Serna v. Sears et al

Filing 118

MEMORANDUM Opinion and Order Signed by the Honorable Andrea R. Wood on 3/31/2017:Mailed notice(rth, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARTA MENESES SERNA,
Plaintiff,
v.
DENNIS SEARS, et al.,
Defendants.

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No. 13-cv-03359
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
This case concerns allegations that an officer exercised excessive force while carrying out
the arrest of a suspected drunk driver. Plaintiff Marta Meneses Serna claims that, during the
course of her arrest by Officer Dennis Sears, she sustained injuries resulting in a loss of
consciousness and a loss of some of her teeth—all due to Officer Sears’s exercise of excessive
force. As a result, Serna has sued Officer Sears under 42 U.S.C. § 1983 for violations of her right
to be free from the exercise of excessive force under the United States Constitution and under
Illinois common law for battery. In addition, Serna has sued Police Chief Ronald Price and the
Village of Bannockburn (the “Village”) under § 1983 for the alleged constitutional violations
arising from the Village’s use-of-force policy and Chief Price’s execution and implementation of
said policy. Defendants have moved for summary judgment on all three claims. (Dkt. No. 98.)
As explained below, Defendants’ motion is granted in part and denied in part. Specifically, the
Court grants Defendants summary judgment on the claim against Chief Price and the Village, but
denies Defendants summary judgment on the claims against Officer Sears.

BACKGROUND
Unless otherwise indicated, the following facts are undisputed. On September 2, 2012, at
approximately 12:33 a.m., Officer Sears observed Serna’s car traveling below the speed limit and
swerving. (Defs.’ Stmt. of Material Facts ¶¶ 10, 11, Dkt. No. 98-4.) At the time, Serna’s Illinois
driver’s license was suspended and she did not have a valid driver’s license from any other state.
(Id. ¶¶ 5, 6.) Despite this suspension, she was driving after consuming alcohol. (Id. ¶ 9.) Also in
her car was her boyfriend Leonardo Alvarado. (Id. ¶ 15.)
Officer Sears signaled Serna to pull over and she complied. (Id. ¶¶ 14, 16.) Officer Sears
asked Serna to produce proof of vehicle insurance and a driver’s license. (Id.) Officer Sears
could smell both vomit and alcohol coming from inside the vehicle. (Id. ¶ 17.) Officer Sears
observed Serna’s eyes to be droopy, watery, red, and glassy. (Id. ¶ 18.) Officer Sears asked Serna
if there was any reason that she was travelling slowly and swerving; she said “no.” (Id. ¶ 19.)
Officer Sears asked Serna how much she had been drinking, and she stated that she did not
know. (Id. ¶ 20.) Serna subsequently testified that she had consumed three and a half glasses of
wine. (Id. ¶ 9.)
Serna produced an expired insurance card to Officer Sears. (Id. ¶ 21.) Serna also claims
to have produced a Mexican driver’s license to Officer Sears. (Pl.’s Stmt. of Add’l Facts ¶ 7,
Dkt. No. 101.) Officer Sears requested that Serna exit her car. (Defs.’ Stmt. of Material Facts
¶ 22, Dkt. No. 98-4.) Officer Sears observed Serna staring straight ahead and blinking for much
longer than normal before she exited her car. (Id. ¶ 23.) Officer Sears claims that he believed
Serna was falling asleep, but Serna denies that her behavior indicated this. (Id.; Pl.’s Resp. to
Def.’s Stmt. of Material Facts ¶ 23, Dkt. No. 100.) Officer Sears also claims then that as Serna
exited the car she stumbled but caught her balance. (Defs.’ Stmt. of Material Facts ¶ 24, Dkt. No.

