Esparza v. Villanueva et al
Filing
82
MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 4/22/2019. Mailed notice. (mgh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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Erik Esparza,
Plaintiff,
v.
Nick Wolf
Defendant.
No. 16 C 6016
Memorandum Opinion and Order
Plaintiff Erik Esparza was arrested on July 11, 2015, after
Deputy Nick Wolf of the Kane County Sheriff’s Department and his
canine partner Tyront discovered him behind a garage in an alley
of a residential neighborhood in Aurora, Illinois. Esparza claims
that Wolf violated his Fourth Amendment rights by using excessive
force to effectuate his arrest, and he seeks damages pursuant to
42 U.S.C. § 1983. Before me is Wolf’s motion for summary judgment,
which I grant for the reasons that follow.
I.
On the evening of July 11, 2015, Deputy Wolf responded to a
call to assist the Aurora Police Department in investigating an
officer-involved shooting. Upon his arrival at the scene, Wolf
learned that two suspects were at large, and that Officer Spooner
1
of
the
Aurora
Police
Department
was
tracking
them
with
the
assistance of his canine partner, Rex. Because the suspects were
potentially armed, Spooner asked Wolf to provide “lethal cover”
while he and Rex continued to track. Spooner Dep., Def.’s L.R.
56.1 Stmt. Exh. 3 at 40-41.
Deputy Wolf recounts the following series of events. After
the officers had been searching for some time, the Aurora Police
Department instructed them to proceed to a residential address
where one suspect had reportedly been seen. At that location, the
officers switched roles, with Wolf and Tyront tracking the suspects
and Spooner providing backup cover. It was dark at the time, and
Wolf used his flashlight “periodically” during the search. Wolf
Dep., Def.’s L.R. 56.1 Stmt., Exh. 1 at 44. Wolf recalls giving
his “standard” announcement at the driveway of the house, which is
to say that he identified himself as a canine officer; said that
the suspect was under arrest and must come out with his hands up;
and said that a police dog would be used to search and may bite
the suspect when found. Id. at 42. Wolf then proceeded with Tyront
up
the
driveway,
through
a
back
yard,
and
into
an
alleyway
surrounded by several garages.
Wolf testified that he stopped at the front of a garage near
an “area with overgrown brush and debris.” Id. at 45. There, Wolf
made a second announcement and heard a human sound emanating from
between two garages. Wolf shone his flashlight into the area but
2
was unable to see who or what was there. Believing the suspect was
nearby, and having gotten no response to his announcements or
orders to surrender, Wolf released Tyront (who at that point was
lying on the ground, awaiting his next instruction) to continue
searching. See id. at 46-48, 50-51. After Tyront located Esparza
hiding in the bushes, he bit and held Esparza’s right forearm.
Aurora Police Officer Patrick Camardo assisted Wolf in placing
Esparza in handcuffs. Tyront then immediately released his hold on
Esparza’s arm pursuant to Wolf’s command. Id. at 52-54, 82.
Esparza recounts a very different version of these events. To
begin, he disputes having a firearm with him on the evening in
question. According to his account of the evening, Esparza and
some friends were waiting around the neighborhood in hopes of
meeting up with some women they had spoken to via social media
when Esparza saw two men he did not recognize (but who he later
learned were police officers) pointing guns at him from inside a
vehicle. Esparza Dep., Def.’s L.R. 56.1 Stmt., Exh. 6 at 13-16.
Fearing for his life, Esparza ran away, with the car in pursuit.
When he could no longer run, Esparza stopped at a house, where the
unknown assailants shot at him through the windshield of the
vehicle. Id. at 20. Esparza continued to run through streets and
backyards for an hour to an hour and a half, during which time he
did not see any police cars or officers and did not hear any
sirens. Id. at 21-23. At some point, he hid between two garages in
3
an alleyway behind a house, where there were “electricity posts
and some bushes or high grass.” Id. at 28. When he determined that
the coast was clear, he emerged from his hiding spot and saw a
female resident of the house. He raised his hands and told her he
was no harm to her, and the woman then went inside the house.
Esparza then “thought about it” and decided he “wasn’t a hundred
percent sure [he] was safe,” so he returned to the back of the
garage. Id. at 25-28. According to Esparza, it was still light out
at this time. Id. At 27.
From the back of the garage, Esparza saw police officers with
their guns out and a canine in the driveway. As the officers
approached, Esparza lay down on his stomach in the grass behind
one of the garages “in order for them not to see [him] as a threat.”
Id. at 31. No one told Esparza to come out, and Esparza said
nothing to the officers, explaining that he “didn’t want to be a
surprise.” Id. Esparza then heard one of the officers give a
command to the dog, which attacked him, biting him multiple times
on the biceps and forearm. Id. at 33. According to Esparza, the
dog continued to bite him despite the handler’s command to release
and throughout the time the officers placed him in handcuffs. Id.
at 34-35. Esparza testified that the officers did not tell him why
he was under arrest, nor did he ask, explaining: “I figured I’ll
find out eventually.” Id. at 36.
