Lane v. City of Chicago et al

Filing 346

MEMORANDUM Opinion and Order: Defendant Sampim's motion for summary judgment 302 is granted in part and denied in part. Defendant Officers Bowery, Zodo, and Slechter's motion for summary judgment 303 is granted in part and denied in pa rt. Defendant City's Motion to bar the opinions of Plaintiff's Expert 308 is granted. Defendant City's motion for summary judgment 309 is granted in part and denied in part. Plaintiff has dismissed with prejudice the following clai ms against Officers Bowery, Zodo and Sampim: Count I (unconstitutional seizure), Count III (wrongful death), Count IV (survival), and Count V (funeral expenses). Plaintiff dismissed with prejudice Count VI (intentional infliction of emotional distres s) against all the individual defendants. The Court dismisses with prejudice Count VIII (battery) against Bowery, Zodo and Sampim. The Court also dismisses with prejudice Count VII (conspiracy) against Bowery, leaving no pending claims against Bowery . Therefore the remaining claims for trial are: the excessive force claim (Count I) against Officer Slechter; state-law claims for wrongful death, survival, funeral expenses and battery (Counts III, IV, and VIII) against Slechter; conspiracy (Count V II) against Slechter, Zodo and Sampim, and the Monell claim (based on lack of training regarding foot chases and code of silence) (Count II) and respondeat superior and indemnification claims (Counts IX and X) against the City. Signed by the Honorable Mary M. Rowland on 9/23/2022. (See attached Order for further detail.)Mailed notice. (dm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ESTATE OF ROSHAD MCINTOSH,
Deceased, by Cynthia Lane,
Administrator,
Plaintiff,

Case No. 15-cv-01920
Judge Mary M. Rowland

v.
CITY OF CHICAGO, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff Cynthia Lane, the Administrator of the Estate of Roshad McIntosh
(“McIntosh”), brought this civil rights action under 42 U.S.C. § 1983 against four
Chicago police officers and the City of Chicago. McIntosh was shot and killed on
August 24, 2014. Plaintiff alleges that Officer Slechter used excessive force in
violation of the Fourth Amendment and brings state-law claims against him
including for wrongful death and funeral expenses. Against all four officers, Plaintiff
alleges they conspired to cover up the shooting. Against the City, she brings several
claims including one under Monell v. Department of Social Services of the City of New
York, 436 U.S. 658 (1978). For the reasons stated below, Defendant City’s Motion to
bar the opinions of Plaintiff’s Expert [308] is granted. Defendant Officer Sampim’s
motion for summary judgment [302] is granted in part and denied in part. Defendant
Officers Bowery, Zodo, and Slechter’s motion for summary judgment [303] is granted

1

in part and denied in part. Defendant City’s motion for summary judgment [309] is
granted in part and denied in part.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper where “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
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 (1986). The substantive law controls which facts are
material. Id. 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.’” Id. at 250 (quoting Fed. R. Civ. P. 56(e)).
The Court “consider[s] all of the evidence in the record in the light most favorable
to the non-moving party, and [ ] draw[s] all reasonable inferences from that evidence
in favor of the party opposing summary judgment.” Logan v. City of Chicago, 4 F.4th
529, 536 (7th Cir. 2021) (quotation omitted). The Court “must refrain from making
credibility determinations or weighing evidence.” Viamedia, Inc. v. Comcast Corp.,
951 F.3d 429, 467 (7th Cir. 2020) (citing Anderson, 477 U.S. at 255). In ruling on
summary judgment, the Court gives the non-moving party “the benefit of reasonable
inferences from the evidence, but not speculative inferences in [its] favor.” White v.
City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016) (internal citations omitted). “The
controlling question is whether a reasonable trier of fact could find in favor of the

2

non-moving party on the evidence submitted in support of and opposition to the
motion for summary judgment.” Id.
BACKGROUND 1
On Sunday, August 24, 2014, Defendant Officers Slechter, Sampim, Bowery, and
Sergeant Zodo were on duty police officers for the City of Chicago. DSOF ¶ 5.
Defendants Sampim and Zodo and Officers Patrick Staunton, Joshua Zapata and
Patrick Kelly worked as part of the 11th District Gang Enforcement Team. Id. ¶ 6.
Defendants Slechter and Bowery and Officer Andrew Neberieza belonged to the 11th
District Tactical team. Id. ¶ 7. On August 24, 2014, 2842 Polk was a multi-unit
residence, with a fenced yard in the back and a two-story porch attached to the back.
Id. ¶¶ 17, 20. An empty lot sat immediately east of the property. Id. ¶ 21. A police
surveillance camera located at 2900 West Polk, called an OVS camera, captured a
portion of the events. Id. ¶ 22. The camera’s view displayed the front of 2842 West
Polk and the empty lot directly to the east of that property. Id. ¶ 23. Prior to August
24, 2014, the Officers were familiar with this address and the surrounding area; the
location was known gang territory controlled by the Traveling Vice Lords, Cali Boys.
Id. ¶¶ 25, 26. There is a history of shootings and gun violence in that location; several
Officers were aware that only about one week earlier, there had been a shooting
within a half block of the location, and six people were shot and one person killed. Id.
¶¶ 27, 28.

The facts herein are taken from the parties’ Local Rule 56.1 statements (“DSOF” (Dkt. 304)
and “PSOF” (Dkt. 331) and are undisputed unless otherwise noted.

1

3

On August 24, 2014, Zapata received a phone call from another Gang Enforcement
officer, David Salgado (who was on furlough), who told Zapata that he had an
informant with information. Id. ¶ 10. Salgado told Zapata that his informant reported
that there were two individuals, both black males, one in a white t-shirt and one in a
dark colored t-shirt, armed with guns on the 2800 block of Polk. Id. ¶¶ 11, 12, 14. 2
Officers Slechter, Neberieza, and Bowery went with Kelly and Zapata to assist the
Gang Enforcement Unit; they drove to Harrison and California where they met up
with Sampim, Staunton, and Zodo. Id. ¶¶ 33, 48. From the intersection of Harrison
and California, the officers traveled to 2842 West Polk together in three separate
unmarked “M” plate Crown Victorias. Id. ¶¶ 44, 48. Zapata, Kelly, Neberieza,
Bowery, and Slechter rode together in the first vehicle; Sampim and Staunton were
in the second vehicle; and Zodo was alone in the third. Id. ¶¶ 45–47. The Officers
arrived at 19:09 (when it was still daylight) at 2842 West Polk and pulled up next to
the empty lot, east of 2842 Polk. Id. ¶¶ 48, 49. When the Officers arrived on scene, a
group of approximately ten to twelve males stood on the sidewalk by the address. Id.
¶ 50. Another group of people stood a few houses down and across the street. Id. ¶ 51.
The Officers all wore items that identified them as police. Id. ¶ 58.
The Officers exited their vehicles, announced their office, and began giving verbal
directions to the men at the front of the empty lot, instructing everyone to show their
hands or to put their hands up. Id. ¶ 61. Officer Slechter believed that the two men
described as having weapons were on Polk Street at the time they arrived on scene.
Plaintiff disputes the “truth and accuracy of anything attributed to Salgado” based on his
2019 conviction e.g., DSOF ¶¶ 10–16; Dkt. 330. The Court addresses this argument, below.
2

