Childs v City of Chicago et al

Filing 85

MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 3/28/2017. Mailed notice(mjc, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICKEY CHILDS, individually and as
Administrator of the Estate of
RICKEY CHILDS, JR., deceased,

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Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

Case No. 13-CV-7541
Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER
On the night of Sunday, October 28, 2012, Chicago police officer Pablo Mariano
(“Mariano”), who was then on duty, shot sixteen-year-old Rickey Childs, Jr. (“Childs”); the
bullet struck Childs in the back of the head. He was pronounced dead at a hospital the next day.
Defs.’ Joint L.R. 56.1 State [sic] of Uncontested Facts (“Defs.’ SOF”) ¶ 2, ECF No. 69; see also
Defs.’ Ans. to 1st Am. Compl. ¶ 8, ECF No. 12 (admitting Childs was pronounced dead at
9:51 p.m. on October 29, 2012.) In this lawsuit, his father, plaintiff Rickey Childs, Sr., (“Childs,
Sr.”) claims Mariano used excessive force. Childs, Sr., brings claims on his own behalf and as
the administrator of Childs’ estate. 1st Am. Compl. ¶ 2, ECF No. 6. In addition to the § 1983
claim against Mariano, the complaint asserts conspiracy claims under § 1983 and Illinois law; a
wrongful death claim under Illinois law; a claim under the Illinois survival statute, 755 ILCS
5/27-6; and a respondeat superior count against the City of Chicago (“the City”).
The defendants move for summary judgment. They argue that the undisputed evidence
shows that Mariano’s use of deadly force was objectively reasonable. Finding material factual
disputes over whether Mariano had information from which he could conclude that Childs had a

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weapon and whether Childs was fleeing, the court denies summary judgment on all but the
plaintiff’s conspiracy claims.
I. FACTS AND SUMMARY JUDGMENT EVIDENCE 1
Mariano had never seen Childs before the night of October 28, 2012. Pl.’s SOF ¶¶ 48–
49, ECF No. 80. That night, two black men wearing ski masks attempted to rob an individual
referred to here as C.M. 2 near 8223 S. Maryland Street in Chicago, Illinois. Pl.’s SOF ¶ 1. C.M.
could not see their faces. Pl.’s SOF ¶ 2.
Mariano and another police officer, Robert Gonzalez (“Gonzalez”), 3 were patrolling the
area in a marked police car. Pl.’s SOF ¶ 3; Defs.’ SOF ¶ 7; Mariano Dep. 29:20–30:10. As
Mariano and Gonzalez drove north on Maryland, C.M. flagged them down. 4 See Defs.’ SOF ¶¶
7–8; Pl.’s SOF ¶ 7. He told Mariano and Gonzalez that an attempted robbery had occurred. See
Defs.’ Reply to Pl.’s Resp. to Defs.’ SOF ¶ 9, ECF No. 83.
The parties disagree about exactly what else C.M. told Mariano and Gonzalez. C.M.
stated that he “pointed towards the way the incident had happened at [sic].” 5 Defs.’ Ex. C at 9,

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Local Rule 56.1(a)(3) requires a party moving for summary judgment to submit “a statement of material facts as to
which the moving party contends there is no genuine issue and that entitle the moving party to judgment as a matter
of law.” Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009) (citing N.D. Ill. L.R. 56.1(a)(3)). Under
Local Rule 56.1(b)(3), the nonmoving party then must submit a “concise response” to each statement of fact,
“including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other
supporting materials relied upon.” N.D. Ill. L.R. 56.1(b)(3)(B). The party opposing summary judgment may also
present a separate statement of additional facts “consisting of short numbered paragraphs,” with citations to the
record, that require the denial of summary judgment. N.D. Ill. L.R. 56.1 (b)(3)(C); see also Ciomber v. Coop. Plus,
Inc., 527 F.3d 635, 643-44 (7th Cir. 2008). For summary judgment purposes, Local Rule 56.1(a) requires the court
to “deem admitted those facts that are not contested in the parties’ submissions related to the motion for summary
judgment.” Robinson v. Bandy, 524 F. App’x 302, 305 (7th Cir. 2013) (citing Raymond v. Ameritech Corp., 442
F.3d 600, 608 (7th Cir. 2006)). The court recites the facts in the light most favorable to Childs and notes disputed
facts as appropriate.
2
C.M.’s identity is subject to the agreed protective order entered May 2, 2014. ECF No. 16.
3
Mariano identified Gonzalez as “Bobby” at his deposition. Mariano Dep. 29:10. Plaintiff named Gonzalez as a
defendant in his amended complaint but voluntarily dismissed him. See Stipulation to Voluntarily Dismiss
Defendant Robert Gonzalez 1, July 13, 2016, ECF No. 66 (dismissing Gonzalez with prejudice).
4
Mariano and Gonzalez made contact with C.M. earlier the same night. See Mariano Dep. 31:4–33:17; C.M. Stmt.
10–11. The parties do not discuss this fact in their briefing.
5
On October 29, 2012, C.M. signed a statement before the Chicago Independent Police Review Authority reading:
“I swear or affirm under penalties provided by law that the information contained in the above and/or attached

