Simmons v. The City of Chicago et al

Filing 113

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 2/7/2017:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBERT LEE SIMMONS,
Plaintiff,
v.
THE CITY OF CHICAGO,
ILLINOIS, a Municipal
Corporation; CHICAGO POLICE
SARGEANT JOHN PIECHOCKI
#1349; CHICAGO POLICE
OFFICERS MARK D’AMATO #6150,
MARVIN OTTEN #2773, and
TIMOTHY MacFARLANE #13015,

Case No. 14 C 9087
Judge Harry D. Leinenweber

Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff Robert Simmons’s Motion for Summary Judgment on
his 42 U.S.C. § 1983 unlawful detention claim (“the Motion”)
[ECF No. 78] is granted in part and denied in part.
The

Court

denies

the

Motion

except

as

to

Defendant

Piechocki’s liability for unlawfully and unreasonably ordering
Plaintiff’s

arrest

without

probable

cause.

However,

genuine

disputes of material fact remain as to whether any Defendant
Officers could reasonably have foreseen Plaintiff’s protracted
and

unreasonable

detention

following

his

arrest.

Before

summarizing the undisputed facts, the Court briefly addresses

the

nature

of

the

parties’

briefing

and

why

it

will

decide

a

Local

Facts

[ECF

Defendants’ Motion for Summary Judgment separately.
Plaintiff

filed

Rule 56.1(a)(3)

the

Statement

Motion

of

along

Uncontested

No. 79] (the “Plaintiff’s Statement”).

with

Material

Defendants responded to

Plaintiff’s Statement [ECF No. 84] and submitted a “Response in
Opposition

to

Plaintiff’s

Motion

for

Summary

Judgment

and

Memorandum in Support of Defendants’ Cross Motion for Summary
Judgment”

[ECF

No.

85]

(the

“Response”].

This

filing

was

accompanied by a Local Rule 56.1(b)(3) Statement of Uncontested
Additional Facts [ECF No. 86] (the “Defendants’ Statement”), but
no

Local

Facts.

Rule

56.1(a)(3)

Statement

of

Uncontested

Material

Plaintiff then submitted a Reply Brief in support of

Plaintiff’s Motion [ECF No. 91] and responded to Defendants’
Statement [ECF No. 92].
It
briefing

was

“Joint

on

only

after

these

Plaintiff’s

Partial

Motion

filings,

Motion,
for

that

Summary

which

consummated

Defendants

Judgment”

filed

[ECF

No.

the

their
93],

incorporating their Response filed almost two weeks prior and
attaching a Rule 56.1(a)(3) Statement [ECF No. 94]. Plaintiff
then

responded,

These

filings

contesting

introduced

a

some
host

- 2 -

facts
of

and

facts

admitting
surplus

others.

to

those

forming

the

basis

of

Plaintiff’s

Motion

on

his

unlawful

detention claim and the associated briefing.
Local Rule 56.1 provides inter alia that a moving party
shall serve and file “[w]ith each motion for summary judgment” a
statement of uncontested material facts. N.D. Ill. L.R. 56.1(a)
(emphasis

added).

A

district

court

has

require strict compliance with the rule.

broad

discretion

to

See, e.g., Koszola v.

Bd. of Educ. of the City of Chicago, 385 F.3d 1104, 1109 (7th
Cir. 2004).

As such, the Court treats the relevant portions of

Defendants’ Response as a brief in opposition to Plaintiff’s
Motion.

In a separate opinion, it decides Defendants’ “Joint

Partial Motion for Summary Judgment” with full consideration of
any relevant arguments in the Response as well as the briefs and
fact

statements

filed

after

Plaintiff’s

Motion

was

fully

briefed.
I.

FACTUAL BACKGROUND

For purposes of this Motion, the following facts are viewed
in the light most favorable to Defendants (the non-movants), and
all

reasonable

inferences

are

drawn

in

their

favor.

See,

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).
On

March

9,

2014,

Defendant

D’Amato

obtained

a

search

warrant for a single-family residence located at 2725 East 92nd
- 3 -

Street

in

¶ 5.)

Chicago,

Its

target

Illinois
was

(“the

an

residence”).

(ECF

African-American

male

No.

84

nicknamed

“Sunny,” approximately 45-50 years in age, 5’5”-5’8” in height,
weighing 140-160 pounds, and with brown eyes, a dark complexion,
and black hair worn long and wavy.

(Id. ¶ 6.)

The warrant was

procured with the assistance of a confidential informant, who
claimed

to

have

purchased

narcotics

basement door of the residence.

from

“Sunny”

out

of

the

(ECF No. 92 ¶ 4.)

Plaintiff Simmons is an African-American male of mediumbrown complexion.

(ECF No. 92, Ex. F (“Arrest Rep.”), p.1.)

On

March 9, 2014, he was 67 years old, 5’11” tall, 165 pounds, with
brown eyes and short hair – either “buzzed or bald.”

(ECF

No. 84 ¶ 7; MacFarlane Tr. 42:17-22; Arrest Rep. at p.1.)
lived

at

Simmons

222
has

West

106th

Place

never

lived

at

in

2725

Chicago,
East

92nd

Illinois.
Street

He

(Id.)
but

was

visiting that address on March 9, 2014, because it is the home
of his brother, James Garland.

(Id. ¶ 9.)

Simmons suffers from

cerebral palsy and has a noticeable speech disorder.

(Id. ¶ 8;

ECF. No. 84 ¶ 8; see generally Defs.’ St., Ex. A.)
At approximately 8:45 p.m. on March 9, 2014, Defendants
D’Amato,
Officers”)

Otten,

MacFarlane,

arrived

at

the

and

Piechocki

residence

to

(the

execute

warrant, accompanied by Officer Thomas Derouin.
- 4 -

“Defendant
the

search

(ECF No. 84

¶ 11.)

Defendant Officers forced open the rear door of the

house and entered the basement one at a time, finding Simmons
sitting at a table in the basement kitchen.

(Id. ¶¶ 12-13.)

Simmons complied with directives to put his hands up and did not
do anything perceived as threatening or dangerous.
16.)

(Id. ¶¶ 14-

D’Amato initially detained Simmons on the floor, where he

lay face down, at about the same time that Piechocki entered the
basement.

(Id. ¶ 20.)

While Simmons was detained and lying on the floor, Officer
Derouin proceeded to the stairwell and began to shout at an
individual located upstairs.

(ECF No. 84 ¶¶ 21, 23; see also,

e.g., D’Amato Tr. 63:12-66:4.)

Someone from upstairs then shot

Officer Derouin, who fell into the basement kitchen wounded and
collapsed near Simmons.
Otten

and

basement,

MacFarlane
albeit

heard the shot.

(ECF No. 84 ¶¶ 23, 24.)

had

within

moved

into

several

a

steps

separate
of

(ECF No. 92 ¶¶ 6-10.)

Defendants
room

Simmons,

in

when

the
they

Otten assisted Derouin

out of the house and into a police vehicle in the alley; he had
no further involvement in Simmons’s detention or arrest.

(Id.

¶¶ 14-17.)
Within

a

minute

of

hearing

the

gunshot,

MacFarlane

handcuffed Simmons, who was still lying on the floor.
No. 84 ¶ 25; see, Pl.’s St., Ex. H, 55:8-10.)
- 5 -

(ECF

D’Amato played no

further role in Simmons’s detention or arrest.
¶¶ 22, 23.)

(ECF No. 92

At his deposition, MacFarlane offered the following

justifications for handcuffing Simmons:

Simmons might have been

involved in firing a gun at Officer Derouin; Simmons could have
been “Sunny,” the target of the search warrant; and Simmons was
then

within

reach

of

Officer

Derouin’s

sidearm.

(See,

ECF

No. 84 ¶ 26; MacFarlane Tr. 83:19-84:11; ECF No. 92 ¶ 13.)
MacFarlane

admitted

that

he

never

saw

Simmons

on

the

basement stairwell, on the first floor, or with James Garland,
who was ultimately charged with shooting Officer Derouin.
No. 84 ¶¶ 28-29, 40.)

(ECF

At no point did MacFarlane see anything,

including weapons, in Simmons’s hands.

(Id. ¶ 30.)

Simmons did

not disobey any police commands prior to being handcuffed, nor
did he resist or fail to cooperate at any time.
When

Simmons

was

lying

on

the

basement

floor

(Id. ¶ 32.)
in

handcuffs,

MacFarlane asked him whether he knew who shot the gun; Simmons
replied that he did not.

(Id. ¶ 31.)

Prior to handcuffing

Simmons, MacFarlane did not check his identification, ask his
name, or inquire whether he lived at that address, went by the
name “Sunny,” or knew “Sunny.”
Officers
residence
station.

and

unknown

(ECF No. 84 ¶ 34.)

subsequently

transported

him

(ECF No. 84 ¶ 44.)

to

removed
the

Simmons

Fifth

from

District

the

police

MacFarlane played no role in that
- 6 -

decision or in executing it.

(ECF No. 92 ¶¶ 18-21.)

