Joyce Walters et al v. Sgt. Thompson, #465 et al
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 10/12/2016:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
JOYCE WALTERS and KIMBERLY
SGT. THOMPSON, et al.,
Case No. 15 C 0736
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On March 10, 2015, Plaintiffs Joyce Walters and Kimberly Ann Bullaro filed a fivecount First Amended Complaint alleging that Defendant DuPage County Deputy Sheriffs John
Smith,1 Frank DiCosola, and Sergeant Brian Thompson violated their constitutional rights under
the Fourth Amendment bringing claims of unlawful seizure (Count I), excessive force (Count II),
and false arrest (Count III). See 28 U.S.C. § 1331, 42 U.S.C. § 1983. Plaintiffs also bring an
Illinois malicious prosecution claim against the individual Defendant Officers (Count IV) and a
state law indemnification claim under 745 ILCS 10.9-102 against DuPage County (Count V)
pursuant to the Court’s supplemental jurisdiction. See 28 U.S.C. § 1367(a).
Before the Court is Defendants’ summary judgment motion under Federal Rule of Civil
Procedure 56(a) and Northern District of Illinois Local Rule 56.1. For the following reasons, the
Court grants in part and denies in part Defendants’ summary judgment motion. The only
In their response brief, Plaintiffs voluntarily dismiss their claims against Defendant
John Smith. (R. 39, Resp. Brief, at 5-6.) The Court therefore dismisses Defendant Smith as a
named Defendant with prejudice.
remaining substantive claim in this lawsuit is Plaintiff Walters’ excessive force claim against
Sergeant Thompson as alleged in Count II of the First Amended Complaint.
Northern District of Illinois Local Rule 56.12
“The purpose of Rule 56.1 is to have the litigants present to the district court a clear,
concise list of material facts that are central to the summary judgment determination. It is the
litigants’ duty to clearly identify material facts in dispute and provide the admissible evidence
that tends to prove or disprove the proffered fact.” Curtis v. Costco Wholesale Corp., 807 F.3d
215, 219 (7th Cir. 2015). Local Rule 56.1(a) “requires the party moving for summary judgment
to file and serve a ‘statement of material facts as to which the moving party contends there is no
genuine issue and that entitle the moving party to a judgment as a matter of law.’” Id. at 218
(citation omitted). “The non-moving party must file a response to the moving party’s statement,
and, in the case of any disagreement, cite ‘specific references to the affidavits, parts of the
record, and other supporting materials relied upon.’” Petty v. Chicago, 754 F.3d 415, 420 (7th
Cir. 2014) (citation omitted); see also L.R. 56.1(b)(3)(A). Local Rule 56.1(b)(3)(C) requires the
non-moving party to file a separate statement of additional facts. See Thornton v. M7 Aerospace
LP, 796 F.3d 757, 769 (7th Cir. 2015).
Local Rule 56.1 statements and responses should identify the relevant admissible
evidence supporting the material facts – not make factual or legal arguments. See Zimmerman v.
Doran, 807 F.3d 178, 180 (7th Cir. 2015). “When a responding party’s statement fails to dispute
Plaintiffs filed a 20-page response brief without prior approval from the Court in
violation of Northern District of Illinois Local Rule 7.1.
the facts set forth in the moving party’s statement in the manner dictated by the rule, those facts
are deemed admitted for purposes of the motion.” Curtis, 807 F.3d at 218 (quoting Cracco v.
Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009)). The Seventh Circuit “has consistently
upheld district judges’ discretion to require strict compliance with Local Rule 56.1.” Flint v.
City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015).
Here, three of Plaintiffs’ Rule 56.1(b)(3)(A) responses to Defendants’ Rule 56.1(a)
Statement of Facts do not cite to the record as dictated by the local rule, and therefore, the Court
deems those facts as admitted for purposes of the present summary judgment motion. See
Curtis, 807 F.3d at 218. These paragraphs include ¶¶ 19, 20, and 21. In addition, certain
citations to the record in Plaintiffs’ Rule 56.1(b)(3)(C) Statement of Additional Facts do not
support the facts as stated, and thus do not comply with the local rule. See Cady v. Sheahan, 467
F.3d 1057, 1060 (7th Cir. 2006) (“statement of material facts did [ ] not comply with Rule 56.1
as it failed to adequately cite the record and was filled with irrelevant information, legal
arguments, and conjecture”). With these standards in mind, the Court turns to the relevant facts
of this case.