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ECF No. 70. Mariano testified that C.M. pointed to one of two men who were then standing
down the street and said something like, “The guy over there with the black hoodie has a gun, he
tried to rob me.” Mariano Dep. 34:10–19. One of the officers, according to C.M.’s statement,
“had seen one of the guys trying to rob [him] running and [the officer] started chasing him.”
C.M. Statement 6-7. Viewed in a light favorable to the plaintiff, C.M.’s testimony does not
make clear whether C.M. communicated to Mariano or Gonzalez that the person who ran was the
person who attempted to rob C.M. or whether Gonzalez assumed as much from the fact that the
person wearing the black hoodie began to run. See id. More importantly, a reasonable jury
could find the following fact from C.M.’s version of the encounter: C.M. never told Mariano and
Gonzalez that the person who robbed him was armed. Compare C.M. Statement at 6, and ECF
No. 83 at 4 ¶ 9 (stating that it is undisputed that “C.M. told the officers he had been robbed and
pointed them in a particular direction”); with Mariano Dep. 34:10–19.
A. The Chase
Mariano and Gonzalez returned to their police car and began driving toward the men at
whom C.M. had pointed. See Pl.’s SOF ¶ 12. As the car approached, one of the men ran, and
Gonzalez got out of the car and gave chase on foot. See id.; Defs.’ SOF ¶ 12.
Mariano described the person who ran as wearing a black hoodie. See Defs.’ SOF ¶ 9.
Mariano testified that he saw the person in the black hoodie “clinching” the right side of his
waistband before he began running; based on that observation, Mariano assumed that he had a
gun. Mariano Dep. 39:15–23.
statement summary, or the attached electronically recorded statement, is true and accurate.” ECF No. 70 at 3. The
parties treat C.M.’s statement as competent for summary judgment purposes. “Evidence presented to defeat a
summary judgment motion need not be in admissible form, but it must be admissible in content.” Payne v. Pauley,
337 F.3d 767, 781 (7th Cir. 2003) (quoting Stinnett v. Iron Works Gym/Exec. Health Spa, Inc., 301 F.3d 610, 613
(7th Cir. 2002)). Consequently, the court implies no view on whether C.M.’s statement complies with the
requirements for an unsworn declaration set forth in 28 U.S.C. § 1746(2). The court employs the verb “testify” to
describe C.M.’s statement solely as a matter of convenience.

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Mariano saw Gonzalez pursue the person in the black hoodie down a gangway. 6 See
Defs.’ Resp. to Pl.’s SOF at 26 ¶ 17 (stating that Mariano’s testimony does not clarify whether,
as the plaintiff contends, the person turned east into the gangway). The court pauses here to note
that Mariano did not see Gonzalez for the remainder of the chase and did not know where he
was. As far as the record shows, Mariano is the only living eyewitness to the subsequent events
of the chase. See Defs.’ SOF ¶ 24–25, 32–35 (no other officer was present; Mariano does not
recall anyone else in the gangway where he shot Childs; and the plaintiff’s other witnesses were
not there).
Mariano then drove north to 82nd Street and turned right. Pl.’s SOF ¶ 18. While
travelling east on 82nd Street, Mariano saw a person running north (towards 82nd Street) in a
north-south alley between Maryland and Drexel. Id. ¶ 19. Mariano thought that this was the
person Gonzalez had been pursuing, but he does not know how that person got from the
gangway to the alley. Id. SOF ¶ 20. Mariano saw that this person was holding his right
waistband; Mariano again assumed the person had a gun. Id. ¶ 21; Mariano Dep. 43:6-44:2. The
person reached 82nd Street, turned right (east), and ran along 82nd toward Drexel; Mariano
pursued him in his police car. Pl.’s SOF ¶¶ 23–24. The person Mariano was following crossed
Drexel and turned right, doubling back south on the east side of Drexel. Id. ¶ 26. Mariano
followed, and he saw the person turn left (east) into a gangway. See id. ¶ 27. This is not the
gangway in which Childs was shot.

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As used here, the term “gangway” refers to a space, usually narrow, between two houses, though one can
sometimes serve several houses in a dense area. See, e.g., United States v. Ingrao, 897 F.2d 860, 864–65& n.1 (7th
Cir. 1990) (discussing police observations of activity in gangway and noting that the record did not make clear how
many houses the gangway served); Strong v. Jackson, No. 10 C 1497, 2012 WL 3151315, at *2 (N.D. Ill. July 30,
2012) (discussing pursuit in neighborhood and finding two boys hiding in a “cut out” in a gangway that could not be
seen from the street).