Rather,

Defendant Piechocki ordered that Simmons, along with five other
civilians found at the residence, be taken to the police station
because they were “potential suspects to the attempted murder,
aggravated
upstairs

battery,

living

possession

room],

and

of

the

narcotics

handgun
sales

[found

from

the

in

the

home.”

(Defs.’ St., Ex. H, ¶ 14; ECF No. 92 ¶ 32; Arrest Rep. at p.1.)
Specifically, he testified that Simmons could have been “Sunny,”
the

target

of

the

search

warrant.

(Piechocki

Tr.

62:9-14.)

Piechocki testified that Simmons, “[w]hen he was being escorted
to one of the transport cars,” directly informed Piechocki that
he had defecated on himself.

(Piechocki Tr. 62:15-22.)

Defendant Piechocki is the only Defendant who saw narcotics
at the scene, and he noticed the small bag of crack cocaine
(street value of about $10) after deciding to transport all the
civilians to the police station.
Pl.’s

St.,

Ex.

G,

77:10-78:12;

(ECF No. 84 ¶¶ 39, 41, 43;
Pl.’s

St.,

Ex.

H,

89:15-22.)

Piechocki had no further contact with the civilians, including
Simmons.

(ECF No. 92 ¶¶ 33-35.)

An outside unit completed the

search pursuant to the warrant at approximately 3:00 a.m. on
March 10, 2014.

(Id. ¶ 36.)

Simmons remained at the police station for approximately
seventeen (17) hours until his release at 1:45 p.m. on March 10,
- 7 -

2014.

(ECF No. 84 ¶ 47; ECF No. 92 ¶ 36.)

Simmons’s arrest

report recites a charge of possession of a controlled substance,
but no criminal complaints were ever filed against him.
No. 84 ¶ 37; ECF No. 92 ¶ 37.)

(ECF

The arrest report was created

for administrative purposes, with Otten and D’Amato listed as
arresting
warrant.

officers

only

because

(ECF No. 92 ¶¶ 38-39.)

they

were

affiants

Piechocki

over

to

the

Officer Derouin.

Simmons’s

custody

detectives

the

None of the Defendant Officers

physically detained Simmons at the police station.
Jurisdiction

of

eventually

investigating

the

(Id. ¶ 40.)
passed
shooting

from
of

(Id. ¶¶ 34-35.)

Just before his release, at around 11:45 a.m. on March 10,
Simmons gave a voluntary statement to Detective Pat Ford and ASA
George Cannellis.

(ECF No. 92 ¶ 1.)

At some point prior to

giving his statement, Simmons was informed that he was free to
leave.

(Id. ¶¶ 2, 3.)

However, he was in “lockup,” meaning “in

a cell” and “under arrest,” for approximately 14 hours - until
at least 10:36 a.m. on March 10 when he was transferred “Out Of
Lockup for A/S Interviews.”
Ex.

D,

at

FCRL

000355.)

(Ford Tr. 42:15-43:1; Pl.’s St.,
At

his

deposition,

Detective

Ford

claimed that Simmons remained under arrest because of possession
of a controlled substance and because his role in the shooting
of

Officer

Derouin

was

unclear.
- 8 -

(Ford

Tr.

43:2-17.)

The

General

Progress

Report,

which

Chicago

police

detectives

prepared sometime on March 9, reported Simmons’s address as 222
West 106th Place.

(ECF No. 84 ¶ 45 & Ex. I.)

The record before

the Court is silent on when, if ever, Simmons was read Miranda
warnings.
II.

STANDARD OF REVIEW

Summary judgment must be granted “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.”
P. 56(a).

FED. R. CIV.

A genuine issue of material fact exists if “the

evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”
U.S. 242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477

In evaluating summary judgment motions,

courts must view the facts and draw reasonable inferences in the
light most favorable to the non-moving party.
550 U.S. 372, 378 (2007).

Scott v. Harris,

The Court does not make credibility

determinations as to whose story is more believable.

Omnicare,

Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir.
2011).

It must consider only evidence that can be “presented in

a

that

form

would

be

admissible

in

evidence.”

FED. R. CIV.

P. 56(c)(2).
The party seeking summary judgment bears the initial burden
of showing that there is no genuine dispute and that it is
- 9 -

entitled to judgment as a matter of law.

Carmichael v. Vill. of

Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also, Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
met,

then

the

adverse

party

must

“set

If this burden is

forth

showing that there is a genuine issue for trial.”

specific

facts

Anderson, 477

U.S. at 256.
III.

ANALYSIS

Simmons argues that Defendants violated his civil rights,
first,

when

Officer

D’Amato

detained

him

at

the

residence;

second, when Officer MacFarlane handcuffed him there; and third,
when he was removed from the residence in handcuffs, transported
to the police station, and held behind bars overnight for more
than fourteen (14) hours.

To the extent any of the individual

Defendants did not physically detain or arrest Simmons or order
his

overnight

stint

behind

bars,

Plaintiff

claims

they

liable on ordinary tort principles of foreseeability.

are

(See,

e.g., Pl.’s Reply at 10-12.)
In

response,

Defendants

detention

claim

fails

Defendant

Officers

for

Otten,

argue
the

that

Simmons’s
reasons:

following

D’Amato,

and

unlawful
first,

MacFarlane

had

no

personal involvement in the decision to remove Simmons from the
residence

or

to

hold

him

at

the

police

station;

second,

Defendant Piechocki had no involvement in the decision to hold
- 10 -

Simmons

at

the

Plaintiff’s

police

arrest

station

and

entire

for

so

long;

detention

and

were

third,

reasonable.

Alternatively, Defendant Officers argue that they are entitled
to qualified immunity.
A.

Plaintiff’s Initial Detention at the Residence

Whether

Simmons

is

entitled

to

summary

judgment

on

his

unlawful detention claim with respect to his initial detention
at

the

residence

depends

on

whether

Defendant

D’Amato

acted

within constitutional strictures in approaching Simmons with his
gun drawn, demanding that he raise his hands, and detaining him
on the floor of the basement.
violation,

then

none

of

the

If there was no constitutional
other

Defendant

Officers

can

be

liable (and neither can Defendant City of Chicago).
Officers executing a search warrant are permitted, while a
proper search is conducted, to detain occupants of the premises
without

probable

cause

or

particular

suspicion

that

an

individual is involved in criminal activity or poses a specific
danger to the officers.
705

(1981);

Muehler

v.

Michigan v. Summers, 452 U.S. 692, 702Mena,

544

U.S.

93,

98

(2005).

An

individual subjected to a Summers detention need not own or even
reside at the premises; it is enough that he or she is present
as a visitor when officers execute the warrant at a residence
“that a neutral magistrate had found probable cause to believe
- 11 -

contained evidence of illegal . . . activities.”

See, U.S. v.

Pace, 898 F.2d 1218, 1239 (7th Cir. 1990) (reasoning that the
defendants’ connections as visitors “to the condominium gave the
officers

‘an

easily

identifiable

and

certain

basis’”

for

detaining them during the search) (quoting Summers, 452 U.S. at
703-04);

cf.

Bailey

(Scalia,

J.,

concurring)

within

‘the

v.

U.S.,

immediate

133

S.Ct.

(defining
vicinity

1031,

1043

“occupants”
of

the

as

premises

(2013)
“persons
to

be

searched’”).
Therefore,

there

is

ample

evidence

supporting

a

jury

finding that Officer D’Amato’s initial detention of Simmons in
the basement of the residence was reasonable.

As such, the

Court denies Plaintiff’s Motion as to his initial detention.
B.

Whether

The Handcuffing and Further Detention
Of Plaintiff at the Residence
Simmons

is

entitled

to

summary

judgment

on

his

unlawful detention claim with respect to his handcuffing and
further detention at the residence turns on the reasonableness
of, first, D’Amato’s brief continued detention of Simmons after
Officer Derouin was shot; and second, MacFarlane’s subsequent
decision to handcuff and then continue detaining Simmons for
several

minutes.

If

both

officers

acted

reasonably,

neither they nor the other Defendants can be liable.

- 12 -

then

The facts presented to the Court indicate that, within a
minute

or

so

of

the

shooting

of

Officer

Derouin,

Defendant

MacFarlane assumed custody of Simmons from Defendant D’Amato and
handcuffed

him

for,

among

other

reasons,

officer

safety.

MacFarlane continued to detain Simmons for several minutes until
the

scene

was

secure

and

unknown

officers

relieved

him,

and

Piechocki later ordered Simmons’s removal in handcuffs to the
police

station.

continued

Analyzing

detention

at

the

the

reasonableness

residence

might

of

Simmons’s

proceed

down

two

paths.
The first extends the Summers rationale to authorize his
detention
shooting

(by
of

D’Amato

Officer

and

then

Derouin.

MacFarlane)
The

Court

even

notes

after

that

the

use

of

handcuffs is reasonable to effectuate a Summers seizure when
“the governmental interest in minimizing the risk of harm to
both officers and occupants [is] at its maximum.”
U.S. at 93-94.

Such was the government’s interest immediately

after the shooting of Officer Derouin.
Circuit
stop.

has

Muehler, 544

analogized

a

detention

under

Further, the Seventh
Summers

to

a

Terry

See, U.S. v. Burns, 37 F.3d 276, 281 (7th Cir. 1995).

