Arrington v. City of Chicago, Illinois et al
Filing
33
MEMORANDUM Opinion and Order: For the foregoing reasons, the City's motion to dismiss 15 , is denied. Signed by the Honorable Thomas M. Durkin on 1/30/2018:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JUANITA ARRINGTON, as Independent
Administrator of the Estate of Ronald
Arrington, deceased,
Plaintiff,
No. 17 C 5345
Judge Thomas M. Durkin
v.
CITY OF CHICAGO; OFFICER DEAN W.
EWING,
Defendants.
MEMORANDUM OPINION AND ORDER
Juanita Arrington (“Plaintiff”) brings this action against the City of Chicago
and Chicago Police Officer Dean Ewing in connection with the death of Ronald
Arrington (“Arrington”). Among other claims, Plaintiff alleges that Officer Ewing
used excessive force to apprehend Arrington during a high speed car chase, when
Officer Ewing crashed his police vehicle into the car in which Arrington was a
passenger. Plaintiff also alleges that the City is liable for Arrington’s death under a
Monell theory. The City has moved to dismiss the Monell claim. R. 15. For the
following reasons, that motion is denied.
Legal Standard
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g.,
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). A complaint must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels
and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.’”
Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In
applying this standard, the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
Background
On July 1, 2016, Arrington and two others were passengers in a car driven by
a person suspected of robbery. R. 1-1 at 2 (¶ 5). Illinois State Police officers began
following the car, and a chase ensued. Id. (¶ 7). Apparently in an attempt to assist
in apprehending the driver suspected of robbery, Officer Ewing joined the chase in
his vehicle. Officer Ewing eventually rammed his vehicle into the driver’s side of the
car in which Arrington was a passenger, causing it to roll over and crash. Id. (¶ 8).
Arrington died as a result. Id. at 5 (¶ 15).
2
Plaintiff claims that Officer Ewing’s actions constitute excessive force. Id. at
8-9. Plaintiff also alleges that the City caused Arrington’s death through a practice
of tolerating and covering up the use of excessive force by its police officers. Id. at
10-15. Specifically, Plaintiff alleges that the City had notice of the “routine” use of
excessive force by Chicago police officers. Id. at 11 (¶ 15). In support of this
allegation, Plaintiff cites six instances of excessive force verdicts and settlements
(including five shootings and one high speed chase). Id. at 12-13 (¶ 22).
Plaintiff alleges that the City enables this custom of excessive force in the
police department through a “code of silence” involving “a widespread practice of
[City law enforcement] employees testifying dishonestly, making false reports,
hiding and destroying evidence, failing to require official reports of official police
activities, and/or failing to require complete and honest reports.” Id. at 11 (¶¶ 1617). Plaintiff alleges that such conduct occurred in Arrington’s case when “[Officer]
Ewing and other City employees [falsely] reported that the [car] in which [Arrington
was] riding . . . struck [Officer Ewing’s] vehicle.” Id. at 11 (¶ 20). Plaintiff also
alleges that the City has failed to honestly and properly investigate or document
three of the six instances of excessive force identified in the complaint. Id. at 12-13
(¶ 22). Further, according to Plaintiff, an investigator with the City’s Independent
Police Review Authority, Lorenzo Davis, was fired in 2015 “because he determined
that several police shootings were unjustified and refused to change the conclusions
in his reports” when directed to do so by his supervisor. Id. at 13-14 (¶ 23).
3
More specifically, Plaintiff alleges that the City’s procedures for investigating
claims of excessive force enable police officers to elude discipline or punishment by
giving them the opportunity to conform their account of alleged excessive force
incidents to the evidence discovered by investigators. Plaintiff makes the following
allegations in this regard: “CPD detectives assigned to investigate police shootings
provide [Fraternal Order of Police] representatives access to and information about
police involved shootings. . . . [which] is passed . . . between lawyers and accused
CPD officers. . . . [allowing officers to] craft false narratives about police shootings
that do not conflict,” id. at 14 (¶ 24); “CPD and IPRA permit witness and accused
officers to be represented by the same counsel and FOP representatives during
official statements, who take breaks from being on the record to set their clients’
stories straight,” id. (¶ 25); and “officers who use deadly force . . . are not required to
draft a contemporaneous narrative of what occurred . . . . until after the officer
(through his representatives) . . . [has] the opportunity to review all reasonably
available evidence so that the police can tell stories that do not conflict with
themselves or the evidence,” id. (¶ 26).
