Simmons v. The City of Chicago et al

Filing 122

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 2/16/2017: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
Defendants’ Joint Motion for Summary Judgment on Plaintiff
Robert

Simmons’s

detention,

(“Simmons”)

excessive

force,

42

and

U.S.C.

supervisory

§

1983

unlawful

liability

claims

(“the Motion”) [ECF No. 93] is granted in part and denied in
part.
The

Court

grants

summary

judgment

to

Defendants

on

the

lawfulness of Simmons’s handcuffing and initial detention in the
basement of the residence.

The Court denies summary judgment to

all Defendant Officers on Simmons’s unlawful and unreasonable
arrest

at

the

residence,

but

grants

summary

judgment

to

Defendant City of Chicago on this aspect of Simmons’s claim.
The Court denies summary judgment to all Defendants on Simmons’s
unlawful
police

detention

station

claim

pursuant

as
to

it

relates

his

to

arrest.

detention

Further,

at

the

the

Court

denies Defendants’ Motion as to Simmons’s excessive force claim,
except as to Defendant City of Chicago.

It denies Defendants’

Motion for Summary Judgment on Simmons’s supervisory liability
claim.
I.
Before

delving

FACTUAL BACKGROUND

into

the

facts

at

issue

on

Defendants’

Motion, the Court highlights the unusual nature and obfuscating
tendencies of the filings in this case.

Defendants’ Statement

of Uncontested Facts, under the auspices of summarizing portions
of

Plaintiff’s

clearly

deposition

contested.

In

testimony,
so

doing,

presents

facts

Defendants

that

have

provided

support for two distinct versions of the relevant events.
responding

and

filing

its

Statement

of

are

Additional

In

Facts,

Plaintiff compounds the confusion by introducing certain facts
that

support

Defendants’

support his version.

version

of

events

and

others

that

What follows is the best parsing of these

facts that the Court can manage in light of the tortuous record.
For

purposes

viewed

in

of

the

this
light

Motion,
most

inferences

favorable
- 2 -

to

drawn

from

Plaintiff

them
(the

are
non-

movant).

See,

Matsushita

Elec.

Indus.

Co.

v.

Zenith

Radio

Corp., 475 U.S. 574, 587 (1986).
First,

the

parties

do

not

dispute

certain

facts

in

the

case, and exhibits attached to both parties’ Statements help
establish

them.

On

March

9,

2014,

Defendants

Piechocki,

D’Amato, Otten, and MacFarlane (the “Defendant Officers”), along
with Officer Thomas Derouin, executed a search warrant at 2725
E. 92nd Street in Chicago, Illinois (“the residence”).
No. 103 ¶ 1.)
target

was

(ECF

The search warrant was for narcotics, and its
an

African-American

male

nicknamed

“Sunny,”

approximately 45-50 years in age, 5’5”-5’8” in height, weighing
140-160

pounds,

and

with

brown

eyes,

a

dark

black hair worn long and wavy. (Id. ¶¶ 2-3.)

complexion,

and

The warrant was

procured with the assistance of a confidential informant, who
claimed

to

have

purchased

narcotics

from

basement door of the residence. (Id. ¶ 3.)

“Sunny”

out

of

the

The warrant relays

several statements reportedly made by “Sunny” to the informant
(alias John Doe).

(See, ECF No. 94 (“Defs.’ SOF”), 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.

Come

back when you need some more.”).)
Plaintiff

Robert

Simmons

is

an

African-American

medium-brown complexion with brown eyes.
- 3 -

male

of

(ECF No. 103, Ex. 6

(“Arrest Rep.”), p.1.)
stood

5’11”

either

tall,

“buzzed

or

On March 9, 2014, he was 67 years old,

weighed
bald.”

165

pounds,

(Id.;

and

MacFarlane

had
Tr.

short

42:17-22)

lived at 222 West 106th Place in Chicago, Illinois.
Rep. at p.1.)

hair

–
He

(Arrest

Simmons suffers from cerebral palsy and has a

noticeable speech disorder.

(ECF No. 104 (“Pl.’s SOAF”) ¶ 17;

see

Ex.

generally

Defs.’

SOF,

A.)

What

happened

at

the

residence once the officers arrived to execute the warrant is
hotly disputed.
A.

Plaintiff’s Account

Simmons was sitting at a table in the basement kitchen when
he saw two officers enter the residence.

(ECF No. 103 ¶¶ 4, 9.)

Both were wearing all black, including police vests, with masks
pulled

over

their

faces

that

revealed

only

¶¶ 6, 15; ECF No. 104 (“Pl.’s SOAF”) ¶ 4.)

their

eyes.

The first officer

who came in fell over, possibly tripping over a rug.
No. 103 ¶¶ 5, 7; Pl.’s SOAF ¶ 2.)

(Id.

(ECF

The second officer came in

right behind the first and demanded to know what Simmons was
doing.

(Pl.’s

SOAF

¶

3.)

Simmons,

sitting

at

the

table,

responded that he was eating lasagna. (Id. ¶ 5; ECF No. 103
¶ 9.)

The second officer came to stand by Simmons and then

punched him on the right side of his face with a closed fist.
(ECF No. 103 ¶ 10; Simmons Tr. 69:19-71:1.)
- 4 -

Some time while

Simmons was seated and while the second officer was standing
there, Simmons saw the first officer’s gun discharge.

(Simmons

Tr. 68:19-69:8, 90:9-91:14.)
After the punch, Simmons stood up, faced the officer, and
asked why he had been hit; the officer then struck him in the
face a second time. (Id. ¶¶ 11-12, 17; Pl.’s SOAF ¶ 6.)

He

eventually ordered Simmons to the ground, and Simmons complied.
(ECF No. 103 ¶ 18; Pl.’s SOAF ¶ 7.)
mask,

Simmons

cannot

Because the officer was

wearing

a

identify

¶ 14.)

The officer was about two inches taller than Simmons,

and therefore over six feet tall.

him.

(ECF

No.

(Simmons Tr. 73:10-24.)

103

No

other officers entered the basement kitchen between the time
Simmons was punched and when he got on the floor.
19.)

(Id. 83:16-

During this time, the first officer remained on the floor,

not moving.

(ECF No. 103 ¶¶ 16, 19.)

It took about three

minutes from the time the two officers entered to when Simmons
got on the floor.

(Simmons Tr. 84:15-85:8.)

Although his testimony is somewhat muddy on this point,
Simmons apparently heard (but did not see) a second shot while
on the ground, which he thought “came out of the house, came out
of the kitchen.”

(Pl.’s SOAF ¶ 12; Simmons Tr. 182:17-184:2.)

After the gunshot, the officer who punched Simmons immediately
handcuffed him while he was lying face down on the basement
- 5 -

floor.

(Id. ¶ 13; ECF No. 103 ¶ 20.)

About two minutes later,

that officer dragged Simmons, still in handcuffs, out of the
house and threw him into a police van parked in the alley behind
the residence.
Tr.

95:8-96:12,

(ECF No. 103 ¶¶ 21, 23; Pl.’s SOAF ¶ 14; Simmons
112:10-14.)

While

being

dragged

out

of

the

basement, Simmons hit his left knee on a stairway, resulting in
injuries.
power,

(Id. ¶ 18.)

but

the

Simmons attempted to walk under his own

officer

was

walking

too

exacerbated by Simmons’s cerebral palsy.

quickly,

a

problem

(Pl.’s SOAF ¶¶ 16-17.)

He subsequently defecated on himself while being dragged through
the back yard of the residence.

(Id. ¶ 19.)

Simmons injured

his head when he was thrown into the police van, and an unknown
officer

subsequently

station.

(Id.

¶

112:15-113:23.)

He

drove
20;

him

to

Simmons

remained

Tr.

in

the

111th

Street

100:5-101:11,

handcuffs

the

police

102:16-18,

entire

time.

(Simmons Tr. 102:2-15.)
Simmons only saw two officers but testified that five or
six officers were in the house.
¶ 22.)

(Pl.’s SOAF ¶ 15; ECF No. 103

Because the first two officers were wearing pullover

masks or hoods, Simmons does not know whether it was Piechocki,
Otten, D’Amato, MacFarlane, or Derouin who fell upon entering
the

residence.

Piechocki,

He

Otten,

similarly
D’Amato,

cannot
or

- 6 -

be

sure

MacFarlane

whether
who

it

struck

was
and

handcuffed him, and then dragged him out of the house and threw
him in the police van.

(ECF No. 103 ¶¶ 24-25, 27-28, 30-31, 33-

34.)
B.