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Mariano got out of his car to pursue the individual into the gangway. See Pl.’s SOF ¶¶
28–29. As he approached the gangway entrance, Mariano used a “cut the pie” tactic; he intended
to use the building’s corner to shield him as a precaution. See id. ¶¶ 29–30.
Mariano testified that he saw the person he was chasing point a gun at him as he was
performing the “cut the pie” maneuver. Pl.’s SOF ¶ 31; Mariano Dep. 46:13–19. Mariano
further testified that he heard and smelled a gunshot, but he did not see the person he was
chasing fire. Mariano Dep. 46:20–47:8, 51:9–12. The person Mariano was following then ran
east into the gangway. See Pl.’s SOF ¶¶ 32, 34. Mariano returned to his car, drove south to 83rd
Street, and turned left (east) on 83rd, now traveling in the same direction he had seen the person
he was chasing run. See id. ¶¶ 34–35. He turned left at the next intersection and eventually
entered the north entrance on 82nd Street of the north-south alley between Drexel and Ingleside.
See Defs.’ Resp. to Pl.’s SOF at 32 ¶ 37 (stating that the exact sequence of Mariano’s turns is not
clear from his testimony, but that it is clear that this is where he ultimately arrived).
Mariano got out of his car and started to walk south in the alley. Pl.’s SOF ¶ 38. He saw
an individual he believed to be the person he was pursuing jump a fence into an apparently eastwest gangway on the alley’s west side. Id. ¶¶ 39–40. This person was Childs. Childs began
running west in the gangway toward Drexel. Id. ¶ 41. Mariano began climbing a fence between
the alley and the gangway to continue the pursuit. See id. ¶ 43. Mariano testified as follows
about what happened next:
As I'm trying to jump the fence -- I am getting to the top of the
fence is [sic] when he stopped quickly, turned and looked at me
shoulder to shoulder. I, um, was scared for my life that he might
shoot me again. So I jumped off the fence, pulled my gun out,
aimed at him and shot him.

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Mariano Dep. 65:4–9. Childs’ post mortem examination report states that he sustained a gunshot
wound to the back of his head, 3.5” left of the posterior midline. Pl.’s SOF ¶ 50; Plaintiff’s Ex. A
at 2.
B. The Revolver
A revolver was subsequently recovered in the first gangway, i.e., the one in which,
according to Mariano’s testimony, Childs shot at him, not in the gangway where Mariano shot
Childs. See Pl.’s SOF ¶ 46; Defs.’ SOF ¶ 26; Mariano Dep. 69:5–11. That is, the parties cite no
summary judgment evidence suggesting that a gun or other weapon was found on or near Childs’
body. Ibid.
An Illinois State Police (“ISP”) scientist tested Childs’ hands for gunshot residue. Pl.’s
SOF ¶ 58. They tested negative. Pl.’s SOF ¶ 58.
On a form entitled “Preliminary Firearm Examination” regarding the revolver found in
the gangway, the box next to “appears not to function properly” is checked, and someone wrote
“Pin missing – unable to cock hammer.” Pl.’s SOF Ex. F. at FCRL 000824, ECF No. 80-6. An
ISP scientist “who examined the recovered revolver, live cartridges, and spent cartridge case for
fingerprints, testified she found no latent impressions that were suitable for comparison to any
particular person.” Defs.’ SOF ¶ 38 (citing Wessel Dep. Ex. J, ECF No. 69-9).
II. SUMMARY JUDGMENT STANDARD
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). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In resolving summary judgment motions, “facts must be viewed in the light

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most favorable to, and all reasonable inferences from that evidence must be drawn in favor of,
the nonmoving party–but only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris,
550 U.S. 372, 380 (2007); Blasius v. Angel Auto., Inc., 839 F.3d 639, 644 (7th Cir. 2016) (citing
Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016)).
The party seeking summary judgment has the burden of establishing that there is no
genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (explaining that Rule 56 “imposes an
initial burden of production on the party moving for summary judgment to inform the district
court why a trial is not necessary” (citation omitted)). After “a properly supported motion for
summary judgment is made, the adverse party must” go beyond the pleadings and “set forth
specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 255
(quotation omitted); see also Modrowski, 712 F.3d at 1169 (stating party opposing summary
judgment “must go beyond the pleadings (e.g., produce affidavits, depositions, answers to
interrogatories, or admissions on file), to demonstrate that there is evidence upon which a jury
could properly proceed to find a verdict in her favor”) (citations and quotations omitted).
Summary judgment is warranted when the nonmoving party cannot establish an essential
element of its case on which it will bear the burden of proof at trial. Kidwell v. Eisenhauer, 679
F.3d 957, 964 (7th Cir. 2012).
Here, the parties disagree about whether certain factual disputes are genuine and, if so,
whether the disputed facts are material. “The underlying substantive law governs whether a
factual dispute is material: ‘irrelevant or unnecessary’ factual disputes do not preclude summary
judgment.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012) (quoting Anderson, 477 U.S.
242, 248 (1986)). To create a genuine dispute, the contradictory evidence of a fact must raise

