Hicks v. City Of Chicago et al
MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the motions [75, 77, 81] to dismiss are granted in part and denied in part. The following claims survive: Fourth Amendment unreasonable seiz ure (Count Two); Fourth Amendment unreasonable search (Count Three); failure to intervene on the Fourth Amendment claims (Count Four); indemnification (Count Eight); and intentional infliction of emotional distress (Count Nine). The remaining claims are dismissed. On or before 10/06/2017, the parties shall file a status report proposing a discovery schedule. At the very least, Rule 26(a)(1) disclosures are due by 10/24/2017. The first round of written discovery requests may be issued immediatel y, and that first round must be issued no later than 10/31/2017. Also, Plaintiff Hicks and the plaintiffs in the related case, 17 C 4951, shall confer with the defense about filing a consolidated amended complaint on this case's docket. The status hearing of 10/10/2017 remains in place. Emailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
CITY OF CHICAGO, et al.
No. 15 C 06852
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
In the early morning hours of July 2, 2015, plaintiff Patricia Hicks allegedly
woke to a call from her daughter, Jasmin, from the backseat of a police car. R. 71,
Third Am. Compl. ¶¶ 24-25.1 That call, according to Hicks, was a plea for help:
police officers were telling Jasmin that she either had to come up with a gun to give
the officers or else face being charged with a crime she did not commit. Id. ¶¶ 26-27.
Under that threat, Hicks set out in search of a gun to free her daughter, allegedly
spending $1,000 on firearms that she traded for Jasmin’s release. Id. ¶ 52. She now
brings suit against the Cook County Sheriff’s Office, Officers Murphy, Mousel,
Dwyer, Doyle, Mears, O’Malley, and Gosling, as well as the Village of Lynwood,
alleging 13 counts: a claim under the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. § 1961 (Count 1); illegal search and seizure
under 42 U.S.C. § 1983 (Counts 2 and 3); § 1983 claims for failure to intervene and
for civil conspiracy (Counts 4 and 5); an equal protection claim (Count 6); procedural
to the record are noted as “R.” followed by the docket number and, where
necessary, the page or paragraph number.
and substantive due process claims (Counts 10 and 11); a § 1983 claim against
Officers O’Malley and Dwyer predicated on supervisor liability (Count 12); Monell
claims against the Cook County Sheriff’s Office and the Village of Lynwood (Counts
7 and 13); and a state-law claim for intentional infliction of emotional distress
(Count 9).2 Between three separate (and sometimes overlapping) motions to dismiss
under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1), Defendants collectively
seek to dismiss Hicks’s entire third amended complaint.3 For the reasons discussed
below, the motions to dismiss are granted in part and denied in part.
For purposes of this motion, the Court accepts as true the allegations in the
Third Amended Complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Patricia
Hicks was contacted by her daughter, Jasmin, in the early morning hours of July 2,
2015. Third Am. Compl. ¶ 24. Jasmin and her boyfriend had been pulled over in a
traffic stop. Id. ¶¶ 15-16. The boyfriend did not have a valid license and Jasmin was
on probation. Id. ¶¶ 16, 18.4 According to Hicks, what she learned from the call with
Jasmin5 was that the police were demanding guns in exchange for Jasmin’s
Hicks also includes a claim for indemnification against the Cook County Sheriff’s
Office and the Village of Lynwood (Count 8).
3 Defendants Cook County Sheriff’s Office, Officer Murphy, Officer Mousel, Officer
Dwyer, Officer Doyle, Officer O’Malley, and Officer Gosling jointly filed a motion to dismiss
the entirety of the third amended complaint, R. 81, Defs’. Mot. to Dismiss. Officer Mears
separately filed his own motion to dismiss against Counts One, Six, and Eleven, R. 76,
Mears’ Mot. to Dismiss. The Village of Lynwood moved to dismiss the Monell claim against
it (Count 13), R. 77, Lynwood Mot. to Dismiss.
4 According to the complaint, the boyfriend was released without charges. Third Am.
Compl. ¶¶ 20, 23.
5 From the complaint it is unclear whether initially Hicks spoke on the phone with
an officer. Hicks alleges that “the police did not speak with Plaintiff at that time,” Third
Am. Compl. ¶ 25, but says immediately in the next paragraph that “[l]aw enforcement
freedom. Id. ¶¶ 25-27. The officers were threatening to falsely charge Jasmin with a
crime unless someone (either Jasmin or the boyfriend or Hicks) turned over guns to
them. Id. ¶¶ 17, 26. Hicks did not have any guns to give. Id. ¶ 28. The complaint
does not say whether Hicks told this to her daughter or to the officers directly (or to
neither), but according to Hicks, Officers Doyle and Mears then came to Hicks’s
house and searched through the contacts on her phone. Id. ¶ 31.
Doyle and Mears next allegedly took Hicks with them in their car, under
threat of detaining Jasmin further, to force Hicks to go buy a gun near the
intersection of 75th Street and Martin Luther King Drive in Chicago. Id. ¶¶ 32-25.
This gun run was unsuccessful. The officers then dropped off Hicks back at her
house, and kept Jasmin in custody. Id. ¶ 37. The officers (presumably still Doyle
and Mears) told Hicks she had one more day to come up with a gun to trade for
Jasmin’s release, and reiterated the threat of bringing false charges against Jasmin.
Id. ¶¶ 39-40.
Later that day (still July 2), Hicks allegedly texted with Officer Murphy to
arrange a trade of guns for Jasmin’s release. Id. ¶¶ 42-51; see also R. 71 Exh. 1,
Text Messages at 1-8. Murphy was now demanding three guns in order to hand over
Jasmin, texting “The deal was 2 for your daughter and 1 for the car the one last
night was just to get her out right then.” Third Am. Compl. ¶ 45; Text Messages at
2-3. He added, “I will be out [toward Hicks’s area] around 330, u need to have those
items so I can release Jasmin.” Third Am. Compl. ¶ 47; Text Messages at 3.
officers assured Plaintiff that the submission of a firearm would trigger the release of her
daughter,” id. ¶ 26.