4

Id. ¶ 62. Upon exiting the vehicle, Slechter approached a male wearing a white hat
and white shirt and performed a protective pat down. Id. ¶ 63. McIntosh was wearing
a hat, dark shirt, and blue jeans. Id. ¶ 67. Zapata told McIntosh to “come over here”
but McIntosh did not comply. Id. ¶ 69. Instead McIntosh started to run; he was the
only individual who ran from the police when they arrived. Id. ¶¶ 72, 73. McIntosh
initially ran west before turning north and running into the gangway. Id. ¶ 76.
Officers Neberieza and Zapata chased after McIntosh into the gangway; Zapata was
yelling at McIntosh to stop. Id. ¶¶ 77, 78. Slechter and Bowery started to run north,
through the empty lot. Id. ¶ 79. Slechter assumed that McIntosh was armed. Id. ¶ 81.
Sampim remained on the sidewalk with Staunton because several other individuals
were still there, and four Officers were already chasing McIntosh. Id. ¶ 82. Slechter
ran through the vacant lot to the alley behind the yard and entered the yard through
an opening on the western side of the back fence. Id. ¶ 83. At the time Slechter entered
the yard, Bowery was in the alley, a little bit west of the vacant lot. Id. ¶ 84. After
McIntosh emerged from the gangway, he started to run up the stairs onto the back
porch. Id. ¶ 86. After Slechter drew his weapon, he told McIntosh to “stop.” Id. ¶ 90.
According to Defendants, Slechter and Bowery then yelled at McIntosh drop the gun
and to show his hands. Id. ¶ 91. Plaintiff disputes that the officers yelled at McIntosh
to drop the gun and deny that McIntosh had a gun. (see Dkt. 330, ¶¶ 85, 89, 91).
Defendants contend that McIntosh looked in Slechter and Bowery’s direction,
made a right turn into the yard, and ran up the stairs to the first level of the porch.
DSOF ¶ 92. As McIntosh climbed the stairs; Slechter walked southeast through the

5

yard, pointing his gun at McIntosh. Id. ¶¶ 93, 94. Slechter fired his weapon at
McIntosh. Id. ¶ 96. At the time Slechter fired his weapon, he was standing in the yard
without any cover. Id. ¶ 98. Slechter fired three shots in quick succession. Id. ¶ 100.
McIntosh was facing Slechter when Slechter shot him. PSOF at ¶ 5. Officer Bowery
entered the yard after Slechter fired the shots and McIntosh fell. DSOF ¶ 103. The
parties agree that Officer Sampim would not have been able to see, at the time shots
were fired, whether McIntosh was armed, the position of his arms, or if McIntosh was
attempting to surrender. Id. ¶¶ 107, 108.
Sergeant Zodo was in his vehicle at the time he heard shots and entered the yard
after the shots were fired. Id. ¶¶ 109, 110. Zodo went up onto the porch after the shots
were fired and observed McIntosh had been shot. Id. ¶¶ 111-112. A silver 9mm
semiautomatic handgun was recovered from the scene. Id. ¶¶ 114, 115. Slechter fired
his gun at 19:10:27, less than 28 seconds after McIntosh started to run. Id. ¶ 116. 3
Slechter was the only officer to discharge his firearm. Id. ¶ 118. McIntosh died from
two gunshot wounds. Id. ¶¶ 122, 123.
The following claims remain: a claim under Section 1983 for excessive force
against Officer Slechter; state-law claims for wrongful death, survival, funeral
expenses, and battery against Slechter; 4 a conspiracy claim against Officers Slechter,

Based on the video, Plaintiff estimates the time between McIntosh starting to run and shots
fired as 27 seconds; Defendants estimates this time as 24 seconds. DSOF ¶ 116; Dkt. 330 ¶
116. In any event, it is undisputed that this time was less than 28 seconds.
3

Plaintiff dismisses with prejudice Count I, III, IV and V against Bowery, Zodo and Sampim.
Plaintiff also dismisses with prejudice Count VI (IIED) against all the individual defendants.
(see Dkt. 329, n. 2).
4

6

Sampim, Zodo and Bowery; and a Monell claim and respondeat superior and
indemnification claims against the City.
ANALYSIS
I. Excessive Force (Count I – Officer Slechter)
Officer Slechter moves for summary judgment, arguing that his use of deadly force
did not violate the Fourth Amendment because it was objectively reasonable for him
to believe that McIntosh posed an imminent threat of death or great bodily harm to
Slechter and others. Plaintiff responds that summary judgment is rarely granted in
excessive force cases and that there is a question of material fact here about whether
Slechter had probable cause to believe that McIntosh posed an imminent threat.
“A police officer’s use of deadly force on a suspect is a seizure within the meaning
of the Fourth Amendment, so the force must be reasonable to be constitutional.”
Horton v. Pobjecky, 883 F.3d 941, 948 (7th Cir. 2018) (citation omitted). “[A] suspect
has a constitutional right not to be shot by an officer unless he reasonably believes
that the suspect poses a threat to the officer or someone else.” Id. at 949 (cleaned up).
In excessive force cases courts apply an objective reasonableness standard. Taylor v.
City of Milford, 10 F.4th 800, 806 (7th Cir. 2021). This standard “is incapable of
precise definition or mechanical application.” Abbott v. Sangamon County, 705 F.3d
706, 724 (7th Cir. 2013) (cleaned up). Courts assess the totality of the circumstances,
carefully balancing “the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.”
Weinmann v. McClone, 787 F.3d 444, 448 (7th Cir. 2015) (quoting Graham v. Connor,

7

490 U.S. 386, 395–96 (1989)). To balance these factors, courts consider “the facts and
circumstances of each particular case, including 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.”
Graham, 490 U.S. at 396.
As Plaintiff argues, “summary judgment is often inappropriate in excessive-force
cases because the evidence surrounding the officer’s use of force is often susceptible
of different interpretations” and this is particularly relevant where, like here, “the
one against whom force was used has died, because the witness most likely to
contradict the officer’s testimony—the victim—cannot testify.” Cyrus v. Town of
Mukwonago, 624 F.3d 856, 862 (7th Cir. 2010); see also Abdullahi v. City of Madison,
423 F.3d 763, 773 (7th Cir. 2005) (explaining that summary judgment in excessive
force cases should be granted sparingly); Taylor, 10 F.4th at 811 (holding that a jury
must resolve material disputes of fact about whether individual was a threat to
himself or others and whether officer’s force was objectively reasonable under the
circumstances).
To argue that his use of deadly force was objectively reasonable, Officer Slechter
points to evidence that: (1) he and other officers were in the area that day to
investigate a tip they received about two armed men at or near 2842 West Polk Street;
(2) Slechter knew that the area was known for gang and drug activity, shootings, and
gun violence; (3) after Slechter and other officers identified themselves as police
officers to the group and after Slechter began performing a protective pat down of

