Abdelal v. City Of Chicago, et al

Filing 194

MOTION by Defendants City Of Chicago, Thomas Petrenko, Rolando Ruiz, Miguel Torres for judgment as a matter of law (Moore, Marion)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BASSIL ABDELAL,
Plaintiff,
vs.
CITY OF CHICAGO, a municipal corporation,
OFFICER MIGUEL TORRES, OFFICER
ROLANDO RUIZ, OFFICER THOMAS
PETRENKO, PAT CAMDEN, THE TRIBUNE
COMPANY,
Defendants.

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No. 13 C 1851
Judge Pallmeyer

DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW
Defendants, Miguel Torres, Rolando Ruiz, Thomas Petrenko (“Defendant Officers”), and
the City of Chicago, by their attorneys, and pursuant to Fed.R.Civ.P. 50(a), respectfully move for
judgment as a matter of law in their favor and against the plaintiff. In support of their motion,
Defendants state:
Introduction
Plaintiff has been fully heard on all of his claims, including his Fourth Amendment claim
that Defendant Officers’ use of deadly force was unreasonable under the circumstances.
Defendants acknowledge there is a disputed issue of fact based on the testimony presented:
plaintiff claims he exited his store, picked up a gun left by robbers as they fled his store, and did
not point it at Defendant Officers; Defendant Officers maintain plaintiff exited his store with a
gun raised with both hands at shoulder level and pointed at them. However, for purposes of this
motion, Defendants accept plaintiff’s testimony, as the court must, in the light most favorable to
him. Even accepting plaintiff’s version of the events as true, there is no Fourth Amendment
violation based on the circumstances confronting the Defendant Officers, and plaintiff cannot

prevail on his excessive force claim. Defendant Officers are also entitled to judgment as a matter
of law on plaintiff’s federal claims based on qualified immunity. Further, if Defendants are
entitled to judgment as a matter of law on Plaintiff’s Fourth Amendment excessive force claim, it
follows that they are entitled to judgment as a matter of law as to Plaintiff’s remaining claims.
Moreover, Plaintiff’s state law claims fail as a matter of law. Lastly, Defendant Officers Torres
and Petrenko are entitled to judgment as a matter of law as to Plaintiff’s claim for false arrest
because the evidence in the record demonstrates that neither officer was involved in Plaintiff’s
handcuffing.
Standard of Review
Under Rule 50(a), the court may render judgment as a matter of law when “a party has
been fully heard on an issue during a jury trial and the court finds that a reasonable jury would
not have a legally sufficient evidentiary basis to find for that party on that issue.” Fed.R.Civ.P.
50(a). The standard for granting judgment as a matter of law “mirrors” the standard for granting
summary judgment. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150 (2000),
quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986). Thus, the court must
view all the evidence in the light most favorable to the nonmoving party, and may not make
credibility determinations or weigh the evidence. Reeves, 530 U.S. at 150. A legally sufficient
evidentiary basis to find for a party must be more than a mere scintilla. Anderson, 477 U.S. at
252; Filipovich v. K&R Exp. Systems, Inc., 391 F.3d 859, 863 (7th Cir. 2004). The question for
the court is whether there is sufficient evidence upon which the jury could properly proceed to
find a verdict for the party producing it, upon whom the burden of proof is imposed. Anderson,
477 U.S. at 252.