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more than “[m]ere ‘metaphysical doubt as to the material facts.’” Id. (quoting Matsushida Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The court therefore begins by
outlining the underlying Fourth Amendment principles that determine the materiality of the facts.
III. FOURTH AMENDMENT PRINCIPLES
Intentionally shooting a person constitutes a “seizure” within the meaning of the Fourth
Amendment. Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th Cir. 2002)) (citing
Tennessee v. Garner, 471 U.S. 1, 11–12 (1985)). “[A] claim of excessive force in the course of
making a seizure of the person is properly analyzed under the Fourth Amendment’s objective
reasonableness standard.” Scott v. Harris, 550 U.S. 372, 381 (2007) (quoting Graham v. Connor,
490 U.S. 386, 388 (1989)) (internal quotation marks and alterations omitted). The defendants
invoke the doctrine of qualified immunity in their motion for summary judgment. Mem. Supp.
Mot. Summ. J. 11–13, ECF No. 71.
Under the heading of qualified immunity, the defendants acknowledge that “[t]here is no
question that Plaintiff’s constitutional right to be free from use of excessive force was clearly
established at the time of the incident,” but they argue that Mariano’s conduct “does not set out a
constitutional violation.” Mem. Supp. Mot. Summ. J. 12. The Supreme Court has repeatedly
cautioned that “clearly established law” should not be defined “at a high level of generality.”
White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (collecting cases and quoting Ashcroft v.
al–Kidd, 563 U.S. 731, 742 (2011)). As the parties do not attempt to define the right at issue
with greater specificity than the general description of the Fourth Amendment right in Graham,
the analysis collapses into the question of whether a reasonable jury could find that a Fourth

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Amendment violation occurred. 7
The Fourth Amendment reasonableness standard makes allowances for the realities police
officers confront in their work: “[P]olice 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 in a particular situation.” Graham, 490 U.S. at 396. The objective
inquiry thus requires a weighing of the “totality of the circumstances” surrounding the incident.
Id. (citing Garner, 471 U.S. at 8–9); Marion v. City of Corydon, 559 F.3d 700, 705 (7th Cir.
2009). Nevertheless, the Supreme Court held in Garner, and has since reiterated, that “it is
unreasonable for an officer to ‘seize an unarmed, nondangerous suspect by shooting him dead.’”
Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (per curiam) (quoting Garner, 471 U.S. at 11);
see also Scott, 550 U.S. at 382–83 (distinguishing Garner from a car chase in which an officer
bumps a fleeing vehicle in an effort to stop it). “But ‘where the officer has probable cause to
believe that the suspect poses a threat of serious physical harm, either to the officer or to others,
it is not constitutionally unreasonable to prevent escape by using deadly force.’” Brosseau, 543
U.S. at 197–98 (quoting Garner, 471 U.S. at 11) (brackets omitted); accord Muhammed, 316
F.3d at 683 (citing Garner, 471 U.S. at 11–12). Consistent with Garner, “[c]ourts within the
Seventh Circuit have regularly granted and affirmed summary judgment on excessive force

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In the case cited by the plaintiff, for instance, an arresting officer argued that he was entitled to summary judgment
on qualified immunity because he had “arguable probable cause” to arrest even if a fact issue existed on whether he
actually had probable cause. The Seventh Circuit disagreed, reasoning as follows:
When, as here, “the arrestee challenges the officer's description of the facts and presents a factual
account where a reasonable officer would not be justified in making an arrest, then a material
dispute of fact exists. Where there is a genuine issue of material fact surrounding the question of
plaintiff's conduct, we cannot determine, as a matter of law, what predicate facts exist to decide
whether or not the officer's conduct clearly violated established law.” Arnott v. Mataya, 995 F.2d
121, 124 (8th Cir. 1993). Because the facts within Officer Kovats’ knowledge at the time of the
arrest are a matter of dispute between the parties, summary judgment on the basis of ‘arguable
probable cause’ also is inappropriate.
Morfin v. City of E. Chicago, 349 F.3d 989, 1007 (7th Cir. 2003). Under a similar analysis, if a material dispute
exists over what facts were within Mariano’s knowledge, this court cannot grant summary judgment on qualified
immunity. See id.