4
A handgun was later recovered in the “flight path” where
Esparza had been seen running. Spooner Dep., Def.’s L.R. 56.1
Stmt., Exh. 3 at 71. Esparza was charged with unlawful possession
of a firearm by a street-gang member, aggravated unlawful use of
a weapon, and aggravated assault. He was convicted of these
offenses after a jury trial, and the conviction was upheld on
appeal. See Def.’s L.R. 56.1 Stmt., Exh. 5, 7.
II.
Summary judgment is appropriate if “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). But “[t]he
mere existence of some alleged factual dispute” is insufficient to
defeat a motion for summary judgment. Dawson v. Brown, 803 F.3d
829, 833 (quoting Lawrence v. Kenosha County, 391 F.3d 837, 842
(7th Cir. 2004) (alteration and emphasis in Lawrence)). A factual
dispute is both genuine and material if the evidence is such that
a reasonable jury could return a verdict for the nonmoving under
the applicable substantive law. Anderson v. Liberty Lobby, Inc.,
474 U.S. 242, 248 (1986).
Esparza’s amended complaint claims that Wolf’s deployment of
Tyront to effectuate his arrest constituted excessive force in
violation of the Fourth Amendment.1 Wolf raises two arguments in
On its face, the amended complaint asserts a violation of the
Eighth Amendment, but the parties agree that Esparza intended to
assert rights guaranteed by the Fourth Amendment.
5
1
his motion for summary judgment. First, he contends that the
undisputed
factual
record
shows
that
his
use
of
force
was
objectively reasonable as a matter of law. Second, he argues that
even if Esparza’s constitutional rights were violated, Wolf is
protected from liability under the doctrine of qualified immunity.
“An officer’s use of force is analyzed under the Fourth
Amendment’s objective reasonableness standard, and ‘must be judged
from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.’” Alicea v. Thomas, 815
F.3d 283, 288 (7th Cir. 2016) (quoting Graham v. Connor, 490 U.S.
386, 396 (1989)). In assessing whether Wolf’s use of Tyront to
find and seize Esparza was objectively reasonable, I consider the
totality of the circumstances, including: 1) the severity of the
crime at issue; 2) whether Esparza posed an immediate threat to
the safety of the officers or others; and 3) whether Esparza was
actively resisting arrest or attempting to evade arrest by fleeing.
Johnson v. Scott, 576 F.3d 658, 660 (7th Cir. 2009)(citing Graham,
490 U.S. at 396).
On the undisputed evidence, the first factor plainly favors
Wolf. There is no dispute that Wolf’s involvement in Esparza’s
apprehension was triggered by the Aurora Police Department’s call
for assistance in locating suspects involved in a shooting. As for
the second and third factors, while Esparza purports to dispute
that he was actually armed on the night in question and had stopped
6
either fleeing or hiding by the time the officers discovered him
(more
on
these
disputes
shortly),
the
complaint
itself
acknowledges that the information Wolf received from other law
enforcement officers led him “to reasonably believe that [Esparza]
had resisted arrest, was armed and dangerous, and had fled the
scene of his arrest.” Am. Cmplt. at ¶ 15. In addition, Wolf
testified that other officers had told him that Esparza “had been
running from the police” and “that it was possible that he was
armed with a firearm.” Wolf Dep., Def.’s L.R. 56.1 Stmt., Exh. 1
at 120-121. Esparza’s own account of the evening confirms that he
intermittently ran and hid for at least an hour while police
officers combed the neighborhood for him. That Esparza claims to
have learned only later that it was law enforcement—not armed
civilians—in
pursuit
of
him
is
of
no
moment
from
Wolf’s
perspective, which is the viewpoint that matters. See Alicea, 815
F.3d at 288.
Esparza
argues
that
a
factual
dispute
over
whether
he
“surrendered” before Wolf commanded Tyront to search the area
behind the garage precludes summary judgment. But there is no
evidence
that
Esparza
surrendered
to
the
officers.
Esparza
testified that he lay down in the grass behind the garage so that
the officers would not see him as a threat, and that he remained
silent so that he would not surprise them. But these benign motives
would not have been apparent to Wolf. In fact, there is no evidence
7
that Wolf even saw Esparza in the “spread eagle” posture Esparza
claims he adopted. Accordingly, even if a jury credited Esparza’s
testimony,
it
proves,
at
most,
Esparza’s
subjective
intent.
Meanwhile, the objective circumstances observable by Wolf would
not have led a reasonable officer to believe that Esparza had
surrendered.