During the relevant time period, Plaintiffs Joyce Walters and Kimberly Ann Bullaro
resided at 7 N 271 Briargate Terrace, Medinah, Illinois in DuPage County (“Medinah
residence”) and Defendants Sergeant Thompson and Deputy DiCosola were sworn DuPage
County Deputy Sheriffs. (R. 36, Defs.’ Stmt. Facts ¶ 2; R. 42, Pls.’ Stmt. Add’l Facts ¶ 1.) On
the morning of January 30, 2013, Defendant Officers were sent to the Medinah residence to
determine if John Walters – who was wanted in connection with two felony warrants in Boone
County, Illinois – was at the Medinah residence. (Defs.’ Stmt. Facts ¶ 3; Pls.’ Stmt. Facts ¶ 2.)
Upon their arrival, the officers rang the doorbell and knocked on the door. (Pls.’ Stmt. Facts ¶
5.) Plaintiff Bullaro, Joyce Walters’ daughter, was at the Medinah residence when Defendant
Officers arrived and later testified that, at that time, she heard Sergeant Thompson threatening to
take down the door with a sledgehammer. (Pls.’ Stmt. Facts ¶ 11; Ex. 6, Bullaro Dep., at 20-21.)
Tina Walters, also Joyce Walters’ daughter, suggested that she would go outside and speak to
Defendant Officers. (Defs.’ Stmt. Facts ¶ 5.) While outside on the driveway at the Medinah
residence, Defendant Officers Thompson and DiCosola advised Tina that they were looking for
John Walters explaining that he was wanted in connection with two felony warrants. (Id. ¶ 7.)
Tina responded that John Walters’ car was not in the driveway. (Pls.’ Stmt. Facts ¶ 6.) Deputy
Smith arrived at the Medinah residence while Defendant Officers were talking to Tina in the
driveway. (Defs.’ Stmt. Facts ¶ 4.)
At some point earlier, a DuPage County Sheriff’s dispatcher called Joyce Walters to
inform her that Defendant Officers were at her door, but that she did not know the nature of the
officers’ presence. (Defs.’ Stmt. Facts ¶ 39; R. 36-9, Ex. 8, Audio Recording, at 2-5.) During
her conversation with the dispatcher, Walters told the dispatcher that she was having a heart
attack. (Id. ¶ 9; Audio Recording, at 8.) The dispatcher relayed this information to Defendant
Officers Thompson and DiCosola, after which the officers requested the dispatcher to notify the
local fire department. (Pls.’ Stmt. Facts ¶ 9; Defs.’ Stmt. Facts ¶ 11.) The dispatcher then
contacted the Roselle, Illinois Fire Department to dispatch an ambulance in response to Walters
stating that she was having a heart attack, after which the fire department responded. (Defs.’
Stmt. Facts ¶¶ 12, 13.) Two paramedics then arrived at the Medinah residence. (Pls.’ Stmt.
Facts ¶ 8.)
Further, it is undisputed that once dispatch notified Sergeant Thompson that Walters said
she was having a heart attack, Thompson believed that the situation had become a medical
emergency requiring medical assistance. (Defs.’ Stmt. Facts ¶ 10.) It is also undisputed that the
Roselle Fire Department would not leave the Medinah residence until Walters agreed to a
medical evaluation or refused any such treatment. (Id. ¶ 15.) Also undisputed is that Sergeant
Thompson was aware that the Roselle Fire Department would not leave – up to and including
forcing entry into the Medinah residence – until they examined Walters or she refused treatment.
(Id. ¶ 14.) The dispatcher told Walters that the paramedics would force entry if she did not
comply and open the door, but Walters repeatedly told the dispatcher that no one was allowed to
enter her home. (Pls.’ Stmt. Facts ¶ 10; Audio Recording Tr., at 2, 6, 12.) In addition, it is
undisputed that Walters told the dispatcher that she had knives in her house and if the police
forced entry, she would kill them. (Defs.’ Stmt. Facts ¶ 17.) The record also contains evidence
that the dispatcher relayed this information to Sergeant Thompson and Deputy DiCosola. (R.
36-2, Ex. 1, Thompson Dep., at 32.) Further undisputed is that Walters directly told Defendant
Officers that she had guns and knives inside her house and that she would shoot. (Defs.’ Stmt.
Facts ¶ 18.)
Walters eventually opened the door for the paramedics to check on her medical
condition, at which time Sergeant Thompson also entered the Medinah residence. (Defs.’ Stmt.