Analysis
I.
Applicable Law
“The usual way in which an unconstitutional policy is inferred, in the absence
of direct evidence, is by showing a series of bad acts and inviting the court to infer
from them that the policymaking level of government was bound to have noticed
what was going on and by failing to do anything must have encouraged or at least
4
condoned, thus in either event adopting, the misconduct of subordinate officers.”
Jackson v. Marion County, 66 F.3d 151, 152 (7th Cir. 1995). “When this method of
proof is used, proof of a single act of misconduct will not suffice; for it is the series
that lays the premise of the system of inference.” Id.; see also Gill v. City of
Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017) (“the plaintiff must demonstrate that
the practice is widespread and that the specific violations complained of were not
isolated incidents,” by “provid[ing] examples of [other individuals in the defendant’s
position of municipal authority] taking actions similar to those complained of,” or
“plausibly alleg[ing] that such examples exist”); Thomas v. Cook County Sheriff’s
Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (“[T]here is no clear consensus as to how
frequently [certain] conduct must occur to impose Monell liability [under the custom
and practice theory], except that it must be more than one instance, or even three.”).
Applying this method of proof to an excessive force claim, the Seventh Circuit has
held that a plaintiff must “establish[] that the City’s policymakers knew that the
police were using objectively unreasonable force in apprehending suspects”—by
demonstrating that “excessive force is common” in the relevant jurisdiction—yet the
policymakers “did nothing to solve the problem.” Dye v. Wargo, 253 F.3d 296, 299
(7th Cir. 2001).
However, a municipal entity also can be liable for constitutional injuries
without reference to a series of bad acts if it can be shown that the injury is a
“highly predictable consequence” of a municipal custom or practice. See Bd. of Cty.
Com’rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997) (also described as a “plainly
5
obvious consequence”). Furthermore, the “high degree of predictability may also
support an inference of causation—that the municipality’s [custom or practice] led
directly to the very consequence that was so predictable.” Id. at 409-10. The
Seventh Circuit recently applied this logic to hold that a “standard printed form” for
obtaining warrants created by the Chicago Police Department, which invited
officers to obtain warrants without constitutionally sufficient evidence, was a
sufficient basis to plausibly allege municipal liability under Monell. See White v.
City of Chicago, 829 F.3d 837, 844 (7th Cir. 2016). In accordance with Supreme
Court precedent eschewing the need to allege a series of bad acts in such
circumstances, the court held that the plaintiff in that case “was not required to
identify every other or even one other individual who had been arrested pursuant to
a warrant obtained through the complained-of process.” Id.
At bottom, both methods of pleading Monell claims—the series of bad acts,
and the highly predictable consequence—require allegations permitting a plausible
inference that the municipal entity had notice that its employees were engaging in a
custom or practice of unconstitutional behavior. The municipal entity’s liability then
flows from its failure to take action to prevent that custom or practice from injuring
the plaintiff.
In this case, Plaintiff appears to attempt to allege liability under both the
“series of bad acts” and the “highly predictable consequence” theories of Monell
liability. The Court addresses each in turn.
6
II.
Series of Bad Acts
In an attempt to plausibly allege a series of bad acts, the Plaintiff cites six
examples of excessive force verdicts or settlements concerning actions of Chicago
police officers in addition to Arrington’s case. But Chicago is a City of more than 2.7
million people 1 that employs approximately 12,000 police officers. 2 Moreover, the
seven examples Plaintiff cites took place over a 13 year period. The Court questions
whether these allegations alone are sufficient to plausibly infer that excessive force
is so common among Chicago’s police force that the City should have been on notice
of such a custom or practice. 3
Nevertheless, as is widely known in the Chicago legal community, the
Department of Justice completed a report dated January 13, 2017 finding that the
Chicago Police Department “engages in a pattern or practice of unconstitutional use
of force.” See DOJ Report at 22. This finding was based on a review of Chicago
Police Department and IPRA records concerning incidents between January 2011
See U.S. Census Bureau, American FactFinder website, https://factfinder.census
.gov/faces/nav/jsf/pages/index.xhtml# (last visited Jan. 29, 2018).
