Gysan v. Francisko et al
Filing
81
MEMORANDUM Opinion and Order. The Court denies plaintiff's motion for summary judgment 54 . The Court grants in part and denies in part Defendants' motion for summary judgment 45 . Defendants Miller and Francisko are granted summary judgm ent on Counts I and II. Defendant Francisko is granted summary judgment on Counts VIII and X. Counts I, II, VIII and X are dismissed with prejudice. The Court relinquishes jurisdiction over Counts IV, V, VI, VII, IX and XI, which are dismissed without prejudice. Signed by the Honorable Jorge L. Alonso on 2/14/2019. Notice mailed by judge's staff (ntf, ) Modified on 2/14/2019 (ntf, ).
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
REBECCA GYSAN, individually and
as executor of the estate of
SHANE CATALINE,
Plaintiff,
v.
STEVEN FRANCISKO, and
MARC MILLER, as director of the
ILLINOIS DEPARTMENT OF
NATURAL RESOURCES,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 16-cv-8254
Hon. Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
After her son was shot and killed during an attempt to flee a traffic stop, plaintiff Rebecca
Gysan filed an eleven-count first amended complaint. Ten counts remain against defendants
Steven Francisko (“Francisko”) and Marc Miller, in his official capacity as Director of the
Illinois Department of Natural Resources. 1 The parties have filed cross-motions for summary
judgment. For the reasons set forth below, the Court denies plaintiff’s motion for summary
judgment [54]. The Court grants in part and denies in part defendants’ motion for summary
judgment [45].
I.
BACKGROUND
The following facts are undisputed unless otherwise noted. 2
1
A claim against Marc Miller in his official capacity is really a claim against the Illinois
Department of Natural Resources. Belbachir v. County of McHenry, 726 F.3d 975, 982 (7th Cir.
2013) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)).
2
Local Rule 56.1 outlines the requirements for the introduction of facts parties would like
considered in connection with a motion for summary judgment. The Court enforces Local Rule
Plaintiff Rebecca Gysan (“Gysan”) is the mother and executor for the estate of decedent
Shane Cataline (“Cataline”). Cataline was a 30-year-old college graduate when, on the morning
of November 21, 2013, he left his mother’s home in Ohio in his Mercury minivan to drive to
California for a job. At approximately 10:45 a.m. the following morning, defendant Francisko
saw Cataline’s minivan parked on the side of the road in western Illinois.
At the time he encountered Cataline’s parked minivan, Francisko was on routine patrol
for his job as a conservation police officer for the Illinois Department of Natural Resources. As
a conservation police officer, Francisko had all of the powers (including arrest) possessed by
police officers, except that he could exercise those powers in any county of the State. Prior to
becoming a conservation police officer, Francisko had spent 10-12 weeks in basic training,
which included training in the use of firearms and deadly force.
The morning of November 22, 2013 was the first day of deer-hunting season, and
Francisko was conducting compliance checks on deer hunters in Whiteside County. Francisko
was driving an F-250 pick-up truck with a light bar on top and state conservation police decals
on the sides and tailgate of the truck. Francisko was wearing a uniform, which included a coat
with a star on the front and department patches on the side. Francisko was also wearing a
baseball cap with a star on the front. In addition, Francisko wore his duty belt, with his firearm,
two magazines, a baton, a flashlight, handcuffs and a multi-tool.
56.1 strictly. Where one party supports a fact with admissible evidence and the other party fails
to controvert the fact with citation to admissible evidence, the Court deems the fact admitted.
See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218-19 (7th Cir. 2015); Ammons v.
Aramark Uniform Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004). This does not, however,
absolve the party putting forth the fact of the duty to support the fact with admissible evidence.
See Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir. 2012). The Court does not consider
any facts that parties failed to include in their statements of fact, because to do so would rob the
other party of the opportunity to show that the fact is disputed. The Court notes that it sustained
defendants’ hearsay objections to ¶ 38 of plaintiff’s statement of facts [57] and to plaintiff’s
exhibit A, the autopsy report [53-1].
2
At about 10:45 a.m., Francisko spotted Cataline’s van parked on the side of Burns Road,
about one mile from the exit from I-88. Cataline sat in the driver’s seat. Francisko noticed
Cataline’s out-of-state license plate and noticed individuals, across the road, exiting the woods
with weapons. Francisko was concerned Cataline might be poaching deer. Francisko activated
his emergency lights and stopped his truck behind Cataline’s minivan on the side of the road.