As

such, the latitude afforded officers conducting a Terry stop “to
take such steps as [are] reasonably necessary to protect their
personal safety and to maintain the status quo during the course
- 13 -

of the stop,” U.S. v. Hensley, 469 U.S. 221, 235 (1985), would
seem to apply to the situation here.
U.S.

386,

396

(1989)

(permitting

See, Graham v. Connor, 490
“some

coercion” in making an investigatory stop).

degree

of

physical

Thus, to the extent

the search warrant was still being executed despite the shooting
and during Simmons’s handcuffing and continued detention at the
residence,

he

was

reasonably

detained

under

Summers

without

triggering the legal framework governing arrests.
Under the second reading, the shooting of Officer Derouin
immediately suspended the search pursuant to the warrant, and
the residence instead became an active crime scene such that
Summers cannot bless Simmons’s continued detention there.
Court

harbors

doubts

about

keying

reasonableness

to

such

The
an

artificial on/off switch where police are presented with the
kind

of

dangerous,

fluid

scenario

that

confronted

Defendant

Officers at the residence during the chaos immediately following
the

shooting.

But

it

nonetheless

undertakes

a

non-Summers

analysis in light of certain undisputed facts presented to the
Court that suggest suspension of the search (i.e., a different
group of officers had to complete the search around 3:00 a.m. on
March 10, 2014, while Simmons was in lockup).

Suspending the

categorical Summers rule, the Court must determine whether it
was reasonable for D’Amato to detain Simmons after the shooting
- 14 -

and for MacFarlane then to handcuff and continue detaining him,
and

whether

transformed

the
it

force

into

an

used
arrest

to

conduct

for

Simmons’s

which

probable

seizure

cause

was

required.
The officers could have had individualized suspicion under
Terry v. Ohio, 392 U.S. 1 (1968), to detain and handcuff Simmons
immediately after the shooting.
suspicion

supporting

a

The touchstone of reasonable

soi-disant

Terry

stop

is

whether

“a

reasonably prudent man in the circumstances would be warranted
in the belief that his safety or that of others was in danger.”
Terry, 392 U.S. at 27 (citations omitted).

Here, immediately

after Officer Derouin’s shooting, his gun came to rest within a
few feet of Simmons.

Although no one disputes that Simmons had

theretofore posed no threat to police, a jury could certainly
find it reasonable in these circumstances to believe that anyone
found in the house was potentially dangerous to police and that
leaving them unrestrained near weapons posed a threat to officer
safety.

And,

of

course,

Defendant

MacFarlane

did

not

need

probable cause to handcuff Simmons, because handcuffing alone
does not ipso facto signify an arrest.
Seventh

Circuit,

the

permissible

include the use of handcuffs.

scope

Particularly in the
of

a

Terry

stop

may

See, Jewett v. Anders, 521 F.3d

- 15 -

818, 826-827 (7th Cir. 2008); U.S. v. Stewart, 388 F.3d 1079,
1084 (citing U.S. v. Vega, 72 F.3d 507, 515 (7th Cir. 1995)).
Alternatively,
Lidster,

540

detention

of

the

might

419

U.S.

officers
(2004),

to

Simmons.

In

judging

rely

justify
the

on
a

Illinois

v.

suspicionless

reasonableness

of

a

suspicionless seizure, courts must “look to ‘the gravity of the
public concerns served by the seizure, the degree to which the
seizure advances the public interest, and the severity of the
interference with individual liberty.’”

Lidster, 540 U.S. at

426-27 (quoting Brown v. Texas, 443 U.S. 47, 50 (1979)).

First,

the

grave.

public

concerns

served

by

Simmons’s

seizure

were

Officer Derouin had just been shot while executing the search
warrant for the residence, and testimony (undisputed for the
purposes of this Motion) establishes that Derouin’s sidearm came
to

rest

within

a

few

feet

of

Simmons.

A

jury

hearing

the

evidence presented could clearly find that this fluid and stilldangerous situation favored detaining Simmons at the residence
immediately after the shooting.
Second, Lidster establishes that detention of non-suspect
potential

material

witnesses

for

a

few

minutes

sufficiently

advances the public interest, even where officers have little
reason

to

believe

information.

that

See,

any

individual

Lidster,

540

- 16 -

U.S.

detainee
at

427

has

specific

(authorizing

roadside

motorist

stops

“to

obtain

information

from

drivers,

some of whom might well have been in the vicinity of the crime
at

the

time

it

occurred”).

Here,

by

contrast,

Simmons

was

unquestionably near the scene of Derouin’s shooting at the time
it

occurred,

information

and

he

than

was

the

far

more

likely

individuals

to

have

specific

in

Lidster.

detained

Therefore, detaining Simmons at the scene for several minutes
significantly advanced the public’s interest, and a jury could
clearly find on the evidence presented that the second factor
weighs in favor of D’Amato and MacFarlane.
Third,

the

severity

of

the

interference

with

Simmons’s

individual liberty was slight, particularly when viewed against
the backdrop of the situation that would have obtained in the
absence

of

the

shooting.

The

duration

of

his

minutes-long

detention at the hands of D’Amato and MacFarlane strikes the
Court as insignificant, keeping in mind that Simmons could have
been

detained

at

the

search was completed.

residence

under

Summers

until

the

full

Thus, continuing to detain Simmons at the

residence for several minutes after Officer Derouin’s shooting
did

not

significantly

interference

with

increase,

Simmons’s

if

liberty

at

all,

relative

to

baseline – an unimpeded search of the residence.
to

the

intrusion

on

liberty
- 17 -

represented

the

temporal

the

germane

With respect
by

Defendant

MacFarlane’s use of handcuffs, the Supreme Court has declared
that “the need to detain multiple occupants ma[kes] the use of
handcuffs all the more reasonable.”
(citation omitted).

Muehler, 544 U.S. at 93

This was the case here, as another civilian

was found in the basement and four others on the first floor of
the residence.

Even assuming that the jury adjudged the use of

handcuffs to be an onerous incursion on Simmons’s liberty, this
third factor in Simmons’s favor could not supersede the other
two (on which the jury could plainly find in Defendants’ favor).
Finally,
detention

irrespective

falls

under

of

Terry

whether

or

Lidster,

Simmons’s
the

further

application

of

handcuffs to Simmons did not as a matter of law rise to the
level of an arrest such that MacFarlane needed probable cause.
As

mentioned

earlier,

a

Terry

stop

in

the

Seventh

carries with it implicit authority to apply handcuffs.

Circuit
And,

with respect to Lidster detentions, the general rule applies:
whether a seizure constitutes an arrest depends on “whether the
surrounding circumstances would support an officer’s legitimate
fear for personal safety.”
(7th Cir. 2014).
fear

for

personal

Matz v. Klotka, 769 F.3d 517, 526

In this case, the officers had a legitimate
safety

based

on

the

shooting

of

Officer

Derouin and the ultimate resting place of his sidearm, and thus
the use of handcuffs on Simmons at that time did not amount to
- 18 -

an

arrest

requiring

probable

cause.

Indeed,

the

“swiftly

developing situation” within the residence immediately after the
shooting

and

before

the

residence

and

its

occupants

were

secured, counsels against a finding that Simmons’s handcuffing
elevated his detention to an arrest.

U.S. v. Sharpe, 470 U.S.

675, 686 (1985).
Therefore, Simmons’s post-shooting detention and subsequent
handcuffing (whether understood as part of the search warrant
detention under Summers or a new seizure) were reasonable and
did

not

give

cause.

rise

Because

finding

that

to

a

custodial

substantial

Defendants

arrest

undisputed

D’Amato

and

requiring

evidence

MacFarlane

probable

supports
acted

a

within

constitutional limits, Plaintiff cannot show that he is entitled
to judgment as a matter of law.

As such, the Court denies

Plaintiff’s Motion in relevant part.
C. Plaintiff’s Removal From the Residence,
Arrest, and Lengthy Detention at the Police Station
The
entitled
detention

final
to

issue

summary

claim:

facing

the

judgment
his

Court

on

the

transport

in

is

whether

balance

of

handcuffs

Simmons

his

to

is

unlawful

the

police

station and protracted confinement there for nearly 14 hours.
Simmons contends that his detention cannot be justified by
his presence at the residence during the shooting of Officer
Derouin, the prospect that he was “Sunny,” or any individualized
- 19 -

suspicion that he possessed narcotics.

Despite not contesting

that only Piechocki ordered his removal to the police station,
Simmons argues that the other Defendant Officers are equally
responsible under foreseeability principles derived from the law
of torts and applicable to a § 1983 action.

He further contends

that none of the Defendant Officers are entitled to qualified
immunity.
In

response,

MacFarlane

had

Defendants

no

note

involvement

that

in

Otten,

the

D’Amato,

decision

to

and

remove

Plaintiff from the residence or in his protracted stay at the
police station.

