within the meaning of the Fourth Amendment
when the Officers exited their vehicle after ordering Plaintiff to remove his hands from his
pockets. Both the Plaintiff and the officers testified to this fact. The show of authority alone is
enough to constitute a seizure at the point when the officers gave Plaintiff an order.
Next, the only question then becomes whether Defendants had a reasonable suspicion
that Plaintiff had committed or was about to commit a crime at the moment they asked him to
take his hands out of his pockets. Defendant Hernandez testified that he saw Plaintiff swearing,
balling up his fists, looking angry, yelling racial slurs, walking on the sidewalk near the curb and
that he was a Hispanic man in a largely African-American neighborhood. Assuming that
everything Hernandez testified to is true, nothing about Plaintiff’s conduct gave Defendant

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Hernandez reasonable suspicion to believe that Plaintiff had committed or was about to commit a
crime.
For her part, Defendant McClain also testified that she saw Plaintiff swearing, using
racial slurs, balling up his fists and was shocked to see a Hispanic man in a predominantly
African-American neighborhood. As stated above, none of that conduct is illegal and thus did not
give Defendants reasonable suspicion to seize Plaintiff. Defendant McClain also testified that she
saw Plaintiff walking in and out of the street on Ashland Ave., causing two to three cars to
swerve. Even that conduct, taken as true for purposes of this motion, does not give rise for
reasonable suspicion that a crime has been or is about to be committed.
Under Terry, a police officer may stop and question an individual if the officer has a
reasonable suspicion that the individual is engaged in criminal conduct. Terry v. Ohio, 392 U.S.
1, 21-22 (1968). In deciding whether reasonable suspicion existed, courts should “consider the
totality of the circumstances as they were presented to the officer at the time of the
encounter.” United States v. Scheets, 188 F.3d 829, 837 (7th Cir.1999) (internal citation omitted).
Reasonable suspicion is satisfied if, at the time of the stop, “specific and articulable facts,” along
with the officer's reasonable inferences from those facts, warrant the stop. Terry, 329 U.S. at 2122. A “hunch” or general suspicion that a suspect is engaging in criminal activity will not justify
a Terry stop. United States v. Brown, 188 F.3d 860, 864 (7th Cir.1999).
The Defendants ultimately charged the Plaintiff with reckless conduct. However, when
they initially exited their vehicles and ordered Plaintiff to take his hands out of his pockets,
Defendants had no reasonable suspicion that the Plaintiff was or had been committing that crime.
a. None of The Conduct Defendants Observed Amounted to Reasonable Suspicion
that Plaintiff was Committing the Crime of Reckless Conduct

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Under Illinois law, [a] person commits reckless conduct when he or she, by any means
lawful or unlawful, recklessly performs an act or acts that: (1) cause bodily harm to or endanger
the safety of another person;” 720 ILCS 5/12-5 (West 2011). “A person is reckless or acts
recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances
exist or that a result will follow, described by the statute defining the offense; and such disregard
constitutes a gross deviation from the standard of care which a reasonable person would exercise
in the situation.” 720 ILCS 5/4–6 (West 2002); People v. Watkins, 361 Ill. App. 3d 498, 500, 837
N.E.2d 943, 945 (2005).
Clearly, being a Hispanic man in traditionally African American neighborhood does not
satisfy the elements of reckless conduct. Moreover, yelling profanity and “balling up” one’s fists
certainly does not cause bodily harm or endanger the safety of another person. As a result, the
only fact left is that the Plaintiff waived his hands in the air which caused other cars to swerve.
Notably, the Defendants’ testified that they were concerned for the safety of the Plaintiff. They
were not concerned with the safety of the passing motorists. For that reason alone, the final
element of reckless conduct is not met. As such, the Officers could not have reasonable suspicion
that he was committing the crime of reckless conduct.
b. None of The Conduct The Defendants Observed Amounted to Reasonable
Suspicion that Plaintiff was Committing the Crime of Disorderly Conduct
In Illinois, a person commits the crime of disorderly conduct when he knowingly, (1)
does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach
of the peace. 720 ILCS 5/26-1.) What is reasonable must always depend upon the particular case.
City of Chicago v. Wender, 46 Ill. 2d 20, 24, 262 N.E.2d 470, 472 (1970). However, “the
relationship between the alleged conduct and the public order must be clearly shown.” People v.
Ellis, 141 Ill. App. 3d 632, 633, 491 N.E.2d 61, 62 (1986). Further, the law requires that the
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conduct “must actually bring about a breach of the peace and not merely tend to do so. People v.
Allen, 288 Ill. App. 3d 502, 506, 680 N.E.2d 795, 798 (1997).
Illinois courts have consistently held that vulgar language does not amount to criminal
disorder. People v. Douglas, 29 Ill. App. 3d 738, 742, 331 N.E.2d 359, 363 (1975). Moreover,
“arguing with a police officer, even if done loudly, will not of itself constitute disorderly
conduct.” People v. Gentry, 48 Ill. App. 3d 900, 905, 363 N.E.2d 146, 150 (1977). Thus, even
when Plaintiff responded to the Officer’s request to remove his hands from his pockets by saying
“fuck you” or “leave me alone, I’ll do whatever the fuck I want” the officers still did not have
reasonable suspicion to believe that Plaintiff was committing the crime of disorderly conduct.
Similarly, if Plaintiff was yelling racial slurs and other profanities as the Defendants’ testified,
this still does not constitute a crime under this statute, so there could not have been reasonable
suspicion that this crime was being committed. Further, there was no testimony that anyone
heard the Plaintiff use profanities other than the Defendants themselves, so even if he was yelling
racial slurs, there was no indication that the language caused any public disorder whatsoever.
Moreover, being a Hispanic man in a black neighborhood or “balling up” one’s fists is
unquestionably not alarming or disturbing within the meaning of the statue.
Here again, we are left with Defendant McClain’s allegations that Plaintiff was waving
his arms at passing motorists causing two or three cars to swerve. This does not amount to
disorderly conduct because two or three cars swerving out of the way, does not amount to public
disorder. Moreover, there is absolutely no evidence that the Plaintiff’s conduct actually brought
about a breach of the peace. In fact, the trial testimony revealed that the incident occurred in
early morning hours with no civilian witnesses or complainants.

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Based on the foregoing, and taking their own testimony as true at this stage of the
proceedings, Defendants did not have reasonable suspicion to believe that the Plaintiff was
committing the crime of reckless conduct or disorderly conduct or any other crime when they
initially exited the vehicle and seized him.
WHEREFORE, Plaintiff respectfully requests this Court grant Plaintiff’s Motion for
Judgment as a Matter of Law, pursuant to Fed. R. Civ. Pr. 50, for Plaintiff’s unlawful seizure
claim.
Respectfully requested,
s/Mary J. Grieb
Mary J. Grieb
The Shiller Preyar Law Offices
1100 W. Cermak, Suite B401
Chicago, IL 60608
[phone]

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CERTIFICATE OF SERVICE
The undersigned Mary J. Grieb hereby certifies that a copy of the foregoing was served upon all
opposing counsel via the EM/ECF email system.

Respectfully submitted,
____s/ Mary J. Grieb________________

Mary J. Grieb
Shiller Preyar Law Offices
1100 W. Cermak, Suite B401
Chicago, IL 60608
[phone]

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