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, )

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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 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 -

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