Defendants’ Account

Defendant Otten first entered the basement kitchen of the
residence to execute the search warrant and observed Simmons
sitting at the table; he identified himself and told Simmons to
put his hands up.

(ECF No. 103 ¶ 39; Otten Tr. 38:7-40:10.)

Simmons complied, and Otten then proceeded to the front room of
the basement, with MacFarlane behind him.

(Id. ¶¶ 40, 41.)

When MacFarlane passed within a foot of Simmons, who was still
sitting at the kitchen table, he heard a crash “like someone
fell off a chair.”
D’Amato,
rooms

who

as

did

the

(Pl.’s SOAF ¶ 9; MacFarlane Tr. 43:21-45:5.)
not

other

proceed

as

Defendant

far

into

the

Officers,

saw

basement-level
Simmons

backwards out of his chair after he put his hands up.
SOAF ¶ 8; D’Amato Tr. 54:11-59:20.)

fall
(Pl.’s

It was then that he made

physical contact with Simmons simultaneous to his falling out of
the chair.

(D’Amato Tr. 60:2-8.)

Defendant Piechocki, on the

other hand, testified that he heard a chair fall “immediately
when” Defendant Officers opened the door to the basement of the
residence.

(Pl.’s SOAF ¶ 10; Piechocki Tr. 45:1-10.)

When

Piechocki “got inside” the residence, he saw that D’Amato had
- 7 -

“taken control” of Simmons, who was on the floor.

(Pl.’s SOAF

¶ 11; Piechocki Tr. 43:19-44:11.)
Otten heard a gunshot when he was in the front room of the
basement level, some 7-8 steps from Simmons.

(Id. ¶ 47.)

clearing that area, he ran back to the basement kitchen.
¶ 48.)

After
(Id.

Defendant MacFarlane was behind Otten when he went to

the front of the residence but ahead of Otten when they returned
to the kitchen area.

(Id. ¶¶ 41, 42, 49.)

The gunshot occurred

roughly 10 seconds after MacFarlane entered the residence.
¶ 44.)

(Id.

D’Amato also heard a gunshot and saw Officer Derouin

fall into the basement kitchen from the stairwell where he was
shot.

(Id. ¶ 45.)

D’Amato then proceeded upstairs. (Id. ¶ 46.)

MacFarlane handcuffed Simmons because police were executing
a search warrant where the target was unknown, a police officer
had been shot, and a handgun (Derouin’s) came to rest in close
proximity to Simmons.

(ECF No. 103 ¶ 50.)

Unknown uniformed

officers relieved MacFarlane of detaining Simmons.

(Id. ¶ 54.)

He went upstairs once relieved of Simmons and, after “a couple
of minutes,” went to the hospital with D’Amato and Otten to see
Derouin. (Id. ¶¶ 57-58.)
D’Amato did not remove Simmons from the residence and did
not see who did.

(Defs.’ SOF ¶ 59; D’Amato Tr. 120:23-121:7.)

D’Amato and MacFarlane testified that Simmons was a possible fit
- 8 -

for “Sunny.” (Id. ¶¶ 65-66.)
Simmons,

and

D’Amato

No. 103 ¶¶ 36-37).

denies

Defendant Officers deny striking
punching

him

in

the

face.

(ECF

Only MacFarlane admits to handcuffing him.

(Id. ¶ 38; MacFarlane Tr. 115:7-15.)
C.

Further Undisputed Facts

Throughout the entire ordeal at the residence, Defendant
Officers

never

considered

Simmons

cooperated with their requests.

Detective

D’Amato

relayed

Thomas
that

a

threat,

and

he

fully

(D’Amato Tr. 67:2-6; MacFarlane

Tr. 75:4-10; Otten Tr. 44:5-11.)
Police

a

In an interview with Chicago

Lieber

on

“[s]uspect

March

10,

[was]

2014,

sitting

Defendant

at

kitchen

table” and that there was a “[t]ake down of suspect in kitchen.”
(Pl.’s

SOAF

¶¶

26-29.)

Defendants

“Piechocki,

Otten,

and

MacFar[lane]” then proceeded “further into basement to clear,”
with D’Amato “[g]etting ready to handcuff suspect in kitchen.”
(Id. ¶ 29.)
in

A contemporaneous photograph shows D’Amato dressed

dark-colored

jeans,

a

black

hooded

sweatshirt,

a

black

Chicago Police raid vest, black boots, and a black beanie or ski
cap.

(Defs.’

SOF,

Ex.

E-3;

D’Amato

Tr.

117:13-118:5;

ECF

No. 103 ¶ 32.)
Defendant Otten played no role in physically detaining or
removing Simmons from the home or in deciding what charge to
place on Simmons’s arrest report.
- 9 -

(ECF No. 103 ¶ 51.)

Once

Derouin was taken to the hospital, Otten went upstairs, spent a
minute or less there, and then went back outside.

(Id. ¶¶ 52-

53.)

him

Contemporaneous

medium-dark

colored

photographs

jeans,

a

of

Otten

camouflage

show

hooded

wearing

sweatshirt,

black Chicago Police raid vest, and gym shoes.

a

(Defs.’ SOF,

Ex. E-2; D’Amato Tr. 116:16-12.)
Defendant MacFarlane did not tell anyone to arrest Simmons,
nor

did

he

residence.

make

any

decision

to

(Defs.’ SOF ¶¶ 55-56.)

remove

Simmons

from

the

A contemporaneous photograph

depicts MacFarlane in khaki cargo pants, a gray long-sleeved
undershirt with a black short-sleeved shirt over it, a black
Chicago Police raid vest, black shoes, and a Chicago Blackhawks
ball cap.

(Defs.’ SOF, Ex. E-4; D’Amato Tr. 118:6-19.)

Defendant Piechocki was only in the home for a few seconds
before

he

heard

a

gunshot.

(ECF

No.

103

¶

61.)

He

went

upstairs at some point after the shooting of Derouin and did not
see

any

males

with

long

wavy

hair.

(Id.

¶

62.)

While

organizing the civilians found at the residence for transport to
the police station, Piechocki saw a small bag of what appeared
to be crack cocaine on the floor of the upstairs living room.
(Id. ¶ 63; Piechocki Tr. 77:10-78:5.)

Piechocki ordered the

civilians to the police station for officer safety and because
they were potential suspects with respect to Officer Derouin’s
- 10 -

attempted

murder

and

aggravated

battery,

with

respect

to

possession of a handgun and the narcotics that were found, and
because it was unclear who “Sunny” was.

(Id. ¶¶ 64, 68-69.)

When Simmons “was being escorted to one of the transport cars,”
Piechocki

heard

Tr. 62:15-22.)
dressed

in

him
A

say,

“I

shit

contemporaneous

light-colored

jeans,

on

myself.”

photograph

a

gray

(Piechocki

shows

hooded

Piechocki

sweatshirt,

black Chicago Police raid vest, and black boots.

a

(See, Defs.’

SOF, Ex. E-1; D’Amato Tr. at 108:9-22.)
Although
indicating
Officers,
(which

evidence

the
a

were

has

respective

comparison
taken

of

against

not

been

heights
their
the

submitted
of

the

to
four

contemporaneous

same

backdrop)

D’Amato and MacFarlane are the tallest.

the

Court

Defendant
photographs

indicates

that

There is no evidence

before the Court as to how Officer Derouin appeared on the night
in

question

and

whether

he

could

fairly

be

characterized

as

wearing “all black.”
Once Piechocki left the residence, he had no contact with
Simmons and, once the scene was turned over to detectives, he no
longer

maintained

civilians.

control

over

(ECF No. 103 ¶¶ 70-72.)

custody

of

the

detained

Pursuant to Chicago Police

Department orders, the residence was an active crime scene that
needed to be secured, and, with only a few exceptions irrelevant
- 11 -

here, civilians are not permitted access to the residence.
No. 103 ¶ 67; Defs.’ SOF, Ex. H & H-3.)

(ECF

The search pursuant to

the warrant was delayed and had to be completed by an outside
unit at approximately 3:00 a.m. on March 10, 2014.

(Id. ¶ 76.)

Simmons’s arrest report recites a charge of possession of a
controlled substance, but no criminal complaints were ever filed
against him.

(Pl.’s SOAF ¶ 21; Arrest Rep. at p.1.)

His arrest

report was prepared for administrative purposes, with Officers
Otten and D’Amato listed as arresting officers because they were
affiants of the warrant.

(Defs.’ SOF ¶¶ 77-79.)