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claims where the suspect threatened an officer with a weapon or where the officer reasonably
believed that the suspect had a weapon.” Roos v. Patterson, No. 10–4073, 2013 WL 3899966, at
*8 (C.D. Ill. July 29, 2013) (collecting cases).
The Fourth Amendment reasonableness inquiry is objective in the sense that the officer’s
“underlying intent or motivation,” good or bad, does not matter. Graham, 490 U.S. at 397
(citation omitted). Instead, an officer’s use of force must be evaluated from the point of view of
“a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490
U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968).
Establishing the facts of which the officer was subjectively aware still matters in the
Fourth Amendment’s reasonableness analysis. See Muhammed, 316 F.3d at 683 (“What is
important is the amount and quality of the information known to the officer at the time he fired
the weapon when determining whether the officer used an appropriate level of force.” (citing
Sherrod v. Berry, 856 F.2d 802, 804–05 (7th Cir. 1988). The proper question is whether “the
officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397
(quoting Scott v. United States, 436 U.S. 128, 137–139 (1978)). In this sense, the officer can turn
out to be wrong about the facts that appeared to justify the use of force, but if the officer’s view
of the facts was objectively reasonable at the time, the Fourth Amendment deems the use of force
reasonable. See Sherrod, 856 F.2d at 807 (“It is not necessary that the danger which gave rise to
the belief actually existed; it is sufficient that the person resorting to self-defense at the time
involved reasonably believed in the existence of such a danger . . . . In forming such reasonable
belief a person may act upon appearances.” (quoting Davis v. Freels, 583 F.2d 337, 341 (7th
Cir. 1978) (emphasis in Sherrod)). Therefore, evidence tending to show whether the things

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Mariano claims to have observed, in fact, happened is material because applying the objective
test requires a fit between the knowledge of the hypothesized objectively reasonable officer and
the knowledge of the real-world officer who used force. See Graham, 490 U.S. at 396–97.
IV. FACT DISPUTES EXIST ON FOURTH AMENDMENT CLAIM
“The award of summary judgment to the defense in deadly force cases may be made only
with particular care where the officer defendant is the only witness left alive to testify.” Plakas v.
Drinski, 19 F.3d 1143, 1147 (7th Cir. 1994). The Seventh Circuit has repeatedly cautioned
district courts to grant summary judgment sparingly and look at the evidence with a critical eye
in deadly force cases in which, as in this case, the witness most likely to tell a different story
cannot speak from the grave. See Cyrus v. Town of Mukwonago, 624 F.3d 856, 862 (“we have
recognized that summary judgment is often inappropriate in excessive-force cases because the
evidence surrounding the officer’s use of force is often susceptible of different interpretations”
(citing Gregory v. Cnty. of Maui, 523 F.3d 1103, 1107 (9th Cir. 2008)) (other internal citation
omitted)); Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005) (“we have held on
many occasions that summary judgment or judgment as a matter of law in excessive force cases
should be granted sparingly”); Plakas, 19 F.3d at 1147. Mindful of the caution with which
summary judgment should be approached in deadly force cases, the court determines that
genuine disputes over facts material to whether Mariano’s use of deadly force was objectively
reasonable preclude summary judgment on the plaintiff’s Fourth Amendment claim.
The plaintiff argues that Mariano undisputedly lost sight of the person he was chasing
several times and so could not be sure that Childs was the person he and Gonzalez initially
pursued. The court need not determine whether the plaintiff is correct because even if Mariano
was objectively reasonable in his identification, a jury could find that he lacked an objectively

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reasonable basis to believe that Childs had a gun or otherwise posed a physical threat to Mariano
or others. The defendants rely on four sources of evidence to show the reasonableness of
Mariano’s stated belief that Childs was armed and posed a threat.
First, Mariano testified that C.M. told him that Childs had a gun when he tried to rob him,
but C.M. omitted that fact from his version of his encounter with Mariano and Gonzalez. A
dispute about what an officer was told can be material when it affects the officer’s objective
knowledge of facts justifying the use of force. Cf. Holmes v. Vill. of Hoffman Estates, 511 F.3d
673, 680–81 (7th Cir. 2007) (recognizing that a genuine dispute about what one officer told
another when the second officer arrived on the scene could defeat summary judgment but
concluding that the particular dispute was not genuine). As already explained, C.M. did not
mention telling Mariano and Gonzalez that the men in ski masks who tried to rob him were
armed. See C.M. Statement 6. According to C.M.’s statement, one of the officers “had seen one
of the guys trying to rob [him] running and [the officer] started chasing him.” C.M. Statement
6-7. Viewed in a light favorable to the plaintiff, C.M. did not testify that he communicated to
Mariano or Gonzalez that the person who ran was the person who attempted to rob C.M.; a
reasonable jury could find that that both assumed as much from the fact that the person in the
black hoodie ran. See id. As the defendants acknowledge, whether C.M. did more than say he
was robbed and “pointed in a particular direction” is disputed on this record. See Defs.’ Reply to
Pl.’s Resp. to Defs.’ SOF 4 ¶ 9, ECF No. 83 (stating that it is undisputed that “C.M. told the
officers he had been robbed and pointed them in a particular direction”); see also C.M. Statement
at 6; Mariano Dep. Mariano Dep. 34:10–19.
It is not the Court’s role to determine which version of what C.M. told Mariano and
Gonzalez is more credible at summary judgment. Rather, C.M.’s version must prevail when