8

another individual, he saw McIntosh run from Officer Zapata; (4) McIntosh matched
the description of one of the men armed with a gun; (5) when McIntosh started
running, Slechter assumed he was involved with the local street gang and was armed
with a weapon; (6) after a brief chase to the back of the house, Slechter saw McIntosh
emerge from the gangway with a gun in his hand; (7) Slechter drew his weapon and
repeatedly yelled at McIntosh to drop his gun; and (8) instead of discarding his gun,
McIntosh pointed the gun at Slechter while Slechter stood in the backyard, without
any cover, and that is when Slechter fired three shots at McIntosh. 5 Although the
police surveillance camera captured a portion of the events, Slechter does not argue
that the video footage shows McIntosh with a gun, and the Court cannot discern from
the video whether McIntosh had a gun.
Plaintiff concedes some facts but vigorously disputes others. It is undisputed that
the location was known gang territory with a history of shootings and gun violence.
(DSOF ¶¶ 26, 27; Dkt. 330). Plaintiff does not dispute that McIntosh was the only
individual who ran from the police, Officer Zapata yelled at McIntosh to stop, and
Slechter ran through the empty lot. (DSOF ¶¶ 73, 78, 79; Dkt. 330). Nor does Plaintiff
dispute that Slechter assumed that McIntosh was armed; that at the time Slechter
fired his weapon, he was standing in the backyard, without any cover; and that he
fired three shots at McIntosh. (DSOF ¶¶ 81, 98, 100; Dkt. 330). However Plaintiff

Slechter cites the fact that as McIntosh turned to run, McIntosh’s “right hand was grabbing
the side of his waistband.” (Dkt. 307 at 5). However the evidentiary support for this statement
comes only from Officers Sampim, Staunton, Bowery, Zapata, Neberieza and Kelly, not
Slechter. (DSOF ¶ 74).

5

9

disputes a key fact: whether McIntosh had a gun. Plaintiff argues that McIntosh did
not possess a gun at all during his encounter with the Officers, much less point it at
Slechter.
To support her version of events, Plaintiff relies on the testimonies of three
eyewitnesses: Loren Marks, Jerry Hunter, and Lonzo Williams. Marks provided a
sworn declaration stating that he was in the empty lot to the east of 2842 West Polk
on the evening of August 24, 2014. (Marks Decl. (Dkt. 331-4)). He stated that he saw
McIntosh on the back porch at 2842 West Polk with his hands up and palms out and
nothing in his hands. (Id.) Marks saw a police officer in the backyard point a gun at
McIntosh and fire several times, striking McIntosh. (Id.) Marks stated that he never
saw McIntosh with a gun and did not see a gun in McIntosh’s hand when he was shot.
(Id.) Slechter does not question Marks’ testimony that he saw Slechter shoot
McIntosh. Rather, he questions whether “Marks can, or did, provide credible
testimony regarding whether McIntosh had a handgun after being shot” because
Marks immediately left the scene after Slechter shot McIntosh. (Dkt. 341 ¶ 1
(emphasis added)). This does not contradict Marks’ account that he never saw
McIntosh with a gun that day, including at the time he was shot. And Slechter’s
reliance on the officers’ version of events in response to Marks’ testimony (Dkt. 341 ¶
1) only bolsters Plaintiff’s argument that these competing accounts create a question
of fact about Slechter’s use of deadly force. Crediting the Officers’ account and
ignoring Plaintiff’s witnesses runs head long into the well-settled rule that on
summary judgment the Court “do[es] not judge the credibility of the witnesses,

10

evaluate the weight of the evidence, or determine the truth of the matter.” Gonzalez
v. City of Elgin, 578 F.3d 526, 529 (7th Cir. 2009); see also Weinmann v. McClone, 787
F.3d 444, 449 (7th Cir. 2015) (“Our task is to determine, under [plaintiff’s] version of
the facts, if [the officer] was objectively reasonable in his belief that his life was in
danger.”). 6
Slechter contends that Williams and Hunter gave such unreliable and
inconsistent statements that the Court should ignore their testimonies. Like Marks,
Williams provided a sworn declaration stating that he saw a police officer shoot
McIntosh. (Williams Decl. (Dkt. 331-3)). He testified that he saw McIntosh put his
hands up, with nothing in his hands, and that he never saw McIntosh with a gun.
(Id.) Slechter argues that Williams “testified that he was not looking at McIntosh at
that moment the shots were fired.” (Dkt. 342 at 6). In Williams’s deposition he
testified that although it happened very fast, he saw McIntosh on the porch with his
hands up, and when the officer began shooting, Williams looked at the officer.
(Williams Dep. (Dkt. 331-2), pp. 55–58). This testimony is not directly contradictory
to his sworn declaration. However to the extent that Slechter believes Williams’s
deposition calls into question his credibility or his version of the facts as articulated
in his declaration, he remains free to explore those issues during cross-examination
at trial. The Court will not assess credibility nor weigh evidence on summary
judgment.
In addition, a jury will need to weigh the video footage alongside other evidence in this case.
See Rios v. City of Chicago, 523 F. Supp. 3d 1020, 1026 (N.D. Ill. 2021) (“Given the limited
clarity of the video, . . . [a]t this stage of proceedings, the Court need only ask if any reasonable
juror could see it the way plaintiff does, and, on the Court's viewing, the answer is yes.”).
6

11

As for Hunter, Slechter argues he has given multiple, inconsistent statements
about whether McIntosh possessed a gun at the time of the encounter. Slechter points
to, for example, the statement Hunter gave to an Assistant State’s Attorney on
August 25, 2014 that McIntosh carried a silver hand gun at his side that day. (Hunter
Dep. (Dkt. 305-7), Exh. 1). These inconsistent accounts might undermine Hunter’s
credibility as an eyewitness. Again, however, the Court will not assess these
witnesses’ credibility. That is the jury’s province. See Ramos v. Drews, No. 14-CV2556, 2018 WL 5046087, at *10 (N.D. Ill. Oct. 16, 2018) (stating that “elementary
summary judgment principles prevent the court from making credibility
determinations, such as weighing the effect of a witness’ prior, allegedly inconsistent
statements on the witness’ testimony.”) (citing Williams v. City of Chicago, 733 F.3d
749, 752 (7th Cir. 2013)); Allen v. Chi. Transit Auth., 317 F.3d 696, 699–700 (7th Cir.
2003) (explaining that even when a “witness repeatedly contradicts himself under
oath on material matters,” his credibility “becomes an issue for the jury; it cannot be
resolved in a summary judgment proceeding”).
Plaintiff also questions the tip that the officers received from Officer Salgado
about two armed men being at the location that day, pointing to Salgado’s conviction
in October 2019 on multiple counts including obstruction of justice and making a false
statement to the FBI (USA v. Salgado, 18-CR-00286(2)). Slechter responds that
Salgado’s “status as the tipster, or as a convicted felon, is irrelevant.” (Dkt. 342 at

12

4). 7 The Court will not make a credibility determination about Salgado on summary
judgment and in any event, the Court finds other questions of material fact preclude
summary judgment.
Finally, Plaintiff concedes that a silver 9mm semiautomatic handgun was
recovered from the scene, but disputes that the gun was on the porch next to
McIntosh’s body when the Officers went to place McIntosh in handcuffs. Plaintiff
points to evidence that McIntosh’s fingerprints were not found on the gun and that
the Primer Gunshot Residue (PGSR) test found no PGSR particles on McIntosh.
Slechter argues that the physical evidence (or lack thereof) connecting McIntosh to
the gun recovered does not demonstrate that McIntosh was not holding a weapon. 8 A
jury will need to weigh the various pieces of evidence about the gun and draw its own
inferences therefrom; this dispute further demonstrates that this a prime case for “a
jury to sift through disputed factual contentions.” Abdullahi, 423 F.3d at 773 (quoting
Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)).