None of the

Defendant Officers physically detained Simmons once he was at
the police station.
At

the

(Id. ¶ 80.)

police

fingerprinted,

and

station,

then

held

Simmons
until

charges at 1:25 p.m. on March 10, 2014.

being

was

photographed,

released

without

(Pl.’s SOAF ¶¶ 21-22.)

Simmons gave a voluntary statement to Detective Pat Ford and ASA
George Cannellis at approximately 11:45 a.m. on March 10, 2014.
(ECF No. 103 ¶ 73; Defs.’ SOF ¶¶ 93-94.)

At some point prior to

that statement, Simmons was informed that he was free to leave.
(Id. ¶¶ 74-75.)

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.”

(Ford Tr. 42:15-43:1; Arrest Rep.
- 12 -

at p.5)

At his deposition, Detective Ford claimed that Simmons

remained

under

arrest

substance

and

because

Derouin was unclear.
Court

is

silent

on

because
his

of

role

possession
in

the

(Ford Tr. 43:2-17.)
when,

if

ever,

of

a

controlled

shooting

of

Officer

The record before the

Simmons

was

read

Miranda

warnings.
In his arrest photo, Simmons exhibits a black eye on his
right side.

(See, Pl.’s SOAF ¶ 23 & Ex. F.) ,Photographs taken

by his family members the day of his release also indicate a
black eye on Simmons’s right side, as well as bruises on his
left knee and lower leg.

(See, Pl.’s SOAF ¶ 24 & Ex. G.)

March

sought

12,

2014,

Simmons

treatment

for

his

On

injuries,

reporting that “on 3/9/14 he was arrested by the police and
thrown into their van and he struck his head and knee,” which
caused him to complain of “right inner eye redness, outer eye
bruising, and pain on right side of head, right knee painful.”
(Pl.’s

SOAF,

Ex.

H,

p.1).

He

was

diagnosed

with

a

head

contusion, “subconjunctival hemorrhage” of his right eye, and a
knee

contusion.

(Id.

at

p.3.)

He

underwent

a

CT

scan

on

March 13, 2014, which discovered “mild soft tissue swelling on
the right temporal region.”

(Pl.’s SOAF, Ex. I, p.1.)

- 13 -

II.

LEGAL STANDARD

Summary judgment must be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
FED. R. CIV.

movant is entitled to judgment as a matter of law.”
P. 56(a).

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
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

- 14 -

“set

If this burden is

forth

specific

facts

showing that there is a genuine issue for trial.”

Anderson, 477

U.S. at 256.
III.

DISCUSSION

Defendants argue that they are entitled to summary judgment
on

Simmons’s

supervisory

unlawful

liability

detention,

claims.

excessive

Simmons

force,

opposes

and

Defendants’

Motion on the grounds that, first, he has already established
his entitlement to summary judgment on his unlawful detention
claim; and second, there are genuine disputes of material fact
for trial concerning all aspects of his excessive force claim.
The

Court

Simmons’s

agrees

first

in

part

argument,

and

disagrees

granting

in

summary

part

with

judgment

to

Defendants on his unlawful detention claim as it pertains to his
handcuffing
reaffirms
Simmons

and

its
as

initial

prior
to

detention

grant

of

Piechocki’s

at

summary

the

residence.

judgment

liability

for

in

favor

It
of

unlawfully

and

unreasonably ordering Simmons’s arrest at the residence.

The

Court further denies summary judgment to the other Defendant
Officers

on

judgment

to

this

aspect

Defendant

of

City

Simmons’s
of

claim,

Chicago

on

grants
this

summary

aspect

of

Simmons’s claim, and denies summary judgment to all Defendants
on Simmons’s claim arising from his protracted detention at the
police station.
- 15 -

The

Court

argument,

agrees

finding

in

that

part

with

genuine

Simmons

disputes

on

of

his

second

material

fact

preclude summary judgment for all Defendants other than the City
of Chicago, to whom summary judgment is granted on Simmons’s
unlawful force claim.

The Court also denies Defendants’ Motion

for Summary Judgment on Simmons’s supervisory liability claim.
A.

Unlawful Detention

Defendants argue for summary judgment on Simmons’s unlawful
detention claim as follows.

First, Defendant Officers Otten,

D’Amato,

no

and

MacFarlane

had

personal

involvement

in

the

decision to remove Simmons from the residence or to hold him at
the

police

station.

involvement
station

in

for

detention

so

were

the

Second,
decision

long.

to

Third,

reasonable.

Defendant
hold

Piechocki

Simmons

Plaintiff’s

Alternatively,

had

no

at

the

police

arrest

and

entire

Defendant

Officers

argue that they are entitled to qualified immunity.
Simmons

argues

in

response

that

Defendants

violated

his

civil rights, first, when Officer D’Amato detained him at the
residence; second, when he was handcuffed 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)

Defendants

did

hours.
not

To

the

physically

extent
detain

- 16 -

any
or

of

the

arrest

individual

him,

Simmons

claims they are liable for failing to intervene to stop the
deprivation

of

his

rights.

To

the

extent

they

retained

no

control over his subsequent custody at the police station, he
argues that it was a foreseeable consequence for which they are
liable on ordinary tort principles.

(See, e.g., Pl.’s Response

at 12-15.)
1.

Simmons’s Initial Detention at the Residence

For the same reasons stated in the Court’s prior summary
judgment

opinion

Defendants’

in

Motion

this
for

case,

Summary

the

Court

Judgment

grants

as

to

in

part

Plaintiff’s

unlawful detention claim arising from his initial detention at
the residence.

Despite the factual morass in this case, Simmons

does not dispute that the officer who initially detained him was
at the residence to execute a search warrant for the premises on
which
accord

he

was

with

found.

those

Other

that

relevant

formed

Motion for Summary Judgment.

the

facts

basis

are

for

otherwise

Simmons’s

in

prior

Irrelevant to Simmons’s unlawful

detention claim is whether Simmons fell out of his chair and was
subsequently

detained

on

the

basement

floor

by

D’Amato,

in

accordance with the facts underlying the Court’s prior opinion,
or punched twice and ordered to the ground, or forced to the
ground via a “takedown.”

Instead, these factual questions go to

Simmons’s excessive force claim.
- 17 -

Michigan v. Summers, 452 U.S. 692 (1981), and its Seventh
Circuit

progeny

authorize

a

detention

of

individuals

like

Simmons, who are found at the premises where a search warrant is
being

executed.

In

Simmons’s

case,

permissible

detention

included entering the residence with guns drawn, forcing a show
of

hands,

and

detaining

him

pursuant

to

the

search

warrant.

See, e.g., Muehler v. Mena, 544 U.S. 93, 98-99 (2005) (holding
that officers’ categorical authorization to detain incident to
execution of a search warrant under Summers includes authority
to

use

reasonable

force

to

effect

detention);

Baird

v.

Renbarger, 576 F.3d 340, 344-46 (7th Cir. 2009) (noting that
police are entitled to point their guns at citizens “when there
is a reason to fear danger,” as in execution of a warrant based
on “crimes that contain the use of force as an element, crimes
involving possession of illegal weapons, and drug crimes, all of
which are associated with violence”) (emphasis added); Barron v.
Sullivan,
1997)

No.

(finding

93-C-6644,
detention

1997

WL

lawful

158321
where

(N.D.

police

Ill.
under

Mar.
a

31,

search

warrant entered with guns drawn and forced residents of the home
to kneel on ground with hands in the air for the first 15 or 25
minutes, during which officers kept guns drawn).

Entering the

residence with guns drawn or requiring Simmons to remain on the
ground did not transform his detention into an arrest requiring
- 18 -

probable cause.
the

residence

interference

Thus, Simmons’s detention in the basement of
pursuant

with

his

to

the

liberty,

warrant

and

the

was

Court

a

reasonable

grants

summary

judgment to Defendants in relevant part.
2.

Simmons’s Handcuffing and Further Detention at the Residence
With

there

respect

are

a

to

few

Simmons’s

additional

handcuffing

incongruities

at

the

residence,

between

the

facts

underlying the Court’s opinion on Plaintiff’s Motion for Summary
Judgment

and

those

advanced

here.

Specifically,

uncontested there that MacFarlane handcuffed Simmons.

it

was

Here, by

contrast, Simmons testifies that the same officer who used force
on him – inferences from the facts suggest it was D’Amato – also
handcuffed him.

In addition, the timing of the gunshot(s) at

the residence is now disputed.