Facts ¶ 19; Pls.’ Stmt. Facts ¶ 22; R. 36-7, Ex. 6, Bullaro Dep., at 22.) Upon entering, Walters
slapped Sergeant Thompson across the face. (Defs.’ Stmt. Facts ¶ 20.) Deputy DiCosola
witnessed Walters slap Sergeant Thompson, after which he entered the Medinah residence. (Id.
¶ 21.) Deputy Smith followed. (Defs.’ Stmt. Facts ¶¶ 4, 23.) Defendant Officers assert that
Walters fell to the ground, but Bullaro testified that Sergeant Thompson threw Walters to the
ground and Walters testified that Sergeant Thompson “pushed me down when he pushed open
the door.” (Defs.’ Stmt. Facts ¶ 22; Bullaro Dep., at 23-25; R. 36-6, Ex. 5, J. Walters Dep., at
After Defendant Officers entered the Medinah residence, Deputy DiCosola arrested
Bullaro and charged her with misdemeanor obstruction of an officer in violation of 720 ILCS
5/31-1. (Defs.’ Stmt. Facts ¶ 31; R. 36-11, Ex. 10; R. 36-3, Ex. 2, DiCosola Dep., at 47.)
Sergeant Thompson arrested Walters and charged her with misdemeanor battery in violation of
720 ILCS 5/12-3(a)(2). (Id. ¶ 26; R. 36-13, Ex. 12.) The Public Defenders’ Office represented
both Walters and Bullaro in their misdemeanor proceedings. (Id. ¶¶ 27, 32.) Later, the DuPage
State’s Attorney’s Office dismissed Plaintiffs’ charges nolle prosequi. (Id. ¶¶ 28, 33.)
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In determining summary judgment
motions, “facts must be viewed in the light most favorable to the nonmoving party only if there
is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167
L.Ed.2d 686 (2007). The party seeking summary judgment has the burden of establishing that
there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). After “a properly supported motion for summary
judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine
issue for trial.’” Anderson, 477 U.S. at 255 (quotation omitted). “To survive summary
judgment, the non-moving party must show evidence sufficient to establish every element that is
essential to its claim and for which it will bear the burden of proof at trial.” Life Plans, Inc. v.
Security Life of Denver Ins. Co., 800 F.3d 343, 349 (7th Cir. 2015).
Unlawful Seizure Claim (Count I)
In Count I of the First Amended Complaint, Plaintiffs allege that Defendant Officers
entered their home without a warrant, consent, or exigent circumstances, and thus their seizure
was unlawful.3 “[G]enerally speaking, warrantless searches and seizures ‘are per se
unreasonable under the Fourth Amendment – subject only to a few specifically established and
well-delineated exceptions.’” Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citation
omitted). In the present motion, Defendant Officers contend that they entered the Medinah
residence based on the emergency aid doctrine exception to the warrant requirement.
Specifically, “the Fourth Amendment does not bar police officers from making warrantless
entries and searches when they reasonably believe a person within is in need of immediate aid.”
Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). In other words,
“law enforcement officers may enter a home without a warrant to render emergency assistance to
Plaintiffs do not present evidence or develop any arguments that Defendant Officers
conducted an unlawful search in violation of the Fourth Amendment. Accordingly, Plaintiffs
have waived any such claim. See Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068,
1078 (7th Cir. 2016); Steen v. Myers, 486 F.3d 1017, 1020 (7th Cir. 2007).
an injured occupant or to protect an occupant from imminent injury.” Brigham City v. Stuart,
547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). The test for this exception to the
warrant requirement is objective, namely, “the question is whether the police, given the facts
confronting them, reasonably believed that it was necessary to enter a home in order to ‘render
assistance or prevent harm to persons or property within.’” Sutterfield v. City of Milwaukee, 751
F.3d 542, 557 (7th Cir. 2014) (citation omitted); see also United States v. Richardson, 208 F.3d
626, 629 (7th Cir. 2000) (“the government must establish that the circumstances as they
appeared at the moment of entry would lead a reasonable, experienced law enforcement officer
to believe that someone inside the house, apartment, or hotel room required immediate
Construing the facts and all reasonable inferences in Plaintiffs’ favor, it is undisputed that
once the DuPage Sheriff’s Office dispatcher notified the officers that Walters stated she was
having a heart attack, Sergeant Thompson believed that the situation had become a medical
emergency requiring immediate assistance. It is also undisputed that Sergeant Thompson was
aware that the Roselle Fire Department would not leave – up to and including forcing entry into
the Medinah residence – until they examined Walters or she refused treatment. There is also
undisputed evidence in the record that Walters eventually opened the door, after which Sergeant
Thompson, the other Deputy Officers, and the paramedics entered her home.