Francisko was stopping both to check on Cataline’s welfare and to determine whether Cataline
was poaching deer.
Francisko went to Cataline’s window and was there for less than a minute. During that
time, Francisko thought Cataline was acting strangely. Cataline moved his head from side to side
and did not want to answer questions, although Cataline mentioned he was driving to California.
Cataline provided his driver’s license to Francisko.
Francisko went back to his truck to check for outstanding warrants on Cataline’s license.
About this time, Francisko, who had not called for back-up, noticed the marked squad car of an
Illinois State Trooper pull up behind his vehicle. The vehicle was driven by Illinois State
Trooper Luke Kuehl (“Kuehl”), who was wearing an Illinois State Police uniform and a body
microphone. Kuehl’s squad car was equipped with a dashboard camera.
At some point after Francisko took Cataline’s driver’s license but before Francisko
returned to Cataline’s window, Cataline telephoned 911. He told the operator his name and
location. Cataline told the operator, “I am in a lot of trouble right now.” Cataline also said, “I
think I am going to be disappearing or something.” Cataline hung up.
As Francisko reapproached Cataline’s window, he heard Cataline say into a phone, “this
isn’t going to end well,” and then saw him drop the phone. To Francisko, Cataline seemed
nervous, and Francisko was worried he might be tired. Francisko twice asked Cataline for
3
permission to search Cataline’s car, saying, “a lot of drugs come through here.” Cataline
declined. Francisko handed Cataline back his license and suggested that he check into a hotel to
get some sleep. Francisko told Cataline he was free to go, and Cataline drove off. Francisko had
not asked Cataline to step out of the car and had not conducted a field sobriety test. Kuehl had
accompanied Francisko to Cataline’s window, but he had not spoken.
In the meantime, the 911 operator who had spoken with Cataline telephoned the
dispatcher, because she was concerned about Cataline. The 911 operator was informed that
officers were already with Cataline.
After Cataline drove off, the dispatcher informed Francisko and Kuehl about the 911 call.
Specifically, Kuehl and Francisko were told that Cataline had called 911, had been “cryptic” on
the call, had said he “was in a lot of trouble” and that he “would be disappearing soon.” (Thus,
what Francisko and Kuehl were told is slightly different from what Cataline said during the 911
call.) Defendants put forth disputed evidence that, at that point, they thought they should check
on Cataline’s welfare. Francisko also suspected that Cataline might be transporting drugs.
Francisko drove to the interstate and headed eastbound. Kuehl followed in his squad car.
Eventually, they caught up to Cataline on the interstate. As they were following Cataline’s
vehicle, they were in contact with a dispatcher. Francisko mentioned that he had tried to obtain
consent for a search of Cataline’s vehicle but had been denied. Francisko added that it was “very
possible he was transporting something.” Francisko said he was going to follow Cataline to
“look for some probable cause.” Francisko, who had never been involved with a drug stop,
asked the dispatcher if a K-9 unit were available.
At some point while Francisko and Kuehl were driving behind him, Cataline telephoned
his mother, who thought he sounded scared. Cataline told his mother he was being followed by
4
two people, at least one of whom was an officer. Cataline told his mother not to trust cops and to
“find a safe place.” Cataline hung up. Around the same time, the dispatcher attempted to reach
Cataline by telephone, but the call went straight to voicemail. The dispatcher informed Kuehl
and Francisko that she had not reached Cataline.
In the meantime, Kuehl had taken the lead and was directly behind Cataline’s vehicle,
with Francisko following Kuehl. Defendants have put forth disputed evidence that Kuehl
received word from his supervisor that, based on the 911 call, Kuehl could pull over Cataline to
check on his welfare. It is undisputed that the dispatcher told Kuehl they could do a wellness
check on Cataline. Defendants put forth disputed evidence that Kuehl saw Cataline cross his
right tires over the white line (which the parties refer to as the fog line) at the right side of the
interstate.
Kuehl put on his emergency lights and initiated a stop of Cataline. When Cataline pulled
over, Kuehl parked his vehicle behind Cataline. Francisko parked his vehicle in front of
Cataline’s minivan. Within 40 seconds after Cataline stopped his vehicle, Kuehl and Francisko
were at his window.