Simmons claims that the first

officer to enter the residence tripped over a rug and discharged
his firearm before, apparently, a second shot was fired within
the residence while Simmons was detained on the ground.
Regardless of which story is credited, however, sufficient
justification

exists

under

Summers

to

handcuff

and

continue

detaining Simmons for a short time at the residence.

Under

either version of the facts, Simmons was handcuffed following a
gunshot
explained

that
in

occurred
the

within

Court’s

the

prior
- 19 -

residence.
opinion,

the

And

if,

search

as
was

immediately suspended upon the shooting of Officer Derouin (or,
as

Simmons’s

telling

suggests,

the

second

gunshot),

then

officers reasonably feared for their safety such that they were
justified in handcuffing and continuing to detain Simmons under
Terry and/or Lidster until the residence and its occupants were
secure.
further

The mere fact of handcuffing Simmons on the floor for
detention

at

the

residence

was

reasonable

under

the

circumstances as a matter of law, and cannot support an unlawful
detention claim.
86

(3d

Cir.

See, e.g., Torres v. U.S., 200 F.3d 179, 185-

1999)

(finding

detention

lawful

where

officers

executing a narcotics search warrant left handcuffed occupant on
the floor, then helped him to a couch, where he remained in
handcuffs for 1.5 to 3 hours); U.S. v. Fullwood, 86 F.3d 27, 30
(2d Cir. 1996) (officers acted reasonably in handcuffing house’s
occupant for 15 to 20 minutes while executing search warrant for
drugs);

U.S.

v.

Fountain,

2

F.3d

656,

663

(6th

Cir.

1993)

(finding detention reasonable where officers executing a search
warrant for narcotics handcuffed house’s occupants and forced
them to lie face-down while they conducted the search); U.S. v.
Bender, No. 13-CR-128, 2014 WL 1406300,at *5 (E.D. Wis. Apr. 11,
2014) (“Occupants of a residence may be detained while a search
warrant is executed, including with the use of handcuffs, and

- 20 -

such detention does not constitute an arrest.”) (citing Summers,
452 U.S. at 705; Muehler v. Mena, 544 U.S. 93, 98-99 (2005)).
As

noted

in

the

Court’s

prior

opinion,

Simmons was not a resident is immaterial.

the

fact

that

Any person present

during the search may be detained for its duration.

See, e.g.,

U.S. v. Jennings, 544 F.3d 815, 818 (7th Cir. 2008) (detention
of an individual who approached the premises was reasonable);
U.S. v. Pace, 898 F.2d 1218, 1239 (7th Cir. 1990 (individuals
present

at

the

premises

being

searched

may

be

detained

even

though they are not residents or occupants).

The presence of

other

made

individuals

within

the

residence

handcuffing all the more reasonable.

Simmons’s

See, Muehler, 544 U.S. at

100.
Therefore,

Defendants’

Motion

for

Summary

Judgment

is

granted in part as to Simmons’s unlawful detention claim arising
from his handcuffing and subsequent detention on the basement
floor of the residence.
3.

Simmons’s Removal from the Residence, Transport to the
Police Station, and Lengthy Detention There

Defendants
Piechocki

argue

participated

for
in

summary
Simmons’s

judgment
arrest,

and

because
his

only

ensuing

lengthy detention at the police station was unforeseeable.

The

problem is that this only accounts for Defendants’ own version
of events.

Simmons has proffered testimony that, interpreted
- 21 -

favorably on summary judgment, suggests the participation of at
least

one

other

Defendant

Officer

in

his

arrest:

D’Amato.

Simmons argues that, to the extent any of the other Defendant
Officers

did

not

culpably

failed

directly

to

participate

intervene

to

stop

in
the

his

arrest,

deprivation

of

they
his

rights, making them liable for his protracted detention at the
police station under ordinary tort principles of foreseeability
applicable to § 1983 actions.

(See, Response at 12-15.)

“[T]he law is clearly established that an officer has a
duty to intervene to prevent a false arrest . . . if the officer
is

informed

of

the

facts

that

establish

violation and has the ability to prevent it.”

a

constitutional

Morfin v. City of

East Chicago, 349 F.3d 989, 1001 (7th Cir. 2003); see, Yang v.
Hardin, 37 F.3d 282, 285 (7th Cir. 1994).

An officer who is

present and fails to intervene to prevent other law enforcement
officers from infringing constitutional rights of citizens is
liable under § 1983 if that officer had reason to know of an
unjustifiable arrest and a realistic opportunity to intervene to
prevent the harm from occurring.

See, Yang, 37 F.3d at 285

(citing Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. 1994))
(citation omitted); accord, Byrd v. Clark, 783 F.2d 1002, 100607 (11th Cir. 1986).

The duty does not fall only on supervisory

officers but on nonsupervisory officers as well.
- 22 -

See, Byrd v.

Brishke, 466 F.2d 6, 10 (7th Cir. 1972).

“Each police officer

present has an independent duty to act.”

Yang, 37 F.3d at 286

(“The number of officers present and able to intervene to save
an

innocent

person

from

unconstitutional

summary

punishment

inflicted by a fellow officer, in no way correlates with any one
officer’s duty to intercede.”).
a.

Piechocki

In its prior summary judgment opinion in this case, the
Court found in favor of Simmons that, under the circumstances,
Piechocki

unlawfully

and

unreasonably

arrested

Simmons

by

ordering his removal to the police station in handcuffs.

It

also found that Simmons’s subsequent detention at the police
station was unlawful and unreasonable.
of

new

facts

implicated

different result.

by

Nothing in the plethora

Defendants’

Motion

compels

a

To the extent new facts relevant to Simmons’s

arrest and subsequent detention are now before the Court, they
either (a) are entirely in dispute such that summary judgment to
Piechocki is unwarranted or (b) do not affect the reasonableness
of Simmons’s arrest and protracted subsequent detention.

As

such, the Court denies summary judgment to Defendant Piechocki.
Consistent

with

the

facts

presented

on

Simmons’s

prior

Motion, Defendants argue in their memorandum and have introduced
testimony that Simmons was one of six civilians whom Piechocki
- 23 -

ordered

to

the

police

station

and

that

none

of

the

other

Defendant Officers removed Simmons from the residence or made
decisions

relative

to

Simmons’s

arrest.

Piechocki

also

testified that he shared words with Simmons while he was being
removed to a police vehicle for transport.

However, Defendants

have recited testimony from Simmons that a masked officer, whom
Simmons contends (and inferences from the facts suggest) was
D’Amato, dragged him out of the basement and threw him in a
police van, following which an unknown officer drove the van to
the police station with Simmons still in handcuffs.
To the extent these differing narratives are inconsistent
with one another, they remain compatible with the Court’s prior
grant of partial summary judgment against Defendant Piechocki
for

his

role

in

Simmons’s

unlawful

and

unreasonable

arrest.

This is to say that, whether Piechocki ordered Simmons’s arrest
or

failed

to

intervene

when

D’Amato

effectuated

arrest, he remains liable as a matter of law.

Simmons’s

For example,

reading Defendants’ testimony against Simmons’s testimony does
not establish any mitigation of Piechocki’s responsibility.

His

order to remit all the civilians found at the residence to the
police station – the lodestar of the Court’s prior grant of
summary judgment to Simmons – remains factually and conceptually
consistent

with

D’Amato’s

alleged
- 24 -

physical

execution

of

Simmons’s arrest, making the only changed circumstance here an
additional

direct

participant.

Alternatively,

Piechocki

culpably failed to intervene in D’Amato’s unlawful arrest of
Simmons.

First, he had reason to know that a false arrest was

occurring

based

on

probable cause.
this

the

lack

of

articulable

facts

supporting

Second, Piechocki’s own testimony suggests that

knowledge

prevent

the

was

harm

coupled

from

with

a

occurring:

realistic
if

opportunity

Piechocki

was

to

indeed

present “when Simmons was being escorted” to a police vehicle
and

heard

him

certainly

find

intervene

to

say

because

“I

that
stop

reasonable

shit

he

on

myself,”

flubbed

Simmons’s
inferences

a

realistic

unlawful
from

then

a

could

opportunity

arrest.

the

jury

to

Particularly

confusing

record

are

drawn in Simmons’s favor, the Court denies summary judgment in
relevant part to Piechocki.
On the other hand, Defendants’ version of events has not
changed from those undisputed in the prior Motion with respect
to

Simmons’s

Defendants

lengthy

still

detention

contend

that

the

Simmons’s lengthy detention there.

at

the

same

police

reasons

station.

undergirded

They also remain adamant

that Piechocki retained no control over the custody of Simmons
once

detectives

acquired

jurisdiction

over

investigate the shooting of Officer Derouin.
- 25 -

the

case

to

Thus, there is no

reason

for

the

Court

to

depart

from

its

earlier

finding,

grounded on thorough analysis, that Simmons’s detention at the
police

station

pursuant

unreasonable.

to

his

arrest

was

unlawful

and

Particularly because inferences from the facts

presented on Defendants’ Motion are drawn in Simmons’s favor,
the

Court

re-affirms

this

prior

finding

and

likewise

denies

summary judgment to Piechocki on the issue of Simmons’s lengthy
confinement

at

the

police

station.