Neither party cites case law supporting their position on this issue. The Court notes the
assessment of the tip and tipster is often a fact-intensive inquiry. See Draine v. Bauman, 708
F. Supp. 2d 693, 700 (N.D. Ill. 2010) (explaining that “[t]he status of the individual reporting
to the police is also significant in determining the credibility of the information he provides.”);
Pearce v. Thiry, No. CIV.A.08 C 4483, 2009 WL 3172148, at *5 (N.D. Ill. Oct. 1, 2009) (in case
where police officers received a tip from an unidentified informant, the court, viewing the
evidence in the light most favorable to plaintiff, found “genuine issues of material fact
whether there was reasonable suspicion to stop [plaintiff] for a crime and when the stop
became an arrest.”); see also United States v. Lopez, 907 F.3d 472, 479 (7th Cir. 2018)
(explaining that “informant identities exist along a spectrum of knowledge and reliability
that affects the reasonableness of police action taken pursuant to the tip.”).
7

Although Defendants provide photos of the scene, and the photos show a silver handgun,
they do not show McIntosh at or near a gun. (Dkt. 305-3, Exh. N # 27-28).

8

13

Slechter maintains that the “facts of this case [] closely mirror” Conley-Eaglebear
v. Miller, No. 16-3065, 2017 WL 7116973 (7th Cir. 2017). Not so. True that case also
involved a Fourth Amendment excessive force claim based on an officer’s alleged use
of deadly force. Id. at *1. The Seventh Circuit affirmed summary judgment in favor
of the officer, finding that “a reasonable officer under the circumstances would be
justified in using deadly force against a fleeing armed suspect reaching for a gun.” Id.
However there the “undisputed facts show[ed] that Conley–Eaglebear, while running
away from [the officer], drew a gun from his waistband and looked back over his
shoulder toward [the officer].” Id. at *2 (emphasis added). It is far from undisputed
in this case that McIntosh had or brandished a gun during his encounter with the
police. In addition, even if the undisputed record showed that McIntosh possessed a
gun that day, that would not end the inquiry. The Seventh Circuit recently reiterated
that the nature of the threat is relevant: “[h]aving a weapon is not the same thing as
threatening to use a weapon.” Estate of Biegert v. Molitor, 968 F.3d 693, 700 (7th Cir.
2020).
The Court is “mindful that [Slechter] acted in a rapidly unfolding situation and
that officers are to be given leeway under those circumstances.” Abbott, 705 F.3d at
731. But viewing the facts and construing all reasonable inferences from the evidence
in Plaintiff’s favor, id. at 729; Horne v. Elec. Eel Mfg. Co., Inc., 987 F.3d 704, 709 (7th
Cir. 2021), the evidence in this case raises disputes of material fact about Slechter’s
use of force requiring resolution by a jury. Summary judgment on Count I is denied.

14

II. Wrongful Death and Battery (Counts III and VIII – Officer Slechter)
Officer Slechter argues that his use of deadly force was objectively reasonable and
therefore not willful and wanton. As a result, Slechter asserts, he is entitled to
immunity from liability for the wrongful death and battery claims under Section 2–
202 of the Illinois Local Government and Governmental Employees Tort Immunity
Act. Plaintiff argues that she has shown that there is a genuine issue of material fact
about whether Slechter acted with willful and wanton disregard in shooting the
unarmed McIntosh. 9
The Tort Immunity Act immunizes public employees from liability for any “act or
omission in the execution or enforcement of any law unless such act or omission
constitutes willful and wanton conduct.” 745 Ill. Comp. Stat. 10/2-202. 10 “The
question of whether [a] defendant is liable for willful and wanton behavior is
ordinarily a question for the jury.” Geimer v. Chi. Park Dist., 650 N.E.2d 585, 592 (Ill.
App. Ct. 1995). Because the Court concluded that a jury must decide whether
Slechter’s use of deadly force against McIntosh was legally justified, summary
judgment on the wrongful death and battery claims also is unwarranted. See Watson
v. Fulton, No. 15 C 11559, 2020 WL 1248678, at *12 (N.D. Ill. Mar. 16, 2020) (finding
that although the factual question was a close one, “viewing the facts in the light most
favorable to [plaintiff] means he is entitled to have a jury determine whether the

Plaintiff only pursues the battery claim against Slechter. (Dkt. 329 at 11-12). The battery
claim is therefore dismissed with prejudice as to the other officers.

9

“Willful and wanton conduct” means “a course of action which shows an actual or deliberate
intention to cause harm or which, if not intentional, shows an utter indifference to or
conscious disregard for the safety of others or their property.” 745 Ill. Comp. Stat. 10/1-210.
10

15

[officers] engaged in actions for which [they] can be held liable under Illinois law”)
(cleaned up); cf. Horton, 883 F.3d at 954 (finding the officer’s actions objectively
reasonable, and therefore not willful and wanton, and that defendants were entitled
to immunity).
The Court denies Slechter’s summary judgment motion as to Counts III and VIII.
III. Survival and Funeral Expenses (Counts IV and V – Officer Slechter)
Officer Slechter argues that Plaintiff’s survival and funeral expenses claims
cannot survive summary judgment because there is no evidence McIntosh
experienced any pain and suffering before his death. Plaintiff agrees that to recover
survival damages, she must offer proof of actual conscious pain and suffering before
death. Plaintiff argues that she has provided such evidence, making the duration of
his conscious pain a material question of fact.
Plaintiff’s expert, James A. Filkins, MD, opined that “within a reasonable degree
of medical certainty, [] Mr. McIntosh would at least have become unconscious within
5 to 15 seconds of sustaining the gunshot wound that damaged his heart and that he
would have died shortly thereafter.” (Filkins Report (Dkt. 331-5) at 4). Slechter
argues that the “factual basis for this statement of fact says absolutely nothing about
McIntosh being conscious for 5 to 15 seconds.” (Dkt. 342 at 9–10). At trial Slechter’s
counsel may cross-examine Dr. Filkins about the evidentiary basis for his opinions,
including how he concluded that McIntosh remained conscious for five to fifteen
seconds after being wounded. But Slechter did not move to exclude any of Dr. Filkins’s
opinions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