With respect to Piechocki, Defendants argue

that his direction to remit Simmons to the police station was
reasonable
suspicion

as

a

that

Terry
Simmons

investigation
was

“Sunny”

based
or

on

reasonable

possessed

illegal

narcotics, as a formal arrest predicated on probable cause that
Simmons was “Sunny,” or as a protracted detention of a nonsuspect

material

witness

under

Lidster

and

Golla

Bossier City, 687 F.Supp.2d 645 (W.D. La. 2009).

v.

City

of

Defendants

stress that Piechocki was not involved in the decision to hold
Simmons
“Sunny”

behind
and

bars
the

during

the

shooting

of

ongoing
Officer

investigation
Derouin,

into

because

jurisdiction over these decisions rested with the investigating
detectives.

They finally assert qualified immunity as to all
- 20 -

Defendant

Officers.

(Defendants

also

argue

that

Simmons’s

claims against MacFarlane and Piechocki are time-barred because
of Simmons’s failure to timely amend his Complaint to add them
as Defendants.

The Court rejected this same argument in its

October 19, 2016 ruling on Defendants’ Motion to Dismiss, and
again on November 30, 2016 after MacFarlane and Piechocki filed
a Motion for Reconsideration of the same.

As such, the Court

will not entertain this argument a third time.)
Broadly put, this aspect of Plaintiff’s Motion presents the
question whether police can constitutionally arrest and detain
behind bars a docile and unthreatening individual based on the
most tenuous of connections to controlled substance possession,
a police shooting, or a search warrant’s physical description of
a drug dealer.
presented,

This Court answers, on the basis of the facts

that

no

reasonable

individual’s

arrest

reasonable

the

on

and

grounds

jury

could

prolonged
of

his

find

such

an

subsequent

mere

detention

presence

the

in

same

building where the shooting occurred, the drugs were discovered,
and at least four other individuals with more robust connections
to both were found.

The outcome does not change because such an

individual

the

matches

most

generic

characteristics

of

the

relevant search warrant’s physical description, approximates a
few more specific ones, and differs profoundly from the rest.
- 21 -

1.

The Character of State Action

The Court finds it prudent first to classify the character
of state action according to the undisputed facts. The lodestar
of

an

arrest

surrounding

is

the

whether,

“in

incident,

a

view

(7th

Cir.

2010)

(internal

all

reasonable

believed he was not free to leave.”
833

of

the

circumstances

person

would

have

Fox v. Hayes, 600 F.3d 819,

quotation

marks

omitted).

As

explained above, Simmons was not under arrest simply by virtue
of being handcuffed at the residence during the fluid situation
immediately
secured.

after

the

shooting

and

before

the

residence

was

Similarly, no reasonable jury could find that Simmons

was not under arrest while in lockup at the police station,
where he was held — with the exception of being removed for
fingerprinting — until nearly 11:00 a.m. on March 10, 2014.

For

this 14-hour arrest, there must have been probable cause.
However,

precedent

somewhat

muddies

the

waters

on

the

status of Simmons’s removal from the residence and transport via
squad car.

Some circumscribed authority exists for Defendants’

notion that a suspect’s handcuffing and detention in a squad car
do not necessarily amount to an arrest.

See, e.g., Vega, 72

F.3d at 515 (classifying a 60-minute detention in a squad car as
“the outer boundaries of a permissible Terry stop”); Stewart,
388 F.3d at 1084-85 (holding that officers engaged in a Terry
- 22 -

stop when they handcuffed and placed in the back of a squad car
for 10 minutes a suspect who matched the description, called in
to police an hour earlier, of a recent bank robber); U.S. v.
Vanichromanee, 742 F.2d 340, 344 (7th Cir. 1984) (holding that
detaining three suspects in a parking garage and moving them to
an apartment was not an arrest but merely “maintain[ing] the
status quo momentarily”); Pike v. Foster, No. 12-cv-00094, 2016
WL 537940, at *6-7 (N.D. Ill. Feb. 11, 2016) (authorizing as
part of a Terry investigation of a suspected violent criminal
his handcuffing and detention in a squad car, and his transport
back to the crime scene for a “show-up identification”).
In each of these instances deemed to constitute a Terry
stop

as

opposed

to

an

arrest,

transported to the police station.
a

further

“common”

theme

in

the

suspect

was

not

being

The Stewart court identified

such

cases

—

“the

officers’

reasonable belief that the suspect was potentially dangerous.”
Stewart, 388 F.3d at 1085.

Even if it was reasonable to believe

that Simmons fit the description of “Sunny,” which the Court
denies

below,

it

was

unreasonable

to

believe

that

he

was

potentially dangerous in light of his clear lack of involvement
in

the

shooting

throughout

the

and
entire

his

compliance

ordeal.

with

Further,

officers’
the

commands

night’s

events

caused him to defecate on himself before his transport to the
- 23 -

police station – hardly the trademark of a dangerous criminal.
In light of the undisputed facts, the Court finds unreasonable
any inference that Simmons represented a danger to police or
others

at

attending

the

time

of

Simmons’s

Piechocki’s

removal

from

order.

the

The

residence

circumstances
(after

police

secured the premises and its occupants) do not support a finding
of a Terry stop.

As a matter of law on these facts, Piechocki

ordered Simmons’s formal arrest when he directed his removal
from

the

residence

and

transport

in

handcuffs

to

the

police

station.
Defendants make several arguments that, conceptually, could
still apply beyond this finding that Piechocki ordered Simmons
arrest.
here.

Therefore, the Court spills some ink to address them
Essentially,

Defendants

argue

that

Simmons’s

forced

detention at the police station (most of which occurred behind
bars) was not necessarily an arrest.

They assert a patchwork of

theories in this regard.
First, Defendants argue that Simmons, all through the night
at the police station, “was being held pursuant to the search
warrant, and the search was being delayed as a result of Officer
Derouin being shot.”
laughable

if

the

(Response at 21.)

circumstance

it

is

This argument would be
offered

to

explain

—

forcibly holding behind bars an elderly man with cerebral palsy
- 24 -

— were not so lugubrious.

Supreme Court precedent puts paid to

Defendants’ frivolous argument.

For example, Bailey makes clear

that the Summers rule is spatially constrained and limited to
the

immediate

vicinity

of

the

premises

Bailey, 133 S.Ct. at 1042-43.

to

be

searched.

See,

Thus, Defendants’ argument for

extending Summers detentions this far beyond the premises to be
searched fails ab initio based on Bailey.
Next, Defendants claim that “Plaintiff became a cooperating
witness

and

was

at

the

station

voluntarily

of

will.”

(Response at 21; see also id. at 20.)

his

own

free

The exhibits

submitted in support of both parties’ fact statements negate any
real significance to Simmons’s unlawful detention claim of his
eventual

voluntary

statement.

His

arrest

report

undeniably

indicates that he was “in lockup” until 10:43 a.m. on March 10,
which

by

Detective

Ford’s

own

admission

meant

termini “under arrest” until at least that time.
between

a

meaningful

17-hour
from

detention

the

and

a

perspective

of

14-hour

he

was

vi

The difference

detention

liability

ex

for

is

not

Simmons’s

alleged unconstitutional injury (and goes only to damages).
In one final avoidance tactic, Defendants seek to color
Simmons’s protracted stay in custody as something other than an
arrest by invoking Lidster and one bit of persuasive authority,
Golla v. City of Bossier City.

These cases make it perfectly

- 25 -

constitutional, their argument apparently goes, to detain a nonsuspect material witness in lockup at the police station for 14
hours.

This

Court

disagrees

with

Defendants’

impoverished

analogical reasoning.
a.
In

Lidster,

authorized

the

as

brief

Lidster

mentioned
(i.e.,

“a

above,
very

the

few

Supreme

minutes

at

Court
most”)

detention of motorists in their cars to seek information about a
fatal hit-and-run accident that had recently occurred on that
stretch of highway.

See, Lidster, 540 U.S. at 427-428.

As it

did with respect to Simmons’s detention at the residence, the
Court again examines the three Brown factors the Court applied
in Lidster.
First, the public concern served by Simmons’s transport to
and forced detention at the police station was analogous to that
in Lidster:

gathering information about a recently committed

(albeit, in Derouin’s case, not fatal) crime.

It was less grave

than that which justified Simmons’s initial detention at the
residence when officers’ lives were at risk.
were

secure

seizing

and

Simmons

all

officers

decreased

to

safe,
a

Lidster.

- 26 -

the

level

Once the premises
public

interest

approaching

that

in
in

Second, the degree to which Simmons’s seizure advanced the
public interest is moderate.

He was present at the scene as a

material

already

witness,

but

had

told

MacFarlane

while

handcuffed and before his removal from the residence that he did
not know who shot Officer Derouin.
four

other

arrested

civilians

who

Further, relative to the
were

present

on

the

first

floor (where Piechocki and others found a handgun), Simmons was
a

poor

eyewitness.

(It

is

worth

noting,

both

for

Lidster

purposes and further to the qualified immunity analysis below,
that Piechocki admitted to seeing Simmons lying on the floor and
detained when Officer Derouin was shot.)
Third, the intrusion on Simmons’s liberty falls on the most
invasive

end

of

the

spectrum:

in

contrast

to

a

motorist

remaining in her car for a few minutes or Simmons remaining
detained at the residence during the search, here Simmons was
removed from the premises to the police station and held there
for over a dozen hours.