1
See U.S. Department of Justice, Investigation of the Chicago Police Department
(Jan. 13, 2017), at 17, available at https://www.justice.gov/opa/file/925846/download
(last visited Jan. 29, 2018) (“DOJ Report”).
2
The Court acknowledges that it held that a plaintiff had plausibly stated a Monell
claim on fewer alleged examples of unconstitutional conduct in Karney v. City of
Naperville, 2016 WL 6082354, at *10-13 (N.D. Ill. Oct. 18, 2016). But that case
concerned the City of Naperville, which has a population of about 145,000, and a
police department that employs 275 people, only a portion of whom are patrol
officers. See City of Naperville Police Department website https://www.
naperville.il.us/services/naperville-police-department/about-the-police-department/
(last visited Jan. 29, 2018). The Court finds this comparatively lower population of
citizens and number of officers significant.
3
7
and April 2016. See DOJ Report at 22-25. Although the Justice Department’s
conclusion was not available to the City until January 2017, the evidence on which
the report is based was readily available to City policymakers in the period of time
preceding the incident causing Arrington’s death. This evidence is more than
sufficient to plausibly infer that the City has a custom or practice of tolerating or
enabling the use of excessive force by its police officers, and that the City was on
notice of this custom or practice during the relevant time period prior to Arrington’s
death.
Plaintiff did not cite the DOJ Report in her complaint. But the Seventh
Circuit has held that government reports such as the DOJ Report at issue here can
be admissible evidence of municipal notice relevant to a Monell claim. See Daniel v.
Cook County, 833 F.3d 728, 740-42 (7th Cir. 2016) (citing cases); see also Simmons
v. City of Chicago, 2017 WL 3704844, at *7-8 (N.D. Ill. Aug. 28, 2017) (finding the
DOJ Report admissible at trial on a Monell claim against the City); LaPorta v. City
of Chicago, 2017 WL 4340094, at *13 (N.D. Ill. Sept. 29, 2017) (finding a report by
the City’s Police Accountability Task Force a basis to deny summary judgment on a
Monell claim alleging that a “code of silence” exists in the Chicago Police
Department). Furthermore, the Seventh Circuit has held that it is proper for courts
to take judicial notice of public records on a motion to dismiss pursuant to Rule
12(b)(6) without converting it to a motion for summary judgment. See Henson v.
CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994) (“Despite the express language
of [Rule] 12(b), we recently held that ‘[t]he district court may also take judicial
8
notice of matters of public record’ without converting a 12(b)(6) motion into a motion
for summary judgment.” (citing cases)); Tuduj v. Sanofi-Aventis U.S. LLC, 2018 WL
286765, at *1 (7th Cir. Jan. 4, 2018) (“We construe the complaint in the light most
favorable to the plaintiff [ ], accepting as true all well-[pleaded] facts alleged, taking
judicial notice of matters within the public record, and drawing all reasonable
inferences in the plaintiff[‘s] favor.”). And as this Court has said before with regard
to Monell pleading, “the Court cannot bury its head in the sand to the fact that
other incidents and/or complaints . . . in fact exist.” Klinger v. City of Chicago, 2017
WL 3394722, at *4 (N.D. Ill. Aug. 8, 2017). In this case, where Plaintiff alleges that
the City enables or condones a custom or practice of excessive force among its police
officers, the DOJ Report citing evidence that such a custom or practice does in fact
exist is a sufficient basis for Plaintiff’s Monell claim to proceed. 4
III.
Highly Predictable Consequence
Even if the DOJ Report did not exist or was insufficient to demonstrate a
“series of bad acts” putting the City on notice, the Court finds that Plaintiff has
plausibly alleged a custom or practice by the City of which excessive force is a
highly predictable consequence. Plaintiff alleges that the City perpetuates the
The Court acknowledges that Judge St. Eve recently rejected the DOJ Report as a
basis to plausibly allege failure-to-train and failure-to-discipline Monell claims
against the City. See Carmona v. City of Chicago, 2018 WL 306664, at *3 (N.D. Ill.