Hicks alleges that she spent $1000 on two guns to give the officers. Third Am.
Compl. ¶ 52. She placed them in a bag behind a trashcan at 6853 S. Prairie Avenue
in Chicago. Id. ¶ 53. Officers Murphy and Gosling arrived in a black unmarked
police car. Id. ¶ 54.6 After retrieving the bag and checking it, they then released
Jasmin and gave her a copy of her license. Id. ¶¶ 55-59.7
Five days after that handoff, on July 7, Officer Murphy (or someone using the
same cell phone number that Murphy had used five days earlier) allegedly
contacted Hicks again, demanding a third gun. Third Am. Compl. ¶ 63. Hicks and
Murphy negotiated, via texts, another drop-off. Text Messages at 8-11. Hicks texted
Murphy: “You promised me after I give you this God [sic] we don’t owe you anything
else. U is finished with us you have no reason to contact us no more.” Third Am.
Compl. ¶ 65; Text Messages at 10. Murphy replied, “Absolutely, this is it.” Third
Am. Compl. ¶ 66; Text Messages at 11.
When Officer Murphy arrived to pick up the third gun, he was confronted by
Hicks’s attorney. Third Am. Compl. ¶¶ 67-68; R. 71 Exh. 4, July 7 Video 1; R. 71
Exh. 5, July 7 Video 2; R. 88, Pl.’s Combined Resp. Br. at 4.8 The “confrontation” is
not elaborated upon in the complaint but two video exhibits, referenced in the
complaint, allegedly document the interaction. Third Am. Compl. ¶ 68; July 7 Video
1; July 7 Video 2. In one of those videos, attorney Jared Kosoglad speaks with
Although the complaint does not specify that Jasmin was in the car with them, it
can be inferred based on what is described a few paragraphs later. Third Am. Compl. ¶ 59
(“Satisfied that payment had been made to secure the release of Plaintiff’s daughter, the
defendants then released Plaintiff’s daughter…”).
7 Hicks also submitted two video exhibits allegedly documenting this exchange. R. 71
Exh. 2, July 3 Video 1; R. 71 Exh. 3, July 3 Video 2.
8 The complaint does not state that the confrontation is with Hicks’s attorney.
Officer Murphy. July 7 Video 2. Kosoglad asks the officer, among other things,
“what are you doing here?”, to which the officer replies, “I’m here because they
asked me to come over” and that “they dropped something for me.” Id. After a few
more exchanges,9 the officer walks away to a car and drives off. Id.
Hicks alleges that she then tried to file complaints with the Cook County
Sheriff’s Office. Third Am. Compl. ¶¶ 71-78. Specifically, on July 8, 2015, she went
to the Sheriff’s Office headquarters to file a complaint against Officer Murphy. Id. ¶
70. She was interviewed by Michael Goldsmith, who was supposedly an “inspector,”
but was told that he did not have authority to open an investigation into her
complaint and that because there was no notary on hand, paperwork could not be
started to file a complaint with the Office of Professional Review. Id. ¶ 71. Hicks
alleges that Goldsmith then took her information and shared it so that the officers
could create a cover-up story for the incidents described above. Id. ¶¶ 71-76.
Between July 10 and July 12, Officers Gosling, Murphy, Dwyer, Doyle, and Mousel
created reports with “numerous false assertions,” according to the complaint. Id. ¶¶
Based on these allegations, Hicks brought thirteen claims against the various
Defendants in her Third Amended Complaint. In Count One, Hicks contends that
Upon further probing the officer says that he does not need to answer Kosoglad’s
questions. July 7 Video 2. When Kosoglad asked whether the officer “pick[ed] up Jasmin a
couple days ago,” the officer replies, “that’s a legal matter between me and them.” Id.
Kosoglad then asserts that he is “their attorney” and asks for further information about
what happened with Jasmin: “… what’s the deal? You picked her up? You took her around?
They gave you a couple guns? What happened?” Id. To which the officer responds: “they told
you whatever they needed to tell you, right?” and repeatedly says “you can talk to them
about that.” Id. Kosoglad then asks to know the name of the officer’s supervisor as the
officer gets in a car and drives away. Id.
all of the named officers were participants in a racketeering enterprise (namely, the
Cook County Sheriff’s Office),10 conspiring to extort firearms from civilians by
means of violence, threats, and other means of influence. Third Am. Compl. ¶¶ 8792. She further pleads that officers unconstitutionally searched and seized her, and
at the same time other officers failed to intervene (Counts Two through Four), id.
¶¶ 93-109; officers conspired to violate her constitutional rights (Count Five), id. ¶¶
110-117; officers deprived of the equal protection of the law, as well as procedural
and substantive due process (Counts Six, Ten, and Eleven) ¶¶ 118-123, 146-155);
and officers committed intentional infliction of emotional distress (Count Nine), id.
¶¶ 141-145. In addition, she brings Monell claims against the Cook County Sheriff’s
Office and the Village of Lynwood for failure to train, supervise, or discipline
officers under their responsibility (Counts Seven and Thirteen). Id. ¶¶ 124-137, 161171.
Defendants now move to dismiss all of these claims for failure to state a
claim, as well as for lack of jurisdiction with respect to the RICO claim. See Defs’.
Mot. to Dismiss; Mears’ Mot. to Dismiss; Lynwood Mot. to Dismiss; R. 91, Defs’.
Reply Br.; R. 96, Mears’ Reply Br.; R. 89, Lynwood Reply Br.