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Fourth Amendment Excessive Force Claim
Whether a police officer’s use of force, including deadly force, was reasonable under the
circumstances must be judged from the perspective of “a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight,” and “allow for the fact that police officers are often
forced to make split-second judgments – under circumstances that are tense, uncertain, and
rapidly evolving – about the amount of force that is necessary in a particular situation.”
Plumhoff v. Rickard, ___ U.S. ___, 134 S.Ct. 2012, 2020 (2014), quoting Graham v. Connor,
490 U.S. 386, 396-97 (1989). If an officer reasonably believes the suspect’s actions place him,
his partner, or others in the immediate vicinity in imminent danger of death or serious bodily
harm, the officer may use deadly force. Sherrod v. Berry, 856 F.2d 802, 805 (7th Cir. 1988)(en
banc). “Police may use even deadly force if the ‘the suspect poses a threat of serious physical
harm, either to the officer or to others.’” Bell v. Irwin, 321 F.3d 637, 639 (7th Cir. 2003), quoting
Tennessee v. Garner, 471 U.S. 1, 11 (1985). Furthermore, officers need not wait until the
suspect actually uses the weapon against them before an imminent danger exists justifying the
use of deadly force, even where the officers’ belief that danger exists is based on appearances.
Henning v. O’Leary, 477 F.3d 492 (7th Cir. 2007); DeLuna v. City of Rockford, 447 F.3d 1008
(7th Cir. 2006); Ford v. Childers, 855 F.2d 1271 (7th Cir. 1987)(en banc).
In Henning, the court determined an officer did not have to wait to use deadly force until
a gun was used against him and his fellow officers where a suspect resisted the officers’ attempt
to take him into custody and a struggle ensued. During the struggle, one officer’s gun came
loose and he was restrained in his attempt to retrieve his gun from underneath the suspect.
Believing the suspect’s hand might be on his gun, the officer warned his fellow officers.

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Another officer then fired his weapon at the suspect resulting in the suspect’s death. 447 F.3d at
493-95. Analyzing the excessive force claim, the court explained that “[d]eadly force . . . is
reasonable where an officer has reasonable cause to believe that the suspect poses a danger of
serious bodily harm, such as when the officer believes the suspect has a weapon or has
committed a violent crime.” Id. at 496, citing Garner, 471 U.S. at 11. In determining the officer
who used deadly force had the requisite reasonable cause under the circumstances, the court
concluded “[p]olice officers cannot be expected to wait until a resisting arrestee has a firm grip
on a deadly weapon and completely freed himself from officers trying to subdue him before
taking action to ensure their safety.” Id. at 496.
In DeLuna, the court found an officer’s use of deadly force was reasonable under
circumstances in which a suspect continued to approach and verbally threaten the officer despite
his instructions to the suspect to cease his actions. The suspect ultimately lunged toward the
officer as he stumbled while walking backward to create distance from the approaching suspect.
477 F.3d at 1010-13. Although the officer knew the suspect had a history of violence and was
known to carry and sell weapons, he did not know whether the suspect possessed a weapon on
this occasion. Id. at 1012. The court determined the suspect’s actions created the actual danger
of imminent serious injury, regardless of whether the officer saw a gun or believed the suspect
was reaching for his gun. Id. at 1013. It also concluded the officer “need not wait until there is a
physical struggle for control of his weapon before a situation presents an imminent danger of
serious physical injury.” Id.
Similarly, in Ford, the court determined that an officer’s use of deadly force against a
fleeing bank robbery suspect, who had not threatened the officer with a weapon, was objectively

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reasonable under the circumstances because the officer reasonably believed the suspect was
armed and dangerous based on his observations, even though he had not seen a weapon in the
suspect’s hand. 855 F.2d at 1275. The court further recognized that “a reasonable belief that
danger exists may be formed by reliance on appearances.” Id.
The Defendant Officers testified they were responding to a simulcast call of a robbery in
progress at a convenience store located at Lake and Laramie Streets. The officers were less than
a mile from that location when they monitored the call. When they arrived at Lake and Laramie
in their respective vehicles, events transpired rapidly. Defendant Officer Ruiz testified he and
the officers in his vehicle obtained information from a citizen outside a convenience store that
the robbery was occurring at the beauty supply store across the street. He made a U-turn, parked
his vehicle adjacent to the strip mall where the beauty supply store was located, exited the
vehicle, and approached the store with his fellow officers from west to east. The lights in the
store were completely off and the officers could not see inside. As one of the officers shined his
flashlight into the darkened store, an individual ran out of the entrance door, fled to the east and
was pursued by Officer Duran. Almost immediately thereafter, two more individuals ran out the
same door and fled in a northeasterly direction across the parking lot. Officer Ruiz was about to
join Officers Jones and Cifuentes’ pursuit of these two suspects when he noticed a fourth
individual (now known to be plaintiff) coming out of the entrance door of the store. Defendant
Officers Torres and Petrenko testified that as they exited their vehicle they heard gunshots and
crossed Laramie from west to east. As they approached the parking lot to assist Ruiz and the
other officers, Officer Torres saw plaintiff coming out of the entrance door of the store. Officer