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98-4.) Again, Serna disagrees with Officer Sears’s account and denies that she stumbled out of
the car. (Pl.’s Resp. to Def.’s Stmt. of Material Facts ¶ 24, Dkt. No. 100 (citing video evidence).)
Officer Sears then instructed her to walk to the back of the car. (Defs.’ Stmt. of Material Facts
¶ 25, Dkt. No. 98-4.) In so doing, Serna walked up to Officer Sears’s partner, Officer John
Kleffner, who was assisting Officer Sears, and got very close to him. (Id. ¶ 26.) Although Serna
denies that it is true, Kleffner testified that he smelled a strong odor of alcohol on Serna’s breath.
(Id. ¶ 27.) Serna was wearing high-heeled shoes when she exited her vehicle. (Id. ¶ 28.)
Officer Sears then administered the horizontal-gaze-nystagmus test and the portablebreath test on Serna. (Id. ¶¶ 29, 34.) Both tests indicated that Serna had been consuming alcohol.
(Id. ¶¶ 32, 37.) Because the results of this test indicated a blood-alcohol-content level above the
legal limit for driving, Officer Sears determined that he had probable cause to arrest her. (Id.
¶ 37.) But Officer Sears claims that he did not inform Serna that she was under arrest while he
was standing in front of her, as he was in a position in which she could charge at him. (Id. ¶ 39.)
Officer Sears claims that he was also concerned that, while he had Serna behind her vehicle, no
one was monitoring Alvarado; Officer Sears waited until after he was behind her to tell her that
she was under arrest. (Id. ¶¶ 40, 38.) Serna disputes that Officer Sears was either concerned at
the prospect of Serna charging at him or that Alvarado would be unmonitored. (Pl.’s Resp. to
Def.’s Stmt. of Material Facts ¶¶ 39, 40, Dkt. No. 100.)
Serna asked Officer Sears why she was being arrested and he responded “too many
cervezas.” (Defs.’ Stmt. of Material Facts ¶ 41, Dkt. No. 98-4.) Officer Sears attempted to
handcuff Serna, placing one handcuff on Serna’s left wrist while attempting to handcuff the other
hand. (Id. ¶¶ 42–43.) As Officer Sears was attempting to handcuff her, Serna turned her head and
moved her right arm. (Id. ¶ 43.) Observing this, Officer Sears claims that he became concerned

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that Serna would be able to use the open handcuff as a weapon and felt that he was losing his
grip on Serna’s right hand; again Serna denies that Officer Sears had any such concern and that
any such a concern would have been reasonable under the circumstances. (Id. ¶¶ 44, 45; Pl.’s
Resp. to Def.’s Stmt. of Material Facts ¶¶ 44, 45, Dkt. No. 100.) Officer Sears then instructed
Serna not to move; Kleffner testified that, at that time, he heard Serna reply “no.” (Defs.’ Stmt.
of Material Facts ¶¶ 46, 47, Dkt. No. 98-4.) Serna states that she moved her head so that she
could look at Officer Sears directly and determine why she was being arrested. (Pl.’s Stmt. of
Add’l Facts ¶ 1, Dkt. No. 101.) At this time, Officer Sears claims he attempted to execute a leg
sweep on Serna. (Defs.’ Stmt. of Material Facts ¶ 48 Dkt. No. 98-4.) Serna denies that this was
an attempted leg sweep, but rather that Officer Sears tripped her. (Pl.’s Resp. to Def.’s Stmt. of
Material Facts ¶ 48, Dkt. No. 100 (citing video evidence).) In either case, Serna fell forcefully
onto the ground. (Defs.’ Stmt. of Material Facts ¶ 51, Dkt. No. 98-4.)When Serna hit the ground,
she landed on her left side and lost consciousness. (Id. ¶ 53.) Serna states that she also lost two or
three teeth. (Pl.’s Stmt. of Add’l Facts ¶ 4, Dkt. No. 101.) Officer Sears called for an ambulance,
which arrived and removed Serna from the scene. (Defs.’ Stmt. of Material Facts ¶¶ 54, 56, Dkt.
No. 98-4.)
DISCUSSION
Summary judgment is appropriate when there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. Gross v. PPG Indus., Inc., 636 F.3d
884, 888 (7th Cir. 2011). In assessing whether the movant is entitled to judgment as a matter of
law, the Court must draw all reasonable inferences from the evidence presented in favor of the
nonmoving party. McCann v. Iroquois Mem’l Hosp., 622 F.3d 745, 752 (7th Cir. 2010). “The
initial burden is on the moving party . . . to demonstrate that there is no material question of fact