II. Standards of Review
Defendants move to dismiss the complaint for failure to state a claim. Under
Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only include “a
short and plain statement of the claim showing that the pleader is entitled to
Hicks alleges that, for the purposes of the RICO claim, the “enterprise” is the
“Cook County Sheriff’s Department” (or the “Cook County Sheriff’s Office”) itself. See, e.g.,
Third Am. Compl. ¶¶ 88, 89, 91.
relief.” Fed. R. Civ. P. 8(a)(2). The complaint must “give the defendant fair notice of
what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (internal quotation marks
and citation omitted). These allegations “must be enough to raise a right to relief
above the speculative level,” id., and must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face,’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The allegations
entitled to the assumption of truth are those that are factual, rather than mere
legal conclusions. Iqbal, 556 U.S. at 678-79.
In assessing a motion to dismiss for lack of subject matter jurisdiction under
Rule 12(b)(1) motion, the plaintiff bears the burden of establishing jurisdiction. Ctr.
for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588–89 (7th Cir.
2014). If the challenge to jurisdiction is based on the allegations in the complaint,
then “the district court must accept as true all well-pleaded factual allegations, and
draw reasonable inferences in favor of the plaintiff.” Ezekiel v. Michel, 66 F.3d 894,
897 (7th Cir. 1995). “[A] factual challenge lies where the complaint is formally
sufficient but the contention is that there is in fact no subject matter jurisdiction. …
[W]hen considering a motion that launches a factual attack against jurisdiction, the
district court may properly look beyond the jurisdictional allegations of the
complaint and view whatever evidence has been submitted on the issue to
determine whether in fact subject matter jurisdiction exists.” Apex Digital, Inc. v.
Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009) (internal quotation marks
A. RICO (Count One)
Count One alleges that all of the individual officers named in the Complaint
took part in a “racketeering enterprise” in violation of RICO, 18 U.S.C. §§ 19611968. Third Am. Compl. ¶¶ 87-92. According to Hicks, “sheriff’s deputies used their
official positions to illegally commit a pattern of racketeering activity, including …
kidnapping, extortion, robbery, obstruction of justice, intimidation of witnesses,
[and] retaliation of witnesses,” among other activities. Id. ¶ 88.
Hicks alleges an Office-wide scheme in which “[o]fficers threaten civilians
with the lawful and unlawful use of their official authority in order to obtain
firearms.” Id. ¶ 8. As part of the enterprise, Officers Murphy, Mousel, Dwyer, Doyle,
Mears, O’Malley, and Gosling allegedly agreed, with the blessing of the Cook
County Sheriff’s Office, to get firearms through threats or force and then to not file
reports on the incidents. Id. ¶ 11. According to Hicks, the Sheriff’s Office has a
“widespread practice of perjury, false arrests, false report making, and bringing of
false charges” to “cover up … unlawful conduct,” and that it effectively maintains a
“code of silence” with respect to police wrongdoing. Id. ¶ 74. In response, the officers
contend that Hicks’s RICO claim should be dismissed because: (1) Hicks lacks
standing to bring the claim; and (2) Hicks fails to state a RICO claim even if she has
standing. Defs’. Mot. to Dismiss at 5-12; Mears Mot. to Dismiss at 4-10.
Among other things, RICO prohibits “any person employed by or associated
with any enterprise” from “conduct[ing] or participat[ing], directly or indirectly, in
the conduct of such enterprise’s affairs through a pattern of racketeering activity.”
18 U.S.C. § 1962(c).11 A “pattern of racketeering activity” is defined by the statute
as requiring “at least two acts of racketeering activity,”12 and eligible acts run the
gamut from murder and kidnapping, to bribery and extortion, to fraud, to
obstructing justice, and so on.13 Anyone “injured in his business or property” may
bring a RICO suit in a federal district court and, if successful, a plaintiff is entitled
to recover “threefold the damages he sustains and the cost of the suit, including a
reasonable attorney’s fee.” 18 U.S.C. § 1964(c).
As explained in a moment, Hicks does not sufficiently allege a pattern of
racketeering activity that is connected to the alleged enterprise—the Cook County
Sheriff’s Office—so her RICO claim must fail. But it is worth noting that Hicks does
appear to have adequately alleged predicate acts of kidnapping and extortion, and
also properly alleged an injury to her property. According to Hicks, officers
threatened, under color of official right, to bring false charges against her daughter,
which would result in her daughter’s continued detention. Under this threat, the
officers transported Hicks to go buy guns. And she had to buy guns, using $1,000 of
For the purposes of RICO, “enterprise” is defined as “any individual, partnership,
corporation, association, or other legal entity, and any union or group of individuals
associated in fact although not a legal entity.” 18 U.S.C. § 1961(4).
12 There are other requirements on when the acts must have taken place, but they
are not relevant here: for example, “pattern of racketeering activity” “requires at least two
acts of racketeering activity, one of which occurred after the effective date of this chapter
and the last of which occurred within ten years (excluding any period of imprisonment)
after the commission of a prior act of racketeering activity.” 18 U.S.C. § 1961(5).
13 See 18 U.S.C. § 1961(1) for the complete list.
her own money, in order to ultimately defuse the threat and get her daughter back.
So even setting aside whether the money spent by Hicks for attorney fees is a RICO
injury here, the officers in effect extorted at least $1,000 from Hicks for the release
The problem for the RICO claim is that Hicks has not adequately alleged that
the officers conducted (or participated in the conduct of) the enterprise’s affairs
through a pattern of racketeering activity. Remember that Hicks alleges that the
enterprise is the Cook County Sheriff’s Office, Third Am. Compl. ¶ 91, and the
pattern alleged includes (but is not limited to) “kidnapping, extortion, robbery,
obstruction of justice, intimidation of witnesses, retaliation against witnesses,
interference with commerce by threats and violence, influencing, delaying, and
preventing testimony, and hindering, delaying, and preventing the communication
of federal offenses to law enforcement agencies and judicial officers …” Id. ¶ 88.
Ostensibly in support of the RICO claim (as well as the various conspiracy claims),
Hicks lists other allegations of Cook County Sheriff’s Office misconduct: Cook
County deputies stopped six other persons, extorted a gun or other contraband from
them, and then did not file reports on the stops. Id. ¶ 81.