Fact

issues

remain

concerning the extent to which Simmons’s prolonged detention was
foreseeable

in

light

of

the

transfer

of

jurisdiction

over

Simmons’s custody.
b.
Defendants’

D’Amato, Otten, and MacFarlane
testimony

suggests

the decision to arrest Simmons.

that

Piechocki

alone

made

Simmons’s testimony suggests

that D’Amato committed acts that, for the reasons explored in
the Court’s prior opinion, amount to an arrest as a matter of
law.

To avoid summary judgment, Simmons argues that, to the

extent

any

of

the

Defendant

Officers

did

not

physically

participate in his unlawful arrest, they are liable secondarily.
The Court denies summary judgment to Defendants D’Amato, Otten,
and

MacFarlane

because

the

facts

read

in

the

light

most

favorable to Simmons demonstrate that each of them at least had
a reason to know that Simmons was being unjustifiably arrested
- 26 -

coupled with a realistic opportunity to intervene to prevent the
harm from occurring.

See, Yang, 37 F.3d at 285 (noting that the

facts demonstrated potential opportunities to intervene despite
the fact that the “complaint fails to explicitly specify the
existence of an opportunity”) (emphasis in original).
With respect to D’Amato, a genuine dispute of material fact
remains as to whether he is liable for direct participation in
Simmons’s

unlawful

arrest,

let

alone

as

a

secondary

actor.

Drawing reasonable inferences in Simmons’s favor, a jury could
find that D’Amato was the officer who, according to Simmons’s
testimony,
black,

stood

and

a

couple

sported

a

inches

mask

and

taller
who

than

dragged

him,

wore

all

him

from

the

residence, ultimately throwing him in the back of a police van.
His potential involvement in Simmons’s unlawful arrest, then,
goes well beyond secondary liability.
Although they claim little knowledge of Simmons’s arrest,
MacFarlane
considered
arrest.

and
to
All

Otten
have

for

been

Defendant

summary

at

the

Officers

judgment

residence
were

part

purposes

during
of

the

are

Simmons’s
same

team

executing the warrant, and Simmons testified that five or six
officers were in the house at the time when he was dragged out
of the basement.

Simmons testified that this happened within

two minutes of his handcuffing, and neither MacFarlane nor Otten
- 27 -

has offered testimony sufficient to establish their departure
from the residence that soon.

Otten expressly testified that he

was at the residence for at least five or ten minutes after the
shooting. (See, Otten Tr. 66:3-67:20.)
left

the

residence

together,

along

And both claim to have
with

D’Amato,

straight to the hospital to visit Officer Derouin.
MacFarlane Tr. 68:6-10; Otten Tr. 67:10-20.)

and

gone

(See, e.g.,

Thus, sufficient

factual support exists for a reasonable jury to conclude that
both MacFarlane and Otten were present at least somewhere at the
residence during Simmons’s arrest.
As to the specific legal requisites of failure to intervene
liability, the record is murky on whether MacFarlane and Otten
contemporaneously had reason to know of Simmons’s arrest.

If

they

or

were

upstairs

at

the

time

securing

the

civilians

otherwise searching the premises, then they may well have been
sufficiently and defensibly preoccupied.

But if they were, for

example, “only ten feet away from” where Simmons was hauled out
of the basement and could hear “the noise attending plaintiff’s
arrest,

including

the

sound

of

him

hitting

the . . . police

car,” then they may well have had sufficient facts to know of
Simmons’s wrongful arrest.

Smith v. Schield, No. 12 C 3305,

2016 WL 851987, at *3 (N.D. Ill. Mar. 4, 2016).

As in Schield,

“[t]he

sufficient

evidence,

though

not

overwhelming,

- 28 -

is

to

support

the

MacFarlane

inference
were

by

plaintiff

their

urges.”

own

Id.

admission

Both

aware

of

Otten

and

Simmons’s

initial detention and, on inferences from Simmons’s testimony,
in the house during Simmons’s arrest.

Thus, a reasonable jury

could find that they were likely “informed of the situation”
playing out in the basement and, “despite this knowledge, failed
to take any action to prevent” D’Amato “from going forward with
the” unlawful arrest.

Morfin, 349 F.3d at 1001.

Alternatively, the record must establish their lack of a
realistic
alleged

opportunity
wrongful

to

but

–

also

not
in

just

in

D’Amato’s

Simmons’s

subsequent

Two claims of Simmons are relevant here:

custody.

conduct

intervene

first, as

mentioned, that he was dragged across the yard to the police van
within just two minutes of being handcuffed; and second, that he
remained in the police vehicle in handcuffs awaiting transport
to the police station for a period of time, “about a minute or
so.”

(See,

e.g.,

unintelligible

on

Simmons
the

Tr.

precise

105:16-21.)
awareness

MacFarlane and Otten during this time.

and

The

record

is

activities

of

MacFarlane testified

that, once relieved of Simmons, he went upstairs “for a couple
minutes”
“round[ed]

–

Derouin.

where
up

he

Officer

saw

no

Otten

weapons
and

Officer

(MacFarlane Tr. 67:18-68:10.)
- 29 -

or

drugs

–

D’Amato”

and
to

then
visit

Similarly, Otten stated

that he “went straight upstairs” to address the “threat,” then
went

outside

for

five

or

ten

minutes

before

MacFarlane and D’Amato to the hospital.
67:20.)

Thus,

inferences

drawn

traveling

with

(See, Otten Tr. 66:3-

in

Simmons’s

favor

from

Defendants’ own testimony support a realistic opportunity during
this length of time to intervene, whether by putting a stop to
D’Amato’s alleged wrongful conduct or by removing Simmons from
the police van.

See, e.g., Woods v. Clay, No. 01 C 6618, 2005

WL 43239, at *11 (N.D. Ill. Jan. 10, 2005) (denying summary
judgment based on a determination that, although plaintiff was
arrested before defendant officer arrived on the scene, “he may
have

been

in

the

position

falsely imprisoned”).
of

facts

cannot

bear

to

prevent

plaintiff

from

being

Thus, the jumbled and impoverished state
the

heavy

burden

required

to

support

summary judgment in favor of MacFarlane or Otten.
The Court at this stage does not find the testimony of any
deponent persuasive on the failure-to-intervene issue and merely
notes

that

reasonable

sufficient
jury

facts

finding

in

in

the

Simmons’s

record
favor

would
on

support

this

a

score.

Further factual development is needed, as is often the case when
determining whether an officer had sufficient time to intervene
or was capable of preventing the harm caused by the unlawful
conduct.

See, e.g., Lanigan v. Village of E. Hazel Crest, Ill.,
- 30 -

110

F.3d

467,

478

(7th

Cir.

1997)

(“Whether

an

officer

had

sufficient time to intervene or was capable of preventing the
harm caused by the other officer is generally an issue for the
trier

of

fact,

unless,

considering

all

the

evidence,

a

reasonable jury could not possibly conclude otherwise.”).
The
silent

Court

on

the

notes

that

question

Simmons’s

whether

any

testimony
Defendant

is

virtually

Officer

could

reasonably have foreseen his protracted and unreasonable stint
at the police station.

Defendants have testified that none of

the Defendant Officers participated in his prolonged detention
or

made

any

station.

decisions

But

the

relative

relevant

to

his

question

time
is

at

the

whether,

police

assuming

Simmons’s version of the facts, any of them could be liable for
the lengthy detention pursuant to his arrest under ordinary tort
principles

of

foreseeability.

As

noted,

Simmons’s

testimony

supports characterizing D’Amato as the officer who physically
effectuated his arrest.