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with respect to an essential element of the non-moving party’s case.” Cody v. Harris, 409 F.3d
853, 860 (7th Cir. 2005). “If the moving party meets this burden, the non-moving party must
submit evidence that there is a genuine issue for trial.” Delta Consulting Grp., Inc. v. R. Randle
Const., Inc., 554 F.3d 1133, 1137 (7th Cir. 2009).
Defendants have moved for summary judgment on each of Serna’s three claims: (1) the
§ 1983 claim against Officer Sears; (2) the § 1983 claim against Chief Price and the Village; and
(3) the battery claim against Officer Sears. Specifically, Defendants argue that Serna’s § 1983
claim against Officer Sears fails because he is entitled to qualified immunity and his exercise of
force was reasonable under the circumstances; that Serna’s § 1983 claim against Chief Price and
the Village fails because Serna has not identified an express policy of the Village that caused a
constitutional deprivation; and that Serna’s battery claim against Officer Sears fails because he is
immune for his conduct under the Illinois Tort Immunity Act, 745 ILCS 10/2-202.
I.

Section 1983 Claim Against Officer Sears
Defendants argue that Officer Sears is entitled to summary judgment on Serna’s § 1983

claim for use of excessive force because Officer Sears has qualified immunity for his actions
related to the arrest. Government officials enjoy qualified immunity “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.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). “Qualified immunity balances two important interests—the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties reasonably.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009); accord Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th
Cir. 2012).

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The Court must grant summary judgment on qualified-immunity grounds unless the
plaintiff has (1) adduced facts sufficient to make out that the officers’ conduct constituted a
constitutional violation, and (2) shown that the unconstitutionality of the officers’ conduct was
clearly established. McNair v. Coffey, 279 F.3d 463, 465 (7th Cir. 2002) (citing Saucier v. Katz,
533 U.S. 194, 200–01 (2001)). The Supreme Court has permitted “[t]he judges of the district
courts . . . to exercise their sound discretion in deciding which of the two [elements] of the
qualified immunity analysis [to] addres[s] first in light of the circumstances of the particular case
at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). But the Supreme Court also has
“recognize[d] that it is often beneficial” to begin the analysis with the question of whether the
“relevant facts . . . make out a constitutional violation at all.” Id.
A.

“Constitutional Violation” Prong

The Fourth Amendment to the United States Constitution prohibits an officer “from
employing greater force than [is] reasonably necessary to make [an] arrest,” even when he “has
probable cause to arrest . . . .” Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 724 (7th Cir. 2013)
(internal quotation marks omitted). When officers “have, by means of physical
force[,] . . . restrained the liberty of a citizen,” that restraint constitutes “[a] seizure triggering the
Fourth Amendment’s protections . . . .” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)
(internal quotation marks omitted). If the parties dispute material facts, for example, about
whether police “acted unreasonably because they responded overzealously and with too little
concern for safety,” summary judgment is inappropriate. Bell v. Irwin, 321 F.3d 637, 640 (7th
Cir. 2003); see also Cyrus v. Town of Mukwonago, 624 F.3d 856, 892 (7th Cir. 2010) (discussing
Bell and observing that “summary judgment is often inappropriate in excessive-force cases
because the evidence surrounding the use of force is often susceptible to different

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interpretations”).
Thus, the question before this Court is whether Officer Sears acted in accordance with
“[t]he Fourth Amendment’s reasonableness standard” in his exercise of force against Serna. 1
Stainback v. Dixon, 569 F.3d 767, 771–72 (7th Cir. 2009) (citing Graham, 490 U.S. at 388).
“[T]he reasonableness of the officer’s belief as to the appropriate level of force should be judged
from” the perspective of an officer on the scene, because “police officers are often forced to
make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary.” Saucier v. Katz, 533 U.S. 194, 204–05 (2001)
(internal citations omitted). Some important factors to consider in adjudging the reasonableness
of an officer’s exercise of force include “the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and whether [s]he is actively
resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396.
Officer Sears suspected Serna of committing a serious crime, but the nature of the crime
did not by itself clearly make Officer Sears’s exercise of force reasonable. Though Serna driving
drunk posed a danger to the community, a reasonable jury might find that Officer Sears could
have reasonably negated this potential danger by employing less forceful means. Serna might
argue, for example, that Officer Sears could have denied her access to her car by standing next to
the door to prevent her from driving away. Such an argument is not foreclosed by the evidence
adduced thus far, and so it presents a genuine issue of material fact that persists.