It is difficult to imagine a more

onerous incursion on one’s liberty.

Thus, the public interest

attending Simmons’s seizure here is on par with Lidster (and
attenuated

compared

to

that

served

by

his

initial

seizure),

seizing him only modestly served that public interest, and the
incursion on his liberty was severe.

- 27 -

What happened to Simmons

here

was

not

a

brief

and

unobtrusive

information-seeking

investigatory detention permissible under Lidster.
b.

Golla

Golla, on the facts before the Court, is even less helpful
to Defendants.
Bossier

City

In that case, the Golla family was visiting

“to

stay

at

Michael James McDaniel.”

the

home

of

Mrs.

Golla’s

brother,

Golla, 687 F.Supp.2d at 651.

There,

the Gollas gathered in the McDaniels’ garage for tequila shots.
The

party

talking

of

atmosphere

quickly

suicide.

soured

Officers

when

arriving

Mr.
at

McDaniel
the

scene

began
were

confronted by Mrs. Golla, who told them that her husband was in
the

garage

McDaniel.

trying

to

de-escalate

the

situation

with

Mr.

The officers entered the garage, Mr. McDaniel rushed

for his shotgun, and one of the officers then used deadly force.
Mr. Golla was the only other witness to the shooting — and a
direct eyewitness at that.

Golla, 687 F.Supp.2d at 658.

Because Mr. Golla was “intoxicated and belligerent,” he was
handcuffed and removed from the garage.

Police then began to

secure the scene and removed Mr. Golla to the police station,
where they immediately took off his handcuffs and placed him in
an interview room.

One Detective McWilliams attempted to take

his statement, but Mr. Golla was passed out in the interview
room.

Upset that he was woken up, Mr. Golla then “purportedly
- 28 -

became

verbally

Detective

and

physically

McWilliam[s’s]

desk

threatening,
with

Golla, 687 F.Supp.2d at 652.

his

and

right

came

hand

across

raised.”

He was then handcuffed again.

About three hours after his arrival at the police station, Mr.
Golla hurled a chair through the window of the interview room
and crawled through the broken window.

It was only then that he

was “arrested for simple criminal damage to property, and booked
into

the

Bossier

City

(emphasis

added).

He

giving

a

sober

Jail.”
was

Golla,

released

statement,

687

F.Supp.2d

around

11:30

culminating

a

at

a.m.

653

after

detention

of

approximately 11 hours.
Before the court, the defendants in Mr. Golla’s unlawful
detention suit argued that his detention at the police station
was justified because (a) they had probable cause to believe he
assaulted
witness

Detective

from

pertinent

to

whom
the

McWilliams,
the

officers

ongoing

and

(b)

needed

to

investigation.

he

was

gather

a

material

information

First,

the

court

invoked Lidster to justify Mr. Golla’s removal from the scene as
reasonable because he was the only eye-witness, his intoxication
and belligerence prevented him from giving a statement there,
and

both

his

own

property

(the

residence were active crime scenes.

Gollas’

car)

and

place

of

Second, the court excused

his 11-hour detention as reasonable because he could not return
- 29 -

to his place of residence (the McDaniel house) anyway, he was
intoxicated

for

several

hours

and

could

not

give

a

proper

statement upon first arriving at the station, and he threatened
the investigating detective.

Further, it was only because he

committed a criminal act in the presence of law enforcement that
he was arrested and booked, thereby also extending his stay at
the police station by several hours.
at

656-58.

In

the

Golla

“exceptional circumstances.”

See, Golla, 687 F.Supp.2d

court’s

reckoning,

these

were

Id. at 658.

Far from bolstering Defendants’ argument, Golla undercuts
it.

None of the “exceptional circumstances” in Golla finds an

analogue here.

Simmons’s arrest report indicates that he was

not intoxicated (Pl.’s St., Ex. D, p.4), and Simmons was merely
an occasional visitor to the residence (not an out-of-towner
residing there).

(ECF No. 84 ¶ 7.)

implicated

active

as

an

crime

None of his property was

scene.

Simmons

was

compliant

throughout and did not commit any crimes that would otherwise
warrant arrest.

Further, as noted above, Simmons was not the

only eyewitness to the shooting of Officer Derouin and, given
that he was face down on the floor at the crucial moment, he was
probably an exceedingly poor eyewitness relative to the four
arrested
residence.

individuals
Absent

who
from

were
the

on

record

- 30 -

the
are

first

floor

sufficient

of

the

facts

to

determine

why,

under

the

Golla

rationale

Defendants

posit,

Simmons’s witness statement could not simply have been taken at
the scene.
Therefore, Simmons’s approximately 14-hour arrest was not
permissible as a mere investigatory detention under Lidster, and
Golla

further

confirms

that

his

booking,

fingerprinting,

and

time in lockup can only be categorized as a custodial arrest.
*
Simmons’s

removal

in

*

*

handcuffs

from

the

residence

and

transport to the police station constituted a formal arrest of
Simmons.

In keeping with that analysis, Simmons’s subsequent

14-hour stint in custody at the police station also constituted
an arrest rather than an investigatory detention.

The crucial

questions, then, are whether Piechocki had probable cause to
order Simmons’s arrest such that it was reasonable, whether he
is responsible as a matter of law for Simmons’s ensuing 14-hour
arrest, and whether any of the other Defendants are liable as a
matter of law.
2.

Probable Cause
a.

The

crux

of

“Sunny”

Defendants’

argument

that

Piechocki

had

probable cause to arrest Simmons as “Sunny,” the target of the
search

warrant,

is

that

he

sufficiently

- 31 -

met

the

warrant’s

physical

description.

Defendants

argue

that

Simmons

“substantially fit” the description of “Sunny” (Response at 18),
and Defendant Officers testified that Simmons “could have been”
and “possibly” matched the description of “Sunny.” (See, e.g.,
D’Amato Tr. 56:2-17.)

Defendants also stress that Simmons was

found in the basement, from which the warrant indicated that
drug

sales

testimony

were

from

emanating.

the

other

Despite

Defendant

introducing

Officers,

relevant

neither

party

provided the Court with testimony from Piechocki about his own
analysis

of

these

characteristics.

What

follows

is

an

examination of the characteristics of Simmons that did not match
the description of “Sunny.”
I.

Complexion

The search warrant described “Sunny” as dark in complexion.
Simmons’s

arrest

report,

on

complexion as “medium brown.”

the

other

hand,

listed

his

Although a technical mismatch,

complexion is a fairly subjective characteristic.

The Court on

summary judgment resolves the reasonable inferences from these
facts in Defendants’ favor.
that

Simmons

sufficiently

Thus, a reasonable jury could find
fit

the

“Sunny’s” skin complexion.

- 32 -

warrant’s

description

of

II.

Weight

On March 9, 2014, Simmons weighed 165 pounds. The search
warrant described “Sunny’s” weight as 140-160 pounds.

Although

Simmons falls above the upper end of the weight range, the Court
recognizes that requiring a more precise match of a suspect’s
weight to a warrant’s description would be onerous for all but
the professional carnival guesser.

Given how close Simmons’s

weight was to the reported range for “Sunny,” the Court finds
that

reasonable

inferences

from

this

undisputed

fact

favor

Defendants on summary judgment.
III.
Here,

Defendants’

Age

narrative

begins

to

unravel,

requiring

the Court to make heroic (rather than reasonable) inferences in
their favor.
years old.
50

years

On March 9, 2014, Simmons was sixty-seven (67)
The warrant listed “Sunny’s” age as between 45 and

old.

The

officers

have,

perhaps

unsurprisingly,

testified that Simmons appeared anywhere from his “upper 40s” to
“50s” (Otten Tr. 44:15-18; MacFarlane Tr. 42:6-7; D’Amato 56:68).

That not one of the Defendant Officers could peg a 67-year-

old man as even a sexagenarian is bewildering.
IV.

Height

Simmons is almost six feet tall – 5’ 11”, to be precise.
The

search

warrant

listed

“Sunny’s”
- 33 -

height

as

5’5”-5’8”,

significantly

shorter

than

African-American male.
Reports,

No.

10

Simmons

as

well

as

the

average

See, e.g., National Health Statistics

(2008),

https://www.cdc.gov/nchs/data/nhsr/

nhsr010.pdf (reporting 69.8, 68, and 65.4 inches as the 50th,
25th, and 5th percentiles, respectively, for 40-59 year old nonHispanic black males).

Thus, “Sunny’s” height fell somewhere

between the 5th and 25th percentiles.
hand, is just shy of 6 feet tall.

Simmons, on the other

Whether measured from the

perspective of 40-59 year old non-Hispanic black males or those
age 60 and up, Simmons’s height falls somewhere between the 75th
and 85th percentiles.
Defendants

See, id.

explain

that

Simmons

was

seated

when

they

entered the basement kitchen and then lying on the floor for the
majority

of

the

action,

gauge his height.
of

the

fluid

such

that

they

could

not

adequately

While the other Defendant Officers, in light

situation

immediately

after

Officer

Derouin’s

shooting, may not have had a reasonable opportunity to gauge his
height, whether Defendant Piechocki had such a chance is less
clear from the record.