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deciding the instant motion. See Weinmann v. McClone, 787 F.3d 444, 446 (7th Cir. 2015)
(stating that a defendant’s motion for summary judgment on qualified immunity “is not the time
for resolution of disputed facts;” rather the court must “accept the plaintiff’s version of the facts,
without vouching for their ultimate accuracy” (citing Jewett v. Anders, 521 F.3d 818, 819 (7th
Cir. 2008); Miller v. Gonzalez, 761 F.3d 822, 824–25 (7th Cir. 2014) (describing competing
versions of what happened during arrest in officer and plaintiff’s depositions and stating that
“because this case comes before us from a motion for summary judgment, we take all of the
facts, including this one, in the light most favorable to [the plaintiff], and construe all reasonable
inferences from the evidence in his favor” (citation omitted)). Hence, for summary judgment
purposes, C.M. did not tell Mariano that the person who robbed him had a gun.
In Garner, the Supreme Court held that the fact that the person the officer shot “was a
suspected burglar could not, without regard to the other circumstances, automatically justify the
use of deadly force. [The officer] did not have probable cause to believe that Garner, whom he
correctly believed to be unarmed, posed any physical danger to himself or others.” 471 U.S. at
21 (noting that an armed burglar would present a different case). As it is possible that C.M. was
robbed by an unarmed man, Mariano’s use of force must be justified with other objective
evidence of Childs’ dangerousness. See id.
Second, Mariano testified that he assumed Childs had a gun because Mariano twice saw
Childs holding or “clinching” the right side of his waistband. As that conduct can be consistent
with the conduct of an unarmed person, a reasonable fact finder could view Mariano’s
assumption in the light most favorable to the plaintiff as objectively unreasonable and find that
he did not have probable cause to believe that Childs had a gun, however. See Al-Mujaahid v.
Bandt, No 12-CV-00484, 2013 WL 6451182, at *5–6 (E.D. Wis. Dec. 10, 2013) (denying

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summary judgment on excessive force claims because fact dispute existed over whether
motorist’s movements towards console objectively justified officers’ belief that motorist was
armed); Strong v. Jackson, No. 10 C 1497, 2012 WL 3151315, at *1 (N.D. Ill. July 30, 2012)
(denying summary judgment where officer testified that he was told that suspect was “running
holding his side” because jury should decide whether officer’s belief that suspect was armed was
objectively reasonable).
Third, a genuine factual dispute exists over whether Childs, in fact, fired at Mariano as
Mariano testified. The summary judgment record contains evidence that Childs’ hands tested
negative for gunshot residue and that no fingerprints suitable for testing, including Childs’, were
found on the gun, Pl.’s SOF ¶¶ 58–59. The defendants point to expert testimony to offer other
possible interpretations of the forensic evidence. An ISP scientist could not opine on whether
Childs had fired a weapon because gunshot residue might have been removed, not deposited, or
not detected. See Chapman Dep. 26:17–22, ECF No. 80-3; 51:20–52:12, ECF No. 69-7. An ISP
fingerprint examiner testified that the absence of latent fingerprint impressions on the revolver
does not negate the possibility that Childs, or anyone else, held it. See Defs.’ Reply to Pl.’s Resp.
to Defs.’ SOF at 40 ¶ 59, ECF No. 83. And a third ISP scientist testified that the revolver was
missing an ejector pin when she received it. Pratt Dep. at 29:11–13, ECF No. 80-4. She further
testified that she did not believe that it was safe to test fire without the ejector pin, but she did not
know “with any certainty” whether it could have fired without that pin. 8 Id. at 56:18–57:1.
The foregoing evidence submitted by the defendants raises questions about how much
weight should be given to the plaintiff’s forensic evidence and what inferences should be drawn
8

Diana Pratt, the ISP scientist on whose testimony the defendants rely, does not appear to be the person who filled
out the preliminary examination form for the revolver. The preliminary firearm examination form in the record lists
“Dena Inempolidis” in the blank for “Examined by” and states that the preliminary examination occurred “before
the firearm was submitted to another section for processing.” ECF No. 80-6 at FCRL000824. Pratt testified that
when she test fired the revolver, she used “a pin that was in the lab.” Pratt Dep. 35:20–23.

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from it, but that alone does not entitle them to summary judgment. The jury, not the court,
determines how much weight admissible 9 expert testimony should be accorded and what
inferences should be drawn from it. See Terry v. Woller, No. 08-4063, 2010 WL 5069699, at
*10–11 (C.D. Ill. Dec. 7, 2010) (denying summary judgment and explaining that “[d]etermining
the weight to accord the expert’s testimony is not something that can be accomplished on
summary judgment” because “our legal system is built on the premise that it is the province of
the jury to weigh the credibility of competing witnesses” (quoting Kansas v. Ventris, 556 U.S.
586, 594 n.* (2009)) (alterations omitted)). Because a reasonable jury viewing the competing
summary judgment evidence in a light favorable to the plaintiff could find that Childs never held
the revolver that was recovered and so did not shoot at Mariano, a genuine fact dispute suitable
for jury resolution exists. See Azania v. Superintendent, Ind. State Prison, No. 3:09 CV 499,
2015 WL 685896, at *16 (N.D. Ind. Feb. 18, 2015) (discussing finding of Indiana Supreme Court
that withholding a laboratory report showing that defendant’s hands tested negative for gunshot
residue “undermined the finding that [the defendant] was the trigger man”); cf. Jones v. Butler,
778 F.3d 575, 583 (7th Cir. 2015) (holding on habeas petition that counsel employed reasonable
trial strategy by arguing that government failed to show a forensic link between defendant and
shooting in murder case because tests of defendant’s hands for gunshot residue were
inconclusive); United States v. Allen, 358 F. App’x 697, 698, 700 (7th Cir. 2009) (unpublished)
(recognizing that negative gunshot residue test and absence of fingerprints on weapon were
probative of whether defendant possessed gun but holding that reasonable jury could have found
possession by crediting eyewitnesses’ testimony).
9