Jan. 5, 2018). But in that case, the plaintiff alleged “that police officers illegally
handcuffed and interrogated him in a hospital bed and arrested him without
probable cause.” Id. Judge St. Eve held that the plaintiff failed to show “how the
deficiencies described in the [DOJ Report] relate to [his] claim.” Id. No such
disconnect is present here, where Plaintiff alleges a custom or practice of excessive
force among Chicago police officers, and the DOJ Report found such a custom or
practice.
4
9
custom of excessive force among its police officers by allowing internal investigatory
procedures to provide accused officers an opportunity to conform their account of
alleged excessive force incidents to the evidence discovered by investigators. This
alleged customary opportunity for officers to get their stories straight plausibly
assured Officer Ewing that he could use excessive force in his pursuit of Arrington
and not worry about being meaningfully disciplined or punished. Another court in
this district recently found that similar allegations were sufficient to plausibly
demonstrate that the City’s practices were the moving force behind the individual
officer’s actions in an excessive force case. See Turner v. M.B. Fin. Bank, 2017 WL
4390367, at *8-9 (N.D. Ill. Oct. 3, 2017). 5 This Court also finds plausible Plaintiff’s
In Turner, the court described the plaintiff’s allegations against the City as
follows:
5
Plaintiffs allege that “[a]s a matter of both policy and
practice, the Chicago Police Department directly
encourages, and is thereby the moving force behind, the
very type of misconduct at issue here by failing to
adequately train, supervise and control its officers, such
that its failure to do so manifests deliberate
indifference.” Id. ¶ 44(a). They allege that Defendant
“facilitates the very type of misconduct at issue here by
failing to adequately investigate, punish and discipline
prior instances of similar conduct, thereby leading
Chicago Police Officers to believe their actions will not be
scrutinized and, in that way, directly encouraging future
abuses such as those affecting Plaintiff.” Id. ¶ 44(b). They
contend that “officers of the Chicago Police Department
abuse citizens in a manner similar to that alleged by
Plaintiffs in this Count on a frequent basis, yet the
Chicago Police Department makes findings of wrongdoing
in a disproportionately small number of cases.” Id. ¶ 44(c).
Moreover, Defendant is “aware of,” “condone[s],” and
“facilitate[s]” by [“]their inaction a ‘code of silence’ in the
10
allegation that by allowing investigatory procedures that permit an accused officer
to cover up instances of excessive force, the City sends a message to officers that it
condones overly aggressive and unconstitutional policing, thereby causing officers to
use excessive force when they might not otherwise if they knew they would be held
fully accountable for such actions.
In opposition, the City argues that Plaintiff’s allegations are insufficient
because she does not provide examples of the City’s use of faulty investigatory
procedures. In support of this argument, the City cites two cases in which courts in
this district dismissed Monell claims for failure to allege a sufficient number of
other instances of misconduct necessary to plausibly allege a custom or practice. See
Hill v. City of Chicago, 2014 WL 1978407 (N.D. Ill. May 14, 2014); Kowalski v.
County of DuPage, 2013 WL 4027049 (N.D. Ill. Aug. 7, 2013). The Monell claims in
both of those cases, however, were premised on a theory that the police department
failed to train its officers to use procedures in accordance with constitutional
restrictions. The Supreme Court has held that failure to train claims require a
Chicago Police Department.” Id. ¶ 44(d). In particular,
“officers routinely fail to report instances of police
misconduct and lie to protect each other,” are not
disciplined for this behavior, and Defendant has “failed to
act to remedy the patterns of abuse” despite its knowledge
of these problems. Id. ¶ 44(e).
2017 WL 4390367, at *8. The court in Turner found these allegations plausibly
stated a claim against the City for excessive force because “the City fails to
adequately investigate and punish past instances of excessive force by police, which
has the effect of condoning and encouraging excessive force by police in the future,
such as the alleged excessive force that occurred here.” Id. at *9. The court held
that, “[a]lthough borderline, there are enough factual allegations in the . . .
complaint to ‘nudge’ this claim ‘across the line from conceivable to plausibly.’” Id.
11
certain number of instances of officer misconduct in order to plausibly allege a
custom or practice. See Connick v. Thompson, 563 U.S. 51, 62 (2011). But Plaintiff’s
claim against the City is not for a failure to train (a stray allegation aside (see R. 1-1
at 14 (¶ 27))). Rather, Plaintiff’s “highly predictable consequence” theory alleges
that the City actively enables the use of excessive force by maintaining loopholes in
its investigatory procedures that permit officers to conform their stories to the facts,
and provides specific examples of what those loopholes are. As discussed, this is not
the type of Monell claim that requires allegation of multiple examples. See Stokes v.