From
Wolf’s
vantage
point,
a
potentially
armed
suspect who had fled from police remained concealed somewhere in
a
residential
neighborhood,
despite
obvious
police
presence
nearby. “Police are entitled to err on the side of caution when
faced with an uncertain or threatening situation,” Johnson, 576
F.3d at 659, and Wolf reasonably interpreted Esparza’s failure to
make his presence known as potentially dangerous.
Relatedly, Esparza argues that a factual dispute over his
“visibility” to the officers prior to his arrest requires a trial.
It is true that Esparza insists that it was still daylight at the
time of his arrest, while each of Wolf, Spooner, and Camardo
testified that they used flashlights during the search because it
was dark out.2 Additionally, Esparza testified that he was “no
longer hiding” and he lay in ankle-length grass as the officers
approached, while Wolf testified that Tyront discovered Esparza
hidden in the overgrown passageway between two garages. These
disputes are immaterial, however, because whatever the lighting
Camardo Dep., Def.’s L.R. 56.1 Stmt., Exh. 2 at 30-32, 86; Spooner
Dep., Def.’s L.R. 56.1 Stmt., Exh. 3 at 50-51.
8
2
conditions or exact location where Esparza was found, the record
as a whole does not reasonably suggest that the officers actually
saw
him
at
any
point
before
Tyront
apprehended
him.
To
the
contrary, Wolf testified that he could not see Esparza when he
peered down the alley, and Esparza’s own testimony implicitly
confirms that he was, in fact, hidden from the officers’ view.
Otherwise, his concern about “surprising” them by speaking would
make no sense. Although reasonable inferences must be drawn in
Esparza’s favor, “favor toward the nonmoving party does not extend
to drawing inferences that are supported only by speculation or
conjecture.” Dawson, 803 F.3d at 833 (citation omitted). Even if
a jury believed Esparza’s characterization of his surroundings,
any inference that Wolf actually saw Esparza to perceive his
unthreatening posture is not only speculative but at odds with the
affirmative evidence.
Esparza also argues that summary judgment is inappropriate
based on a factual dispute over whether he was armed at the time
the officers were searching for him. This argument suffers from
multiple flaws, not least of which is that a jury later tried and
convicted
Esparza
of
offenses
requiring
proof
that
Esparza
actually possessed a firearm on the evening in question. While
later-discovered proof that Esparza was in fact armed does not, of
course, establish the reasonableness of Wolf’s belief that he was
armed, it confirms the information that all agree Wolf received at
9
the time he was dispatched: that Esparza had fled following a
shooting and was believed to be armed and dangerous. Esparza
identifies no evidence to suggest that Wolf should have known
Esparza discarded his weapon prior to hiding in the alley. On this
record, no reasonable jury could render a verdict in Esparza’s
favor on the ground that Wolf unreasonably believed Esparza to be
armed when he commanded Tyront to search for him.
Nor could a jury reasonably conclude that Wolf violated
Esparza’s Fourth Amendment rights by failing to call Tyront off
immediately after Esparza was subdued. Although Esparza testified
that Tyront continued to bite him as the officers placed him in
handcuffs and kept biting him after Wolf ordered him to release,
there is no evidence that Wolf waited longer than necessary to
free Esparza from the dog’s grip. Esparza testified that Wolf
“physically...put his hand under his front paws and lifted him
off,” Esparza Dep., Def.’s L.R. 56.1 Stmt., Exh. 6 at 34-35.
According to Officer Camardo, it took Wolf only “a second or two”
to do so. Camardo Dep., Def.’s L.R. 56.1 Stmt., Exh. 2 at 38.
Even
crediting Esparza’s testimony that Tyront failed to release his
bite
immediately—a
fact
Wolf
categorically
disputes—the
only
reasonable interpretation of the evidence is that Wolf intervened
appropriately and quickly freed Esparza from Tyront’s grip.
The only factual issue that raises a close question on summary
judgment is whether Wolf adequately warned Esparza of his intention
10
to mobilize Tyront to search and apprehend him. As noted above,
Wolf testified that he made several announcements to notify Esparza
that
a
canine
search
was
underway
and
alerting
him
to
the
possibility that the dog would find and bite him. That testimony
was corroborated by Officer Spooner, who testified that he heard
loud, precise police commands given in English. Spooner Dep.,
Def.’s L.R. 56.1 Stmt., Exh. 3, at 46. But Esparza insists that
Wolf made no announcement and gave no warning before releasing
Tyront. In Esparza’s view, this dispute requires a trial because
if Wolf failed to give a warning, then his use of force was
objectively unreasonable as a matter of law.
Esparza is correct that police must, as a general matter,
warn suspects before engaging a biting police dog. See McGovern v.
Village of Oak Lawn, No. 01 C 3772, 2003 WL 139506, at *7 (N.D.