Cataline did not turn off his vehicle or shift it out of drive. Cataline stared straight ahead
with a “thousand-mile stare.” One of the officers told Cataline they wanted to speak to him
about the 911 call he made. They asked him to turn off the car and hand over the keys. Cataline
did not respond or make eye contact. The officers again asked Cataline to turn off the car and
hand over the keys.
About thirty seconds after the officers first approached his window, when the officers
asked Cataline a final time to put the vehicle in park and hand over the keys, Cataline reversed
his car quickly, put it back in drive, turned toward the left and made a U-turn such that he was
5
heading westbound in the eastbound lanes of I-88. As Cataline started moving his vehicle,
Francisko had to move to avoid being hit. Francisko also started waiving his arms to alert
oncoming traffic, including a semi-truck he could see. As Cataline started moving his vehicle,
Kuehl headed toward his squad car, opened the door and attempted to get in.
Before Cataline got far heading westbound in the eastbound lanes, Cataline turned his car
left and smashed (t-bone style) into Kuehl’s squad car. This was approximately eight seconds
after Cataline started moving his vehicle. It did not appear to Francisko that Cataline had lost
control of his vehicle. It is undisputed that after the impact, Cataline’s car continued to
accelerate, partially pushing Kuehl’s squad car off the road. The vehicles came together such
that they were nearly parallel to each other. The impact caused the driver’s side door on Kuehl’s
squad car to fold backwards.
The parties dispute Kuehl’s location at the time Cataline’s minivan ran into Kuehl’s
squad car. Plaintiff put forth evidence that a truck driver testified that, before impact, Kuehl had
moved behind his vehicle. Defendants put forth evidence that, at the point of impact, Kuehl was
standing inside the open driver’s side door of his squad car. Defendants put forth disputed
evidence that after Cataline’s vehicle hit Kuehl’s squad car, Kuehl’s hips were pinned between
the two vehicles.
It is undisputed that, after impact, Cataline’s engine continued to rev and that his tires
continued to spin. It is undisputed that Cataline did not attempt to exit his vehicle and that it
sounded to Francisko like Cataline had his gas pedal to the floor. Defendants put forth disputed
evidence that Francisko heard Kuehl yelling and that Francisko believed Kuehl was being killed.
Defendants put forth disputed evidence that Kuehl, himself, felt like he was being killed.
6
It is undisputed that Francisko jumped on the hood of Kuehl’s squad car and discharged
his weapon five times into Cataline’s driver’s-side window. Only six seconds had passed
between the time Cataline’s vehicle first hit Kuehl’s squad car and the time Francisko fired his
first shot. Two seconds elapsed between the first and fifth shots. Defendants put forth disputed
evidence that the reason Francisko jumped on the hood of Kuehl’s squad car was that he did not
want Kuehl to be dragged (by the cars) into the line of fire.
Cataline died at the scene.
II.
STANDARD ON A MOTION FOR SUMMARY JUDGMENT
Summary judgment shall be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). When considering a motion for summary judgment, the Court must construe the evidence
and make all reasonable inferences in favor of the non-moving party. Hutchison v. Fitzgerald
Equip. Co., Inc., 910 F.3d 1016, 1021 (7th Cir. 2018). Summary judgment is appropriate when
the non-moving party “fails to make a showing sufficient to establish the existence of an element
essential to the party’s case and on which that party will bear the burden of proof at trial.”
Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “A genuine issue
of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a
jury to return a verdict for that party.” Brummett v. Sinclair Broadcast Group, Inc., 414 F.3d
686, 692 (7th Cir. 2005).
III.
DISCUSSION
A.
Plaintiff’s excessive force claim
7
In Count II, plaintiff seeks relief under §1983 for defendant Francisko’s alleged violation
of Cataline’s Fourth Amendment right to be free from excessive force. Defendant Francisko
moves for summary judgment on Count II.
A “claim that law-enforcement officers used excessive force to effect a seizure is
governed by the Fourth Amendment’s ‘reasonableness’ standard.” Plumhoff v. Rickard, 572
U.S. 765, 774 (2014). Objective reasonableness is a pure question of law. Scott v. Harris, 550
U.S. 372, 381 n. 8 (2007) (“the reasonableness of [defendant’s] actions . . . is a pure question of
law.”); Phillips v. Community Ins. Corp., 678 F.3d 513, 520 (7th Cir. 2012) (“Objective
reasonableness of force is a legal determination rather than a pure question of fact for the jury to
decide. We defer to a jury’s determination of what occurred during an arrest or whose testimony
is credible. But . . . we must independently review the jury’s interpretation of what is reasonable
under the Fourth Amendment.”).