Indeed, probable cause to arrest and

hold Simmons as “Sunny” would seem to require Piechocki to have
at

least

against

compared
those

all

of

attributed

Simmons’s
to

physical

“Sunny.”

characteristics

Further,

Piechocki

testified that he heard Simmons say “I shit on myself” when he
- 34 -

was being escorted to one of the transport cars, suggesting that
he

had

at

least

some

opportunity

to

gauge

his

height.

(Piechocki Tr. 62:15-22.)
V.

Hair

The differences between “Sunny’s” hairstyle as reported on
March 8, 2014 and Simmons’s hairstyle as observed on March 9,
2014, were profound.
long

and

wavy,”

corroborated

by

In contrast to “Sunny’s” “dark hair worn

Simmons
his

at

the

arrest

time

photo.

looked
No

“bald,”

one

a

fact

disputes

that

Simmons’s hair was not even close to a match.
Defendants protest that “[i]t is not unusual for people to
cut their hair of [sic] shave their heads.”
True enough.
exceedingly
search

(Response at 13.)

But other undisputed facts make this possibility
unlikely,

warrant

indeed

recites

hardly

John

Doe’s

conceivable.
statements

First,
to

the

Defendant

D’Amato that, on March 8, 2014, he had purchased crack cocaine
from “Sunny.”

It was on this March 8, 2014 purchase that the

warrant’s physical description was based.

The inference that

“Sunny” shaved his flowing locks within 24 hours of John Doe’s
report is hardly fathomable.

Such an inference constitutes a

heroic one, and courts need not draw every conceivable inference
from the undisputed facts in favor of the non-movant.

- 35 -

See,

DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326,
329 (7th Cir. 1987).
VI.

Cerebral Palsy

Finally, it is undisputed that Simmons has cerebral palsy.
Defendants’

own

audio-video

evidence

of

Simmons’s

voluntary

statement to police at the end of his custody indicates that his
speech is noticeably impaired, likely a result of dysarthria.
The search warrant relays several statements reportedly made by
“Sunny” to Doe.

(See, Defs.’ St., Ex. C, p.2 (“What do you want

and how much?”); id. (“[M]eet me at the back door.”); id. at p.3
(“You know I got the best shit around.
some more.”).)

Come back when you need

A reasonable jury would question why Doe did not

at least mention that “Sunny” spoke with a speech impediment.
And yet nowhere in the search warrant’s detailed recitation of
John Doe’s interaction with “Sunny” is there such an indication.
Rather than willfully blinding itself to this profound absence,
the Court finds that the reasonable inference to draw from this
lacuna in the otherwise detailed description of “Sunny” is that
“Sunny,”

unlike

Simmons,

did

not

speak

with

any

obvious

impediment or difficulty.
*

*

*

Contrary to Defendants’ contention that Simmons’s “height,
weight,

age,

gender,

and

race

all

- 36 -

met

the

description

of

‘Sunny,’” the Court finds that, on the evidence presented, only
Simmons’s gender and race – the most generic characteristics –
precisely matched the warrant.

Five other characteristics did

not match, and at least two of these incongruities (height and
hair)

were

profound.

Further,

Simmons’s

conspicuous

speech

disability was glaringly absent from the warrant’s description
of “Sunny.”
The Court is willing to find that a reasonable jury could
find

in

Defendants’

favor

(complexion and weight).

on

two

of

these

characteristics

It strikes the court as quite generous

to resolve the inferences from the testimony about Simmons’s
youthful appearance in favor of Defendants, but it is prepared
to

do

so

on

Plaintiff’s

Motion.

The

mismatch

in

height,

however, is a bridge too far, as a reasonable person would have
noticed at the very least that Simmons was taller than average
(whereas “Sunny” was reported to be much shorter than average).
And

the

stark

mismatch

in

probable cause even further.

hairstyles

confounds

a

finding

of

Particularly after speaking with

Simmons, as Defendants MacFarlane and Piechocki did before he
was

transported

to

the

police

station,

a

reasonable

police

officer could not believe that probable cause existed to arrest
Simmons on the basis that he was “Sunny.”

- 37 -

This is not a case where the arrestee substantially matched
key

unique

characteristics

described

in

the

search

warrant.

See, e.g., U.S. v. Stubblefield, 820 F.3d 445, 448-49 (D.C. Cir.
2016)

(finding

suspected

bank

probable
robbery

cause

to
he

where

arrest

an

matched

individual

two

for

“distinctive”

characteristics recited in the suspect’s description:

a height

in the 5th percentile of middle-aged African-American men, and a
“unique
1102,

facial
1108-09

disfigurement”);

probable

(C.D.

cause

to

Cal.

arrest,

Reed

2011)
even

v.

Baca,

(finding
though

that

arrestee

800

F.Supp.2d

deputies

had

was

the

not

actual subject of the warrant, where the arrestee “was a virtual
match to the descriptors in the warrant:

same name, birth date,

race sex, height, weight, license plate number, and driver’s
license

number”).

Instead,

Simmons

only

matched

the

most

generic characteristics.
That Simmons was “found in the basement, the place where
the alleged drug transactions took place,” does not compel a
different result.
probable

cause,

(Response at 18.)
a

“Where the standard is

search

of

or

seizure

a

person

must

be

supported by probable cause particularized with respect to that
person.”

Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

This

requirement “cannot be undercut or avoided by simply pointing to
the

fact

that

coincidentally
- 38 -

there

exists

probable

cause . . . to search the premises where the person may happen
to be.”

Id.

Per Ybarra, the privacy interests of an owner of the situs
of

illegal

activity

described

in

a

warrant

are

separate

distinct from those enjoyed by persons found there.

and

That a

warrant authorizes a search of a residence or business does not
mean that any person found there is subject to seizure purely by
virtue of his or her “mere propinquity” to illegal activity.
Ybarra, 444 U.S. at 91.

Rather, there must be an independent

basis to seize that person.

Here, Defendants have argued that

such a basis for arrest existed because of similarities between
“Sunny” and Simmons.

The Court finds as a matter of law on the

facts presented that the asserted similarities do not amount to
probable cause.

As discussed below, neither can a theory of

“constructive” possession clear the probable cause hurdle.
b.

Possession of a Controlled Substance

Defendants appear to argue that, when considered in light
of

Simmons’s

resemblance

of

“Sunny”

and

presence

in

the

basement, the discovery of a small amount of crack cocaine on
the

first

suspicion
substance.
Piechocki

floor
that

of

the

Simmons

residence

gave

constructively

rise

possessed

to

reasonable

a

controlled

Defendants appear to concede in their briefing that
did

not

have

probable
- 39 -

cause,

only

reasonable

suspicion, to arrest Simmons based on possession of a controlled
substance.
had

(Compare, Response at 15-16 (arguing that Piechocki

“reasonable

suspicion

that

Simmons

was

in

constructive

possession of narcotics”); with id. at 16-19 (arguing only that
Piechocki
“Sunny”).)

had

probable

cause

to

believe

that

Simmons

was

Nevertheless, the Court will genuflect to the non-

movants and treat Defendants’ argument in its strongest possible
form.
I.

Constructive Possession

Constructive possession requires that a person “knowingly
has the power and the intention at a given time to exercise
dominion and control over an object, either directly or through
others.”

U.S. v. Kitchen, 57 F.3d 516, 520 (7th Cir. 1995)

(citation

omitted).

Defendants

either sole or joint.
“something

more

than

note

that

possession

See, id. (citation omitted).
mere

proximity

is

can

be

And yet,

required

[for

constructive possession]: a nexus between the accused and the
relevant items.”

U.S. v. Morris, 576 F.3d 661, 667 (7th Cir.

2009) (finding constructive possession where a man, who had been
often seen at the house where drugs were found, fled within the
house from the drugs’ location and made a statement about it
being his house).

Where, for example, illegal drugs were found

in the defendant’s niece’s house and in a backpack that could
- 40 -

not be attributed to him, there was no nexus or “substantial
connection,” and thus no constructive possession.
Windom, 19 F.3d 1190, 1200 (7th Cir. 1994).
classic case supporting a nexus finding.

See, U.S. v.

Compare this to a

See, People v. Besz,

802 N.E.2d 841, 849 (Ill. App. 2004) (holding that the defendant
had constructive possession over drugs found in the room where
the defendant was passed out from a drug overdose).
Therefore,

constructive

possession

requires

proximity

of

the defendant and an additional factor showing the defendant’s
ability to exercise dominion or control.

As the Seventh Circuit

has put it, “[p]roximity must be coupled with other evidence,
including
motive,

connection
a

gesture

with

implying

an

impermissible

control,

evasive

item,

proof

conduct,

statement indicating involvement in an enterprise.”

of

or

a

U.S. v.

Reed, 744 F.3d 519, 526 (7th Cir. 2014) (quotation omitted).
In this case, there is no dispute that Simmons did not own
the residence.
March

9,

This fact was readily ascertainable; sometime on

2014,

Chicago

police

detectives

prepared

a

General

Progress Report specifying Simmons’s address as 222 W. 106th
Place,

not

indicates

as

the

residence.

much.)

