Hill v. City Of Harvey et al

Filing 172

MEMORANDUM Opinion: The Court denies the Harvey Defendants' motion for summary judgment (Dkt. # 154 ) and grants the County Defendants' motion in part (Dkt. # 149 ). Status is set for 10/22/2020 at 9:50 a.m. It is so ordered. Signed by the Honorable Charles P. Kocoras on 9/29/2020. Mailed notice(vcf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EZRA HILL,
Plaintiff,
v.
CITY OF HARVEY, et al.,
Defendants.

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17 C 4699

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
Before the Court are Defendants City of Harvey, Gregory Thomas (“Thomas”),
and Jason Banks (“Banks”) (collectively, “Harvey Defendants”) and Defendants Cook
County, Illinois (“Cook County”), Liam Reardon (“Reardon”), and Ed Murillo
(“Murillo”) (collectively, “County Defendants”) motions for summary judgment under
Federal Rule of Civil Procedure 56. For the following reasons, the Court will deny the
Harvey Defendants’ motion and grant the County Defendants’ motion in part.
BACKGROUND
The following facts are taken from the record and are undisputed unless
otherwise noted.
Plaintiff Ezra Hill (“Hill”) is a resident of Harvey, Illinois. At the time of the
alleged incidents, Hill was twenty-seven-years-old and worked as a truck driver. At

some time prior to being a truck driver, Hill worked as a booking officer for the Harvey
Police Department (“HPD”).
Defendant City of Harvey is a municipal corporation under the laws of the State
of Illinois. Defendant Thomas was employed by the City of Harvey as a detective with
HPD. Defendant Banks was the Deputy Chief of HPD.
Defendant Cook County is a governmental entity operating within the State of
Illinois. The Cook County State’s Attorney’s Office (“CCSAO”) is part of the Cook
County government. Defendants Reardon and Murillo were Assistant State’s Attorneys
(“ASA”) with the CCSAO.
On March 12, 2014, at approximately 10:31 a.m., Eric Bond (“Bond”) was
driving a stolen Honda Civic with Alquan McReynolds (“McReynolds”) and Ahmad
Thornton (“Thornton”) on Center Avenue north of East 146th Street in Harvey, Illinois.
Multiple occupants in an Oldsmobile Intrigue owned by Hill drove up behind the Civic.
Due to a pre-existing conflict, the occupants exited the vehicle and shot at Bond,
McReynolds, and Thornton. Bond drove off and crashed a block away and was
subsequently apprehended by HPD. The occupants of the Oldsmobile proceeded to a
nearby McDonalds.
The exact occupants of the Oldsmobile are contested by the parties. All parties
agree that Andrew “Chicky” White (“White”) and Antonio “Shady” Johnson
(“Johnson”) were in the car. Defendants argue that the vehicle was also occupied by

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Hill. However, Hill says that statements identifying him at the scene were coerced and
fabricated and that there is no other evidence to place him at the scene.
Thomas and Banks were the first to respond to the calls of the shooting. They
learned of the description of the Oldsmobile at the scene and proceeded to White’s
home at 146th and Des Plaines. Thomas and Banks arrived at White’s home between
10:45 and 11:00. They found White and Johnson sitting in the Oldsmobile. After
arresting White and Johnson, Thomas and Banks searched the Oldsmobile and found a
revolver, a pistol, and a Benelli M4 semi-automatic shotgun (“the shotgun”) in the
trunk. The shotgun was fully loaded with six live rounds.
After the search, White and Johnson were transported to the HPD station. There
they participated in an identification lineup and were subsequently separated. Johnson
was placed in a cell and White was taken to an interrogation room. Hill alleges Thomas,
Banks, and Reardon then concocted their scheme to fabricate the case against Hill.
McReynolds was the first person to be questioned by Thomas and Reardon at
approximately 5:03 p.m. on the evening of March 12. McReynolds identified Johnson
and White in a lineup. He also identified Hill in a photo array. Thomas’s interview
report says that McReynolds placed Hill at the scene. However, Hill argues that
McReynolds’s signed statement given that night does not explicitly place Hill at the
scene. McReynolds’s statement says:
Alquan states that he was also shown a photo array containing 6
photographs. Alquan states that he knew one of the individuals in the
photo array by the nickname “E.” Alquan states that he now knows E to
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be Ezra Hill. Alquan states that he has seen Hill on two previous
occasions.”
1:17-cv-4699, Dkt. # 159-9, pg. 3. Additionally, Hill says that Thomas and Reardon
both conceded at their depositions that McReynolds’s statement did not place Hill at
the scene. Further, McReynolds testified that he did not see Hill at the scene and that
he was instructed to identify Hill in the photo array.
After interviewing McReynolds, Thomas and Reardon questioned Thornton
around 5:17 p.m. Thornton also identified White and Johnson in the lineup and Hill in
a photo array. Thomas’s report also states that Thornton placed Hill at the scene.
Again, however, Hill contends that Thornton’s statement, which is identical to
McReynolds’s, does not explicitly identify Hill at the scene. Further, Thornton testified
before the grand jury investigating the shooting that he never identified Hill as being at
the scene.
Following their interview with Thornton, Thomas and Reardon questioned Bond.
Bond admitted that he gave a fake name to the officer that arrested him because he had
an outstanding warrant. When Bond was arrested, he was found with seven small bags
each containing marijuana and a sock filled with ammunition. Thomas’s report of the
interview states that Bond saw Hill with “a large gun which bond describes as a bump.”
Thomas also noted that Bond said all three suspects were firing guns. Bond was the
only occupant of the Civic to sign a statement explicitly placing Hill at the scene. He