Determining objective reasonableness requires balancing the government interests with
the individual’s Fourth Amendment interests and “requires analyzing the totality of the
circumstances.” Plumhoff, 572 U.S. at 774. With respect to balancing the interests, the Supreme
Court has advised:
So how does a court go about weighing the perhaps lesser probability of injuring
or killing numerous bystanders against the perhaps larger probability of injuring
or killing a single person? We think it appropriate in this process to take into
account not only the number of lives at risk, but also their relative culpability. It
was respondent, after all, who intentionally placed himself and the public in
danger by unlawfully engaging in the reckless, high-speed flight that ultimately
produced the choice between the two evils that [defendant] confronted.
Scott v. Harris, 550 U.S. 372, 384 & 386 (2007) (“A police officer’s attempt to terminate a
dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate
8
the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or
death.”). In considering objective reasonableness:
[w]e analyze this question from the perspective ‘of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.’ We thus ‘allo[w] for the
fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount
of force that is necessary in a particular situation.’
Plumhoff, 572 U.S. at 775 (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)).
Qualified immunity
Defendant Francisko argues that he is entitled to summary judgment on his qualified
immunity defense to Count II. Qualified immunity “shields officials from civil liability so long
as their conduct ‘does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Mullenix v. Luna, __ U.S. __, 136 S.Ct. 305, 308
(2015) (reversing denial of qualified immunity in an excessive force case).
When considering whether a constitutional right is clearly established, a court must not
define the right at a high level of generality; rather “the clearly established right must be defined
with specificity.” City of Escondido, Cal. v. Emmons, __ U.S. __, 139 S.Ct. 500, 503 (2019)
(reversing and remanding denial of qualified immunity in excessive force case). The Supreme
Court has explained:
[I]t does not suffice for a court simply to state that an officer may not use
unreasonable and excessive force, deny qualified immunity, and then remit the
case for a trial on the question of reasonableness. An officer ‘cannot be said to
have violated a clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in defendant’s shoes would have
understood that he was violating it.
Kisela v. Hughes, __ U.S. __, 138 S.Ct. 1148, 1153 (2018). The Supreme Court has also
provided examples of the correct inquiry. As the Supreme Court explained in Mullenix about the
question in another case,
9
[t]he correct inquiry, the Court explained, was whether it was clearly established
that the Fourth Amendment prohibited the officer’s conduct in the ‘situation [she]
confronted’: whether to shoot a disturbed felon, set on avoiding capture through
vehicular flight, when persons in the immediate area are at risk from that flight.’
Mullenix, 136 S.Ct. at 309 (quoting Brousseau v. Haugen, 543 U.S. 194, 199 (2004)). In
Mullenix, the question was whether “existing precedent placed [beyond debate] the conclusion
that [the officer] acted unreasonably” when he shot “a reportedly intoxicated fugitive, set on
avoiding capture through high-speed vehicular traffic, who twice during his flight had threatened
to shoot police officers, and who was moments away from encountering an officer.” Mullenix,
136 S.Ct. at 309.
The Supreme Court has emphasized:
Use of excessive force is an area of the law ‘in which the result depends very
much on the facts of each case,’ and thus police officers are entitled to qualified
immunity unless existing precedent ‘squarely governs’ the specific facts at issue.
Kisela v. Hughes, __ U.S. __, 138 S.Ct. 1148, 1153 (2018) (reversing denial of qualified
immunity to officer who, concerned for the safety of a person nearby, shot a woman who was
holding a knife she had just hacked into a tree and “whose behavior was erratic enough to cause
a concerned bystander to call 911 and . . . flag down [the officer]”) (quoting Mullenix, 136 S.Ct.
at 309). In Emmons, the Supreme Court again noted “‘[W]e have stressed the need to identify a
case where an officer acting under similar circumstances was held to have violated the Fourth
Amendment.’” Emmons, 139 S.Ct. at 504 (citation omitted).