Plaintiffs argue that one of the paramedics at the scene, Thomas Lynch, later testified that
he did not think Walters was having a heart attack. (Pls.’ Stmt. Facts ¶ 18.) Plaintiffs, however,
do not point to evidence in the record that Lynch told Defendant Officers this or that Defendant
Officers knew Lynch believed as such at the time they entered the Medinah residence.
Similarly, Plaintiffs contend that Deputy Smith did not think Walters was having a heart attack
and that he told Defendant Officers this, but Plaintiffs fail to properly cite to the record
supporting these alleged facts. See Thornton v. M7 Aerospace LP, 796 F.3d 757, 769 (7th Cir.
2015) (“District courts are not obliged to scour the record looking for factual disputes.”). In this
context, the Court recognizes that “the business of policemen and firemen is to act, not to
speculate or meditate on whether the [emergency information] is correct.” Richardson, 208 F.3d
at 630 (“People could well die in emergencies if police tried to act with the calm deliberation
associated with the judicial process.”) (citation omitted).
Given the facts confronting Sergeant Thompson and Deputy DiCosola at the time of their
entry into the Medinah residence, it was objectively reasonable to believe that entering the
Medinah residence was necessary to render medical assistance to Walters after dispatch
informed them that Walters had told them she was having a heart attack. Dispatch further
relayed to Sergeant Thompson and Deputy DiCosola that Walters had said she had knives and
would kill the officers if they entered her residence. It is also undisputed that Walters directly
told the officers that she had guns and knives inside her house and that she would shoot.
Defendant Officers’ reasonable belief that Walters was armed and that she threatened to kill
them establishes additional exigent circumstances justifying their warantless entry. See
Sutterfield, 751 F.3d at 557 (exigent circumstances exist “when there is a danger posed to others
by the occupant of a dwelling, as when the occupant is armed and might shoot at the police or
other persons”); see, e.g.,Williams v. Indiana State Police Dept., 797 F.3d 468, 479 (7th Cir.
2015) (“the officers possessed an objectively reasonable belief that action was needed to avoid
the threat to [plaintiff’s] life and the potential threat to others inherent in the danger that
[plaintiff] could emerge in that agitated state with the knives.”). That Deputy Smith did not
think John Walters was at the Medinah residence on the morning of January 30, 2013 and told
Defendant Officers this belief is not material in light of the medical emergency and exigent
circumstances that evolved while Defendant Officers were at the residence.
Last, Plaintiffs argue that because Defendant Officers did not medically treat Walters
upon entry, they did not have a reasonable belief to enter the residence based on a medical
emergency. Plaintiffs’ argument is speculative at best, especially in light of the fact that
paramedics treated Walters at that time and that Defendant Officers believed that Walters was
armed and dangerous. See Formella v. Brennan, 817 F.3d 503, 513 (7th Cir. 2016) (speculation
“cannot be used to defeat a motion for summary judgment”) (citation omitted). Moreover,
Walters is the one who told the dispatcher that she was having a heart attack.
Because Plaintiffs have failed to present evidence creating a triable issue of fact that
Defendant Officers’ entry into the Medinah residence was objectively unreasonable, the Court
grants Defendants’ summary judgment motion as to Count I of the First Amended Complaint.
False Arrest Claim (Count III) and Malicious Prosecution Claim (Count IV)
In Count III, Plaintiffs allege that Defendant Officers unlawfully arrested them in
violation of the Fourth Amendment, and in Count IV, Plaintiffs allege a malicious prosecution
claim under Illinois law. “Probable cause to arrest is an absolute defense to any claim under
Section 1983 against police officers for wrongful arrest, false imprisonment, or malicious
prosecution.” Burritt v. Ditlefsen, 807 F.3d 239, 249 (7th Cir. 2015) (citation omitted); see also
Swick v. Liautaud, 169 Ill.2d 504, 512, 215 Ill.Dec. 98, 662 N.E.2d 1238 (Ill. 1996) (absence of
probable cause to charge is a required element of an Illinois malicious prosecution claim). The
“fact that criminal charges are eventually dropped or the complaining witness later recants has
no consideration in the determination of arguable probable cause at the time of arrest.” Burritt,
807 F.3d at 249. “Police officers have probable cause to arrest when the totality of the facts and
circumstances within their knowledge at the time of the arrest would warrant a reasonable person
in believing the person has committed a crime.” Hart v. Mannina, 798 F.3d 578, 587 (7th Cir.