Ill. Jan. 17, 2003). In McGovern, the court examined the totality
of the circumstances standard and concluded that summary judgment
of the plaintiff’s excessive force claim was inappropriate. The
plaintiff, who had fled on foot following a traffic stop, argued
that officers unreasonably used a police dog to seize and forcibly
remove him from a confined hiding space, notwithstanding his offer
to surrender. Id. While the parties disputed whether the officers
issued a warning before mobilizing the dog, they agreed that the
plaintiff offered to surrender before the dog was commanded to
seize him. The dog bit and held the plaintiff’s right arm, then
11
dragged him out from his hiding place, bloodying his knees. After
the officers “eventually” removed the dog from the plaintiff’s
right arm, it bit him again in the left arm.
The court declined to hold that the officers’ use of the dog
was reasonable as a matter of law. The court focused on the third
Graham factor, i.e., whether the suspect was “actively resisting
arrest or attempting to evade arrest by flight,” and emphasized
that the plaintiff offered to surrender and attempted to comply
with the officers’ orders before being dragged out of hiding by
the dog. In addition, the court noted that the plaintiff’s “hiding
spot allowed neither a means of escape from the authorities nor an
opportunity to ambush the officers.” Id. On these facts, the court
stated that it was “unwilling to grant summary judgment” on the
issue of reasonableness. The court found “further support” for its
conclusion in the Seventh Circuit’s unpublished decision in Bey v.
Cimarossa, 202 F.3d 272 (Table), 2000 WL 12830, at *2 (7th Cir.
2000), where the court held that whether officers provided a
warning before using a police dog was “material” to the excessive
force analysis. The Bey court, in turn, cited a Fourth Circuit
case holding that the “failure to give a warning before releasing
a police dog is objectively unreasonable in an excessive force
12
context.” Bey at *2 (quoting Vathekan v. Prince Georges County,
154 F.3d 173, 179 (4th Cir. 1998))3.
These cases confirm that whether an officer warns a suspect
before using a police dog is a factor courts must consider in
assessing whether the use of force was reasonable under the
circumstances. But none establishes the bright-line rule Esparza
suggests, which would require a trial any time an arrestee denies
hearing a warning before being bitten by a police dog. To the
contrary, the facts of these cases underscore the importance of
context to the reasonableness analysis. In Vathekan, for example,
a police dog mauled and disfigured a sleeping woman who was not
suspected of any crime after its handler commanded it to search
her first-floor residence in response to a suspected burglary
reported in the basement apartment. Although several officers
testified that the handler gave a “very loud” warning before
releasing the dog into the plaintiff’s house, the plaintiff and
another witness swore that they heard no announcement before the
dog was allowed through a closed interior door that separated the
two residences. After entering the plaintiff’s residence, the dog:
bounded to the bed where Vathekan slept and bit into the
left side of her skull. She struggled in vain to escape
as the dog shook her violently. Suddenly, the dog let go
of Vathekan’s skull and then clamped its jaws firmly
onto the right side of her face. Vathekan was now wide
awake and fully conscious of the cracking sound of the
The Bey court mistakenly refers to Vathekan as a Sixth Circuit
case.
13
3
bones in her face being crushed under the dog’s viselike grip.
154 F.3d at 177. On these facts, the Fourth Circuit reversed the
lower court’s decision granting summary judgment in favor of the
canine handler on the ground of qualified immunity. The court noted
the factual dispute over whether the handler warned the plaintiff
before allowing the dog into her residence and explained that
“summary judgment on qualified immunity grounds is improper as
long as there remains any material factual dispute regarding the
actual conduct of the defendant.” Id. at 180 (citation omitted).
The Vathekan court’s holding does not stand for the sweeping
per se rule Esparza suggests, nor does it compel a trial on the
facts here. Among other obvious distinctions between Vathekan and
this case, Esparza admits that he saw canine officers and a police
dog approaching the alley where he lay behind a garage. Regardless
of how a jury would resolve the dispute over whether Wolf made his
“standard” canine announcements, plaintiff undisputedly saw the
officers before they saw him and could have avoided the necessity
of a canine search by making his presence known to them. Instead,
he remained quietly out of the officers’ sight while the search
proceeded. In the particular circumstances of this case, and unlike
in Vathekan or McGovern, the objective reasonableness of Wolf’s
use
of
Tyront
does
not
turn
on
announcements.
14
the
adequacy
of
his
prior
III.
Because I conclude for the foregoing reasons that Wolf’s
deployment of Tyront was objectively reasonable under the totality
of the circumstances, I need not reach Wolf’s argument that he is
entitled to qualified immunity. The motion for summary judgment is
granted.
ENTER ORDER:
_____________________________
Elaine E. Bucklo
United States District Judge
Dated: April 22, 2019
15
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