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Petrenko saw Plaintiff after he exited the store. At the point plaintiff exited the store, the
Defendant Officers had been on the scene for less than a minute.
Against this backdrop of rapidly evolving events, plaintiff testified while he was on the
floor of the store the last robber tripped over him. The robber quickly got up and ran through the
front door, dropping the weapon outside as he fled. Plaintiff got up from the floor, pushed the
door open as far as it could go, stepped out onto the sidewalk, bent over at his waist, and picked
up the gun dropped by the robber in his right hand. As he stood straight up with the gun in his
hand he was shot. He did not see or hear the police. Plaintiff did not hear anyone say anything
to him before he was shot, and had no idea who was shooting at him. Plaintiff further testified
that he dropped the gun after he was shot. The Defendant Officers testified they stopped
shooting once the threat to their safety was eliminated.
From the perspective of the Defendant Officers, plaintiff’s act of picking up the gun from
the sidewalk presented an imminent threat of death or serious injury under the circumstances
then confronting them and based on the information they possessed. During a robbery in
progress, Plaintiff exited the store and picked up a gun immediately after three robbery suspects
had fled from the store. When plaintiff exited the store and picked up the gun, the Defendant
Officers did not know he was the store owner. They learned that information after plaintiff was
shot, and therefore it cannot be considered in determining whether their use of force was
reasonable. Graham, 490 U.S. at 396; Sherrod, 856 F.2d at 805. Plaintiff testified he was
picking up the gun to protect himself because the store is located in a risky, high traffic area, but
that information was also unknown to the officers when they made their decisions to fire their
weapons. Nor could they have known plaintiff’s intentions. From the Officers’ perspective, and

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relying on appearances, plaintiff’s actions were not that of a victim seeking aid, but rather that of
a suspect/offender making a serious threat to their safety. The Defendant Officers were entitled
to rely upon on those appearances in forming their belief that an imminent threat to their safety
existed, Ford, 855 F.2d at 1275, and under the circumstances confronting them, their belief
based on those appearances was reasonable, even if it was mistaken. Sherrod, 856 F.2d at 807.
Once plaintiff picked up the gun, the Defendant Officers were not required to wait until the gun
was used against them in order to ensure their safety given the rapidly evolving and uncertain
events confronting them. Henning, 477 F.3d at 496; DeLuna, 447 F.3d at 1013.
Given the imminent threat plaintiff posed to their safety by his actions and appearances,
the Defendant Officers’ use of deadly force was objectively reasonable under the circumstances,
and therefore, plaintiff’s Fourth Amendment rights were not violated. Additionally, because
Defendant Officers were justified in using deadly force to terminate plaintiff’s threat, the amount
of times they fired at plaintiff does not create a separate Fourth Amendment violation. Plumhoff,
134 S.Ct. at 2022. Thus, when plaintiff’s evidence is viewed most favorably to him, his own
version of events is not legally sufficient to sustain his burden of proof on his Fourth
Amendment excessive force claim. Therefore, Defendants are entitled to judgment as a matter of
law in their favor.
Qualified Immunity
The Defendant Officers are also entitled to judgment as a matter of law based on
qualified immunity which they have asserted as an affirmative defense. Qualified immunity
protects public officials performing discretionary functions from civil liability for damages so
long as their conduct “does not violate clearly established statutory or constitutional rights of