And as explained above, the Court is

not willing to find as a matter of law that the other Defendant
Officers can have no liability for the conduct Simmons alleges.
Because a jury on the facts presented could find any of the
Defendant Officers liable directly or secondarily for Simmons’s
arrest, tort law suggests that each such person could be found
liable for his protracted confinement at the police station.
- 31 -

See, e.g., Herzog v. Village of Winnetka, Ill., 309 F.3d 1041,
1044 (7th Cir. 2002) (holding that “indignities inflicted on the
hapless

victim

physical

[of

an

touchings,”

illegal

were

arrest],

“foreseeable

including

offensive

consequences

of

the

illegal arrest” under ordinary tort causation rules); Moore v.
Marketplace

Restaurant,

Inc.,

754

F.2d

1336,

1359

(7th

Cir.

1985) (Posner, J., concurring) (“[I]f the arrests or detention
were unlawful then any indignities inflicted . . . would be a
consequence of the defendants’ unlawful conduct for which the
defendants would be liable.”); Huddleston v. Pohlman, No. 063009, 2007 WL 647335 (C.D. Ill. Feb. 27, 2007) (denying the
defendant’s
damages,

motion

because

reasonably

in

limine

criminal

foreseeable

to

charges

results

bar
and

of

evidence
bond

the

relating

restrictions

defendant

to
were

officer’s

unlawful arrest of the plaintiff).
Therefore,

the

Court

cannot

D’Amato, MacFarlane, or Otten.

grant

summary

judgment

to

The relevant facts are simply

too disputed to establish circumstances that absolve them from
liability, either for direct or secondary liability regarding
Simmons’s unlawful arrest at the residence and, concomitantly,
his subsequent unreasonable confinement at the police station.
The Court notes that these same reasons militate against a
finding of qualified immunity here.
- 32 -

Although qualified immunity

is a question of law, it requires an evaluation of underlying
“specific facts” confronting the officers to determine whether
their conduct violates clearly established rights of which a
reasonable person would have known.

Green v. Carlson, 826 F.2d

647, 649 (7th Cir. 1987); see, e.g., Saucier v. Katz, 533 U.S.
194, 201 (2001).

In this case, available information did not

support a reasonable belief of probable cause to arrest Simmons,
and so it is certainly not clear that a reasonable officer in
D’Amato’s, MacFarlane’s, or Otten’s shoes “would have believed
that, at the time he acted” or failed to act, he was within the
bounds of the law.
Cir. 2007).

Belcher v. Norton, 497 F.3d 742, 749 (7th

As explained in the Court’s prior opinion, it was

unreasonable to believe that probable cause existed to arrest
Simmons

based

on

any

resemblance

of

“Sunny,”

and

neither

D’Amato, MacFarlane, nor Otten saw drugs at the residence that
night.

Thus,

they

did

not

possess

information

supporting

probable cause to arrest Simmons.

Taking the facts in the light

most

evidence

favorable

to

Simmons,

the

is

insufficient

to

entitle D’Amato to qualified immunity for his alleged physical
participation in arresting Simmons.
Similarly, where probable cause to arrest is lacking, a
jury “may conclude that [an officer uninvolved in the arrest]
should have intervened to prevent [the arrest].”
- 33 -

Johnson v.

Nichols, No. 12 CV 5325, 2015 WL 5693114, at *9 (N.D. Ill.
Sept. 28, 2015).

Specific to qualified immunity, the record

does not speak clearly and distinctly about whether MacFarlane
or Otten could have reasonably believed that anyone had probable
cause to arrest Simmons.

To the extent the record is equivocal

on whether MacFarlane or Otten could perceive that Simmons was
incapable of contributing to the shooting of Officer Derouin –
something clear to both D’Amato and Piechocki – they cannot be
absolved from failure to intervene liability as a matter of law
on

the

basis

justified.
uncertainty

of

a

reasonable

belief

that

his

arrest

was

Again, this is largely a function of the record’s
as

to

what

role

D’Amato

actually

played

in

effectuating Simmons’s arrest, its opacity as to where in the
house or yard MacFarlane and Otten were, and its indeterminacy
on their awareness and preoccupations at the relevant time.
A trial is therefore needed on the issues of whether and to
what extent D’Amato directly violated Simmons’s constitutional
rights

and

on

whether,

circumstances,

the

inaction

within

fell

other
the

by

failing

to

act

officers

reasonably

confines

of

the

under

believed

law.

See,

Chelios v. Heavener, 520 F.3d 678, 691-92 (7th Cir. 2008).

- 34 -

the
their
e.g.,

c.

City of Chicago

The Court finds no record evidence whatsoever to support a
finding

that

pursuant

to

Simmons’s
or

unlawful

caused

by

a

and

City

unreasonable

policy,

arrest

inadequate

was

officer

training, or the like.

Thus, the Court grants summary judgment

in

City

part

to

Defendant

Simmons’s

unlawful

explained

below,

information

to

arrest
the

grant

of
at

briefs
summary

Chicago
the

as

to

liability

residence.

and

record

judgment

to

for

However,

lack

as

sufficient

Defendant

City

of

Chicago as to Simmons’s prolonged confinement.
To avoid summary judgment to the City, Simmons must show
not only deprivation of a federal right (he has) but also that
it flowed from an express municipal policy or custom or the
deliberate

act

of

a

decisionmaker

authority for the City.

with

final

policy-making

See, e.g., Ienco v. City of Chicago,

286 F.3d 994, 998 (7th Cir. 2002).

The governmental entity must

in some sense have caused the constitutional violation.

See,

Hirsch v. Burke, 40 F.3d 900, 904 (7th Cir. 1994) (citing Monell
v. New York City Dept. of Social Servs., 436 U.S. 658, 692-94
(1978)).

While the record is sparse, there is evidence that at

least a portion of Simmons’s constitutional injury flowed from a
City policy.

For example, Defendants have argued that, as per

City

they

policy,

relinquished

their

- 35 -

control

or

jurisdiction

over those arrested at the residence to detectives investigating
the shooting of Officer Derouin.
Detective

Ford

became

a

For this reason, presumably,

player

in

this

case,

supervising

Simmons’s custody all through the night of March 9-10, 2014.

A

reasonable jury could find that this City policy contributed, at
least in part, to Simmons’s constitutional injury in that the
harm attributable to his unreasonable detention at the police
station was exacerbated - his confinement extended - because
those most apprised of the facts at the residence had no control
over his release.

If officers actually present at the residence

and aware of Simmons’s clear lack of involvement in the crimes
committed

there

retained

some

control

over

his

custody,

Simmons’s injury might have been substantially mitigated.
transfer

of

jurisdiction,

if

done

(as

Defendants

This

contend)

without discretion but solely pursuant to City policy, could
then be called a cause of his constitutional injury.
*
Therefore,

summary

*

judgment

*
is

denied

to

each

of

the

Defendant Officers as to Simmons’s arrest at the residence and
as to Simmons’s protracted detention pursuant to that arrest at
the police station.

The Court grants summary judgment in part

to Defendant City of Chicago as to Simmons’s unlawful arrest at
the residence, but denies summary judgment to the City as to
- 36 -

Simmons’s

unlawful

and

unreasonable

detention

at

the

police

station pursuant to his arrest.
B.

Excessive Force and Supervisory Liability

Simmons alleges for his excessive force claim that a masked
officer dressed all in black used excessive force on him by
punching

him

basement

of

vehicle.

twice,
the

subsequently

residence,

and

dragging
throwing

him

him

out

into

of
a

the

police

To the extent other Defendant Officers did not use

force on him, Simmons seeks to hold them liable for failing to
intervene.

Defendants,

on

the

other

hand,

argue

that

“the

record is void of any excessive force by any of the Defendant
Officers,” entitling Defendant Officers to summary judgment on
Simmons’s
judgment

excessive
on

his

force

supervisory

(“Defs.’ Mem.”) at 6.)
or

a

claim

compelling

and

liability

Piechocki
claim.

to

summary

(ECF

No.

85

Rather than offering governing case law

argument

tailored

to

Simmons’s

failure-to-

intervene showing, Defendants contend that they are entitled to
summary judgment because Simmons cannot identify which Defendant
Officer

used

Defendant

force

Officers

on
were

him,

making

not

it

personally

alleged excessive force against plaintiff.”

“undisputed
responsible

that

the

for

the

(Id. at 6.)

The Seventh Circuit has warned against falling for the trap
of

weighing

conflicting

evidence
- 37 -

during

a

summary

judgment

proceeding.

See, e.g., In re High Fructose Corn Syrup Antitrust

Litig., 295 F.3d 651, 655 (7th Cir. 2002), cert denied, 123
S.Ct.

1251,

1253,

1254

(2003).