It is the plaintiff who must show that a right is clearly established, and, to do so, the
“plaintiff must demonstrate that existing caselaw at the time of the events in question ‘placed the
statutory or constitutional question beyond debate.’” Dockery v. Blackburn, 911 F.3d 458, 466
(7th Cir. 2018) (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 741(2011)); Kernats v. O’Sullivan,
10
35 F.3d 1171, 1176 (7th Cir. 1994) (“The plaintiff bears the burden of establishing the existence
of a clearly established constitutional right.”).
With this legal backdrop in mind, the Court considers whether defendant is entitled to
judgment as a matter of law on his qualified immunity defense. The Court first notes that, if a
trier of fact concluded that, when Cataline crashed his car into Kuehl’s squad car, Kuehl was
pinned between the vehicles, then it would be clear, as a matter of law, that Francisko would be
entitled to judgment as a matter of law on his qualified immunity affirmative defense (and, for
that matter, that the force he used was objectively reasonable). At the time Francisko fired, there
was no precedent which said it was excessive force for an officer to shoot a driver who was
injuring a police officer with his car and continuing to rev the engine.
That, however, is not the question for this Court. The parties dispute whether Kuehl was
actually pinned between the cars, and those issues of fact prevent the Court from ruling on the
qualified immunity issue as though Kuehl were pinned between the cars. See Strand v. Minchuk,
910 F.3d 909, 918 (7th Cir. 2018) (“The existence of substantial factual disputes about the
circumstances and timing surrounding [defendant’s] decision to shoot [plaintiff] precludes a
ruling on qualified immunity at this point.” 3 The question for this Court is whether “[t]aken in
the light most favorable to party asserting the injury, do the facts . . . show the officer’s conduct
violated a constitutional right?” Brousseau v. Haugen, 543 U.S. 194, 197 (2004) (quoting
Saucier v. Katz, 533 U.S. 194, 197 (2001)).
3
In Strand, the Seventh Circuit explained that, where issues of fact preclude summary judgment
on qualified immunity, a district court may use special interrogatories to resolve the issues of fact
and, if appropriate, grant qualified immunity at trial. Strand, 910 F.3d at 918-19 (citing Warlick
v. Cross, 969 F.3d 303, 305 (7th Cir. 1992) (“When the issue of qualified immunity remains
unresolved at the time of trial, as was the case here, the district court may properly use special
interrogatories to allow the jury to determine disputed issues of fact upon which the court can
base its legal determination of qualified immunity.”)).
11
So the question is whether plaintiff (who, as noted above, has the burden) has pointed out
any existing caselaw that shows Francisko violated a clearly-established constitutional right
when he shot a person who had called 911 earlier to say he “would be disappearing soon” and
had, less than fifteen seconds earlier, fled a road-side stop by turning the wrong direction into
oncoming traffic on an interstate highway, smashed his car into a police vehicle and then
continued to rev the engine such that the wheels on the person’s vehicle were spinning. The
Court concludes that plaintiff has not “identif[ied] a case where an officer acting under similar
circumstances was held to have violated the Fourth Amendment.” See Emmons, 139 S.Ct. at 504.
Plaintiff’s response to the qualified immunity question is three sentences long and paints
the constitutional issue at a very high level of generality by noting “[t]here are few constitutional
rights more clearly established than the right to be free from excessive force.” (Plaintiff’s Resp.
Brief/Docket 56 at 13). The case she cites for the proposition (Sallenger v. Oakes, 473 F.3d 731
(7th Cir. 2007)) is not a case involving a police shooting, so it sheds no light on the issue. The
closest plaintiff comes to citing a case that sheds light on the reasonableness of the force used in
this case is her citation to Estate of Starks v. Enyart, 5 F.3d 230 (1993).
In Starks, the Seventh Circuit considered the appeal of an officer who had been denied
qualified immunity by the district court. There, Starks stole a taxicab and, when surrounded by
police officers, attempted to escape by driving away. A police officer jumped in front of the
moving car and shot Starks. Starks, 5 F.3d at 232. The Seventh Circuit, before dismissing the
appeal for lack of jurisdiction, noted that Starks’s “escape attempt did not involve menacing a
police officer or civilian with a weapon—at least not until [the officer] stepped into the path of a
car that had just begun to accelerate quickly.” Starks, 5 F.3d at 233.
12
This case is different. First, Cataline had already menaced innocent bystanders and an
officer (Francisko, who had to move out of the way) when Cataline fled the traffic stop by
turning into oncoming traffic on the interstate and then slamming into Kuehl’s squad car.