Because the $1,000 used to buy the guns satisfies the injury-to-property element,
there is no need to opine on whether the injury element is an Article III standing issue or a
RICO-merits issue. See Defs’. Mot. to Dismiss at 6-7. Defendants further argue that the
$1,000 expenditure is not a RICO injury because even a concrete financial loss must be
linked directly to the alleged wrongdoing. Id. at 7-8. But taking Hicks’s factual assertions
as true for the time being, there is a direct relationship between the money Hicks spent and
the alleged misconduct of the Defendants. The officers demanded guns from her in order to
release her daughter, and Hicks complied by spending money to buy them.
These six other incidents, however, do not (as currently drafted) cohere with
what happened to Hicks. There is a broad brush allegation about the threat of false
charges, Third Am. Compl. ¶ 81, but then in only one of the incidents does Hicks
assert that false charges were threatened or weapons demanded (and in that
incident no specific officer is identified). Id. ¶ 81(E). And only one of the other
supplemental incidents specifically alleges that officers retrieved a gun (and there
Hicks does not specifically allege that the victim of that incident was facing false
charges). Id. ¶ 81(F). The listing of the six incidents does not contain enough factual
detail—as distinct from broad conclusions—to connect the alleged pattern of
racketeering activity to the enterprise.
Indeed, remember that the alleged enterprise is the Cook County Sheriff’s
Office itself. Third Am. Compl. ¶ 91. That is a sprawling allegation. Rather than
target a set of officers as an association-in-fact enterprise, Hicks goes after the
Office itself, which means that for such an expansive racketeering allegation to be
plausible, more than six other scattershot incidents—taking place from 2010 to
2016—is necessary. Consider how many hundreds (and probably thousands) of
interactions take place between deputies and civilians in any one year, and
extrapolate that over the time period of 2010 through 2016. To be sure, there is no
need for the entirety of an enterprise to be corrupt in order to plead a RICO claim,
but it cannot be said that a total of seven incidents out of thousands in around six
years amounts to conducting the affairs of the Sheriff’s Office through a pattern of
racketeering activity. It is one thing for a plaintiff to start with a narrower set of
associated-in-fact officers and then expand the alleged enterprise based on what
turns up in discovery. But it is quite another for Hicks to start with the Office as the
enterprise with just the limited set of allegations in the complaint. The RICO claim
B. Unreasonable Seizure (Count Two)
Moving on to the Fourth Amendment claim for an unconstitutional seizure,
the Court concludes that Hicks has plausibly pled that claim. The Fourth
Amendment (applicable to the state and local governments through the Fourteenth
Amendment’s due process clause) prohibits unreasonable seizures. U.S. Const.
amend. IV. Hicks must plausibly plead and eventually show both that she was
seized and that the seizure was unreasonable. Someone is seized “only if, in view of
all of the circumstances surrounding the incident, a reasonable person [in Hicks’s
position] would have believed that he was not free to leave.” United States v.
Mendenhall, 446 U.S. 544, 554 (1980). For encounters where someone is either in
their own home or restricted in some other way, the more relevant question is
“whether a reasonable person would feel free to decline the officers’ requests or
otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436 (1991) ;
see also White v. City of Markham, 310 F.3d 989, 994 (7th Cir. 2002). In analyzing
whether someone has been seized, courts look at a variety of factors, including “the
threatening presence of several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be compelled.”
Mendenhall, 446 U.S. at 554; see also White, 310 F.3d at 994. To qualify as a
seizure, “the subject [must] actually yield to a show of authority from the police or
be physically touched by the police.” Tom v. Voida, 963 F.2d 952, 957 (7th Cir.
Taking the complaint’s allegations as true, Hicks was not free to leave in any
reasonable sense. Defendants argue that Hicks has not alleged that any officer
“verbally threatened or intimidated her” or that she yielded to a “show of authority”
from the police. Defs’. Mot. to Dismiss at 13. But according to Hicks, she was not
free to refuse the officers’ demands for guns if she wanted to prevent her daughter
from being charged with a false crime and possibly being detained longer. Sure, it
was not Hicks personally who was targeted for the false charge, but it is at least
plausible to conclude that a reasonable person would not feel free to terminate her
interaction with the officers. And Hicks does allege that she herself, under the
officers’ threats, was transported away from her home (to go buy the guns) by
Defendants without “valid consent.” Third Am. Compl. ¶¶ 32-33; see also Pl.’s Resp.
Br. at 3 (“Agent Doyle of the CCSO15 and Mears of Lynwood transported Plaintiff …
to purchase a firearm for the CCSO and officers against her will, under threat of
retaliatory charges against her daughter for failure to cooperate.”) (emphasis
added).16 The fact that officers allegedly already had Jasmin in their custody lends
“CCSO” is an acronym for Cook County Sheriff’s Office.
Defendants unpersuasively contend that no officer ever communicated to Hicks
“any kind of specific or direct threat that her daughter would have false charges brought
against her or would go to jail if illegal firearms weren’t submitted to the Defendants.”
Defs’. Reply Br. at 9. Hicks alleges that the officers threatened to hold Jasmin until Hicks
further credence to the idea that the officers would make good on their threat unless
Hicks complied.17 The pressures instilled by the officers are plausible enough reason
for Hicks to get in the officers’ car against her will. There are more than enough
allegations to satisfy the requirement that police made a “show of authority” and
that Hicks yielded to it by leaving her house and getting in a car with the officers.
The second element of the claim—reasonableness of the seizure—is not
disputed. All of Defendants’ arguments on the seizure claim are in service of
denying that Hicks’s car-ride with the officers qualifies as a seizure. Defs’. Mot. to
Dismiss at 12-13; Defs’. Reply Br. at 8-9. That is not surprising, because, as alleged,
the unreasonableness of the seizure is obvious. In going to Hicks’s home and taking
her on a ride to buy illegal guns, the officers were not promoting any legitimate
governmental interest. With the two elements of the seizure claim properly pled,
Defendants’ motion to dismiss Count Two is denied.