Where

a

defendant

police

officer’s story differs significantly from that of a plaintiff,
credibility
judgment.

issues

arise

that

are

not

amenable

to

summary

See, Payne, 337 F.3d at 770-775 & n.3 (“[W]e cannot

choose the version of the story that seems more logical based on
the pleadings and testimony before us.”).

More broadly, summary

judgment “in excessive force cases should be granted sparingly.”
Catlin v. City of Wheaton, 574 F.3d 361, 367 (7th Cir. 2009)
(citation

omitted).

This

is

because,

as

here,

the

reasonableness inquiry “nearly always requires a jury to sift
through

disputed

therefrom.”

factual

contentions,

and

to

draw

inferences

Abdullahi v. City of Madison, 423 F.3d 763, 773

(7th Cir. 2005) (internal quotation marks omitted).
To avoid summary judgment based on a failure to intervene
theory, a plaintiff must have evidence that the non-intervening
officers “had reason to know excessive force was being used and
had a realistic opportunity to prevent the harm from occurring.”
Montano v. City of Chicago, 535 F.3d 558, 569 (7th Cir. 2008).
“Whether

an

officer

had

sufficient

time

to

intervene

or

was

capable of preventing the harm caused by the other officer is
generally an issue for the trier of fact unless, considering all
- 38 -

the

evidence,

otherwise.”
The
legion.

a

reasonable

jury

could

not

possibly

conclude

Lanigan, 110 F.3d at 478.

impediments

to

summary

judgment

in

this

case

are

First, the nature of D’Amato’s conduct is disputed:

he

contemporaneously admitted to performing a forcible “takedown”
of Simmons, but Simmons maintains instead that he punched him
multiple

times.

D’Amato

claims

no

further

interaction

with

Simmons after detaining him in the basement, whereas Simmons’s
testimony suggests D’Amato dragged him out of the basement and
threw him into a police vehicle.
and

which

officers

were

Second, it is unclear how many

present

to

witness

these

incidents.

Simmons’s account claims just one other officer was present for
the first episode in the basement, whereas Defendant Officers’
testimony supports the inference that all of them were present
for

D’Amato’s

first

use

of

force.

While

Defendants

Otten,

D’Amato, and MacFarlane claim they left the house soon after
Officer Derouin was shot to visit him at the hospital, Simmons’s
testimony supports the inference that they were still at the
residence when the alleged second episode of excessive force
occurred.
1.

Episode I:

Defendants’
evidence

as

well

The “Takedown” or Alleged Punching

contentions
as

by

are

belied

Simmons’s
- 39 -

own

by

undisputed

testimony.

record

There

is

undisputed evidence in the form of the General Progress Report
that

D’Amato

at

the

very

performing a “takedown.”

least

used

force

on

Simmons

by

The testimony of Defendant Officers

suggesting that Simmons fell backwards to the ground from his
chair

cannot

overcome

D’Amato’s

recitation

Detective Lieber just after the incident.

of

the

events

to

Where the summary

judgment record is not entirely harmonious as to whether putting
the plaintiff on the floor was a matter of design or whether he
tripped, courts have assumed an intentional “takedown.”

See,

e.g., Ortiz v. City of Chicago, No. 09-CV-2636, 2010 WL 3833962,
at

*3

(N.D.

Ill.

Sept.

22,

2010)

(citing

evidence

that

the

arresting officer “used emergency takedown” on the plaintiff).
What that “takedown” entailed and whether it was reasonable are
not answerable on the record before the Court, and are instead
fodder for the jury.

As in Ortiz, “Defendants never briefed the

question of whether the specific use of force in conducting an
‘emergency takedown’ was reasonable under the circumstances of
this case.” Id. at *12.

Instead, Defendants appear to have run

away from the fact that D’Amato used force at all.

Thus, there

is sufficient evidence of force used by D’Amato (and no evidence
of whether it was reasonable under the circumstances) to deny
summary judgment to D’Amato in relevant part.

- 40 -

Seventh Circuit precedent puts paid to Defendants’ argument
that

Simmons’s

inability

to

identify

which

Defendant

Officer

allegedly used force compels summary judgment in their favor.
In Miller v. Smith, 220 F.3d 491 (7th Cir. 2000), the court
expressly rejected this argument.
argued

that

the

plaintiff

could

There, the defendant officers
not

“bring

excessive

force

claims against any of the officers because he could not specify
which one of them attacked him.” Id. at 494-95.
was

evidence

in

the

record

that

“whichever

Because there

officer

was

not

directly responsible for the beating was idly standing by,” the
court reversed the district court’s grant of summary judgment
for the defendant officers. Id. at 495.
evidence here.

There is analogous

While Defendant Officers might object to any

characterization of their actions during execution of the search
warrant

as

“idly

standing

by,”

they

have

“acknowledge[d]

presence during the critical time period” when D’Amato used some
force maneuver on Simmons.
183 (N.D. Ill. 1988).

Taylor v. Kveton, 684 F.Supp. 179,

This is sufficient for Simmons to avoid

summary judgment for the other Defendant Officers on a failure
to intervene theory.

See, id.

Similarly,

respect

D’Amato

threw,

with

Defendants

to
have

the
not

punches
shown

Simmons
that

the

alleges
other

Defendant Officers had no realistic opportunity to intervene.
- 41 -

Even if D’Amato’s pugilism surprised everyone, the officers at
least “could have cautioned [Officer D’Amato] against striking
Plaintiff the second time, if not the first time.”

Trepanier v.

Davidson, No. 03 C 6687, 2006 WL 1302404, at *13 (N.D. Ill.
May 5, 2006).
this point:

Other record evidence is similarly unhelpful on
MacFarlane claims he was just a foot away from

Simmons when he “crashed” to the ground, and Otten claims to
have

seen

Simmons

lean

back

in

his

chair.

Whether

a

jury

believes that D’Amato’s force was limited to a “takedown” or
credits

Simmons’s

testimony

that

he

was

punched,

it

could

nonetheless find based on their presence (inferred here) that
MacFarlane and Otten were aware of it and spurned a realistic
opportunity to intervene.
Specific to Piechocki, the sergeant and Defendant Officers’
ranking supervisor, Simmons also alleges supervisory liability
for failing to control his subordinate’s use of excessive force.
Supervisory

liability

supervisors

“know

for

about

constitutional
the

torts

[unconstitutional]

attaches
conduct

when
and

facilitate it, approve it, condone it, or turn a blind eye for
fear of what they might see.”

Jones v. City of Chicago, 856

F.2d 985, 992 (7th Cir. 1988); accord, T.E. v. Grindle, 599 F.3d
583, 588 (7th Cir. 2010).

- 42 -

Depending on whether it believes D’Amato’s testimony that
Piechocki went farther ahead of him towards the front of the
basement

of

the

residence

remained

outside

the

or

other

basement

testimony

and

entered

that

to

Piechocki

find

Simmons

detained, the jury could find that Piechocki failed to intervene
to stop the force exerted during the first episode.
Ortiz,

Piechocki

Plaintiff
move,”

was

meaning

preceding

the

put

might
on

that

have

the
he

“arrived

floor

“could

with
not

encounter . . . which

force reasonable or unreasonable.”
*10 (emphasis in original).

on

the

scene

an

‘emergency

have

observed

may

have

As in

made

after

takedown’
the
[]

facts
use

of

Ortiz, 2010 WL 3833962 at

Alternatively, he might have been

present to observe the punches or “takedown” and thus had the
same opportunity to intervene as MacFarlane and Otten.
Abdullahi,

423

F.3d

at

774.

Relevant

testimony

See,

therefore

conflicts on whether Piechocki was present in the basement for
D’Amato’s

interaction

with

Simmons

or

walked

into

a

fait

accompli.

The record is even more indeterminate on whether, if

Piechocki was not present, he purposefully kept a wall between
himself and the inside of the basement so as to “turn a blind
eye” to what his subordinates were doing there in the early
stages of the encounter.

Thus, for reasons similar to those

applicable to MacFarlane and Otten, Piechocki is not entitled to
- 43 -

summary judgment on Simmons’s claim that he failed to intervene
and/or failed to supervise with respect to Simmons’s “takedown”
or alleged punching.
Therefore, even if it were undisputed that the only force
at issue was D’Amato’s takedown of Simmons, summary judgment
would

still

be

inappropriate

because

the

record

is

too

impoverished to decide (a) the reasonableness of this force as a
matter of law and, accordingly, (b) the secondary liability of
the other Defendant Officers.

Defendants do not even appear to

acknowledge D’Amato’s “takedown,” let alone argue that it was
reasonable.