(Simmons’s

However,

Piechocki

arrest
did

not

report
ask

also

Simmons

whether he owned or even lived at the residence before ordering
his arrest, and thus he had no basis to believe that Simmons had
- 41 -

a right or the ability to control the drugs.
circumstance

facing

Piechocki

was

Simmons’s

Thus, the only
proximity

drugs, and it was fairly weak proximity at that.

to

the

The small bag

of narcotics was found in a common area of the same residence in
which Simmons was eating dinner, but on a separate floor of the
residence – closer and more accessible to at least four other
individuals upstairs.

While the concept of joint constructive

possession might have more purchase as applied to them, it fails
as applied to the considerably more remote Simmons.
None of the Defendant Officers saw Simmons on the first
floor

at

Simmons

any

point

otherwise

that

enjoyed

control the narcotics:
no

demonstrated

implying

control

situation

otherwise

enterprise.

the

And

nothing

requisite

right

suggests
or

that

ability

to

he had no other connection with them and

motive
or

night.

to

possess

evasive

them;

conduct;

indicated

his

and

he

made

no

nothing

involvement

in

gesture

about

the

criminal

The fact that Simmons was found in the basement,

where the warrant indicated drug sales were made, is not a nexus
specific

to

Simmons’s

ability

to

cocaine, which was found upstairs.

control

the

bag

of

crack

Thus, there is no requisite

nexus for constructive possession.
Defendants’ invocation of U.S. v. Jones, 763 F.3d 777 (7th
Cir. 2014), is without merit.

There, the government did not

- 42 -

rely on the defendant’s proximity to the narcotics alone but
instead proved nexus by introducing recorded telephone calls in
which the defendant sought to buy distribution quantities of
crack cocaine coupled with evidence that the phone from which
these

calls

were

made

(along

with

the

defendant’s

repeatedly seen at the residence in issue.

car)

were

Neither is Regalado

v. Hayes, No. 11-C-1472, 2011 WL 5325542 (N.D. Ill. Nov. 3,
2011),

helpful

to

Defendants.

There,

Regalado

was

sleeping

over, as she occasionally did, at her boyfriend’s apartment when
police executed the search warrant for the apartment.
*1.

Id. at

The court refused to find constructive possession on the

facts alleged - where neither the drugs nor a gun recovered on
the premises were “in Regalado’s view,” and police failed to
“recover

direct

evidence

that

Regalado

owned,

leased

or

controlled the premises, such as mail addressed to her or her
name on the door.”

Regalado, 2011 WL 5325542 at *5 (“There is

nothing

mere

beyond

her

proximity

to

support

any

finding

of

constructive possession.”).
Quite simply, Piechocki neither attempted to establish nor
was

presented

recovered.
(strong

with

evidence

of

nexus

specific

to

the

drugs

Therefore, this case is quite distinct from Jones

evidence

of

nexus

via

telephone

calls)

and

Morris

(frequent visitor fled from the room where drugs were found and
- 43 -

also

claimed

the

house

was

his),

and

much

more

like

Windom

(visiting uncle did not constructively possess drugs found at
niece’s house) and Regalado (no ability to control, only mere
proximity,

where

plaintiff).

contraband

was

not

in

view

of

the

visiting

Therefore, no facts before the Court indicate that

a reasonable officer could believe probable cause existed to
arrest

Simmons

for

constructive

possession.

Ultimately,

as

explored below, even a stronger connection between Simmons and
the crack cocaine would be immaterial, because Piechocki was
aware

of

no

evidence

of

narcotics

until

after

he

ordered

Simmons’s arrest.
II.
Even

if

it

Post Hoc Justification

were

reasonable

of

Piechocki

mistakenly

to

assume that Simmons exercised control over the narcotics (such
that

qualified

immunity

could

apply),

the

undisputed

facts

indicate that Piechocki made the decision to order Simmons’s
arrest before he saw narcotics at the residence.
own

testimony

indicates

that

he

saw

the

small

Piechocki’s
bag

of

crack

cocaine while he was “organizing everybody to get transported.”
(Piechocki Tr. 77:10-19.)

As explained above, Piechocki’s order

that

to

Simmons

be

removed

the

police

amounted to a formal arrest of Simmons.

station

in

handcuffs

Therefore, the probable

cause for that arrest must have antedated the arrest itself.
- 44 -

See, e.g., Hamilton v. Village of Oak Lawn, Ill., 735 F.3d 967,
970 (7th Cir. 2013) (“If what may have begun as a Terry stop
became . . . an

arrest

before

the

police

acquired

probable

cause, the arrest was unlawful.”); Club Retro, LLC v. Hilton,
568 F.3d 181, 204 (5th Cir. 2009) (“[P]ost-hoc justifications
based

on

facts

arrest.”).

later

Because

learned

organizing

cannot
the

support

civilians

an

for

earlier
transport

logically must have occurred after (even if only shortly after)
Piechocki gave the order to transport them, discovery of the bag
of crack cocaine cannot undergird probable cause for Simmons’s
earlier

arrest.

Thus,

the

undisputed

facts

indicate

that

Piechocki ordered Simmons’s arrest before he was aware of any
evidence of narcotics at the residence.
Defendants
discovery

of

might
the

argue

crack

that,

cocaine

regardless

could

of

justify

whether

Piechocki’s

decision to arrest Simmons, it makes his protracted confinement
at the police station (more) reasonable.
law

just

cited

justifications

stands

cannot

for

the

support

an

Incorrect.

proposition
earlier

First, the

that

arrest,

post
full

hoc
stop.

This does not apply only to Piechocki’s decision to arrest, but
also to subsequent detention pursuant to that arrest.

Second,

for the same reasons discussed above in Section II.C.2.b.I, a
charge of possession of a controlled substance utterly lacked
- 45 -

probable cause anyway.

The facts indicate that officers readily

determined at some point on March 9, 2014 that Simmons did not
reside at the residence but lived elsewhere.

Because there were

no indicia of Simmons’s ability to control the drugs, probable
cause was still wanting.
*

*

*

For all the above reasons, the Court finds that there was
no probable cause to arrest Simmons, either on the basis that he
was “Sunny” or on the grounds that he was in (constructive)
possession of a controlled substance.

For the same reasons,

there was no probable cause for officers at the police station
to continue holding Simmons, making his approximately 14-hour
detention

unreasonable.

Therefore,

because

Defendants

have

offered no facts or legal argument that can be read to dictate
otherwise, Simmons’s arrest, including his protracted detention
and confinement at the police station, was unlawful as a matter
of law.
3.

Defendant Piechocki

Because Piechocki ordered and was responsible for Simmons’s
unlawful

arrest,

he

was

a

participant

in

the

deprivation

of

Simmons’s constitutional rights for purposes of a § 1983 action.
See, e.g., Moore v. State of Indiana, 999 F.2d 1125, 1129 (7th
Cir.

1993).

The

undisputed

facts

- 46 -

belie

Defendants’

evasive

contention,

based

affidavit,

that

only

his

on

Piechocki’s

involvement

was

carefully

limited

to

officers “to remove the civilians from the home.”
¶ 32.)

worded

directing
(Defs.’ St.

While Simmons admits that Piechocki did indeed order his

removal from the home, testimony of Defendant Officers furnished
to the Court clearly establishes that Piechocki’s role was not
so limited.

(See, e.g., Otten Tr. 101:21-102:19 (“I believe

Sergeant Piechocki had ordered everyone to go to the Area for
the investigation . . . . He said[,] I told them to bring them
to the Area.”); D’Amato Tr. 91:18-92:14 (“[A]ll individuals were
removed

from

the

house

and

brought

in

per

the

sergeant.”);

Piechocki Tr. 62:9-14 (“Q. But, I mean, when he was placed under
arrest, what was the reason or probable cause you had to put him
in handcuffs and take him to the police station?
might

have

been

Thus,

Defendant

the

target

Piechocki

of

the

ordered

warrant
Simmons’s

at

A. That he

the

removal

time.”).)
to

the

police station in handcuffs and not merely from the residence.
a.

Qualified Immunity

Qualified immunity from liability for an unlawful arrest
will clothe an officer in protection if “a reasonable officer
could have believed [the plaintiff’s arrest] to be lawful, in
light

of

clearly

established

law

[arresting] officers possessed.”
- 47 -

and

the

information

the

Eversole v. Steele, 59 F.3d

710, 717 (7th Cir. 1995) (internal quotation marks omitted).
Although

the

inquiry

focuses

on

what

the

officer

knew,

not

whether he or she should have known more, qualified immunity
will not apply where there was no evidence supporting a factual
basis for an arrest.
Ill.,

605

F.3d

qualified

See, Carmichael v. Village of Palatine,

451,

immunity

458-59

where

(7th

“the

Cir.

reasons

2010)
that

(withholding

[the

officer]

initially gave [for probable cause] . . . were not known to him
at the time”).
As

the

discussion

in

the

previous

subsection

suggests,

Piechocki on the undisputed facts cannot have mistakenly but
reasonably believed either that Simmons fit the description of
“Sunny” or that he constructively possessed narcotics.