C. Unreasonable Search (Count Three)
Next, Hicks alleges that officers engaged in an unreasonable search. This
claim too survives, at the very least as to the search of the contents of her phone.
The Fourth Amendment disallows unreasonable searches of one’s “persons, houses,
papers, and effects.” U.S. Const. amend. IV. Except under some narrow
circumstances, searches are unreasonable without a warrant or consent. United
could produce weapons, and that allegation is plausibly supported by the text messages
documented in the exhibits.
17 The question of how unlawful threats to arrest family members should be
analyzed arises more often in the context of confessions. See, e.g., United States v. Finch,
998 F.2d 349, 356 (6th Cir. 1993) (“Coercion may involve psychological threats as well as
physical threats. Specifically, threats to arrest members of a suspect’s family may cause a
confession to be involuntary.”) (citing Rogers v. Richmond, 365 U.S. 534 (1961)).
States v. Richards, 741 F.3d 843, 847 (7th Cir. 2014) (“warrantless searches or
arrests are constitutionally permissible when a ‘narrowly proscribed’ exception
exists.”) Searches done without warrant or consent inside one’s home are
presumptively unreasonable. Brigham City, Utah v. Stuart, 547 U.S. 398, 403
(2006) (“It is a basic principle of Fourth Amendment law that searches and seizures
inside a home without a warrant are presumptively unreasonable.”) (internal
quotation marks omitted).
Here, Hicks alleges that officers came to her home and “searched through the
contacts on her phone without any lawful basis” Third Am. Compl. ¶ 31. It is true
that, as Defendants argue, some additional details would make this claim much
clearer: did this phone search happen inside the house? If so, how did the officers
get in? Did Hicks initially refuse to give over her phone? See Defs’. Mot. to Dismiss
Regardless of the answers to these questions, Hicks has pled enough at this
stage for the unconstitutional search claim to go forward, at least as to the search of
her phone. In light of the threatening circumstances, as discussed earlier, even if
Hicks “consented” to giving her phone to the officers, that consent was not valid
because of the threats to Jasmin. “Consent searches are valid only if the consent
was freely and voluntarily given. … The question of whether a consent was
voluntary, as opposed to the product of duress or coercion, is a question of fact to be
determined from the totality of all the circumstances.” United States v. Duran, 957
F.2d 499, 502 (7th Cir. 1992) (internal quotation marks omitted). The complaint’s
allegations plausibly assert that the so-called consent here was the product of
If there was no valid consent, then there is not much question that the
complaint adequately alleges that the search was unreasonable. Defendants argue
that the search was “minimally invasive” and that searching cell phones has been
allowed in this Circuit. Defs’. Mot. to Dismiss at 17 (citing United States v. FlorezLopez, 670 F.3d 803, 807 (7th Cir. 2012) (“If [police are] allowed to leaf through a
pocket address book, as they are, they should be entitled to read the address book in
a cell phone.”)) But that argument is misplaced, because those searches arose in the
context of searching a phone incident to an arrest. More importantly, that line of
cases is no longer good law: absent exigent circumstances or consent, officers must
obtain a search warrant to search a smartphone. Riley v. California, 134 S. Ct.
2473, 2493 (2014). This claim survives, at least as to the search of the phone, and
the parties should make clearer through conferral and interrogatories whether
Hicks is also alleging an additional unreasonable entry into, or search of, her home.
D. Failure to Intervene (Count Four)
Hicks’s failure to intervene claim likewise survives, as it is predicated on her
unreasonable-seizure claim. Third Am. Compl. ¶¶106-107. “An officer who is
present and fails to intervene to prevent other law enforcement officers from
infringing the constitutional rights of citizens is liable under § 1983 if that officer
had reason to know: (1) that excessive force was being used, (2) that a citizen has
been unjustifiably arrested, or (3) that any constitutional violation has been
committed by a law enforcement official; and the officer had a realistic opportunity
to intervene to prevent the harm from occurring.” Yang v. Hardin, 37 F.3d 282, 285
(7th Cir. 1994) (emphasis in original). As discussed earlier, Hicks has successfully
alleged that she was unreasonably seized. And in light of the nature of the
allegations—that officers worked together to extort guns from Hicks in order to free
Jasmin and prevent the filing of false charges—it is plausible that all of the named
individual officers could be held liable, because it takes a joint effort to carry out the
alleged extortion. But during discovery, and certainly at the summary judgment
stage when the test is not mere plausibility, Hicks must consider whether to drop
the failure to intervene claim as to certain officers if there is no evidence that they
could have intervened against the seizure (for example, an officer who did not join
in on the misconduct until after the seizure happened). For now, the failure to
intervene claim survives.
E. Section 1983 Conspiracy (Count Five)
Conspiracy does not provide an independent basis of liability under
§ 1983. See Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008). In other words, there
is no such thing as a stand-alone claim for “conspiracy”—there must be an
underlying constitutional violation. Id. “For liability under § 1983 to attach to a
conspiracy claim, defendants must conspire to deny plaintiffs their constitutional
rights,” as “there is no constitutional violation in conspiring to cover up an action
which does not itself violate the constitution.” Hill v. Shobe, 93 F.3d 418, 422 (7th
Cir. 1996); see also Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000)
(noting that “[t]he jury’s conclusion that [the plaintiff] suffered no constitutional
injury ... foreclose[d] relief on the [plaintiff's § 1983] conspiracy claim”). To the
extent that Hicks is alleging conspiracy as a stand-alone claim, it is dismissed. To
the extent that Hicks seeks to hold individual officers as liable for constitutional
violations based on a conspiracy theory of liability, that theory can be addressed at
the summary judgment stage (and throughout discovery, because it might become
clear that certain defendants cannot be deemed co-conspirators).
F. Equal Protection (Count Six)
Next up is the equal protection claim. For a race discrimination claim, like
Hicks’s, an equal protection claim must allege intentional racial discrimination.