Simmons’s testimony confounds the analysis further

by alleging force in the form of multiple punches.

Accordingly,

the Court denies summary judgment to all Defendant Officers as
to Simmons’s excessive force claim arising from his “takedown”
or alleged punching in the basement.
2.

Episode II: Alleged Force during Simmons’s Arrest

There is less evidence in Defendants’ version of events
that

supports

Simmons’s

second

alleged

incident

of

unlawful

force – being dragged out of the basement and thrown into a
police van.
to

create

However, Simmons has introduced sufficient evidence
a

jury

question

on

his

version

surrounding his forced exodus from the basement.

- 44 -

of

the

events

First,
statements

the
to

Court

medical

acknowledges
professionals

Simmons’s
and

his

contemporaneous
later

deposition

testimony, both of which attribute his leg and head trauma to
police dragging him from the residence and throwing him into a
police

vehicle.

His

faults

the

masked

incident

of

same

alleged

deposition

testimony

officer

excessive

who

more

specifically

perpetrated

force.

Drawing

the

first

inferences

in

Simmons’s favor, the Court assumes this person was D’Amato.
Second, the Court notes that Simmons offers photographic
and medical evidence consistent with a punch to the right side
of his face and injuries to his leg.

See, Abdullahi, 423 F.3d

at 771 (distinguishing cases granting summary judgment in the
defendants’ favor where “the relevant medical evidence did not
reveal

injuries
not

consistent

D’Amato

is

entitled

episode

comprising

with

to

excessive

summary

Simmons’s

force”).

judgment

excessive

force

on

Thus,

the

second

claim.

The

question is whether the other Defendant Officers, on the basis
of the record, are absolved of failing to intervene.
With

respect

to

Defendants

Otten

and

MacFarlane,

it

is

undisputed that they were in the basement for Simmons’s initial
detention,

where

MacFarlane

claims

he

eventually

handcuffed

Simmons just after Derouin fell back into the basement from a
gunshot wound.

Simmons claims that he was dragged out of the
- 45 -

basement of the residence within two minutes of being handcuffed
and that, while this was happening, he was aware of the presence
of at least five or six officers in the residence.

MacFarlane

and Otten assert that they were only at the residence for a few
minutes after the shooting of Officer Derouin before they left
to visit him at the hospital.
a

matter

of

law

to

This testimony is insufficient as

establish

their

entitlement

to

summary

judgment on Simmons’s claim that they failed to intervene to
stop

the

use

of

excessive

force

against

him.

See,

e.g.,

Trepanier, 2006 WL 1302404, at *15 (denying summary judgment
where the plaintiff introduced evidence suggesting that a nonparticipating officer “was personally in the creek for at least
the

beginning

of

the

incident

and

then

was

nearby”

further alleged excessive force in the creek).

during

Even if both

officers remained at the residence for just “a couple minutes”
after the shooting, Simmons’s testimony is sufficient to avoid
summary judgment based on their presence at the residence during
the second alleged episode of excessive force, which he claims
occurred about two minutes after he was handcuffed.
The Court finds that Defendant Piechocki is hoisted by his
own

petard

for

summary

judgment

purposes.

His

testimony

indicates that he heard Simmons say “I shit on myself” while
Simmons was being “escorted” to a police vehicle for transport
- 46 -

to the police station.

Simmons has testified that his “escort”

to a police vehicle for transport to the police station involved
excessive
support

force.

a

excessive

As

reasonable
use

of

such,
jury

force

Piechocki’s

finding

and

intervene to prevent it.

had

that
a

own
he

testimony

was

realistic

aware

could
of

opportunity

the
to

As such, Defendants’ Motion is denied

in relevant part as to Piechocki’s failure to intervene.
There

is

also

sufficient

evidence

to

deny

Defendants’

Motion for Summary Judgment on the supervisory liability claim.
For example, in Smith v. Schield, a case arising out of an
unidentified officers’ use of excessive force, the supervisor
“did not see the officers actually place handcuffs on plaintiff
because he redirected his attention” elsewhere for a short time.
Schield, 2016 WL 851987 at *3.

However, he remained “only ten

feet away from where plaintiff was handcuffed” and heard “the
noise attending plaintiff’s arrest, including the sound of him
hitting

the

hood

of

the

police

car.”

Id.

Similarly,

if

Piechocki were somehow physically remote from D’Amato’s alleged
conduct but nonetheless heard Simmons mention soiling himself,
it is unclear why Piechocki would not also have heard Simmons
being dragged from the basement across the yard and ultimately
thrown

into

the

police

van.

As

inappropriate.
- 47 -

such,

summary

judgment

is

Simmons

is

thus

entitled

to

have

a

jury

hear

his

case

against Defendant Officers for their failure to intervene where
he claims that unlawful force was used on him and Defendants’
testimony otherwise supports their presence at the moment when
some measure of force was indisputably used.
F.2d at 10-11.

See, Brishke, 466

As is often the case where “the excessive force

claim against [the officer] is not amenable to summary judgment,
the associated failure to intervene claims must go to trial as
well.”

Abdullahi, 423 F.3d at 774.

Simmons’s

excessive

force

claim

Determining the balance of
is

largely

a

matter

of

credibility, which the Court cannot resolve on summary judgment.
It suffices to note that, if a jury believes Simmons’s version
of the events surround his removal from the basement and arrest,
then a jury could also believe that each of the other Defendant
Officers were aware of what D’Amato was doing and spurned a
realistic opportunity to intervene.
Although Defendants do not appear to argue for qualified
immunity with respect to Simmons’s excessive force claim (see,
Defs.’ Mem. at 22-24), the Court finds summary judgment would be
inappropriate
contested

at

nature

this
of

stage
the

anyway.

wrongful

The

conduct

broadly

and

precludes

hotly

summary

judgment, because “one can only speculate how visually obvious
any violation” of Simmons’s rights might have been.
- 48 -

Abdullahi,

423

F.3d

at

775

(noting

that

“one

or

two

of

the

officers . . . had their back[s] to [the arrestee] during the
encounter”).
or

how

In other words, without knowing what D’Amato did

his

conduct

appeared

–

or

even

whether

the

other

Defendant Officers could see or hear it - it is difficult to say
that, as a matter of law, a reasonable officer could not have
known

that

the

wrongful

conduct

violated

Simmons’s

rights.

Additional factual development is necessary to determine whether
the contested uses of force were “so plainly excessive that a
reasonable police officer would have been on notice that such
force

is

violative

of

the

Fourth

Amendment.”

Chelios

v.

Heavener, 520 F.3d 678, 689 (7th Cir. 2008).
Fundamental disputes in the factual record have engendered
vastly different accounts of the events that took place in the
basement of the residence on March 9, 2014.
judgment

is

credibility
D’Amato
Defendant

inappropriate.
determinations

took

with

Officers

respect
failed

At

trial,

that
to
to

will

As such, summary

the

jury

clarify

Simmons,
intervene,

will

what

whether
whether

make

actions

the

other

Defendant

Piechocki bears any supervisory liability for D’Amato’s actions,
and the reasonableness of these actions or omissions.

- 49 -

3.

The City of Chicago

As explained above in Section III.A.3.c, to avoid summary
judgment to the City, Simmons must show that the injury flowing
from the use of excessive force can be attributed to an express
municipal policy, custom, or decision of one with final policymaking authority for the City.

Because there is no evidence in

the record that any of the acts comprising Simmons’s excessive
force claim trace to such a policy or practice of the City, the
Court

grants

summary

judgment

to

the

City

of

Chicago

on

Simmons’s excessive force claim.
IV.

CONCLUSION

For the reasons stated herein, the Court grants in part and
denes in part Defendants’ Motion for Partial Summary Judgment
[ECF Nos. 85, 93].
Summary judgment is granted to Defendants on the lawfulness
of Simmons’s handcuffing and initial detention in the basement
of the residence.

The Court denies summary judgment to all

Defendant Officers on Simmons’s unlawful and unreasonable arrest
at the residence but grants summary judgment to Defendant City
of Chicago on this aspect of Simmons’s claim.
The

Court

denies

summary

judgment

to

all

Defendants

on

Simmons’s unlawful detention claim as it relates to detention at
the police station pursuant to his arrest.
- 50 -

Further, the Court

denies Defendants’ Motion as to Simmons’s excessive force claim,
except as to Defendant City of Chicago.

It denies Defendants’

Motion for Summary Judgment on Simmons’s supervisory liability
claim.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Dated: February 16, 2017

- 51 -