Furthermore, Cataline’s engine continued to rev and the wheels on the vehicle to spin, so a
reasonable officer could have believed (as Francisko actually did) that Cataline had the pedal to
the floor. A reasonable officer could believe Cataline was continuing to attempt to escape and
that innocent bystanders (namely the individuals traveling down the interstate) could be injured.
See Plumhoff, 572 U.S. at 776 (“[Plaintiff’s] outrageously reckless driving posed a grave threat
to public safety. And while it is true that [plaintiff’s] car eventually collided with a police car
and came temporarily to a near standstill, that did not end the chase. Less than three seconds
later, [plaintiff] resumed maneuvering his car. Just before the shots were fired, when the front
bumper of his car was flush with that of one of the police cruisers, [plaintiff] was obviously
pushing down on the accelerator because the car’s wheels were spinning, and then [plaintiff]
threw the car in reverse ‘in an attempt to escape.’ . . . Under the circumstances at the moment
when the shots were fired, all that a reasonable police officer could have concluded was that
[plaintiff] was intent on resuming his flight and that, if he was allowed to do so, he would once
again pose a deadly threat for others on the road. . . . [T]he police acted reasonably in using
deadly force to end that risk.”); Marion v. City of Corydon, Ind., 559 F.3d 700, 705-06 (7th Cir.
2009) (even when the plaintiff had driven his vehicle onto the median, plaintiff continued to rev
the engine and “attempted to regain traction” such that “a reasonable officer would have
determined that, if he did reach the eastbound lanes, there was a significant possibility that
[plaintiff] would have rammed one or more bystander’s vehicles or caused an accident between
bystanders’ vehicles, posing a substantial risk of injury or loss of life.”).
13
In short, plaintiff has not shown that existing precedent placed the specifically-defined
constitutional issue beyond debate. She has not identified a case that squarely governs this one.
Accordingly, defendant Francisko is entitled to judgment as a matter of law on his qualified
immunity defense to Count II. The Court grants his motion for summary judgment as to Count
II, and Count II is dismissed with prejudice.
B.
Plaintiff’s claim for unreasonable seizure
In Count I, plaintiff asserts a claim for violation of Cataline’s Fourth Amendment rights.
The Fourth Amendment to the Constitution protects “[t]he right of the people to be secure in
their persons . . . against unreasonable searches and seizures.” U.S. Const. Amend IV. In her
amended complaint, plaintiff alleges that Francisko violated Cataline’s Fourth Amendment rights
both: (1) when he initially walked up to Cataline’s parked minivan; and (2) when he and Kuehl
pulled over Cataline’s vehicle when Cataline was driving on interstate 88.
First stop
Defendant first moves for summary judgment with respect to the first stop, which began
when Francisko walked up to Cataline’s minivan, which was parked on the side of the road.
Defendant argues that this was not a seizure for purposes of the Fourth Amendment. See Florida
v. Bostick, 501 U.S. 429, 437 (1991) (“[N]o seizure occurs when police ask questions of an
individual, ask to examine the individual’s identification, and request consent to search his or her
luggage—so long as the officers do not convey a message that compliance with their requests is
required.”); U.S. v. Clements, 522 F.3d 790, 794 (7th Cir. 2008) (“The police encounter in this
case was not a seizure for Fourth Amendment purposes. Clements had voluntarily stopped his
car; he did not stop because of the flashing police lights. Likewise, Clements was not seized
when the officers approached his car. The officers approached the car to investigate why the car
14
had been parked and running on a public street for hours, a circumstance unusual enough to at
least merit some investigation.”). The Court agrees. Cataline was voluntarily parked, and
Francisko did not seize Cataline when he walked up to his parked vehicle and asked a few
questions, including to see Cataline’s identification. Plaintiff has put forth no evidence that the
interaction was not voluntary. In fact, Cataline declined Francisko’s request to search the
vehicle.
In any case, as defendants point out, plaintiff has not responded to this argument.
Accordingly, the Court grants defendants’ motion for summary judgment with respect to the first
stop, and that portion of Count I is dismissed with prejudice. See Burton v. Board of Regents of
the Univ. of Wis. Sys., 851 F.3d 690, 695 (7th Cir. 2017) (“[I]t is a well-settled rule that a party
opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual,
why summary judgment should not be entered. If the [nonmoving party] does not do so, and
loses the motion, it cannot raise such reasons on appeal.”) (citations omitted).