Barnett v. Daley, 32 F.3d 1196, 1198 (7th Cir. 1994). The plaintiff must plead facts
making the inference plausible that relevant “decisionmakers … acted with
discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 292 (1987); Chavez v.
Illinois State Police, 251 F.3d 612, 645 (7th Cir. 2001); Nabozny v. Podlesny, 92 F.3d
446, 453 (7th Cir. 1996). Here, Hicks alleges that “[t]he actions of seizing Plaintiff
and subjecting her daughter to unwarranted criminal prosecutions unless she
provided them with a weapon were the result of purposeful discrimination against
Plaintiff because of her race.” Third Am. Compl. ¶ 120. She adds that “[n]either the
Cook County Sheriff’s Police nor the individuals in this lawsuit engage in the same
kind of misconduct during the traffic stops of the non-minority race.” Id. ¶ 123.
Defendants argue that Hicks has not sufficiently alleged intentional
discrimination, to which Hicks responds that “Plaintiff does make such an
allegation, namely that the scheme was, ‘purposeful discrimination because of her
race.’” Pl.’s Resp. Br. at 17. Hicks goes on to state in the response brief: “[t]he thrust
of Plaintiff’s claim is that the Sheriffs use this tactic against African Americans on a
widespread basis and against white citizens never or almost never. … Defendants
do not extort white citizens. The defendants follow an implicit theme in this case,
that people will not care about the widespread extortion of black citizens, and
Plaintiff looks forward to testing this theory in front of a jury.” Id. (internal
The problem with this claim is that Hicks has not pled any facts that give rise
to a plausible inference intentional racial discrimination. In saying that the officers
engaged in “purposeful discrimination against Plaintiff because of her race,” Third
Am. Compl. ¶ 120, Hicks is merely offering a legal conclusion, which this Court
need not accept. See Iqbal, 556 U.S. at 678-79; see also McDonald by McDonald v.
Haskins, 1991 WL 61036, at *1 (N.D. Ill. Apr. 10, 1991), aff’d, 966 F.2d 292 (7th Cir.
1992) (“[P]laintiff’s conclusory allegation that defendant mistreated him because he
is black is insufficient to state an equal protection claim. Plaintiff has failed to plead
Hicks also says in her response brief that “it may turn out that her equal
protection claim may be better proved pursuant to 42 U.S.C. § 1985, as Plaintiff has already
set forth sufficient facts in her complaint of (1) a conspiracy motivated by racial animus; (2)
a purpose of depriving African Americans of equal protection of the laws; (3) acts in
furtherance thereof; and (4) injury to person or property or a deprivation of any right or
privilege.” Pl.’s Resp. Br. at 17-18. The Court does not address this argument, because it
was not in the Complaint, but for the purposes of evaluating an equal protection claim,
Hicks would fail under either Section 1983 or Section 1985, because she has not plausibly
alleged the largely similar element of purposeful discrimination required under either
statute. See, e.g., Majeske v. Fraternal Order of Police, Local Lodge No. 7, 94 F.3d 307, 311
(7th Cir. 1996) (“A plaintiff raising a claim under § 1985(3) must allege (1) the existence of
a conspiracy, (2) a purpose of depriving a person or class of persons of equal protection of
the laws, (3) an act in furtherance of the alleged conspiracy, and (4) an injury to person or
property or a deprivation of a right or privilege granted to U.S. citizens.”)
any facts, apart from his own race, from which the court can draw an inference that
defendant’s actions were at all motivated by plaintiff's race.”) (internal citations
omitted); Jones v. City of Chicago, 639 F. Supp. 146, 152 (N.D. Ill. 1986) (“[V]ague
and conclusory allegations of race discrimination may not form the basis of a
Nothing in the pleadings suggests that the relevant officers treated Hicks
differently because she was black. The allegations that the officers do not treat nonminorities this way during traffic stops, Third. Am. Compl. ¶ 123, is a conclusion,
rather than a set of factual allegations.19 The same goes for the even broader
allegation, id., that the Sheriff’s Office as a whole targets racial minorities. The
equal protection claim is dismissed.
G. Monell claims (Counts Seven and Thirteen)
In Counts 7 and 13, Hicks brings Monell claims against the Cook County
Sheriff’s Office and the Village of Lynwood. To hold either entity liable under
Section 1983, Hicks needs to adequately plead: (1) the deprivation of an underlying
substantive right; (2) the “existence of an ‘official policy’ or other governmental
custom”; and (3) that this policy or custom is the “moving force” behind the
deprivation of her substantive constitutional rights. See Teesdale v. City of Chi., 690
F.3d 829, 833 (7th Cir. 2012). Defendants argue that Hicks has insufficiently pled
Hicks alleges that the six traffic stops listed in Paragraph 81 of the complaint all
involved African-American victims. But only one of those stops even involved one of the
Defendants here (Murphy), and even as to Murphy, that one additional alleged stop is not
enough to infer the specific targeting of racial minorities. Perhaps discovery on the traffic
stops conducted by the Defendants will reveal otherwise, not just as to Murphy but the
other officers, but the current complaint is not sufficient.
the Monell claims. Defs’. Mot. to Dismiss at 17-20; Lynwood Mot. to Dismiss. The
Hicks must adequately allege (and, ultimately, prove) how the Sheriff’s Office
or Village of Lynwood themselves, and not just the individual police officers, were
responsible for causing the constitutional deprivations. See Estate of Sims ex rel.