2015). “Probable cause ‘does not require that the officer’s belief be correct or even more likely
true than false, so long as it is reasonable.’” Bailey v. City of Chicago, 779 F.3d 689, 695 (7th
Cir. 2015) (citation omitted). In other words, “[p]robable cause does not require certainty,”
instead it is a “fluid concept that relies on the common-sense judgment of the officers based on
the totality of the circumstances.” Hart, 798 F.3d at 587 (citation omitted). For malicious
prosecution claims under Illinois law, “[p]robable cause is defined as ‘a state of facts that would
lead a person of ordinary care and prudence to believe or to entertain an honest and sound
suspicion that the accused committed the offense charged.’” Cairel v. Alderden, 821 F.3d 823,
834 (7th Cir. 2016) (citation omitted).
In support of their motion, Defendant Officers present evidence that they had probable
cause to arrest Walters for misdemeanor battery in violation of 720 ILCS 5/12-3(a)(2), which
states that a “person commits battery if he or she knowingly without legal justification by any
means ... makes physical contact of an insulting or provoking nature with an individual.”
Specifically, it is undisputed that once Sergeant Thompson entered the Medinah residence,
Walters slapped him across the face. There is also undisputed evidence in the record that Deputy
DiCosola witnessed Walters slap Sergeant Thompson. Examining the evidence and all
reasonable inferences in Plaintiffs’ favor – and based on the totality of the circumstances –
Defendant Officers had a reasonable belief that Walters committed a misdemeanor battery when
she slapped Sergeant Thompson. See, e.g., Gill v. Village of Melrose Park, 35 F. Supp. 3d 956,
964-65 (N.D. Ill. 2014) (hitting police officer provided probable cause for battery arrest under
Likewise, Defendant Officers have presented evidence that they had probable cause to
arrest Bullaro for misdemeanor obstruction of a police officer under 720 ILCS 5/31-1(a), which
states: “A person who knowingly resists or obstructs the performance by one known to the
person to be a peace officer, firefighter, or correctional institution employee of any authorized
act within his or her official capacity commits a Class A misdemeanor.” Although merely
arguing with a police officer does not violate 720 ILCS 5/31-1(a), refusing to desist from
behavior that obstructs a police officer’s duty violates the statute. See Sroga v. Weiglen, 649
F.3d 604, 608 (7th Cir. 2011); see also Abbott v. Sangamon Cnty., Ill., 705 F.3d 706, 721 (7th
Cir. 2013) (statute proscribes “physical act which imposes an obstacle which may impede,
hinder, interrupt, prevent[,] or delay the performance of the officer’s duties”) (citation omitted).
As the Supreme Court of Illinois teaches, the “legislative focus of section 31–1(a) is on the
tendency of the conduct to interpose an obstacle that impedes or hinders the officer in the
performance of his authorized duties.” People v. Baskerville, 963 N.E.2d 898, 905, 357 Ill. Dec.
500 (Ill. 2012).
Evidence in the record – viewed in Plaintiffs’ favor – shows that Bullaro positioned
herself between her mother and Sergeant Thompson. (DiCosola Dep., at 47-48, Bullaro Dep., at
23-25.) Deputy DiCosola testified that at that time, he thought Bullaro was going to strike
Sergeant Thompson. (DiCosola Dep., at 47-48.) Also, Deputy DiCosola testified that he told
Bullaro to back away, but Bullaro refused to do so. (Id. at 48.) Under these circumstances and
the totality of the facts within Deputy DiCosola’s knowledge at the time of the arrest, it was
reasonable for Deputy DiCosola to believe that Bullaro was about to strike Sergeant Thompson
and that Bullaro’s refusal to back away impeded the officers from performing their authorized
tasks. See Cairel, 821 F.3d at 834; Abbott, 705 F.3d at 721.