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claimed that Hill exited the driver’s side back seat of the Oldsmobile and fired shots
from behind Johnson.
However, Hill says Bond was coerced into signing the statement placing him at
the scene. Hill says that Bond, who was sixteen years old at the time, was never charged
for possession of the ammunition or marijuana, driving a stolen vehicle, or resisting
arrest in exchange for his statement. Reardon testified at his deposition that the charges
“may have” come up during the interview.
White was the next person to implicate Hill. White, who was fifteen years old
at the time, was held in the interview room for thirteen hours before signing a statement
at 12:22 a.m. Thomas spent “quite a bit of time” with White during the thirteen-hour
period but did not document his interviews with White like he did with Bond, Thornton,
and McReynolds. In his signed statement, White’s said that he, Hill, and Johnson were
returning to Harvey after shoveling snow in a nearby town when they saw Bond driving
a car with three other individuals. White stated that they got out of the Oldsmobile and
shot at Bond’s car. White says he fired six shots with a .38 Smith and Wesson Long
Nose Revolver, Johnson fired 6 shots with a black .38 caliber Snub Nose Revolver, and
Hill fired 4 shots from the shotgun. White’s mother, Elizabeth Kellogg (“Kellogg”),
was present at the time of the statement, but was not with White for the majority of the
thirteen-hour detention.
Hill again argues that White’s statement was coerced. Hill says White was
particularly vulnerable because White was only fifteen and was held for thirteen hours.
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Hill says that Reardon, Thomas, and Banks threatened White that he would be charged
as an adult if he did not cooperate. Further, White testified at his deposition that Banks
instructed him to say that Hill was present and fired the shotgun despite telling Thomas
that Hill was not present. Hill argues that there is no evidence that the shotgun was ever
shot; it was recovered fully loaded and there were no holes in the Civic created by
shotgun pellets.
An arrest warrant for Hill was denied on March 12 and again denied on March
17. HPD requested the McDonald’s surveillance video from March 12 and received it
on March 20. HPD then provided the McDonald’s video to the CCSAO. Thomas
informed the CCSAO that he identified Hill in the McDonald’s video on March 20.
Murillo then reviewed the McDonald’s video and approved an arrest warrant for
attempted murder for Hill on March 20.
However, Hill contends that he is not in the McDonald’s video. Murillo was
unable to identify Hill in the video at his deposition. Thomas and Murillo eventually
identified Hill in the video later in this litigation. Hill, though, argues that the timestamp
on the video indicates that the people Thomas and Murillo identify as Hill, White, and
Johnson, were present in the McDonald’s at 11:14 a.m. Hill points out that White and
Johnson were arrested by Thomas and Banks at White’s home between 10:45 and 11:00
a.m. and, therefore, could not have been present in the McDonald’s at 11:14. The
McDonald’s video was not used at Hill’s criminal trial.