Sims v. Cnty. of Bureau, 506 F.3d 509, 515 (7th Cir. 2007) (“municipal liability is
limited to action for which the municipality is actually responsible”). In other words,
Hicks has to adequately allege that the policies or customs of the Office or of
Lynwood caused the deprivation of her constitutional rights. To try satisfying the
causation element, Hicks can: (1) allege repeated constitutional violations to raise
the inference that the Office or Village was “aware of the risk created by the custom
or practice … and failed to take appropriate steps,” Thomas v. Cook Cnty. Sheriff’s
Dep’t, 604 F.3d 293, 303 (7th Cir. 2010), or (2) allege specific facts showing the risk
was “so obvious” that the Office’s or Village’s policymakers were “deliberately
indifferent” to it, City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989). To prove
that the Sheriff’s Office or Lynwood had a deliberately indifferent policy or practice,
Hicks must establish that there existed “a widespread practice that … is so
permanent and well settled as to constitute a custom or usage with the force of law.”
McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995) (internal quotation
marks and citations omitted).Conclusory allegations alone are not good enough to
state a Monell claim. See McCauley v. City of Chi., 671 F.3d 611, 616 (7th Cir. 2011).
Only specific factual allegations can support a Monell claim. Elsayed v Vill of
Schaumburg, 2015 WL 1433071, at *5 (N.D. Ill. Mar 26, 2015) (rehearsing the
elements of a Monell claim in a complaint was inadequate without sufficient
associated facts). The bulk of Hicks’s Monell allegations are just conclusions. Third
Am. Comp. ¶¶ 127-129, 131-137, 167-170.
It is true that Hicks does attempt to assert a few facts in support of a
widespread custom, but most are ultimately irrelevant, having nothing to do with
the constitutional deprivation Hicks herself allegedly experienced. For example, she
lists multiple details about Defendant Officer Murphy’s presence at the shooting of
Laquan McDonald, e.g., Third Am. Compl. ¶ 130(e) (“Defendant Murphy and the
other unknown Sheriff’s Deputy wore blue gloves at the scene for an unknown
reason.”), but those facts have no direct or inference-generating connection to the
extortion alleged here. Other allegations similarly do not relate to gun-extortion
scenarios like Hicks experienced, and instead are more general accusations of
engaging in cover-ups or filing false police reports. See, e.g., Third Am. Compl. ¶
130(f) (“The Chicago Police Department similarly failed to report the presence of
Defendant Murphy or any other Sheriff’s deputies as located at the scene of the
murder or otherwise witnesses to any part thereof, in spite of the fact that
apparently Defendant Murphy claims to have heard the last breath of Laquan
McDonald.”); id. ¶ 164(a) (“Defendant Mears, as Chief of the Lynwood Police
Department, participated in the cover up of the beating of Randolph Holmes in
Hicks comes closest to alleging relevant facts when she lists the six other
traffic stops where someone allegedly was extorted. Third Am. Compl. ¶ 81(A)-(F).
But six incidents over a time period of 2010 through 2016 do not plausibly allege
that the Sheriff’s Office or the Village of Lynwood has a custom of gun extortion and
record falsification so widespread as to have the force of law. Remember, Hicks
must adequately allege a custom so firmly rooted that it can be plausibly cited as
causing the specific constitutional deprivation to Hicks. The complaint does not live
up to this task. (Indeed, in the allegations concerning the Village of Lynwood, only
one officer (Officer Mears) is targeted as engaging in misconduct.)20 Defendants’ and
Lynwood’s Motions to Dismiss Counts Seven and Thirteen respectively are granted.
H. Emotional Distress (Count Nine)
Defendants’ only argument for dismissal of Hicks’s state-law claim for
intentional infliction of emotional distress is that a court disposing of a federal
claim should relinquish jurisdiction over supplemental state-law claims. Defs’. Mot.
to Dismiss at 22, citing Groce v. Eli Lilly &. Co., 193 F.3d 496, 501 (7th Cir. 1999).
But because some of Hicks’s federal claims survive, there is no basis to relinquish
What’s more, at this stage, Hicks has adequately pled facts to plausibly state
a valid claim for intentional inflection of emotional distress. Under Illinois law, a
claim for intentional infliction of emotional distress requires that the plaintiff
It is worth mentioning that there are lawful gun-exchange programs where law
enforcement takes official custody (and then enters into inventory) guns in exchange for
some consideration. Of course, extorting guns, making threats of false charges, and failing
to inventory the guns are an entirely different matter.
adequately plead that “(1) the defendant’s conduct was extreme and outrageous; (2)
the defendant either intended that his conduct should inflict severe emotional
distress, or knew that there was a high probability that his conduct would ... and (3)
the defendant’s conduct in fact caused severe emotional distress.” Cook v.
Winfrey, 141 F.3d 322, 330 (7th Cir. 1998) (quoting Doe v. Calumet City, 641 N.E.2d
498, 506 (Ill. 1994)). Taking Hicks’s allegations as true at this stage, it is more than
plausible that officers’ alleged extortion comprises extreme and outrageous
behavior. Nor is it implausible that the officers intended to inflict emotional
distress, which after all was the means to get Hicks to obtain the guns. And in light
of the extortive nature of the alleged misconduct, it is plausible that the officers
caused severe emotional distress. This claim survives.
I. Procedural Due Process (Count 10)
Hicks’ tenth count alleges a violation of procedural due process: “The
deprivations of Plaintiff’s liberty and property, as alleged throughout this
complaint, were made by [Cook County Sheriff’s Office] and its agents arbitrarily
and without any procedural safeguards of any kind. … Had Defendants allowed
some due process in this case, neither Plaintiff’s person nor Plaintiff’s property
would have been seized.” Third Am. Compl. ¶¶ 147, 150. To successfully allege a
procedural due process claim, Hicks must allege that she was deprived, through
state action, of a constitutionally protected interest in life, liberty, or property
without due process of law. Zinermon v. Burch, 494 U.S. 113, 125 (1990). Typically,
due process requires notice and an opportunity to be heard “at a meaningful time
and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
But procedural due process does not always require, as Hicks alleges, Third
Am. Compl. ¶ 150, a notice and opportunity to be heard before the deprivation
occurs. Post-deprivation process might very well satisfy procedural due process
The constitutional violation [of procedural due process] actionable under
§ 1983 is not complete when the deprivation occurs; it is not complete unless
and until the State fails to provide due process. Therefore, to determine
whether a constitutional violation has occurred, it is necessary to ask what
process the State provided, and whether it was constitutionally adequate.
