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, )

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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), 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 - 53 - 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 - 54 - 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 - 55 -

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