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On March 25, Thornton testified before the grand jury investigating the shooting.
Thornton’s testimony did not place Hill at the shooting; instead he stated that only
White and Johnson were present. McReynolds testified before the grand jury on the
same day. McReynolds also testified that he did not see Hill at the scene. During his
grand jury testimony, McReynolds signed the photograph he originally identified as
Hill in the photo array indicating that he did not see Hill at the scene. Bond testified
before the grand jury on April 8. Consistent with his statement to HPD, Bond testified
that Hill was present at the shooting. No indictment was sought by the CCSAO after
any of their testimony.
Hill was arrested on September 4, 2014, in Dyer, Indiana, and subsequently
extradited to Illinois. Thomas then testified before the grand jury on September 16.
Thomas testified that Hill fired the shotgun into the vehicle that Bond, McReynolds,
and Thornton were in. Hill was indicted by the grand jury on September 16, 2014. 31
months later, Hill was tried for attempted murder and was acquitted after a one-day trial
and 30-minute jury deliberation.
Based on these events, Hill filed his amended complaint on June 18, 2019,
alleging unlawful pretrial detention in violation of the Fourth and Fourteenth
Amendments under 42 U.S.C. § 1983, conspiracy to deprive constitutional rights under
Section 1983, a municipal liability claim under Monell v. Department of Social Services
of the City of New York, 436 U.S. 658 (1978) against the City of Harvey, and state law
claims of malicious prosecution and civil conspiracy. On May 26, 2020, the County
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Defendants moved for summary judgment under Rule 56. That same day, the Harvey
Defendants also moved for summary judgment under Rule 56.
LEGAL STANDARD
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(citation omitted). “A genuine dispute as to any material fact exists if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Kvapil v.
Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014) (citation and internal quotation marks
omitted).
In deciding a motion for summary judgment, the Court's sole function is “to
determine whether there is a genuine issue for trial.” Tolan v. Cotton, 572 U.S. 650
(2014).

The Court cannot weigh conflicting evidence, assess the credibility of

witnesses, or determine the ultimate truth of the matter, as these are functions of the
jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Omnicare, Inc. v.
UnitedHealth Grp., Inc., 629 F.3d 697, 704–05 (7th Cir. 2011).
DISCUSSION
The County Defendants argue that they are entitled to summary judgment
because the undisputed evidence shows that Hill cannot prove his constitutional,
malicious prosecution, and conspiracy claims, and that Murillo and Reardon are entitled
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to absolute immunity. Similarly, the Harvey Defendants argue that they are entitled to
summary judgment because the undisputed facts show that Hill cannot prove his
constitutional, malicious prosecution, conspiracy, and Monell claims, and that Thomas
and Banks are entitled to qualified immunity and immunity under the Illinois Local
Government and Government Employees Tort Immunity Act, 745 ILCS § 10/2-202
(“Immunity Act”). We address each argument in turn.1
I.

Fourth Amendment and Malicious Prosecution Claims
Defendants argue that Hill cannot succeed on his Fourth Amendment or

malicious prosecution claims because of the existence of probable cause. Hill argues
that a reasonable jury could find that there was no probable cause to arrest or prosecute
Hill. We agree with Hill.
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons . . . against unreasonable . . . seizures.” U.S. Const. amend. IV. “A person is
‘seized’ whenever an official ‘restrains his freedom of movement’ such that he is ‘not
free to leave.’” Lewis v. City of Chicago, 914 F.3d 472, 476 (7th Cir. 2019) (quoting
Brendlin v. California, 551 U.S. 249, 254–55 (2007)). “The general rule is that Fourth
Amendment seizures are ‘reasonable’ only if based on probable cause to believe that
the individual has committed a crime.” Id. (quoting Bailed v. United States, 568 U.S.
186, 192 (2013)) (internal alterations omitted).

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Hill concedes that he no longer has a due process claim under the Fourteenth Amendment after the Seventh
Circuit’s ruling in Lewis v. City of Chicago, 914 F.3d 472 (7th Cir. 2019). Therefore, his claims for
unlawful pretrial detention rest exclusively on the Fourth Amendment. Id. at 478.