Ewing, 2017 WL 2224882, at *4 (N.D. Ill. May 22, 2017) (“In this case, Stokes
alleges the City’s complicity not in failing to train, supervise, or prevent misconduct,
but in establishing a widespread custom or implicit policy that licenses
unconstitutional conduct. A ‘series of bad acts’ is not required to state such a
claim.”). Thus, the cases the City cites are inapposite. 6
The City also argues that Plaintiff’s claim of investigatory procedures that
protect officers from excessive force claims is insufficient because it is based on
“broad conclusory allegations about the investigative practices of the Chicago Police
Department detectives and a former IPRA investigator.” But a “conclusory”
allegation is one that reaches a legal conclusion. As detailed above, Plaintiff does
not merely allege that the City’s investigatory procedures encourage excessive force.
That allegation alone is conclusory. Plaintiff, however, goes on to make several
The City also cites Johnson v. Sheriff of Cook County, 2015 WL 1942724 (N.D. Ill.
Apr. 24, 2015), in which the Cook County Jail was alleged to have failed to provide
prescription medication to inmates. This factual scenario has little relevance to this
case.
12
6
factual allegations about specific customs and practices the City employs to
investigate allegations of excessive force, and how those customs and practices
permit police officers to protect themselves from discipline or punishment. See R. 11 at 14 (¶¶ 24-26). Contrary to the City’s attempt to dismiss these allegations as
“conclusory,” they are allegations of fact, which is what is required under Twombly
to make a claim plausible. Of course, the City may contend that these allegations
are false. But that is not the question on a motion pursuant to Rule 12(b)(6).
The City also attacks Plaintiff’s Monell claim by separately arguing that
“Plaintiff does not sufficiently allege a widespread practice of false reporting,” R. 15
at 7; that “Plaintiff failed to set forth a widespread practice of failure to adequately
document claims,” id. at 9; and that “Plaintiff failed to allege a widespread practice
of failure to discipline officers when they commit perjury and false reports,” id. at
11. This is another way of arguing that Plaintiff’s allegations are conclusory. But as
discussed, Plaintiff provides additional factual details about how the City conducts
excessive force investigations. It is certainly plausible that the alleged opportunity
for officers to be privy to the facts discovered by investigators would result in
widespread false reporting and inadequate documentation. Furthermore, a failure
to discipline is inherent in these allegations.
Lastly, the City argues that even if the police department has a custom of
condoning excessive force and protecting officers accused of excessive force, it
“strains plausibility” to allege that this policy was the moving force behind the
crash at issue here. See R. 29 at 11. The City contends that Officer Ewing would not
13
“choose” to “ram” his vehicle into another vehicle at high speed, because it is “an act
totally against self-preservation.” R. 15 at 8. But it is not implausible for a police
officer to engage in a high speed chase. Indeed, the Chicago police department has
issued a general order to its officers regarding when it is permissible to engage in a
high speed chase. See General Order G03-03-01. 7 The Court also does not find it
implausible that in certain circumstances, an officer might use his vehicle to impede
a fleeing suspect’s vehicle, and such an action could plausibly be the basis for an
excessive force claim. Although it is danger of a different kind, the Court is not
convinced that using a police vehicle to impede the escape of a suspect’s vehicle is
necessarily any more dangerous than other circumstances police officers face in the
course of their duties, at least such that it pushes Plaintiff’s Monell causation
allegations out of the realm of plausibility. To the extent the City condones or
enables police officers to use excessive force, the fact that Officer Ewing is alleged to
have used his vehicle to commit the act of excessive force—as opposed to his fist or
gun—does not undermine the causation element of Plaintiff’s Monell claim.
Conclusion
For the foregoing reasons, the City’s motion to dismiss, R. 15, is denied.
ENTERED:
Dated: January 30, 2018
______________________________
Honorable Thomas M. Durkin
United States District Judge
Available at http://directives.chicagopolice.org/directives/data/a7a57be2-1291920c54712-9192-aecb02ef17e0c47d.pdf?hl=true (last visited Jan. 29, 2018).
14
7
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?