16

Thus, Plaintiff has provided admissible evidence, in the form of expert testimony,
creating a triable question about the duration of McIntosh’s conscious pain. Summary
judgment on Counts IV and V is denied.
IV. Conspiracy (Count VII -- Slechter, Bowery, Zodo and Sampim)
Defendants assert that the record is devoid of evidence that Defendants had an
agreement, express or implied, to deprive Plaintiff of a constitutional right. (Dkt.
307). Plaintiff responds that she has provided evidence that Slechter, Bowery, Zodo
and Sampim conspired to cover up Slechter’s unconstitutional shooting of the
unarmed McIntosh. 11 She says they did this by (1) giving a false justification for their
presence at 2842 West Polk that day, (2) falsely reporting that Slechter ordered
McIntosh to drop the gun before shooting him, (3) Sampim falsely reporting that he
saw McIntosh pointing a gun at Slechter prior to the shooting, and (4) Zodo
misrepresenting his location when the shots were fired—claiming to be in the alley—
allowing him to reach a conscious McIntosh soon after the shooting (5) in order for
Zodo to falsely report that McIntosh had a gun in his right hand, which he dropped
following an order from Zodo. 12

On summary judgment, Plaintiff does not pursue her theory that the Officers “conspired .
. . to unreasonably . . . shoot and kill Roshad McIntosh.” (Am. Comp. Dkt. 12 ¶ 56). Plaintiff’s
conspiracy claim on this basis is waived.
11

In arguing that the officers “false[ly] justified” their “presence at 2842 West Polk”, it is not
clear if Plaintiff’s theory is that the Officers “falsely reported” that Officer Salgado provided
them information or that Officer Salgado in fact provided them information, but they should
have known the information was not reliable because Salgado was not credible. (Dkt. 329 at
4). In addition, Zapata is the officer who received the tip from Salgado and relayed it to the
others, yet Zapata is not named as a defendant in the conspiracy claim or in this case at all.
The Court should not, at this stage, be guessing Plaintiff’s theory. See Bunn v. Fed. Deposit

12

17

In Illinois, “[c]onspiracy is not a separate tort.” Malek v. Malek, No. 19 CV 8076,
2020 WL 6075871, at *11 (N.D. Ill. Oct. 15, 2020). However Illinois does “recognize[]
civil conspiracy as a distinct cause of action.” Dowd & Dowd, Ltd. v. Gleason, 693
N.E.2d 358, 371 (Ill. 1998). Under Illinois law, “[t]he elements of a civil conspiracy
are: (1) a combination of two or more persons, (2) for the purpose of accomplishing by
some concerted action either an unlawful purpose or a lawful purpose by unlawful
means, (3) in the furtherance of which one of the conspirators committed an overt
tortious or unlawful act.” Fritz v. Johnston, 807 N.E.2d 461, 470 (Ill. 2004). “Summary
judgment should not be granted if there is evidence from which a reasonable jury
could infer the existence of a conspiracy. Because conspiracies are often carried out
clandestinely and direct evidence is rarely available, plaintiffs can use circumstantial
evidence to establish a conspiracy, but such evidence cannot be speculative.” Beaman
v. Freesmeyer, 776 F.3d 500, 510–11 (7th Cir. 2015) (citations omitted).
Here, Plaintiff has provided sufficient circumstantial evidence at this stage from
which a jury could find a conspiracy amongst Slechter, Sampim and Zodo to cover up
Slechter’s alleged unconstitutional shooting. 13 Before discussing the evidence on

Ins. Corp. for Valley Bank Illinois, 908 F.3d 290, 297 (7th Cir. 2018) (“It is [plaintiff’s]
responsibility in opposing summary judgment to identify the evidence that would sufficiently
raise a disputed issue for trial.”); Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969, 973 (7th
Cir. 2020) (“Summary judgment is the proverbial ‘put up or shut up’ moment in a lawsuit,
when a party must show what evidence it has that would convince a trier of fact to accept its
version of events.”) (cleaned up). The conspiracy claim based on the tip from Salgado, in other
words, the “false justification” for the officers’ presence at 2842 West Polk that day, is
therefore waived.
The only evidence Plaintiff cites regarding Bowrey is that Bowrey saw Zodo handcuff
McIntosh. This does not implicate Bowrey in the alleged conspiracy. (PSOF ¶ 22).

13

18

summary judgment, the Court addresses Defendants’ arguments that Plaintiff needs
to establish a “viable underlying substantive claim” (Dkt. 302 at 31), and that
Plaintiff’s conspiracy claim cannot be based on a “claim of a cover up after the
shooting took place.” (Dkt. 342 at 11). First, the claims of excessive force, wrongful
death and battery against Slechter all survive summary judgment. Therefore there
are surviving claims underlying Plaintiff’s conspiracy claim. Next, the Court does not
agree that the alleged post-shooting cover-up cannot be a basis for Plaintiff’s
conspiracy claim.
Courts have allowed Illinois state law conspiracy claims to proceed based on a
claim that officers conspired to cover up a fellow officers’ use of excessive force. See
e.g. Pena v. Ortiz, 521 F. Supp. 3d 747, 751 (N.D. Ill. 2021) (conspiracy claim based
on allegation that officers conspired to prepare false police reports and otherwise
cover up fellow officer’s use of excessive force survived dismissal motion); Murphy v.
Smith, No. 12-CV-0841-MJR-SCW, 2014 WL 12683572, at *4 (S.D. Ill. Oct. 9, 2014)
(declining to grant summary judgment on state law conspiracy claim and
acknowledging that falsifying reports could be a tortious act under Illinois conspiracy
law); see also Fritz, 807 N.E.2d at 470 (explaining that “[t]he allegation that Johnston
did in fact file a false report with the State Police satisfies the third element, the
actual commission of an overt unlawful act by one of the conspirators.”). 14 Moreover,

In other contexts, state law civil conspiracy claims have been based on cover up of evidence
of torture by police officers, e.g. Tillman v. Burge, 813 F. Supp. 2d 946 (N.D. Ill. 2011), or in
a wrongful death action, cover up of information about the hazards of asbestos exposure.
Adcock v. Brakegate, Ltd., 645 N.E.2d 888, 891 (Ill. 1994). By contrast, Defendants rely on
cases that do not require judgment on Plaintiff’s conspiracy claim. Malek does not support