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Defendants also contend that Serna’s injuries were not caused by Officer Sears’s exercise of force but
rather as a result of them simultaneously losing balance. To support this conclusion, Defendants claim
that Serna was wearing heels and that she was inebriated. Serna disagrees and, citing her deposition
testimony, contends that Officer Sears used a take-down maneuver. (Pl.’s Resp. at 2, Dkt. No. 99.) As this
is a genuine factual dispute, the Court must deny summary judgment on the grounds that Sears did not
exercise any force against Serna.

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Defendants argue that Serna posed an immediate threat to her own safety and the safety
of others because she might have run into the middle of traffic. But Serna sets forth facts from
which she could plausibly dispute that the “immediate threat” she posed reasonably warranted
Officer Sears’s exercise of force. For example, she points out that she was wearing high-heeled
shoes, which limited her ability to run quickly. (See, e.g., Pl.’s Resp. at 3–4, Dkt. No. 99.)
Moreover, Officers Sears and Kleffner were close by and Officer Sears was considerably bigger
than her. (Pl.’s Stmt. of Add’l Facts ¶¶ 12, 13, Dkt. No. 101.) On this record, there is a genuine
factual question regarding whether the force inherent in the maneuver Officer Sears used was
proportionate to the risk that Serna would run away into the middle of traffic.
Finally, Defendants claim that Serna was resisting arrest by trying to pull away from
Officer Sears when he had hold of her hand. Serna testified that she was not trying to pull away
or walk away, but that she was merely turning to look at Officer Sears. (Pl.’s Stmt. of Add’l
Facts ¶ 1, Dkt. No. 101.) Again, there is a factual dispute about whether Serna was resisting
arrest—or taking any other action—for which Officer Sears’s exercise of force would be an
appropriate response. As a result of these genuine issues of material fact, it would be
inappropriate to grant summary judgment in Defendants’ favor on the question of the
reasonableness of Officer Sears’s exercise of force.
B.

“Clearly Established” Prong

Whether qualified immunity protects an individual official from personal liability
“generally turns on the ‘objective legal reasonableness’ of the action.” Anderson v. Creighton,
483 U.S. 635, 639 (1987) (internal citations omitted). How this standard operates “depends
substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Id.
“[T]he right the official is alleged to have violated must have been ‘clearly established’ in a more

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particularized, and hence more relevant, sense: The contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right. This is
not to say that an official action is protected by qualified immunity unless the very action in
question has previously been held unlawful; but it is to say that in the light of pre-existing law
the unlawfulness must be apparent. Id. at 639–40 (internal citations omitted). Because the Court
must draw all reasonable inferences from the evidence in Serna’s favor, and because the Court
has already determined above that there is a genuine issue of material fact about the nature of
Officer Sears’s exercise of force, Defendants must therefore show that Officer Sears’s exercise
of excessive force—as alleged by Serna—was not a clearly established constitutional violation.
The Court determines that the Defendants have failed to carry this burden.
As alleged by Serna, Officer Sears tripped Serna causing her to fall down to the ground
with such force that she lost consciousness and some of her teeth. She was not actively
resisting—she was merely turning her head. Moreover, she could easily have been restrained
with much less physical force, as there were two officers close by and Officer Sears was a great
deal bigger than her. If the fact finder agrees with Serna’s characterization of the events, this
would be a clearly established violation of Serna’s right to be free from the exercise of excessive
force. See, e.g., Gregory v. Oliver, 226 F. Supp. 2d 943, 950 (N.D. Ill. 2002).
Defendants argue that the unconstitutionality of Officer Sears’s alleged leg sweep is not
clearly established. They cite the Illinois Law Enforcement Training and Standards Board Use of
Force Training (“ILETSB”) for the proposition that a leg sweep may be used to confront active
resisters. Therefore, Defendants argue, Officer Sears was entitled to use a leg sweep against
Serna, as she was actively resisting. This argument fails. Even assuming that the leg sweep is an
approved technique to handle active resisters and that Officer Sears in fact executed this leg

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sweep, there is a genuine factual dispute as to whether Serna was an active resister on whom the
leg sweep could reasonably have been used. The ILETSB does not resolve that factual dispute,
and hence granting summary judgment in Defendants’ favor on this issue is inappropriate.
II.