Second stop
With respect to the second stop (when Kuehl turned on his emergency lights to pull over
Cataline and Francisko parked in front of Cataline’s stopped car), both sides move for summary
judgment.
“The temporary detention of an individual during the stop of an automobile by the police,
even if only for a short period of time and for a limited purpose, constitutes the seizure of a
person within the meaning of [the Fourth Amendment].” Carmichael v. Village of Palatine, Ill.,
605 F.3d 451, 456 (7th Cir. 2010) (citing Delaware v. Prouse, 440 U.S. 648, 653 (1979)). Thus,
“an automobile stop is subject to the constitutional imperative that it not be ‘unreasonable’ under
the circumstances.” Whren v. United States, 517 U.S. 806, 810 (1996). Generally, “the decision
15
to stop an automobile is reasonable where the police have probable cause to believe that a traffic
violation has occurred.” Whren, 517 U.S. at 810 (citing Prouse, 440 U.S. at 659).
In this case, it is clear that plaintiff is not entitled to summary judgment on Count I with
respect to the second stop. Defendants put forth evidence (albeit disputed) that Cataline crossed
the fog line (the white line on the outside of the lane in which he was traveling) before Kuehl
pulled him over. Crossing the fog line is a traffic violation in Illinois. See United States v.
Bentley, 795 F.3d 630, 633-34 (7th Cir. 2015) (citing 625 ILCS 5/11-709(a)). Thus, defendants
have put forth evidence from which a reasonable jury could find that probable cause supported
the stop.
Despite this evidence, plaintiff argues that probable cause is not enough where an officer
has a mixed motive. Plaintiff further argues Francisko had a mixed motive, because he
suspected Cataline was transporting drugs. Francisko’s motivations, however, are irrelevant.
Ashcroft v. Al-Kidd, 563 U.S. 731, 740 (2011) (“Efficient and evenhanded application of the law
demands that we look to whether the arrest is objectively justified, rather than to the motive of
the arresting officer.”); Whren, 517 U.S. 806, 813 (1996) (rejecting “any argument that the
constitutional reasonableness of traffic stops depends on the actual motivations of the individual
officers involved” and holding “[s]ubjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis.”). Plaintiff’s motion for summary judgment as to Count I is
denied.
Defendant Francisko, too, has moved for summary judgment on Count I. Defendant is
entitled to summary judgment if the undisputed facts, in the light most favorable to the nonmoving party, demonstrate that stopping Cataline’s vehicle was objectively reasonable under the
circumstances known to the officers at the time. “[T]he ultimate touchstone of the Fourth
16
Amendment is ‘reasonableness.’” Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006). As
the Court noted above, objective reasonableness is a question of law, not of fact. Scott v. Harris,
550 U.S. at 381 n. 8 (2007); Phillips v. Community Ins. Corp., 678 F.3d at 520.
Here is what is undisputed about what the officers knew before they pulled over
Cataline’s vehicle. When Francisko first spoke with Cataline, before checking his license,
Francisko perceived him as acting strangely. Cataline mentioned to Francisko that he was
driving to California. As Francisko approached Cataline’s window to return his driver’s license,
he heard Cataline say, “this isn’t going to end well.” To Francisko, Cataline seemed tired, and
Francisko suggested he get a hotel to get some sleep. After Cataline drove off, Francisko learned
from the dispatcher that Cataline had placed a “cryptic” 911 call, in which he said he “was in a
lot of trouble” and “would be disappearing soon.”
Based on these undisputed facts, the Court concludes it was objectively reasonable to pull
over Cataline. A reasonable officer could conclude that Cataline was in actual trouble and
needed help. Courts have approved searches and seizures as reasonable when undertaken to help
and protect individuals. See Brigham City, 547 U.S. at 406 (“We think the officers’ entry [into a
home without a warrant] was plainly reasonable under the circumstances. . . . [T]he officers
had an objectively reasonable basis for believing both that the injured adult might need help and
that the violence in the kitchen was just beginning. . . . The role of peace officer includes
preventing violence and restoring order, not simply rendering first aid to casualties.”); Sutterfield
v. City of Milwaukee, 751 F.3d 542, 561 & 566 (7th Cir. 2014) (warrantless entry into home was
reasonable where homeowner’s physician told police homeowner was suicidal); United States v.