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which a reasonable person would have known.” Mullenix v. Luna, ___ U.S. ___, 136 S.Ct. 305,
308 (2015)(per curiam) quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The issue of
qualified immunity is a question of law for the court to decide. Alvarado v. Picur, 859 F.2d 448,
451 (7th Cir. 1988). The analysis requires a two-pronged test. Saucier v. Katz, 533 U.S. 194,
201 (2001). First, the court determines whether the alleged conduct establishes a constitutional
violation. Id. If a constitutional violation could be established on the facts alleged, the court
asks whether the constitutional standards were clearly established at the time of the violation. Id.
The court, in its discretion, decides in which order to answer this two-step inquiry. Pearson v.
Callahan, 555 U.S. 223, 242 (2009). “Although qualified immunity is an affirmative defense,
once the defense is raised, it becomes plaintiff’s burden to defeat it.” Wheeler v. Lawson, 539
F.3d 629, 639 (7th Cir. 2008)(citations omitted).
As explained above, taking plaintiff’s version of events in the light most favorable to
him, his Fourth Amendment right to be free from excessive force was not violated. Indeed, “no
right is guaranteed by federal law that one will be free from circumstances where he will be
endangered by the misinterpretation of his acts.” Sherrod, 856 F.2d at 805, quoting Young v.
City of Killeen, Tx., 775 F.2d 1349, 1353 (5th Cir. 1985); Ford, 855 F.2d at 1276.
Even if plaintiff could establish a constitutional violation, the Defendant Officers would
still be entitled to qualified immunity because no clearly established law precluded their use of
deadly force at the time of the incident given the situation that confronted them. The Supreme
Court has repeatedly cautioned courts that the clearly established right must not be drawn from
general principles. See, Mullenix, 136 S.Ct. at 308; see also Plumhoff, 134 S.Ct. at 2023.
Rather, the crucial question is whether the officer acted reasonably in the particular

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circumstances that he faced. Plumhoff, 134 S.Ct. at 2023; Saucier, 533 U.S. at 201-02. In other
words, the relevant inquiry is whether existing precedent established that the officer acted
unreasonably under the circumstances he faced “beyond debate.” Mullenix, 136 S.Ct. at 309,
quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
Taking the evidence in the light most favorable to the plaintiff, the Defendant Officers
could have reasonably believed their use of deadly force was reasonable given plaintiff’s act of
picking up a gun on the heels of three robbery suspects quickly fleeing the store the officers were
responding to during a robbery in progress call. An officer faced with these circumstances could
have reasonably believed plaintiff’s actions posed an imminent threat to him and his fellow
officers such that deadly force was appropriate. In light of the decisions in Henning, DeLuna
and Ford, it is difficult to understand how Defendant Officers could have believed their use of
deadly force would be inappropriate under these circumstances. Because no clearly established
law precluded their use of deadly force under the circumstances confronting them, the Defendant
Officers are entitled to qualified immunity and judgment as a matter of law on Plaintiff’s Section
1983 excessive force claim.
Defendant Officers are likewise entitled to qualified immunity and judgment as a matter
of law on plaintiff’s Section 1983 false arrest claim. Because they could have reasonably
believed their use of lethal force to be reasonable, as discussed above, it follows that they would
have had at least arguable probable cause to handcuff the plaintiff because the handcuffing was
premised on the same actions that led to the shooting. As stated by the Supreme Court in
Tennessee v. Garner, “[d]eadly force may be used if the officer has probable cause to believe
that the armed suspect (1) ‘poses a threat of serious physical harm, either to the officer of to

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others,’ or (2) ‘committed a crime involving the infliction or threatened infliction of serious
physical harm’ and is about to escape.” 471 U.S. 1, 11-12 (1985) (emphasis added). Here, if the
Defendant Officers had probable cause to use lethal force against plaintiff for his actions, they
also had probable cause to handcuff him for those actions. Moreover, the Defendant Officers
observed the plaintiff pick up a gun on the sidewalk. They could have reasonably believed that
they had probable cause to handcuff the Plaintiff for unlawful use of a weapon because he
possessed a weapon on the public way. Accordingly, the Defendant Officers are entitled to
qualified immunity on Plaintiff’s Section 1983 false arrest claim and this motion for judgment as
a matter of law should be granted.
False Arrest, Conspiracy, Battery, Assault, IIED, Wilful and Wanton Conduct
The Defendant Officers are entitled to judgment as a matter of law on plaintiff’s
remaining Section 1983 claims of false arrest and conspiracy and state law claims of battery,
assault, wilful and wanton conduct, and intentional infliction of emotional distress (IIED)
because their use of force was reasonable under the Fourth Amendment. As discussed above, the
Defendant Officers are entitled to judgment as a matter of law on plaintiff’s excessive force
claim because plaintiff’s act of picking up the gun from the sidewalk presented an imminent
threat of death or serious injury under the circumstances then confronting the Defendant Officers
and based on the information they possessed. It therefore follows that if the Defendant Officers’
use of force was reasonable under the Fourth Amendment, then they did not commit false arrest,
battery, assault, IIED, or wilful and wanton conduct. Indeed, as argued above, if the Defendant
Officers had probable cause to discharge their weapons at plaintiff, then they would have
probable cause to handcuff him for his threatening actions and they are entitled to judgment as a