This inquiry would examine the procedural safeguards built into the
statutory or administrative procedure of effecting the deprivation, and any
remedies for erroneous deprivations provided by statute or tort law.
Zinermon, 494 U.S. at 126. In a situation like Hicks’s, where officers are acting not
pursuant to an official policy but instead out of their own personal interests, there is
no way (not to mention no time) to somehow insert sufficient process as a buffer
between the officer and the alleged victim:
A State cannot possibly ensure hearings before its officers act randomly and
without authority, and the State cannot be required constitutionally to do the
impossible by providing predeprivation process. Accordingly, all the process
the victim of such a deprivation is due is an effective post-deprivation state
law tort remedy against the offending officer.
White v. City of Chicago, 149 F. Supp. 3d 974, 977 (N.D. Ill. 2016) (internal citations
omitted). Here, neither Illinois nor the County nor the Village of Lynwood could
provide pre-deprivation process as the allegedly rogue officers made the traffic stop
on Jasmin and extorted Hicks. The state’s courtroom doors are open to Hicks to
pursue relief through a post-deprivation legal remedy. No procedural due process
violation occurred, so Count Ten is dismissed.
J. Substantive Due Process (Count 11)
Next, Hicks alleges a violation of substantive due process. Third Am. Compl.
¶¶ 152-155. The path for assessing substantive due process claims is well
elaborated in Christensen v. County of Boone, IL, 483 F.3d 454 (7th Cir. 2007): (1)
the first step is “to provide a careful description of the interest said to have been
violated,” id. at 462 (internal quotation marks and citations omitted); then (2) to
“determine whether that interest is fundamental—that is, whether it is so deeply
rooted and sacrosanct that no amount of process would justify its deprivation,” id.
(internal quotation marks and citations omitted); then (3) if a fundamental right is
determined to be at stake, a court determines “whether the government has
interfered directly and substantially with the [plaintiff’s] exercise of that right,” id.
(internal quotation marks and citations omitted); and finally, (4) if the government
has so interfered, a court asks whether the governmental action can find
“reasonable justification in the service of a legitimate governmental objective, or if
instead it more properly is characterized as arbitrary, or conscience shocking, in a
constitutional sense,” id. (internal quotation marks and citations omitted).
But there is a further important limitation on substantive due process claims:
if a more specific right addresses the alleged conduct, then that is the right the
plaintiff must pursue, not the more generalized notion of substantive due process.
Graham v. Connor, 490 U.S. 386, 395 (1989) (“Because the Fourth Amendment
provides an explicit textual source of constitutional protection against this sort of
physically intrusive governmental conduct [here, excessive force], that Amendment,
not the more generalized notion of ‘substantive due process,’ must be the guide for
analyzing these claims.”) Once a seizure is alleged, evaluation of Hicks’s claim
proceeds down the path of Fourth Amendment analysis (as discussed earlier). The
more specific Fourth Amendment claim precludes the viability of a substantive due
Defendants also argue that they are entitled to qualified immunity against
Hicks’s substantive due process claim. Defs’. Mot. to Dismiss at 14-16; Mears’ Mot.
to Dismiss at 13-15; Defs’. Rep. Br. at 11-12; Mears’ Rep. Br. at 7-8. The doctrine of
qualified immunity protects government officials “from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important
interests—the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S.
223, 231 (2009). The Court has already held that the Fourth Amendment claim
precludes Hicks’s substantive due process claim, but even if that is wrong, at the
very least Defendants are right that there is no clearly established law that would
characterize the allegations as a viable substantive due process claim.
K. Supervisory Liability (Count 12)
It is well established that the respondeat superior theory of liability is not
applicable to Section 1983 claims. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th
Cir. 2001) (“The doctrine of respondeat superior does not apply to § 1983 actions;
thus to be held individually liable, a defendant must be ‘personally responsible for
the deprivation of a constitutional right.’”) (quoting Chavez v. Ill. State Police, 251
F.3d 612, 651 (7th Cir. 2001)). So the allegations of supervisory liability, based
simply on Defendants O’Malley’s and Dwyer’s supervisory status, do not state a
claim. See Iqbal, 556 U.S. at 677 (“In a § 1983 suit or a Bivens action—where
masters do not answer for the torts of their servants—the term ‘supervisory
liability’ is a misnomer.”) The supervisory liability claim is dismissed, though
O’Malley and Dwyer may still be held liable for their own conduct and any conduct
that they personally caused.
L. Indemnification (Count Eight)
Finally, because some of Hicks’s claims survive, the indemnification count
survives to the same extent.
For the reasons discussed, the following claims survive:
Fourth Amendment unreasonable seizure (Count Two);
Fourth Amendment unreasonable search (Count Three);
Failure to intervene on the Fourth Amendment claims (Count Four);
Indemnification (Count Eight); and
Intentional infliction of emotional distress (Count Nine).
The following claims are dismissed:
RICO (Count One);
Section 1983 “conspiracy” (Count Five);
Equal protection (Count Six);
Monell claim against the Cook County Sheriff’s Office (Count Seven);
Procedural due process (Count Ten);
Substantive due process (Count Eleven);
“Supervisor” liability under Section 1983 (Count Twelve); and
Monell claim against the Village of Lynwood (Count Thirteen).
On or before October 6, 2017, the parties shall file a status report proposing a
discovery schedule. At the very least, Rule 26(a)(1) disclosures are due by October
24, 2017. The first round of written discovery requests may be issued immediately,
and must be issued no later than October 31, 2017. Also, Hicks and the plaintiffs in
the related case, 17 C 4951, shall confer with the defense about filing a consolidated
amended complaint on this case’s docket. The status hearing of October 10, 2017
remains in place.
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: September 29, 2017
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