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To establish a claim of malicious prosecution under Illinois law, Hill must prove
five elements: “(1) the commencement or continuance of an original criminal or civil
judicial proceeding by the defendant; (2) the termination of the proceeding in favor of
the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of
malice; and (5) damages resulting to the plaintiff.” Beaman v. Freesmeyer, 2019 IL
122654, ¶ 26.
Disputed evidence precludes summary judgment. For example, Hill’s arrest was
predicated on the statements of White, Thornton, McReynolds, and Bond and the
McDonald’s video. However, the circumstances surrounding this evidence call doubt
upon their reliability. Several of the witnesses recanted their statements and testified
that they were instructed by Defendants to implicate Hill. Hill proffers evidence
regarding Bond’s statements that may indicate that he was coerced into implicating Hill.
Further, Hill raises questions regarding the McDonald’s video that ultimately led to the
approval of his arrest warrant.
Thus, a jury must weigh the evidence and determine witness credibility to
determine whether probable cause to arrest and detain Hill existed at the time of his
arrest. A reasonable jury could find that the Defendants could not reasonably rely on
the evidence and therefore there was no probable cause to arrest and prosecute Hill.
Accordingly, Defendants are not entitled to summary judgment on Hill’s Fourth
Amendment or malicious prosecution claims.

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II.

Conspiracy and Monell Claims
Defendants argue that Hill’s conspiracy and Monell claims fail because he cannot

establish an underlying constitutional violation. We disagree.
To prevail on a conspiracy to deprive constitutional rights under Section 1983,
Hill must show: (1) the individuals reached an agreement to deprive him of his
constitutional rights, and (2) overt acts in furtherance actually deprived him of those
rights. Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015). Under Illinois law,
Hill must show (1) the existence of an agreement between two or more persons (2) to
participate in an unlawful act or a lawful act in an unlawful manner, (3) that an overt
act was performed by one of the parties pursuant to and in furtherance of a common
scheme, and (4) an injury caused by the unlawful overt act. Lewis v. Lead Indus. Ass'n,
2020 IL 124107, ¶ 20.
A government entity can be held liable under Section 1983 when the execution
of a government policy or custom inflicts an injury on a plaintiff. Monell, 436 U.S. at
694. However, a municipality cannot be held liable solely on the grounds of respondeat
superior. Id at 691. “The Supreme Court has recognized three particular grounds on
which a municipality can be held liable under § 1983. There must be: (1) an express
policy that would cause a constitutional deprivation if enforced; (2) a common practice
that is so widespread and well-settled that it constitutes a custom or usage with the force
of law even though it is not authorized by written law or express policy; or (3) an

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allegation that a person with final policy-making authority caused a constitutional
injury.” Rossi v. City of Chicago, 790 F.3d 729, 737 (7th Cir. 2015).
The disputed facts present in Hill’s Fourth Amendment claim also prevent
summary judgment on Hill’s conspiracy and Monell claims. As discussed above, there
are disputed facts regarding the existence of probable cause to arrest and detain Hill.
Thus, a reasonable jury could find that Defendants deprived Hill of his constitutional
rights under the Fourth Amendment. Further, a jury could find that Defendants
fabricated evidence or coerced statements from the co-defendants and witnesses in
furtherance of an agreement to ultimately get Hill convicted for the shootings.
Additionally, the jury could find that the constitutional violation was performed by
Banks, a Deputy Chief of the HPD. Accordingly, Defendants are not entitled to
summary judgment on Hill’s conspiracy or Monell claims.
III.

Immunity
The County Defendants argue they are entitled to absolute prosecutorial

immunity. The Harvey Defendants argue they are entitled to qualified immunity and
immunity under the Immunity Act. We address each in turn.
a.

County Defendants

Reardon and Murillo argue that the undisputed facts show that they are entitled
to absolute immunity as prosecutors. Specifically, Reardon argues that he is entitled to
absolute immunity because he acted as a prosecutor and not an investigator, and that
White’s testimony that he never told Reardon that Hill was present at the shooting
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should be rejected as a matter of law. Murillo argues that he is entitled to absolute
immunity because he did not conduct an independent investigation, but only reviewed
evidence provided to him by HPD. In response, Hill argues that there is evidence
showing that Murillo and Reardon were acting as investigators and not prosecutors. We
agree with Hill that the evidence is not undisputed that Reardon was acting only as a
prosecutor. However, we agree with Murillo that he is entitled to immunity.
Prosecutors have absolute immunity for their core prosecutorial actions, but the
degree of immunity that prosecutors are afforded depends on their activity in a
particular case. Lewis v. Mills, 677 F.3d 324, 330 (7th Cir. 2012). Absolute immunity
is afforded to prosecutors only for the acts they commit within the scope of their
employment as prosecutors. Fields v. Wharrie, 740 F.3d 1107, 1110 (7th Cir. 2014).
However, a prosecutor’s duties often go beyond strictly prosecutorial work to include
investigation, and when they do non-prosecutorial work, they lose their absolute
immunity and receive only qualified immunity. 2 Id. at 1111.
The facts are disputed as to whether Reardon was acting as a prosecutor or an
investigator. First, we do not believe that White’s testimony is such that “no reasonable
person would believe it” as Reardon suggests. See Seshadri v. Kasraian, 130 F.3d 798,
802 (7th Cir. 1997) (“testimony can and should be rejected without a trial if, in the
circumstances, no reasonable person would believe it.”). Given that the disputed facts