Section 1983 Claim Against Chief Price and the Village
Serna’s § 1983 claim against Chief Price and the Village is brought pursuant to Monell v.

Department of Social Services, 436 U.S. 658 (1978). To succeed on this claim, Serna must show
one of the following: (1) an express written policy caused the constitutional deprivation at issue;
(2) the constitutional injury resulted from a decision made by a municipal employee with final
policymaking authority; or (3) the constitutional deprivation resulted from such a widespread
practice of the municipality that it constitutes custom with the virtue of law. Monell, 436 U.S. at
690–91; McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000). The Court already
held in its order denying Defendants’ Motion to Dismiss that Serna could not proceed under the
theory that Price “was responsible for the execution and implementation of the express written
use of force policy of the Bannockburn Police Department, and had final decision-making
authority regarding the execution and implementation of the policy.” (See generally Mem. Op. &
Order on Defs.’ Mot. to Dismiss at 4–6, Dkt. No. 92 (quoting Compl. ¶ 41, Dkt. No. 54)). But
the Court did allow Serna to proceed on her alternative theory, namely that the Village and its
police department had an express written use of force policy authorizing the leg sweep that
Officer Sears utilized. (Id. at 5–6.)
Now, Serna argues that Officer Sears’s actions “clearly violate . . . the Bannockburn
Police Department Use of Force Policy.” (Pl.’s Resp. at 9, Dkt. No. 99 (emphasis added).) This
concession that the Village police department’s written policy prohibits the unconstitutional
activity in which Serna alleges that Officer Sears engaged fatally undercuts Serna’s Monell

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claim. As there is no genuine dispute of material fact that the Village did not have an express
policy authorizing Officer Sears’s exercise of force, the Court grants Defendants’ motion for
summary judgment on this § 1983 claim asserted against Chief Price and the Village.
III.

Illinois State Law Battery Claim
Defendants finally argue that the Court should grant summary judgment on Serna’s

battery claim against Officer Sears because the Illinois Tort Immunity Act immunizes Officer
Sears from suit. Under that law, “[a] public employee is not liable for his act or omission in the
execution or enforcement of any law unless such act or omission constitutes willful and wanton
conduct.” 745 ILCS 10/2-202. Conduct is willful and wanton if it is “a course of action
which . . . if not intentional, shows an utter indifference to or conscious disregard for the safety
of others or their property.” 745 ILCS 10/1-210. “‘[Willful and wanton conduct] is generally
considered in that area of fault between ordinary negligence and actual malice. In view of the
fact that it is a matter of degree, a hard and thin line definition should not be attempted.’ Under
the facts of one case, willful and wanton misconduct may be only degrees more than ordinary
negligence, while under the facts of another case, willful and wanton acts may be only degrees
less than intentional wrongdoing.” Ziarko v. Soo Line R. Co., 641 N.E.2d 402, 406 (Ill. 1994)
(internal citations omitted) (alterations in the original). The Illinois Supreme Court has further
observed that “[w]hether conduct is willful and wanton depends on the circumstances of each
case” and that “the issue of willful and wanton conduct is usually a question of fact for the jury.”
Harris v. Thompson, 976 N.E.2d 999, 1011 (Ill. 2012).
For their argument here, Defendants primarily rehash their previous arguments that
Serna’s injuries were not caused by Officer Serna’s exercise of force and that, even if he did
exercise force, Officer Sears acted reasonably. As discussed, there are genuine issues of material

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fact regarding these questions that preclude summary judgment. Moreover, this case involves a
potentially fine distinction in determining whether Officer Sears’s conduct was “willful and
wanton,” merely “negligent,” or neither. As such, the Court follows the Illinois Supreme Court’s
teaching and finds that whether Officer Sears’s conduct was willful and wanton—and thereby
outside the scope of tort immunity—depends on factual determinations appropriately left to the
fact finder.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment (Dkt. No. 98) is
granted in part and denied in part. The Court grants the motion with respect to Count III against
Chief Price and the Village. The Court denies the motion with respect to Counts I and II against
Officer Sears.
ENTERED:

Dated: March 31, 2017

__________________________
Andrea R. Wood
United States District Judge

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