Because probable cause is a complete defense to § 1983 false arrest claims and Illinois
malicious prosecution claims, Plaintiffs have failed to present evidence raising a triable issue of
fact as to their false arrest (Count III) and malicious prosecution (Count IV) claims. See Cairel,
821 F.3d at 834; Hart, 798 F.3d at 590.4
Excessive Force Claim – Count II
Next, Plaintiffs allege that Sergeant Thompson used excessive force when entering the
Medinah residence because he pushed Walters to the ground before arresting her. A law
enforcement officer’s right to make an arrest “necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396. “In
determining whether police used excessive force under the Fourth Amendment, the relevant
inquiry is ‘whether the officers’ actions [were] objectively reasonable in light of the totality of
the circumstances.’” Flournoy v. City of Chicago, 829 F.3d 869, 871 (7th Cir. 2016) (citation
omitted). “The ‘reasonableness’ of a particular use of force must be judged from the perspective
Plaintiffs’ state law malicious prosecution claim also fails because they did not present
evidence that their criminal prosecutions were resolved in their favor. See Logan v. Caterpillar,
Inc., 246 F.3d 912, 926 (7th Cir. 2001) (“The bare use of a nolle prosequi order does not
establish that the criminal proceedings were terminated in a manner indicative of the plaintiff’s
innocence.”). Here, Plaintiffs base their argument regarding their nolle prossed charges on mere
conjecture, which does not defeat summary judgment on their malicious prosecution claim. See
Dawson v. Brown, 803 F.3d 829, 834 (7th Cir. 2015).
of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. (quoting
Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). “Factors
relevant to the reasonableness inquiry include ‘the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.’” Williams v. Brooks, 809 F.3d
936, 944 (7th Cir. 2016) (quoting Graham, 490 U.S. at 396). “The calculus of reasonableness
must embody allowance for the fact that police officers are often forced to make split-second
judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount
of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97.
Examining the facts and all reasonable inferences in Plaintiffs’ favor, they have presented
evidence – albeit disputed – that Sergeant Thompson was aggressive, stated he would use a
sledgehammer to gain entry, and that he pushed Walters to the ground after he entered the
Medinah residence. At her deposition, Walters testified that as a result of the incident, she
suffered pain in her hip and tail bone. In addition, although there is evidence in the record that
Walters was approximately 80-years-old at the time of the January 2013 incident, the parties do
not point to any evidence showing that Sergeant Thompson or Deputy DiCosola knew that
Walters was elderly prior to entering the Medinah residence. Added to this calculus is that
Walters slapped Sergeant Thompson at some point after he entered the Medinah residence,
although it is unclear when this slap occurred. Construing these facts and all reasonable
inferences in Plaintiffs’ favor, the question is whether pushing Walters, an elderly woman, to the
ground resulting in an injured hip was an objectively reasonable use of force under these
circumstances. See Graham, 490 U.S. at 397.
“Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s
chambers[,] violates the Fourth Amendment.” Padula v. Leimbach, 656 F.3d 595, 602 (7th Cir.
2011) (quoting Graham, 490 U.S. at 396). That being said, “police officers do not have the right
to shove, push, or otherwise assault innocent citizens without any provocation whatsoever.”
Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996). Here, judging from the perspective of a
reasonable officer, whether Walters provoked Sergeant Thompson prior to her falling to the
ground is question of fact for the jury because it is unclear whether Walters slapped Sergeant
Thompson before she was on the ground or after the paramedics helped her up. In addition,
whether Walters was an immediate threat to safety is a question of fact because although she had
told the officers that she was armed and would shoot, evidence in the record also shows that
Defendant Officers had an ongoing conversation with Walters – in which they tried to convince
her to open the door for the paramedics – immediately before she voluntarily opened the door for
the paramedics. Because of the disputed facts in relation to Walters’ excessive force claim,
including the timing of the events, the Court denies this aspect of Defendants’ summary
On a final note, although Defendants make a cursory, one-sentence argument that
Defendant Thompson is protected by qualified immunity as to Walters’ excessive force claim,
Defendants do not develop this argument or cite legal authority to support any such argument.
Accordingly, Defendants’ undeveloped argument is waived. See Schaefer v. Universal
Scaffolding & Equip., LLC, ___ F.3d ___, 2016 WL 5864513, at *5 (7th Cir. Oct. 7, 2016)
(“Perfunctory and undeveloped arguments are waived, as are arguments unsupported by legal
authority.”). The Court therefore denies Defendants’ summary motion as to Plaintiff Walters’
excessive force claim against Sergeant Thompson as alleged in Count II.
For these reasons, the Court grants in part and denies in part Defendants’ motion for
Dated: October 12, 2016
AMY J. ST. EVE
United States District Court Judge
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