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The County Defendants do not argue that they are entitled to qualified immunity.

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suggest that witnesses, such as Bond, may have been influenced by Reardon into
implicating Hill, it is not wholly unreasonable for a jury to believe White’s testimony.
Additionally, the disputed facts suggest that Reardon may have been involved in the
investigation of the shooting while he was at the HPD station. Determining whether
Reardon acted as a prosecutor or investigator, therefore, requires determining witness
credibility and weighing evidence, which are jobs best left to the jury. Accordingly,
Reardon is not entitled to summary judgment based on immunity.
However, the undisputed facts indicate that Murillo is entitled to prosecutorial
immunity. Murillo’s only involvement was that he approved the charges against Hill
based on the evidence that was provided to him by Thomas. This action is squarely
within his role as a prosecutor within the Felony Review Unit of the CCSAO. There is
no evidence that Murillo either knew the evidence was possibly falsified or that
participated in any alleged falsification of evidence. Further, there is no evidence that
Murillo acted as an investigator. Accordingly, Murillo is entitled to summary judgment
based on absolute prosecutorial immunity.
b.

Harvey Defendants

The Harvey Defendants argue that they are entitled to immunity from Hill’s state
law claims under the Immunity Act because the presence of probable cause prevents
any finding of willful and wanton conduct. The Harvey Defendants also argue they are
entitled to qualified immunity for Hill’s federal claims because Hill cannot make out a
violation of a constitutional right. Hill argues that the Harvey Defendants are not
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immune under the Immunity Act because they acted willfully and wantonly to
manufacture probable cause. Hill further argues that a reasonable jury could find that
his Fourth Amendment rights were violated. We agree with Hill.
The Immunity Act provides that “[a] public employee is not liable for his act or
omission in the execution or enforcement of any law unless such act or omission
constitutes willful and wanton conduct.” 745 ILCS 10/2-202. “[S]ection 2-202
immunity is a limited immunity” and its dimensions “are narrower than the scope of a
police officer’s employment of his performance of official functions and duties.”
Aikens v. Morris, 145 Ill. 2d 273, 281 (1991). “[A] public employee is not afforded
section 2-202 immunity for all activities in the performance of his or her duties.” Id. at
278. For the reasons previously discussed, disputed facts exist with Hill’s underlying
Fourth Amendment claim.

Thus, a reasonable jury could find that the Harvey

Defendants acted willfully and wantonly to manufacture evidence implicating Hill in
the shootings.
“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.’” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). This requires the Court to make a two-step inquiry: (1) whether the facts make
out a violation of a constitutional right; and (2) whether the right was clearly established
at the time of the alleged misconduct. Id. at 232. For the reasons set forth above, we
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believe that a reasonable jury could find that Hill’s right to not be held in pretrial
detention without probable cause based on the fabrication of evidence under the Fourth
Amendment was violated. This right has been clearly established since 1978. Lewis v.
City of Chicago, 914 F.3d 472, 477 (7th Cir. 2019) (“It has been clear since at least
Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), that falsifying
the factual basis for a judicial probable-cause determination violates the Fourth
Amendment.”). Accordingly, the Harvey Defendants are not entitled to summary
judgment based on immunity.
CONCLUSION
For the reasons mentioned above, the Court denies the Harvey Defendants’
motion for summary judgment (Dkt. # 154) and grants the County Defendants’ motion
in part (Dkt. # 149). Status is set for 10/22/2020 at 9:50 a.m. It is so ordered.

Dated: 09/29/2020
________________________________
Charles P. Kocoras
United States District Judge

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