14

19

with the merits of other claims pending, “adjudication of the conspiracy claim is best
deferred until it can be addressed in tandem with plaintiffs’…excessive-force claim[].”
Gomez v. Kruger, No. 12 C 4804, 2019 WL 3321842, at *10 (N.D. Ill. July 24, 2019).
Turning to the evidence, Plaintiff relies on the officers’ deposition testimony and
statements to the Independent Police Review Authority (IPRA), expert reports, and
sworn testimonies of other witnesses. See PSOF ¶¶ 32, 33, and 34. As for Sampim,
Defendants do not dispute for purposes of this motion that Sampim was not able to
see whether McIntosh was armed at the time shots were fired. (Dkt. 341 at 13).
Indeed the City of Chicago charged Sampim with making a false report to IPRA,
among others, that he saw “a male black in a dark shirt with his arm extending with
a silver pistol,” before Slechter shot McIntosh, and COPA’s summary of investigation
gave no weight to Sampim’s statements that McIntosh had a handgun and pointed it
at Officer Slechter. PSOF ¶¶ 26, 27. Further, Plaintiff relies on Expert Arndt’s
conclusion that there was “no reasonably scientifically valid locations of Mr. McIntosh
and Officer Sampim that would . . . allow for Officer Sampim to have witnessed the
actions of Mr. McIntosh at the time the shots were fired.” (Arndt Expert Report (Dkt.
305-11), p. 21). In light of the findings regarding Sampim’s statements (and the

the argument that conspiracy cannot be based on a police cover-up. There, the court found
that “[v]iolating rights to a marital estate is not an independent tort” for an Illinois
conspiracy claim. Malek, No. 19 CV 8076, 2020 WL 6075871, at *11. In Mosley v. City of
Chicago, the district court’s grant of summary judgment on plaintiff’s conspiracy claim was
affirmed because plaintiff only “point[ed] to allegations he made in his complaint.” 614 F.3d
391, 400 (7th Cir. 2010). And in Garrit v. City of Chicago, cited by Sampim, a single, fourword statement did not show a conspiratorial agreement on summary judgment. No. 16 C
7319, 2019 WL 5456144, at *3 (N.D. Ill. Oct. 24, 2019). Here Plaintiff is not relying on only
the complaint’s allegations, and she has presented circumstantial evidence to show a genuine
issue of material fact exists on her conspiracy claim.
20

reasonable inference that he did not see McIntosh pointing a gun), a jury could
reasonably question Officer Zodo’s statement that he heard Sampim say “drop the
gun.” (Dkt. 305-14 at 10).
Plaintiff also argues that the officers lied about Zodo being present on the porch
before and at the time McIntosh died and seeing McIntosh holding a gun. Zodo
testified that he approached McIntosh, observed McIntosh to be conscious and
ordered him to “drop the gun”, which McIntosh did. (Zodo Dep. Dkt. 304-10, pp. 11116). However, Zodo’s testimonies about where he was when he heard shots fired were
not consistent. He gave inconsistent statements about how far from the backyard he
was and whether he was in the alley when he heard shots. At his deposition, for
example, he testified that it took him approximately 15 to 25 seconds to get from his
car in the alley up to the porch, and once he got there McIntosh was still conscious.
(Zodo Dep., pp. 110-15). Later in his deposition he admitted that the video showed he
was still on Polk, not in the alley when shots were fired. (Id. at pp. 145-46).
In addition, it is undisputed that the time between when McIntosh started to run
and when shots were fired was less than 28 seconds (Defendants’ estimation of the
time frame is even shorter—24 seconds). DSOF ¶ 116. And Plaintiff’s expert, Dr.
Filkins opined that “Mr. McIntosh would at least have become unconscious within 5
to 15 seconds of sustaining the gunshot wound that damaged his heart.” (Filkins
Report at 4). Defendants’ own motion states that “[t]here is no evidence that McIntosh
was conscious immediately after the shooting.” (Dkt. 307 at 15). Thus, a jury could
determine that it would not have been possible in that short period of time for Zodo

21

to travel from the front of the house to the back and then up to stairs in time to find
McIntosh still conscious holding a weapon.
All this demonstrates that this question is for a jury to decide—whether these
officers’ statements and testimony, in combination with other evidence in the record,
show an agreement to cover up the shooting. See Patrick v. City of Chicago, 213 F.
Supp. 3d 1033, 1058 (N.D. Ill. 2016) (circumstantial evidence precluded summary
judgment on a conspiracy claim). Certainly, the inconsistencies could be a result of
imperfect memories. But in this case Plaintiff has provided sufficient facts to survive
summary judgment. It is for the jury, not this Court, to weigh the evidence and assess
the credibility of the testimony. However, Plaintiff has not presented any evidence
that could give rise to the inference that Defendant Bowery agreed to or engaged in
any conduct in furtherance of a conspiracy. Summary judgment on this count is
granted as to Defendant Bowery, and is denied as to defendants Slechter, Zodo and
Sampim.
V. Respondeat Superior and Indemnification (Counts IX and X)
Plaintiff sues the City for indemnification and respondeat superior. The City
moved for summary judgment on these claims. [309]. Under either state-law theory,
the City is liable only to the extent that its employee is liable. See 745 Ill. Comp. Stat.
10/9-102; Adames v. Sheahan, 909 N.E.2d 742, 754 (Ill. 2009). The Court denies
summary judgment to the extent Plaintiff seeks to hold the City liable on the claims
against Officer Slechter which the Court found survive summary judgment—
excessive force, wrongful death, battery, survival and funeral expenses. The Court

22

also denies summary judgment to the extent Plaintiff seeks to hold the City liable on
the conspiracy count against Slechter, Zodo and Sampim. The Court grants summary
judgment to the City to the extent Plaintiff seeks to hold the City liable on the claims
against Officer Bowery.
VI. Monell Claim (Count II)
Plaintiff brings a Monell claim against the City alleging that the City and its police
department, Superintendents, IPRA, Internal Affairs Division, Personnel Division
and/or Police Board maintained interrelated de facto policies, practices, and customs,
including: (1) failure to properly hire, train, supervise, discipline, transfer, monitor,
counsel and/or otherwise control police officers who commit acts of excessive force; (2)
a police code of silence; (3) encouragement of excessive and unreasonable force; (4)
failure to properly investigate shootings of civilians; (5) failure to properly discipline,
monitor, counsel and otherwise control Chicago police officers who engage in
unjustified shootings; and/or (6) failure to properly train and supervise Chicago police
officers with regard to discharging weapons at civilians, particularly at young Black
men. The Court begins with the City’s Daubert motion.
A. Daubert Motion
The City moves this Court to bar Plaintiff’s Monell Expert, Roger Clark, from
testifying at trial and to prevent Plaintiff from relying on his opinions in opposition
to summary judgment. The City argues that Clark fails to provide any independent
analysis or factual basis to support his twenty-eight Monell opinions as required