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matter of law on plaintiff’s Section 1983 false arrest claim. Officers Torres and Petrenko are
also entitled to judgment as a matter of law on this claim because there is no evidence that either
officer was involved in handcuffing plaintiff.
Moreover, if plaintiff’s Section 1983 claims of false arrest and excessive force fail, any
conspiracy claim based on those claims would likewise fail. Under Section 1983, conspiracy is
not a freestanding constitutional violation; a plaintiff must prove that there is an underlying
constitutional injury. Hobbs v. Cappelluti, 899 F.Supp.2d 738, 753 (N.D. Ill. 2012). Defendant
Officers are also entitled to judgment as a matter of law on plaintiff’s section 1983 conspiracy
claim because there is not sufficient evidence to support a conspiracy claim. This is especially
true for Officers Torres and Petrenko, who did not even talk to Officers Ruiz or Duran before the
Plaintiff was handcuffed.
Furthermore, if the Defendant Officers’ use of force was reasonable under the Fourth
Amendment, then it would follow that their conduct was not wilful and wanton – a requirement
for plaintiff’s state law claims of battery, assault, and wilful and wanton conduct. Plaintiff would
have to show that conduct that is reasonable under the Fourth Amendment was somehow wilful
and wanton under Illinois state law. The Seventh Circuit found it hard to reconcile such a result
in DeLuna. 447 F.3d at 1013. Likewise, conduct that is reasonable under the Fourth
Amendment would not be extreme and outrageous, a requirement of plaintiff’s IIED claim.
Accordingly, Defendant Officers are entitled to judgment as a matter of law on plaintiff’s
remaining Section 1983 claims of false arrest and conspiracy and state law claims of battery,
assault, wilful and wanton conduct, and intentional infliction of emotional distress (IIED).

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State Law Claims
Defendant Officers are also entitled to judgment as a matter of law on plaintiff’s state law
claims because they fail as a matter of law. Indeed, all of state-law claims (battery, assault,
IIED, wilful and wanton conduct) against Defendant Officers are barred by the Tort Immunity
Act’s one-year statute of limitations. 745 ILCS 10/8-101. The shooting occurred on March 14,
2012. Officers Torres, Petrenko and Ruiz were first named as defendants in Plaintiff’s Second
Amended Complaint filed on July 10, 2013.
Further, Plaintiff’s wilful and wanton claim is not cognizable. “Willful and wanton
conduct” is not a claim recognized in Illinois law. Sparks v. Starks, 367 Ill.App.3d 834, 837 (1st
Dist. 2006). Furthermore, even if Illinois law recognized a cause of action for wilful and wanton
conduct, the wilful and wanton count still fails as a matter of law because it is duplicative.
“Wilful and wanton conduct” is an element of plaintiff’s state law claims for assault and battery.
Accordingly, a separate claim for “Wilful and Wanton Conduct” would be duplicative.
Conclusion
WHEREFORE, for the reasons set forth above, Defendants respectfully request that this
Court grant their request for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a) and for
any other relief this Court deems just.

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Respectfully submitted,

/s/ Joseph M. Polick
JOSEPH M. POLICK
On behalf of the Defendants
THE SOTOS LAW FIRM, P.C.
550 E. Devon Avenue, Suite 150
Itasca, IL 60143
[phone]
Atty. No. 6203682
[e-mail]
/s/ Marion C. Moore
Marion C. Moore
Assistant Corporation Counsel
30 North LaSalle Street, Suite 900
Chicago, Illinois 60602
[phone] (P)
[phone] (F)
Atty. No. 6302566

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