Toussaint, 838 F.3d 503, 508 (5th Cir. 2016) (“[I]n proper circumstances, the emergency-aid
exception to the Fourth Amendment’s warrant requirement can be used to justify a traffic stop.”).
17
Plaintiff argues that a mixed motive bars a wellness check. Specifically, plaintiff argues
that because Francisko suspected Cataline might be transporting drugs, he could not have been
concerned about Cataline’s welfare. The Supreme Court has rejected this argument. In Brigham
City, the party argued the warrantless search was unreasonable, because “the officers were more
interested in making arrests than quelling violence.” Brigham City, 547 U.S. at 404. The
Supreme Court rejected the argument, explaining:
Our cases have repeatedly rejected this approach. An action is ‘reasonable’ under
the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as
long as the circumstances, viewed objectively, justify [the] action.’ The officer’s
subjective motivation is irrelevant.
Brigham City, 547 U.S. at 404.
The Court concludes that the second stop was objectively reasonable. Accordingly,
Francisko’s motion for summary judgment is granted on Count I, which is dismissed with
prejudice. 4
C.
Plaintiff’s remaining claims
Defendants argue that without an underlying violation of the constitution, plaintiff’s other
§ 1983 claims (Count VIII for conspiracy to deprive constitutional rights and Count X for failure
to intervene) necessarily fail. The Court agrees. In Count X, plaintiff alleges that Francisko
failed to intervene to prevent Kuehl from initiating the second stop of Cataline. The Court,
however, has already concluded that the stop was reasonable, so Francisko cannot be liable for
4
To the extent plaintiff was attempting to prove a Monell claim in Counts I or II, the Court notes
plaintiff has put forth no evidence to support such a claim. In any event, a municipality cannot
be liable under Monell without an underlying constitutional violation. Horton v. Pobjecky, 883
F.3d 941, 954 (7th Cir. 2018).
18
failing to intervene. Francisko is granted summary judgment on Count X, and it is dismissed
with prejudice. 5
Likewise, Count VIII for conspiracy to deprive constitutional rights fails now that the
Court has granted defendant summary judgment on the underlying constitutional claims. KatzCrank v. Haskett, 843 F.3d 641, 650 (7th Cir. 2016) (“Without a viable federal constitutional
claim the conspiracy claim under § 1983 necessarily fails; there is no independent cause of
action for § 1983 conspiracy.”). Defendants’ motion for summary judgment is granted as to
Count VIII, and Count VIII is dismissed with prejudice.
Defendants also argue that plaintiff’s remaining state-law claims (Count IV for false
imprisonment, Count V for battery, Count VI for assault, Count VII for conspiracy, Count IX for
intentional infliction of emotional distress and Count XI for indemnification) fail, because
Francisko’s actions were reasonable. Defendants have cited no caselaw to support the
proposition, and the Court is not going to consider the merits of six state-law claims without
defendants’ so much as briefing the issues.
In any case, the Court has already resolved the federal claims before it. As is the general
rule, the Court exercises its discretion and dismisses the state-law claims over which its
jurisdiction is merely supplemental. Burritt v. Ditlefsen, 807 F.3d 239, 252 (7th Cir. 2015) (“The
general rule, when the federal claims fall out before trial, is that the [district court] should
relinquish jurisdiction over any supplemental . . . state law claims in order to minimize federal
judicial intrusion into matters of purely state law.”). Counts IV, V, VI, VII, IX and XI are
dismissed without prejudice.
IV.
CONCLUSION
5
The Court notes that plaintiff also asserted this claim against “unknown officers.” Plaintiff,
however, never named those officers, and the statute of limitations has run.
19
For all of these reasons, the Court denies plaintiff’s motion for summary judgment [54].
The Court grants in part and denies in part Defendants’ motion for summary judgment [45].
Defendants Miller and Francisko are granted summary judgment on Counts I and II. Defendant
Francisko is granted summary judgment on Counts VIII and X. Counts I, II, VIII and X are
dismissed with prejudice. The Court relinquishes jurisdiction over Counts IV, V, VI, VII, IX and
XI, which are dismissed without prejudice.
SO ORDERED.
ENTERED: February 14, 2019
___________________________
JORGE L. ALONSO
United States District Judge
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?