23

under Rule 702 and Daubert. The City also argues that Clark’s reports should be
barred under this Court’s prior orders.
Federal Rule of Evidence 702 and Daubert govern the admissibility of expert
testimony. Rule 702 admits expert testimony if technical or specialized knowledge
“will assist the trier of fact to understand the evidence or to determine a fact in issue.”
District courts act as gatekeepers and must ensure that expert testimony “is not only
relevant, but reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999)
(internal quotation marks omitted). In assessing the admissibility of expert opinions,
courts do not focus on “the ultimate correctness of the expert’s conclusions,” Schultz
v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013), but “solely on principles
and methodology,” Daubert, 509 U.S. at 595. “In assessing reliability, the role of the
court is to determine whether the expert is qualified in the relevant field and to
examine the methodology the expert has used in reaching his conclusions.” Timm v.
Goodyear Dunlop Tires N. Am., Ltd., 932 F.3d 986, 993 (7th Cir. 2019) (cleaned up).
The City does not challenge Clark’s qualifications, but argues that he provides no
methodology and that his opinions will not assist the trier of fact. The Court agrees
with the City that Clark’s opinions should be barred because (1) some are untimely;
(2) he makes impermissible credibility determinations; and (3) he relies on the DOJ
Report without doing his own analysis.
Clark provided two expert reports in this case, one dated October 2017 and an
amended report dated November 2017. Previously, this Court agreed with the City’s
contention that Mr. Clark’s October report did not provide a sufficient basis for his

24

twenty-eight opinions. (Dkt. 166 at 3). When he supplemented in a November report,
the Court granted Defendants’ motion to bar the untimely opinions disclosed in
Clark’s November report, finding the newly added opinions regarding police practices
(distinct from his Monell opinions) was due in July 2016. (Id.) Those non-Monell
opinions are no longer at issue in the case. Although Plaintiff points out that the
November 2017 order did not strike Clark’s November report, Plaintiff also does not
explain how amendments in the November report support the reliability and
methodology of Clark’s report under Daubert.
Clark’s November report provides his own interpretation of what happened on
August 24, 2014 and makes credibility determinations and judgments about
competing evidence. This is not appropriate. See Jordan v. City of Chicago, No. 08 C
6902, 2012 WL 88158, at *7 (N.D. Ill. Jan. 11, 2012) (finding that expert
“impermissibly

dr[ew]

legal

conclusions

based

on

improper

credibility

determinations.”); Potts v. Manos, No. 11 C 3952, 2017 WL 4365948, at *5 (N.D. Ill.
Sept. 29, 2017) (noting that the Seventh Circuit does not condone expert opinions on
the proper actions of individual officers in particular situations).
Plaintiff concedes that Clark “relied on the [January 2017 U.S. Department of
Justice (DOJ) Report] and other corroborating reports and their analysis of the CPD.”
(Dkt. 326 at 4). 15 Plaintiff’s argument focuses on Clark’s qualifications, but that is

As the publicly available DOJ Report states in the Executive Summary: “On December 7,
2015, the [DOJ], Civil Rights Division, Special Litigation Section, and the United States
Attorney’s Office for the Northern District of Illinois, jointly initiated an investigation of the
City of Chicago’s Police Department (CPD) and the Independent Police Review Authority
(IPRA). This investigation was undertaken to determine whether the Chicago Police
15

25

not the issue. Plaintiff also focuses on the reliability of the DOJ Report, not the
reliability and methodology of Clark’s report. 16 Indeed in this case at his deposition,
Clark was asked “What are you adding to the DOJ’s report []?”; he responded, “My
endorsement.” (Clark Dep. (Dkt. 308-1), p. 196). See also id., p. 412 (“Q. Okay. All of
your code of silence opinions like we discussed with the other opinion you have are
essentially duplicative of what the DOJ has issued in its report? A. Yes. Q. Okay. And
nothing you independently analyzed would add to those opinions? A. Only that they
reflect my experience and training.”).
Plaintiff does not address Est. of Loury by Hudson v. City of Chicago, No. 16-CV4452, 2019 WL 1112260 (N.D. Ill. Mar. 11, 2019), a recent case in this district in
which the court granted the City’s motion to bar the expert opinion testimony of Mr.
Clark. The court there specifically found that Clark’s “qualifications alone do not
make [his] opinions admissible.” Id. at *4. In response to the same argument Plaintiff
makes here, the court explained that to allow Clark to “parrot those findings [in the
DOJ and PATF reports] as his own opinion about the practices of the City transforms
Clark’s opinion into an amplifier of those reports without adding additional value for
the jury’s consideration.” Id. at *5.
For these reasons, the City’s Motion to bar [308] is granted.

Department is engaging in a pattern or practice of unlawful conduct and, if so, what systemic
deficiencies or practices within CPD, IPRA, and the City might be facilitating or causing this
pattern or practice.” Available at: https://www.justice.gov/opa/file/925846/download.
Plaintiff relies on Daniel v. Cook County, 833 F.3d 728 (7th Cir. 2016) which dealt with the
admissibility of a DOJ Report, and on Dixon v. County of Cook, 819 F.3d 343 (7th Cir. 2016),
which considered a DOJ Report among other evidence on summary judgment. But neither
case involved a Daubert challenge.
16

26

B. Monell Claim
A plaintiff bringing a § 1983 claim against a municipality under Monell must
challenge conduct that is “properly attributable to the municipality” and “that,
through its deliberate conduct, the municipality was the ‘moving force’ behind the
injury alleged.” Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997). Monell
liability requires a plaintiff to “demonstrate that, through its deliberate conduct, the
municipality was the ‘moving force’ behind the injury alleged.” J.K.J. v. Polk Cnty.,
960 F.3d 367, 377 (7th Cir. 2020), cert. denied sub nom. Polk Cnty., Wisconsin v. J.K.
J., 141 S. Ct. 1125 (2021). “The plaintiff, in short, must show that the municipal
action was taken with the requisite degree of culpability and must demonstrate a
direct causal link between the municipal action and the deprivation of federal rights.”
Id. (cleaned up).
Plaintiff argues she has sufficient evidence to support her Monell claim and to
defeat the City’s summary judgment motion. Plaintiff’s Monell theories are: (1)
failure to train; (2) failure to discipline and investigate; and (3) code of silence.
1. Failure to train
Plaintiff argues that “[t]he pattern and practice of excessive deadly force is in part
a result of CPD’s lack of training and supervision.” (Dkt. 333 at 4). “[F]ailure-to-train
(or inadequate-training) liability arises when a municipality adheres to a training
program that they know or should know has failed to prevent tortious conduct by
employees, thereby demonstrating deliberate indifference to this known risk.” Flores
v. City of S. Bend, No. 20-1603, 2021 WL 1903225 (7th Cir. May 12, 2021) (cleaned