The court implies nothing about the admissibility of the testimony of any expert witness. No party has argued that
the testimony of any of the defendants’ experts is inadmissible, and the court declines to consider the matter on its
own initiative. See Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704–06 (7th Cir. 2009) (holding that district
court had discretion to consider challenge to admissibility of expert testimony at summary judgment where movant
raised challenge in motion and nonmovant did not respond).

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Finally, Mariano testified that Childs initially fled west down a gangway and then turned
to face Mariano “shoulder to shoulder.” Mariano Dep. at 65:6–7. Mariano believed that Childs
was going to shoot at him “again.” Id. at 65:8. Because the fact Childs fired at Mariano the first
time is genuinely disputed, this testimony, seen in the light most favorable to Childs, adds at
most that Childs changed direction as Mariano climbed a fence behind him; Mariano describes
no specifically threatening physical acts on Childs’ part beyond turning and looking at him. See
id. at 65:4–9. Mariano did order Childs to “get down” several times, and he did not comply. Id.
at 62:5–6. Mariano also testified that he feared for his safety, id. at 65:7, but his subjective
belief, no matter how sincerely held, that his life was in danger does not by itself make his use of
deadly force objectively reasonable, see Weinmann, 787 F.3d at 449 (holding summary judgment
should have been denied and stating that “[i]t does not matter for purposes of the Fourth
Amendment that [the officer] subjectively believed that his life was in danger. The test is an
objective one . . . .”).
Furthermore, the record includes evidence from which a reasonable jury could find that
Childs had turned away from Mariano by the time he fired, lessening the threat he apparently
posed. See Estate of Heenan ex rel. Heenan v. City of Madison, 111 F. Supp. 3d 929, 944 (W.D.
Wis. 2015) (denying summary judgment in excessive force case in part based on actual dispute
over whether person whom officer shot “was retreating or advancing” when shots were fired).
The medical examiner’s report in the record states that the bullet Mariano fired entered the back
of Childs’ head. Defs.’ SOF Ex. A at 2, ECF No. 80-1. The defendants suggest possible
explanations for that fact besides Mariano’s shooting at the head of an apparently retreating
person, but at summary judgment, reasonable inferences must be drawn in Childs’ favor. The
jury should decide which version of the facts to believe. See Scott v. Edinburg, 346 F.3d 752,

16

757–58 (7th Cir. 2003) (holding fact issue precluded summary judgment on excessive force
claim because portions of officer’s deposition differed as to whether suspect was driving toward
or away from officer); Estate of Starks v. Enyart, 5 F.3d 230, 233–34 (7th Cir. 1993) (holding
factual dispute over whether man driving a taxi was fleeing or driving toward a police officer
precluded summary judgment on excessive force claims against officers who fatally shot driver);
Heenan, 111 F. Supp. 3d at 944–45 (denying summary judgment where record allowed jury to
conclude, among other things, that burglary suspect appeared to be unarmed); see also Reed v.
Town of N. Judson, 996 F.2d 1219, 1993 WL 171362, at *4 (7th Cir. 1993) (unpublished table
decision) (affirming entry of summary judgment for officer but distinguishing cases in which the
record “include[d] sufficient contradictory evidence to submit the case to a jury” because in
those cases, “there were other witnesses, expert affidavits, or significant physical evidence (such
as the deceased person having been shot in the back)”).
“[A] person has a constitutional right not to be shot unless an officer reasonably believes
that he poses a threat to the officer or someone else.” Weinmann, 787 F.3d at 450 (distilling this
rule from Graham and Garner). On the other hand, police officers have a right to protect
themselves, even when they do something risky like “pursu[ing] a fleeing felon into a dark
alley.” Starks, 5 F.3d at 233 (citing this as an example). Viewing this record in the light most
favorable to the plaintiff, Mariano had not been told that Childs had a gun. Nor had Childs shot
at him. Childs, who did not comply with Mariano’s orders to stop, turned toward Mariano then
turned away and fled. Mariano fired at the head of the retreating Childs. Much of the forensic
evidence can be reasonably viewed as contradicting Mariano’s testimony on key aspects of the
chase, though the defendants dispute that account. Because a reasonable jury considering the
circumstances in their totality could credit the plaintiff’s version of the facts and find that