First,

the relevant legal principles of probable cause and constructive
possession were clearly established in March 2014 and have not
changed in relevant part since, as evidenced by the vintage of
the cases the Court has cited throughout this opinion. Second,
nothing
Piechocki

in

the

made

record
a

suggests

reasonable

a

mistake

basis
of

for

finding

that

fact.

Indeed,

with

respect to the narcotics, his own testimony indicates that he
had not even discovered the bag of crack cocaine at the time he
gave the order that amounted to an arrest of Simmons.

And even

if he had, he made no inquiries of Simmons relevant to his nexus
- 48 -

or ability to control the drugs, and no other relevant facts
have been presented to the Court.

Piechocki is thus ineligible

for qualified immunity.
In the same vein as their arguments based on Lidster and
Golla,

Defendants

argue

that

even

if

Simmons’s

arrest

was

unlawful, Piechocki is entitled to qualified immunity because he
reasonably believed the only way to secure the crime scene after
Officer Derouin’s shooting was to transport all the civilians to
the police station.
stress

that

this

(See, Response at 24.)

was

not

an

ordinary

Defendants further

execution

of

a

search

warrant and that special allowances should be made to arrest
people like Simmons, who were purely in the wrong place at the
wrong

time,

without

satisfying

the

normal

constitutional

requirements of probable cause.
The Court is sympathetic to the plight of officers in the
field confronted with chaotic situations like the one facing
Defendant Officers on March 9, 2014.
Simmons’s

initial

detention

and

Indeed, the Court finds

handcuffing

reasonable in light of the need for safety.
and II.B, supra.)

at

the

scene

(See, Sections II.A

Requiring officers in the heat of such a

situation, where there is pending violence or a clear danger
thereof,

to

individual’s

make
threat

individualized
level

or

determinations

culpability,

- 49 -

would

about

an

impose

an

unrealistic burden and increase the already steep risks to which
police are exposed.
However,
settled

when

and

all

the

dust

potential

after

a

violent

perpetrators

and

situation

has

witnesses

are

restrained, it is unreasonable for trained officers then to be
relieved

of

definition

making

of

individualized

reasonableness

were

assessments.
as

pliable

If

as

the

Defendants

advocate, then the privacy and liberty interests of citizens
would steadily erode.

There would be no temporal or substantive

limiting principle for when the strictures of probable cause
would be relaxed.

The Court is not willing to set a precedent

for arresting otherwise docile, cooperative, and unthreatening
individuals simply because a previously volatile and dangerous
situation existed within the same building in which they are
found.

Probable cause, like sound police work, is needed most

at the margins and in situations not of the garden variety.
That

there

Piechocki’s

was

decision

substantial
does

danger

to

bless

arresting

not

officers

prior

to

individuals

without probable cause after the threat has subsided, nor does
it make reasonable a blanket decision to remove all civilians in
handcuffs to the police station as potential witnesses without
regard to their actual involvement.

(Perhaps this explains why

Defendants have resorted to a case from the Western District of
- 50 -

Louisiana of limited persuasive value and dubious relevance.)
On the facts presented, Piechocki’s decision to order Simmons’s
arrest

without

probable

cause

is

not

entitled

to

qualified

immunity purely because of Officer Derouin’s shooting.
b.

Foreseeability

Given that Piechocki is not entitled to qualified immunity,
the Court must examine whether Simmons’s unreasonable 14-hour
detention behind bars at the police station was foreseeable as a
matter of law.
ordering
station.
whether

Defendants protest that Piechocki had no role in

Simmons’s

prolonged

stint

in

lockup

That is not the relevant question.
ordinary

rules

of

tort

at

the

police

The question is

causation,

which

apply

to

constitutional tort suits, dictate that Simmons’s unreasonable
14-hour detention was foreseeable on the facts presented.

See,

e.g., Parrett v. City of Connersville, 737 F.2d 690, 695 (7th
Cir. 1984).

(The Court notes that Plaintiff can clearly show

but-for causation; in the absence of his unlawful arrest, he
would not have been unreasonably detained for 14 hours.)
The data points in the case law are generally unfavorable
to Piechocki.

For example, in Herzog v. Village of Winnetka,

Ill., 309 F.3d 1041, 1044 (7th Cir. 2002), the court held that
“indignities
arrest],

inflicted

including

on

the

hapless

offensive
- 51 -

victim

physical

[of

an

touchings,”

illegal
were

“foreseeable consequences of the illegal arrest” under ordinary
tort

causation

rules.

Similarly,

in

Moore

v.

Marketplace

Restaurant, Inc., 754 F.2d 1336, 1359 (7th Cir. 1985), Judge
Posner wrote in concurrence that, “if the arrests or detention
were unlawful then any indignities inflicted . . . would be a
consequence of the defendants’ unlawful conduct for which the
defendants

would

foreseeability.

be

liable”

under

tort

principles

of

Thus, to the extent Simmons claims injuries

arising from his lengthy arrest and subsequent detention, there
is authority for classifying those as the proximate result of
his unlawful arrest.

See, e.g., Huddleston v. Pohlman, No. 06-

3009, 2007 WL 647335 (C.D. Ill. Feb. 27, 2007) (denying the
defendant’s
damages,

motion

because

reasonably

in

limine

criminal

foreseeable

to

bar

charges

results

and

of

evidence
bond

the

relating

restrictions

defendant

to
were

officer’s

unlawful arrest of the plaintiff).
However,

certain

facts

create

a

genuine

dispute

as

to

whether Piechocki would indeed have been able to foresee what
befell Simmons.
over

the

For example, the facts indicate that authority

release

of

certain

persons

involved

in

ongoing

investigations is typically left to the detectives assigned to
investigate
proximate

the
cause

case.
are

More
best

generally,

left
- 52 -

to

the

foreseeability
jury.

See,

and
First

Springfield Bank & Trust v. Galman, 188 Ill.2d 252, 256 (1999).
As such, the Court will not determine foreseeability as a matter
of law, particularly because the factual record before it is
sparse on the issue of whether and to what extent Piechocki
could

have

reasonably

foreseen

Simmons’s

lengthy

confinement.

See, e.g., Jackson v. Sauls, 206 F.3d 1156, 1168-69 (11th Cir.
2000). The Court denies the Motion in relevant part.
4.

Defendants Otten, D’Amato, and MacFarlane

The Court denies Plaintiff’s Motion as to Defendants Otten,
D’Amato, and MacFarlane.

For any of them to be liable for

Simmons’s unlawful arrest and subsequent detention, it must have
been a reasonably foreseeable consequence of their involvement.
The

uncontested

facts

indicate

detaining Simmons whatsoever.
at

the

residence

that

Otten

played

no

role

in

D’Amato briefly detained Simmons

immediately

following

Officer

shooting, and then handed him off to MacFarlane.

Derouin’s
MacFarlane

handcuffed Simmons at the scene before handing Simmons off to
officers unknown.

Uncontested testimony makes clear that all

three departed the residence to visit Officer Derouin before
Piechocki’s

decision

to

arrest

and

transport

Simmons.

They

might well have expected Simmons to be released from handcuffs
once his statement was taken at the scene.

At the very least, a

reasonable jury could find that Simmons’s arrest and subsequent
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prolonged detention were not reasonably foreseeable results of
these Defendants’ involvement.
5.

City of Chicago

The Court also denies Plaintiff’s Motion as to the City of
Chicago.
the

For a municipality to be found liable under § 1983,

plaintiff

must

prove

caused their injury.

that

a

municipal

policy

or

custom

See, City of St. Louis v. Praprotnik, 485

U.S. 112 (1988); Abbott v. Village of Winthrop Harbor, 205 F.3d
976, 981 (7th Cir. 2000).

Municipalities are not vicariously

liable for the constitutional torts of their agents.
v. Rice, 957 F.2d 397, 399 (7th Cir. 1992).

Auriemma

Simmons’s summary

judgment briefing does not allege that any specific City policy
is responsible for his constitutional injury.
To

the

jurisdiction

extent
over

that

the

arrestees

City’s
from

policy

officers

of
to

transferring
investigating

detectives contributed to Plaintiff’s injury, the record is not
sufficiently

developed

for

Simmons

to

win

summary

judgment.

Other policies evident from the summary judgment briefing, such
as the City’s policy of designating search warrant affiants as
arresting

officers

or

of

handcuffing

occupants

of

premises

subject to a search warrant, cannot be said to have produced the
injury

this

Court

is

prepared

to

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recognize

on

Plaintiff’s

Motion:

his

unlawful

arrest

at

the

hands

of

Defendant

Piechocki.
IV.

CONCLUSION

For the reasons stated herein, the Court denies Plaintiff’s
Motion

[ECF

Piechocki’s

No.

78],

liability

except
for

as

to

Plaintiff’s

the

issue

unlawful

of

Defendant

arrest.

The

Court grants Plaintiff’s Motion as to Defendant Piechocki for
unlawfully and unreasonably ordering his arrest without probable
cause.

However, genuine disputes of material fact remain as to

whether any Defendant Officers could reasonably have foreseen
the protracted and unreasonable detention following Plaintiff’s
arrest.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: February 7, 2017

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