27

up) (noting that failure-to-train liability does not require proof of widespread
constitutional violations because a single violation can be sufficient where a violation
occurs and the plaintiff asserts a recurring, obvious risk).
Plaintiff points specifically to the portion of the DOJ Report which states that:
[F]oot pursuits are [] inherently dangerous and present substantial risks
to officers and the public. Officers may experience fatigue or an
adrenaline rush that compromises their ability to control a suspect they
capture, to fire their weapons accurately, and even to make sound
judgments… [CPD] does not have a foot pursuit policy. It should. In
addition to not having a policy, CPD has not taken corrective action to
address problematic foot pursuits. This puts officers and the public in
danger and results in unreasonable uses of force. (DOJ Report (Dkt. 3351), pp. 26-27).
The City denies the DOJ Report’s conclusion but concedes that it does not have a
foot pursuit policy. (Dkt. 344 at 5). Still, the City relies on Barnes v. City of Centralia,
but that case is distinguishable because plaintiff there “neither referenced nor even
alluded to any evidence to support Monell liability.” 943 F.3d 826, 832 (7th Cir. 2019)
(emphasis added). Here, although the Court has excluded the Clark report, Plaintiff
relies on the DOJ Report, the Police Accountability Task Force (PATF) Report, the
SAFER Report, and City admissions. Other courts ruling on summary judgment have
found these government reports supportive of a Monell claim. See Est. of Loury by
Hudson, No. 16-CV-4452, 2019 WL 1112260, at *7 (finding that the DOJ and PATF
Reports deserve considerable weight). 17 The City argues that the DOJ Report “came
into existence over three years after McIntosh was shot and could not be the basis of
In addition, as another court has noted, “the Seventh Circuit has held that government
reports such as the DOJ Report at issue here can be admissible evidence of municipal notice
relevant to a Monell claim.” Arrington v. City of Chicago, No. 17 C 5345, 2018 WL 620036, at
*4 (N.D. Ill. Jan. 30, 2018).

17

28

the City policymaker’s actual or constructive knowledge.” (Dkt. 343 at 5). But the
DOJ Report reviewed “force reports and investigative files for incidents that occurred
between January 2011 and April 2016.” (DOJ Report at 2). That covers the relevant
time period here.
The City argues that for Monell liability, Plaintiff must prove its action was the
“moving force” behind the constitutional violation. The causation standard is rigorous
but is also “generally a question of fact for the jury to decide.” Est. of Fiebrink by Cade
v. Armor Corr. Health Servs., Inc., No. 18-CV-832-JPS, 2019 WL 1980625, at *11
(E.D. Wis. May 3, 2019) (quoting Shick v. Ill. Dept. of Human Servs., 307 F.3d 605,
615 (7th Cir. 2002)); see also LaPorta v. City of Chicago, 277 F. Supp. 3d 969, 985
(N.D. Ill. 2017). Here, for her lack of training theory, Plaintiff has provided enough
evidence to allow a jury to resolve whether the City’s lack of training regarding foot
chases was the moving force behind Slechter using deadly force against McIntosh.
2. Failure to discipline and investigate
Plaintiff’s Monell theory based on failure to discipline and investigate, however,
does not survive summary judgment. The City argues that Plaintiff has failed to show
any causal link between the lack of oversight and the alleged violation of McIntosh’s
constitutional rights. As the City points out, Plaintiff does not identify evidence that
Slechter engaged in the use of force or misconduct that went unpunished any time
before this shooting. Cf. LaPorta, 277 F. Supp. 3d at 989 (officer had prior instances
of misconduct). Plaintiff does not show how a widespread practice of failing to
investigate and discipline officers is the “moving force” in this case. See Dean v.

29

Wexford Health Sources, Inc., 18 F.4th 214, 235 (7th Cir. 2021) (“This ‘rigorous
causation standard’ requires ‘a direct causal link between the challenged municipal
action and the violation of [the plaintiff's] constitutional rights.’”) (cleaned up);
LaPorta, 988 F.3d at 986 (“This rigorous causation standard guards against
backsliding into respondeat superior liability.”). Indeed evidence that Plaintiff herself
relies on, for example, for her conspiracy claim (the officers’ statements to IPRA)
shows there was investigation into the officers’ conduct. The Monell claim based on
failure to discipline and investigate cannot proceed.
3. Code of silence
Finally, Plaintiff’s code of silence theory survives summary judgment. Plaintiff
argues that “[t]he code of silence includes: officers providing false testimony (written
or oral), failing to report criminal misconduct committed by other officers or the officer
himself, failing to report misconduct that violates department policies or general
orders, and covering up officer misconduct.” (Dkt. 333 at 5). Plaintiff relies on the
DOJ Report, PATF Report and city officials’ statements.
The PATF Report states that certain “statistics give real credibility to the
widespread perception that there is a deeply entrenched code of silence supported not
just by individual officers, but by the very institution itself,” and “collective
bargaining agreements between the police unions and the City have essentially
turned the code of silence into official policy.” (Dkts. 335-2). The DOJ Report states,
among other things, that “[t]he City, police officers, and leadership within CPD and
its police officer union acknowledge that a code of silence among Chicago police

30

officers exists, extending to lying and affirmative efforts to conceal evidence.” (Dkt.
335-1). 18
Plaintiff’s Monell theory based on code of silence survives summary judgment
because a reasonable jury could find that Slechter’s decision to shoot McIntosh was
caused by a belief that he would be protected from consequence because CPD tolerates
a code of silence. See LaPorta, 277 F. Supp. 3d at 988 (finding that “the aftermath of
the LaPorta shooting supports a reasonable inference that CPD officers engaged in
the code of silence when interacting with [off-duty officer].”); Est. of Loury by Hudson,
No. 16-CV-4452, 2019 WL 1112260, at *7 (finding disputes of material fact on Monell
code of silence claim).
In sum, viewing the evidence in favor of Plaintiff, as the Court must at this stage,
a reasonable juror could find that the City’s failure to train officers and/or code of
silence was the moving force behind McIntosh’s death. The Monell claim on these
grounds must be resolved by the jury.
CONCLUSION
For the stated reasons, Defendant Sampim’s motion for summary judgment [302]
is granted in part and denied in part. Defendant Officers Bowery, Zodo, and Slechter’s
motion for summary judgment [303] is granted in part and denied in part. Defendant
City’s Motion to bar the opinions of Plaintiff’s Expert [308] is granted. Defendant
City’s motion for summary judgment [309] is granted in part and denied in part.

The City does not challenge the admissibility of the DOJ or PATF Reports or the Mayor’s
statements. See e.g. LaPorta, 277 F. Supp. 3d at 989 (discussing the admissibility of these
reports, as well as the Mayor’s acknowledgment of a code of silence).
18

31

Plaintiff has dismissed with prejudice the following claims against Officers
Bowery, Zodo and Sampim: Count I (unconstitutional seizure), Count III (wrongful
death), Count IV (survival), and Count V (funeral expenses). Plaintiff dismissed with
prejudice Count VI (intentional infliction of emotional distress) against all the
individual defendants. The Court dismisses with prejudice Count VIII (battery)
against Bowery, Zodo and Sampim. The Court also dismisses with prejudice Count
VII (conspiracy) against Bowery, leaving no pending claims against Bowery.
Therefore the remaining claims for trial are: the excessive force claim (Count I)
against Officer Slechter; state-law claims for wrongful death, survival, funeral
expenses and battery (Counts III, IV, and VIII) against Slechter; conspiracy (Count
VII) against Slechter, Zodo and Sampim, and the Monell claim (based on lack of
training regarding foot chases and code of silence) (Count II) and respondeat superior
and indemnification claims (Counts IX and X) against the City.

E N T E R:
Dated: September 23, 2022
MARY M. ROWLAND
United States District Judge

32