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Mariano’s use of deadly force was objectively unreasonable, summary judgment is inappropriate
on the plaintiff’s Fourth Amendment claim. See Garner, 471 U.S. at 11 (“It is not better that all
felony suspects die than that they escape.”).
V. NO EVIDENCE OF AN AGREEMENT; CONSPIRACY CLAIMS DISMISSED
Defendants also seek summary judgment on the plaintiff’s wrongful death, survival, and
state law conspiracy claims. The defendants premise their request for summary judgment on the
first two claims solely on the plaintiff’s inability to succeed on his Fourth Amendment claim
brought under § 1983. See Mem. Supp. Mot. Summ. J. 9–11, ECF No. 71; Pl.’s Resp. to Mem.
Supp. Mot. Summ J. 11–12, ECF No. 79.
Childs, Sr.’s, wrongful death claim is derivative of Childs’ rights:
An action under the Wrongful Death Act may be said to be
derivative of the decedent’s rights, for the ability to bring the
wrongful death action “depends upon the condition that the
deceased, at the time of his death, had he continued to live, would
have had a right of action against the same person or persons for
the injuries sustained.”
Williams v. Manchester, 888 N.E.2d 1, 11 (Ill. 2008) (quoting Biddy v. Blue Bird Air Serv., 30
N.E.2d 14, 18 (Ill. 1940)); see also Varelis v. Nw. Mem’l Hosp., 657 N.E.2d 997, 1000 (Ill. 1995).
As summary judgment has been denied on the plaintiff’s Fourth Amendment claim, the
derivative wrongful death and survival claims likewise survive. The Illinois Survival Act “does
not create a statutory cause of action. It merely permits a representative of the decedent to
maintain those statutory or common law actions which have already accrued to the decedent
before he or she died,” here Childs, Sr. Bryant v. Kroger Co., 570 N.E.2d 1209, 1210 (Ill. App.
Ct. 1991). Consequently, the plaintiff’s survival and wrongful death claims depend on Childs’
ability to recover under the Fourth Amendment through § 1983, see Taylor v. City of Chicago,
No. 01 C 2057, 2003 WL 22282386, at *6 (N.D. Ill. Sept. 30, 2003) (holding at summary
18

judgment that survival and wrongful death claims depended on success of excessive force claim
under § 1983), and so they withstand summary judgment because the Fourth Amendment claim
does.
The defendants’ request for summary judgment on the plaintiff’s § 1983 conspiracy
theory and his state law conspiracy claim is a different story, however. “To establish § 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) (quoting Williams v. Seniff, 342 F.3d 774, 785 (7th
Cir. 2003) (alteration omitted)); see also 42 U.S.C. § 1985(3). To succeed on a conspiracy claim
under Illinois law, the plaintiff must prove “a combination of two or more persons for the
purpose of accomplishing by concerted action either a lawful purpose by unlawful means or an
unlawful purpose by lawful means.” Buckner v. Atl. Plant Maint., Inc., 694 N.E.2d 565, 571 (Ill.
1998) (citing Adcock v. Brakegate, Ltd., 645 N.E.2d 888, 894 (Ill. 1994)).
The defendants argue that the plaintiff has produced no evidence of an agreement
between two people, much less a state actor and a private individual, to violate Childs’
constitutional rights. Mem. Supp. Mot. Summ. J. 8. The plaintiff does not address this issue in
his response.
The plaintiff has not carried his summary judgment burden. The only actors involved in
the shooting on the summary judgment record worked for the Chicago Police Department at the
time, i.e., they were state actors. See Defs.’ SOF ¶¶ 4–5 (“Mariano at all relevant times was a
police officer with the Chicago Police Department”). Because the plaintiff identifies no evidence
of an agreement between state and private actors, his § 1983 claims must be dismissed to the

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extent they attempt to impose liability under a conspiracy theory. See, e.g., Williams, 342 F.3d at
785–86 (holding evidence that sheriff’s statements that members of the public complained did
not create fact issue on whether agreement existed between state actors and complainers). Also,
Mariano cannot have conspired with the City under Illinois law “because the acts of an agent are
considered in law to be the acts of the principal.” Bookner, 694 N.E.2d at 571 (holding that
complaint failed to state a claim of conspiracy between principal and agent to deprive the
plaintiff of workers’ compensation benefits for this reason).
VI. CONCLUSION
For the reasons discussed above, the defendants’ motion for summary judgment (ECF
No. 68) is granted in part and denied in part. The plaintiff’s conspiracy claims under 42 U.S.C.
§ 1983 and state law are dismissed. A genuine dispute over material facts precludes summary
judgment on the plaintiff’s Fourth Amendment claim of excessive force. Consequently, the
motion for summary judgment on the balance of the plaintiff’s claims is denied. A status
conference is set for April 7, 2017, at 9:30 am.

Date: March 28, 2017

/s/
Joan B. Gottschall
United States District Judge

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